Welcome to your quarterly employment law bulletin from Roots HR.
This quarter we update you on…
Family leave pay – rate increases from April 2024
The Government has announced that, with effect from 7th April 2024, the rate of a week’s pay for the purpose of calculating family leave in the UK will rise.
The new rate of £183.04 per week impacts statutory maternity pay, shared parental leave pay, adoption pay, paternity pay, and parental bereavement pay.
£183.04 is the maximum amount payable per week under the statutory regimes. Employees receive their actual pay each week if this is lower.
Extension of redundancy protection for pregnant employees and those on family leave
The law has, for a long time, given extra protection from redundancy to those on maternity, adoption, or shared parental leave. They have the right of first refusal of any suitable alternative roles which exist in a redundancy situation.
This protection is, from April 2024, being extended by the Protection from Redundancy (Pregnancy and Family Leave) Act 2023.
The table below sets out the current position and how it is changing:
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The previous position
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The changes
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When did the change take effect from?
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Pregnancy
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No protection.
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Protected from the date that the employee informs the employer of her pregnancy for the full period of pregnancy.
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Where the employer is informed of the pregnancy on or after 6th April 2024
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Maternity Leave
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Protected during the period of absence on maternity leave only.
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Protected for the period of 18 months from the first day of the estimated week of childbirth (EWC). The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer of the actual date of birth in writing during their maternity leave period.
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Where the maternity leave ends on or after 6th April 2024
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Adoption Leave
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Protected during the period of absence on adoption leave only.
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Protected for the period of 18 months from the date of placement for adoption.
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Where the adoption leave ends on or after 6th April 2024
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Shared Parental Leave
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Protected during the period of absence on shared parental leave only.
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Protected for the period of 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 continuous weeks of Shared Parental Leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above.
Protected during period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken.
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Where the period of 6 continuous weeks of shared parental leave starts on or after 6th April 2024
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Where an employee suffers a miscarriage before 24 weeks of pregnancy then they will have protection during their pregnancy and for a 2-week period following miscarriage. If they miscarry after 24 weeks of pregnancy then this is classed as a still birth, they are entitled to maternity leave, and they will have the same protection as any other employee taking maternity leave.
Policies will need to be updated to take account of this change and any personnel involved in redundancy consultation need to be informed of the new extended protection for these categories of employee.
5 things every employer should know about pregnant employees
Employment law recognises that pregnant employees have a unique position in the workplace and need unique protection as a result.
5 things every employer should know about pregnant employees:
- Risk assessment – Under Regulation 16(2) Management of Health and Safety at Work Regulations 1999 all employers must assess workplace risks and alter working conditions or hours of work to avoid any significant risk to the health and safety of new or expectant mothers in the workplace.
- Automatic unfair dismissal – During pregnancy a woman is automatically unfairly dismissed (so no need for two years’ qualifying service) if her dismissal is connected with her pregnancy (s99 Employment Rights Act 1996).
- Redundancy protection – Where an employer is informed of an employee’s pregnancy on or after 6th April 2024, a new law means that the employee has additional protection from redundancy for the full period of their pregnancy. She must be given first refusal of any available suitable alternative jobs if a redundancy situation arises.
- Discrimination – Pregnant employees are protected from being treated unfavourably because of their pregnancy. The employee doesn’t need to show that she has been treated ‘less favourably’ than someone who isn’t pregnant – no comparator is required.
- Time off for ante natal appointments – pregnant employees are entitled to paid time off to attend ante natal appointments.
Disability discrimination: Reasonable adjustments
Where an employer knows (or ought to know) an employee is disabled, the duty to make reasonable adjustments applies. Employers must make reasonable adjustments to remove any substantial disadvantage that the employee would otherwise face at work because of their disability.
In the recent case of Miller v Rentokil, the Employment Appeal Tribunal (EAT) looked at whether it was a reasonable adjustment to place an employee in an alternative role (when their disability meant that they could no longer perform their original role) – even though the employee had been unsuccessful in their application for that alternative role.
The Claimant worked as a field-based pest controller. After being diagnosed with multiple sclerosis, he could no longer work in this role. He couldn’t work at heights (which made up around 40% of his role) and could only work slowly.
The Respondent looked at other jobs in the organisation and the Claimant applied for an Administrator role. He was unsuccessful following an interview process and was dismissed.
The Claimant claimed that failing to place him in the Administrator role on a trial basis amounted to a failure to make reasonable adjustments under Equality Act 2010. The tribunal upheld his claim.
On appeal, the EAT agreed with the tribunal. The Claimant was placed at a substantial disadvantage because of his disability – he could no longer carry out his duties in his field-based role. Moving the Claimant to an alternative role was a reasonable adjustment which would remove that disadvantage. The Claimant had shown that the alternative role was potentially appropriate and suitable. The burden then passed to the Respondent to show that it was not reasonable to have put the employee into that role. The tribunal concluded that they hadn’t been able to show this, especially as they had not even given it a go on a trial basis.
Where an alternative role is an option which will avoid a substantial disadvantage to a disabled employee, employers need to tread very carefully if they choose not to offer it. Employers need to be able to put forward compelling arguments why the alternative role is not suitable. Allowing the employee to take-on the role on a trial basis is always a good idea. If the role is unsuitable, then the trial will provide important evidence to support this. If the role is suitable, then the adjustment is a reasonable one and the employer should make it permanent.
Top tips for handling underperforming employees
Employers need their employees to perform effectively and productively in their roles. A functioning workforce is key to business success. What should you do if you have an employee who is underperforming? Here are our top tips:
- Make sure the employee knows what is expected of them. You can only manage performance effectively if you can point to clear communication of the requirements of the role. Job descriptions are a good starting point, together with a robust training and appraisal process.
- Nip issues in the bud. If a performance issue arises then discuss it with the employee straightaway.
- Check if there are any underlying reasons for a drop in performance before taking any formal steps. If an employee has previously been a good performer but has hit a dip, then there may be other issues at play. For example, ill health, caring responsibilities, bullying or harassment. These need to be investigated and supported.
- If the employee is or might be disabled and the employer is aware of this, then the duty to make reasonable adjustments kicks in and the employer needs to consider whether reasonable adjustments need to be made to any proposed performance management process.
- If a formal performance management process is necessary, then it should not take place in a vacuum. Setting clear performance targets, offering training and support are all things that the employer can do to support the employee through the process.
- A formal performance management process will generally involve the creation of a performance improvement plan against which the employee’s performance is assessed at intervals. Escalating formal warnings are issued if the employee is unable to hit the targets set. Acas recommends that at least two warnings should be issued before an employer moves to dismiss an employee for poor performance.
- It is not usually appropriate to dismiss an employee for poor performance without going through a structured performance management process first. The exception to this would be where the employee has committed an act of gross negligence. Such circumstances will be very rare.
- The employee has the right to be accompanied by a work colleague or trade union representative at any performance management meetings which could lead to a formal disciplinary warning or dismissal.
- The Acas Code of Practice applies to any ultimate decision to dismiss on grounds of poor performance. Employers should be aware of what the Acas Code requires. Tribunals can uplift compensation in any resulting claim by up to 25% if it is not followed.
And finally
Supporting wellbeing in the workplace is of increasing importance to employers. One hot topic is how those going through menopause or perimenopause can be best supported.
Avanti West Coast’s latest attempt to tackle this may have resulted in a bit of an ‘own goal’. They have come under fire after handing out a goodie bag to female employees containing ‘gimmick’ gifts. Avanti confirmed that it had given staff a bag filled with ‘gifts’ including a jelly baby ‘in case you feel like biting someone’s head off’, a paper clip ‘to help you keep it all together’, a tissue ‘if you’re feeling a bit emotional’ and a pencil ‘to write down the things you might forget’. Other items included a fan ‘handy for the hot sweats’.
The Aslef train drivers’ union shared a photo of the list and wrote on X:
‘Avanti the menopause is debilitating for some women, it’s not a joke…Rather than handing out insulting gimmicks to female employees you’d be better placed developing workplace policies and procedures that value and support peri-menopausal and menopausal women!’
A reminder, if one was needed, that employers should think very carefully about the messages that their actions send out. Be aware of the full range of employee experience when dealing with sensitive topics such as menopause.
