December 2023 – Practical perspectives

Guidance on ‘heat of the moment’ resignations

In the recent case of Omar v Epping Forest District Citizens Advice, the Employment Appeal Tribunal provided guidance on ‘heat of the moment’ resignations. Previous cases establish that, where a resignation is offered in the ‘heat of the moment’, the employee should, in certain circumstances, be allowed to retract it. In the case itself, the Claimant had verbally resigned during a heated discussion with his line manager. He later sought to retract his resignation, arguing that it had been tendered in the heat of the moment. However, the Respondent contended that his resignation should stand and his employment came to an end. The Claimant claimed unfair dismissal.

The key preliminary issue was whether the Claimant’s purported verbal ‘resignation’ was effective. The EAT reviewed the authorities in this area and gave the following guidance on ‘heat of the moment’ resignations (which is also relevant to ‘heat of the moment’ dismissals):

1. A notice of resignation, once effectively given, cannot be unilaterally retracted.
2. You should look at words of resignation objectively in all the circumstances of the case.
3. The circumstances that may be considered, include anything that would have affected the way in which the language used would have been understood by a reasonable bystander.
4. The subjective understanding of the recipient is relevant but not determinative.
5. It is not enough if the party expresses an intention to resign in future. The reasonable bystander, in the position of the recipient, must understand from the words used that the speaker is actually resigning.
6. The reasonable bystander, in the position of the recipient, must feel that the resignation was ‘seriously meant’, ‘really intended’ or ‘conscious and rational’.
7. You should assess whether the words appear to have been ‘really intended’ at the point in time that they were said.
8. Evidence about what happened afterwards is relevant, but the longer the time that elapses, the more likely that any evidence will be evidence of a subsequent impermissible change of mind, rather than of the intention at the time.
9. For the tribunal in each case, it is a question of fact which side of the line a case falls.

Key facts about accent discrimination

• Accent is not a protected characteristic under the Equality Act 2010. This means that employees cannot claim that they have been less favourably treated or harassed because of their accent.
• Those who are treated differently because of their accent are not, however, completely unprotected. If their accent is linked to their ethnic or national origin, then any discrimination could be caught under the protected characteristic of ‘race’. If their accent could be connected to their sex or sexual orientation, then any discrimination could be caught under the protected characteristics of ‘sex’ or ‘sexual orientation’.
• Regional accents are not protected as ‘regional origin’ is not considered to fall under the umbrella heading of ‘race’ under the Equality Act 2010. However, if an employer treats an employee less favourably because of their regional accent, takes unjustified action against them on account of their regional accent or, if the employee is harassed in the course of employment, then this could still form the basis of a constructive unfair dismissal claim. If the behaviour of the employer breached the implied term of mutual trust and confidence, then an employee with over 2 years’ service could resign and claim constructive unfair dismissal.
• If an employee has a strong accent and this is causing problems with clear and efficient communication in the workplace, then it is potentially possible for the employer to defend any resulting discrimination claim (and likely any constructive dismissal claim). In order to do this, the employer would need to be able to justify the action taken by reference to the needs of the business. The action would also need to be proportionate. Employers should tread very carefully.
• Although regional accents are not currently covered under discrimination laws in the UK, the TUC has called for ‘class’ to be a protected characteristic. If this is introduced, such protection would likely extend to accents as an indicator of socio-economic or class status.

Five key facts about fixed-term workers in the UK

Fixed-term workers in the UK are employees who have a contract of employment, but the contract ends when a specific task is finished, or a specific date is reached. Here are five key facts about fixed-term workers in the UK:

1. Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, fixed-term employees in the UK have the right to not be treated less favourably than comparable permanent employees.
2. Apprentices are generally employed on fixed term contracts linked to the duration of their apprenticeships, but they are not covered by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.
3. Fixed-term employees have a free-standing right to be informed of any permanent vacancies in the establishment at which they work. Vacancies should appear in an advertisement which the employee has a reasonable opportunity of reading in the course of their employment, or the employee should be given reasonable notification of the vacancy in some other way. 
4. After four years on a fixed-term contract, a worker in the UK has the right to become a permanent employee, unless the employer can justify renewing the fixed-term contract.
5. Fixed-term employees have the same redundancy rights as permanent employees, provided they have the necessary period of continuous employment (which is usually 2 years).

‘New deal for working people’ – Labour plans to introduce right to disconnect if it wins the next election

The Labour Party have published their ‘New deal for working people’, outlining the changes they propose to make to employment law if they win the next election. Alongside high-profile proposals, such as scrapping the 2 year qualifying period for ordinary unfair dismissal, they have also pledged to introduce the ‘right to disconnect’. The proposal is short on detail but could mean that employers will find themselves restricted from contacting workers outside of normal working hours to better protect employees’ work-life balance. Other jurisdictions have already embraced this idea to a greater or lesser extent. In France, businesses with over 50 employees must offer the right to disconnect. In Ontario Canada, the right applies to all those working in businesses with over 25 employees.

No detail is provided as to how this right would be implemented by a Labour government in the UK, and what enforcement measures might be put in place to ensure compliance. The UK already has an opt-out of the 48 hour working week for working time – perhaps employees will equally be able to opt-out of the right to disconnect? If so, the right is unlikely to have a significant impact on workplace culture.

There are potential issues with the proposal, for both employers and employees. Employers in some sectors rely upon employees being available out-of-hours and at short notice. This is often rewarded by way of higher salary and benefits. From an employee’s point of view, as businesses adopt a wider range of agile working solutions in the aftermath of COVID-19, having prescriptive disconnection times may not work for some employees. Those who work condensed or flexible hours may want to be connected outside of the normal working day.

Unless and until we have a change of government, these proposals are unlikely to gain much traction. However, the fact that they are being proposed at all should prompt employers to look carefully at their own positions on flexibility and work-life balance. Much can be achieved in terms of employee engagement and job satisfaction, by employers focusing on these areas regardless of what the law may require them to do.

Employers must take challenges suffered by dyslexic employees seriously

Dyslexia is a learning difficulty which can amount to a disability under the Equality Act 2010 if it has a substantial adverse impact on an employee’s ability to carry-out day to day activities.

The British Dyslexia Association explains that dyslexia is a specific learning difficulty, which primarily affects reading and writing skills. However, it does not only affect these skills. It explains that dyslexia is actually about information processing. Dyslexic people may have difficulty processing and remembering information they see and hear, which can affect learning. Dyslexia can also impact other areas such as organisational skills.

Dyslexia does not come with ‘one size fits all’ symptoms and, for that reason, it is very important that employers are on the look-out for employees who may be affected by the condition. Two recent cases illustrate the issues that an employer can face if they do not make adjustments when they are aware, or should have been aware, that an employee suffered from dyslexia.

In Bryce v Sentry Consulting Limited, the Claimant was a security guard who suffered from dyslexia. One of the ways it impacted him was a difficulty in reading digital clocks. He was repeatedly late for work. When his employer questioned this, he explained that his lateness was due to dyslexia and asked for some leeway in his start-time each day. He was not offered any more work. He was successful in his claims for discrimination arising from a disability and failure to make reasonable adjustments. The requirement to be on time placed the Claimant at a substantial disadvantage when compared with employees who did not suffer from dyslexia.

In Jandhu v Marks & Spencer, the Claimant received a low score for behaviour in a redundancy selection process and was dismissed. Factors taken into account when scoring against this criteria included issues which were held to be a direct result of her dyslexia (such as mistakes/errors, difficulty balancing workload and drafting emails in bullet points). The Respondent had failed to make reasonable adjustments to the scoring process, to remove the disadvantage suffered by the Claimant by reason of her disability of dyslexia.

These cases are a reminder to employers of the importance of considering what reasonable adjustments can be made to accommodate employees with dyslexia. Dyslexia impacts each person differently. Expert advice should be sought from Occupational Health where appropriate.

Employee eye care: What employers need to know

Employers have legal obligations towards employees who use Display Screen Equipment (DSE) as part of their job role. DSE includes devices such as laptops, monitors and smartphones. The legal responsibilities kick in towards any employees that are required to use DSE for more than one hour daily.

The rules are set out in the Health and Safety (Display Screen Equipment) Regulations 1992. Requirements include:

• Analysing workstations to assess and reduce risks.
• Making sure controls are in place.
• Providing eye and eyesight tests on request, and special spectacles if needed.
• Reviewing the assessment when the user or DSE changes.

The requirements in relation to eye tests include responsibility for covering the cost of such tests, and of any particular lenses or frames which are identified as required for DSE use as a result. Where an employee already wears glasses and they need to change lenses, if the glasses are adequate for the work on DSE, then you do not need to pay for the cost.

It is recommended that you assess the risks associated with using DSE and any special needs of individual staff. You should use your assessment to decide what needs to be done and check what action should be taken, making a record of any significant findings. The risk assessment should be reviewed and updated regularly, to take account of any change in circumstances or new DSE equipment brought into use.

Government announces new minimum wage rates to apply from April 2024

The Government has announced that it has accepted the Low Pay Commission’s recommendations on minimum wage rates to apply from 1 April 2024.  The result is the largest ever increase in the minimum wage in cash terms and the first time it has increased by more than £1. Significantly, the National Living Wage will apply to all workers aged 21 and over for the first time (it had only previously applied to those aged 23 and over). The rates from 1 April 2024 are as follows:

• National Living Wage for workers aged 21 and over will increase to £11.44 per hour.
  • For workers aged 18-20 inclusive the rate will increase to £8.60 per hour.
  • For workers aged 16-17 inclusive and those on apprenticeships the rate will increase to £6.40 per hour.
  • The daily rate for accommodation offset will rise to £9.99.

A reminder of the importance of early consultation in redundancy cases

In the recent case of Joseph de Bank Haycocks v ADP RPO UK Limited, the Employment Appeal Tribunal reminded employers that it is an important general principle that consultation in a redundancy situation should take place at a formative stage. In this case, the workforce was not consulted about redundancy proposals and the Claimant was not provided with either the criteria for selection, or his scores against the criteria, prior to being dismissed for redundancy. He was provided with this information on appeal. The EAT held this was not reasonable and the dismissal was found to be unfair. The EAT also held that the fact that a full appeal took place at which the Claimant was able to contest his scores, did not, in this case, correct the failure to meaningfully consult at the formative stage. It held that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the Claimant’s own scores), it could not repair [the] gap of consultation in the formative stage’.

The EAT went on to review the case law in this area and set out the following guiding principles for fair redundancy consultation:

• The employer will normally warn and consult either the employees affected or their representative.
• A fair consultation occurs when proposals are at a formative stage and where adequate information, and adequate time in which to respond, is given along with conscientious consideration being given to the response.
• In consultation, the purpose is to avoid dismissal or ameliorate the impact.
• A redundancy process must be viewed as a whole, and an appeal may correct an earlier failing making the process reasonable.
• It is a question of fact and degree as to whether consultation is adequate, and it is not automatically unfair that there is a lack of consultation in a particular respect.
• Any particular aspect of consultation, such as the provision of scoring, is not essential to a fair process.
• The use of a scoring system does not automatically make a process fair.
• The relevance or otherwise of individual scores, will relate to the specific complaints raised in the case.

Direct race discrimination: You can’t choose as an actual comparator someone whose circumstances are materially different to your own

In the case of Hughes v Virgin Active Limited, the Claimant worked for the respondent as a manager of a gym. He was summarily dismissed and brought various claims against the Respondent, including unfair dismissal and direct race discrimination. One of the reasons for his dismissal was that he was found to have made an offensive comment to a colleague related to her nationality (Iranian). He claimed that this was direct race discrimination and pointed out that another colleague had not been investigated, after she said to the claimant that he was only taking action against her because she was “old, black and fat”.

The tribunal agreed that this difference in treatment, when compared with an actual comparator, meant that the burden of proof had shifted to the Respondent to disprove discrimination.

The EAT disagreed. They found that the tribunal had failed to consider whether there were any material differences between the circumstances of the Claimant and his chosen ‘actual’ comparator. If they had done so they would have found that the Claimant’s comment related to his colleague’s race. His comparator’s comment related to her own race. The EAT found that the circumstances did appear to be materially different such that the tribunal should not have treated this as a case involving an actual comparator.

And finally…

It is certainly true that workplaces have generally become more relaxed and agile places following the pandemic, but it would appear, from the results of a recent survey, that this relaxed approach may be being taken a little too far. A survey of 1,035 employees and 500 employers by Indeed, found that the average employee now wears pyjamas to work 46 days a year! No doubt this figure is made up predominantly of those who can work from home and who are only ‘seen’ by colleagues and clients from the waist up in online meetings.

The results of this survey show that, even if an employer has a stated dress code, it is very difficult to extend that dress code outside of the confines of the physical office. It is unlikely to be reasonable to require employees to take a ‘selfie’ each day to prove that they have got dressed and are no longer wearing their PJs! A pragmatic approach may be to ‘say nothing of it’, provided that what employees choose to wear on their ‘working from home’ days is not visible and has no impact on productivity or business reputation.

Disclaimer: This post is for information purposes only.  Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage. 

This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.