January 2024

The importance of early consultation with the workforce in redundancy situations

A recent Employment Appeal Tribunal decision reminds employers that it is important to share redundancy proposals with the workforce at an early stage. Failure to do so could make any resulting dismissals unfair. In Joseph de Bank Haycocks v ADP RPO UK Limited, the Claimant and the wider workforce were not consulted about redundancy proposals before pooling and scoring took place. The criteria for selection and the Claimant’s own scores were not provided to him before his dismissal. This information was, however, provided on appeal. The EAT held that the failure to consult at a formative stage meant that the dismissal was unfair, saying that ‘whilst the appeal could correct any missing aspect of the individual consultation process (e.g. the provision of the claimant’s …scores), it could not repair [the] gap of consultation in the formative stage’.

The EAT 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 the employee is given adequate information and adequate time to respond, along with consideration being given to that response.
in consultation, the purpose is to avoid dismissal or reduce the impact of redundancies.
a redundancy process must be viewed as a whole, and an appeal may correct an earlier failing.
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 make a process fair automatically.
whether it is reasonable to show an employee the scores of others in a pool will be case-specific.

Employers seeking to carry-out a fair consultation process in a redundancy situation should take account of each of the points above and act appropriately from the very moment that redundancies are contemplated.

Gender pay gap reporting

The Office for National Statistics (ONS) has released annual statistics on differences in pay between women and men by age, region, full-time and part-time status and occupation – compiled from its Annual Survey of Hours and Earnings. Its analysis of the gender pay gap is a measure across all jobs in the UK and is different from compulsory gender pay gap reporting by individual organisations.

Among all employees, as of April 2023, the total gender pay gap was 14.3%. This fell slightly from 14.4% in 2022. There remains a significantly higher gender pay gap among employees aged 40 and over, compared with those under 40 years. For age groups under 40 years, the gender pay gap for full-time employees is 4.7% or below. For age groups of full-time employees aged 40 and older, the gender pay gap is much higher, at 10.3% or more. The gender pay gap increased in 2023 across all age groups, except for those aged 18 to 21 years.

The gender pay gap is also larger among higher earners. For those earning at the 90th percentile, it is 14.8%, compared with only 3.1% for the bottom 10% of earners.

How should you deal with time off to donate blood?

Many employees choose to donate blood. Blood donation centres generally open beyond normal office hours so it is arguable that employees should not need to take any time off work in order to donate blood. However, what should you do if you are faced with a request from an employee for time off to donate blood?

Here are some pointers:

does the business already have a policy in place to deal with time off to donate blood during working hours? If so, you should consult this and act accordingly.
if there is no express policy in place, then is there a custom and practice that has been adopted in relation to time off for this reason? If so, then it is a good idea to follow any previous custom. Failing to do so, without good reason, could lead to allegations of unfairness and/or discrimination in appropriate cases. You should act consistently.
if there is no express policy and no obvious custom or practice, then the legal position here is that time off to donate blood is not a legal right. It comes with no entitlement to claim the time off as sick leave – other than the time spent actually donating blood and a short rest period thereafter, the employee will not be prevented by sickness from working.
although there is no legal right to time off to donate blood, you will want to make sure that your managers know how to handle any request. You could choose to adopt a supportive policy, allowing a short amount of paid leave during the working day in order to donate blood. Alternatively, you could make it clear that employees who want to give blood are expected to donate outside of their working hours, except for cases where there is an emergency request for donation.

There are good reputational reasons that you may wish to promote and support time off for blood donation. It is an important civic duty and, if a supportive and encouraging approach is taken, this could increase employee morale.

New legislation means criminal convictions will be ‘spent’ sooner

New legislation has come into force which will mean that criminal convictions will become ‘spent’ after a shorter time, reducing the period that individuals need to declare them to their employers. Section 193 of the Police, Crime, Sentencing and Courts Act 2022 came into force with effect from 28 October 2023 and makes the following key changes to the previous position on declaring custodial convictions:

Type of conviction	Previous length of time required to disclose following completion of sentence	New length of time required to disclose following completion of sentence
Custodial sentences of over 4 years	Never spent	7 years although certain offences are exempt and never spent including offences classified in the Sentencing Code as ‘serious violent, sexual and terrorism offences’
Custodial sentence of between 2 ½ years and 4 years	7 years	4 years
Custodial sentence of between 1 and 2 ½ years	4 years	4 years
Custodial sentence of between 6 months and 1 year	4 years	1 year
Custodial sentence of up to six months	2 years	1 year

These new time periods will be extended in the event of re-offending during the declaration period.

The time periods of required disclosure are altered (and slightly lower) for each category where the offender was under the age of 18 at the time of conviction.

Employers should review any application forms and interview questions to make sure that these changes are reflected. The changes will not impact on any roles where basic or enhanced DBS checks are required.

The Supreme Court confirms an important limitation on trade union recognition rights

In November 2023, the Supreme Court handed down their judgment in the case of Independent Workers Union of Great Britain v CAC. The Union had applied to the CAC for recognition for collective bargaining in respect of a group of riders working for Deliveroo. The CAC had refused to accept the Union’s application, on the basis that the riders were not ‘workers’ of Deliveroo within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. Riders were not required to provide personal service and they were allowed to use substitutes.

The Union appealed the refusal on the basis that it breached Article 11 of the European Convention on Human Rights, arguing that the definition of ‘worker’ in the Act should have been looked at in the light of Article 11. Article 11 protects the right to freedom of association and to form and join a trade union. European case law makes it clear that the Article 11 right to form and join a trade union only exists where there is an ‘employment relationship’ in the European sense. The Supreme Court had to have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 in looking at whether the riders were employees – focusing on a multifactorial approach, looking at performance of the work and remuneration of the worker.

Applying this test, the Supreme Court held that the riders were not in an employment relationship so the provisions of Article 11, which protect trade union activity, did not apply to them. They also confirmed that in any event, the rights protected by Article 11 did not extend to the protection of the right to collective bargaining. The CAC were correct to refuse the application for recognition.

A reminder that contractual agreements can’t be used to get around statutory employment rights

Contractual terms cannot be used to subvert or limit statutory employment rights. Disputes which have their root in statutory employment rights (such as unfair dismissal and discrimination), can only generally be settled through ACAS (using a COT3 agreement) or by signature of a settlement agreement, which complies with the requirements set out in section 203 Employment Rights Act 1996 (including a requirement that legal advice is taken by the employee). This principle was reviewed by the Employment Appeal Tribunal in a recent case.

In SPI Spirits (UK) Limited v Zabelin, the Employment tribunal found that the Claimant had been subjected to detriment and automatically unfairly dismissed on grounds of whistleblowing.

The Respondent argued that it would be ‘just and equitable’ for the Claimant’s remedy to be capped at £270,000, as this was the maximum liability on termination included in the contract of employment. The Respondent argued that the Claimant was legally trained and had taken advice on the contract such that the cap should be applied. They further argued that the award should not be uplifted for failure to follow the ACAS Code of Practice, as the Claimant’s written grievance did not contain any protected disclosures. These were made later – verbally. The tribunal disagreed, applied a 20% uplift to compensation and awarded the Claimant over £1 million. The Respondent appealed.

The EAT agreed with the tribunal:

Any attempt to limit liability for employment claims in contractual documentation will be ineffective (s203 Employment Rights Act 1996).
The fact that the contractual clause was ‘freely negotiated’ did not mean that it would be ‘just and equitable’ to apply the cap. For whistleblowing cases, there is no cap and compensation should reflect the loss caused – the tribunal should not be fettered in its ability to reach an appropriate compensation figure.
Although a grievance needs to be in writing for the ACAS Code to apply, the fact that no protected disclosure was included in the written document itself, did not mean that the ACAS Code on grievances did not apply.
Regardless, the relevant sections of the ACAS Code, in this case, were those that relate to disciplinary proceedings. Where the employer dismisses or takes other action against an employee because, in substance, of what it regards as culpable conduct, the discipline provisions of the ACAS Code will apply.

New holiday pay rules: carry-over

The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 have been published by the government and come into force on 1 January 2024. One of the key areas covered in the Regulations is the question of whether accrued but untaken annual leave can be carried over from one holiday year to the next. The position is set out as follows:

Regulation 13 annual leave (4 weeks per year) will carry-over in the following circumstances:
- if it is unable to be taken due to sickness, as long as it is used within 18 months.
- if it is unable to be taken due to the employee taking statutory leave (e.g. maternity, adoption and shared parental leave) it is carried over to the following holiday year.
- if the right to paid leave is not recognised, then it carries over until one year has elapsed where holiday is taken and paid correctly.
- if the employer doesn’t give reasonable opportunity to take leave or encourage it, then it carries over until one year has elapsed where holiday is taken and paid correctly.
- if the employer doesn’t warn employees of the risks of losing their holiday entitlement at the end of the holiday year, then it carries over until one year has elapsed of it being taken and paid correctly.
The new leave entitlement for part-year and irregular hours workers under Regulation 15B Working Time Regulations 1998 have the same carry-over rules as Regulation 13 leave.
Regulation 13A annual leave (1.6 weeks per year) will carry-over in more limited circumstances: where an employee is absent due to sickness (provided it is taken within 18 months) and where an employee is absent on statutory leave. There is also the possibility of agreeing carry-over of this portion of leave by way of a relevant agreement made with the employee.

Flexible Working to become a day 1 right from April 2024

Employees currently have the right to make a formal flexible working request, only once they have completed 26 weeks’ service with their employer. As far back as 2022, the government indicated their intention to change this rule to make the right to request flexible working a day one employment right. They have now published legislation making good on their promise.

The Flexible Working (Amendment) Regulations 2023 were laid before Parliament in December 2023. They remove the requirement that an employee must have 26 weeks’ service in order to be able to make a request for flexible working, making the right to request flexible working a day one right.

The new right will come into effect for flexible working applications made on or after 6 April 2024. Employers should make sure that flexible working policies are amended to take account of this change.

5 facts about fit notes

Fit notes are the written notification of fitness to work which must be provided by an employee when they are absent from work due to sickness. Here are 5 things you should know about fit notes:

By law, a fit note must be presented to the employer for absences extending beyond seven consecutive days. Employers can choose to include a shorter period in their own policies and contracts. Seven days is the default.
A fit note issued in the first six months of incapacity cannot exceed three months in duration. Aside from this, there is no limit on the length of time for which fit notes can be issued.
The fit note doesn’t contain an unconditional “fit for work” option. Therefore, an eligible healthcare professional can no longer use it to sign an employee back to work with a clean bill of health. Instead, the employee may be declared ‘not fit for work’ or ‘may be fit for work’.
Since 1 July 2022, a wider range of healthcare professionals have been able to sign fit notes. Doctors, registered nurses, occupational therapists, pharmacists, and physiotherapists can all sign them.
Providing a fit note is not a strict requirement for eligibility for statutory sick pay. Employees are able to self-certify their absence for the first seven calendar days for SSP purposes. After that, employers have to have some evidence of incapacity to administer SSP but they are free to decide what form that takes. It does not have to be a fit note (although, in practice, it usually will be).

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.