July 2023

Automatic unfair dismissal – a day 1 risk

A recent employment tribunal case serves as a reminder that, although employees with less than 2 years’ service do not have the right to claim ordinary unfair dismissal, they are still able to claim unfair dismissal if the reason for their dismissal is an automatically unfair one. In the case of Howson v Restore the claimant was employed as a manager at a charity shop. She worked 35 hours per week but was only paid for 30 hours per week by her employer. After having worked there for less than 6 months she queried this with HR and a director. Shortly after, she was invited to what was termed an ‘informal meeting’ at which she was dismissed. The tribunal found that the claimant’s emails about her wages were “the principal reason for her dismissal” and that she had been automatically unfairly dismissed for asserting a statutory right.

The employer may have thought that formalities could be dispensed with as the employee had less than 2 years’ service but, because the real reason for her dismissal was an automatically unfair one, it was still liable. Whenever employers are looking at dismissing employees with less than 2 years’ service they should take time to consider any risks of automatic unfairness and also any discrimination risk as legal rights in both of these areas accrue from day 1 of the employment relationship.

Statutory minimum notice: an introduction

It is always best to expressly set out details relating to notice pay on termination of employment in the contract of employment itself. But what happens if nothing is put in writing? In such cases the parties would need to fall back on the minimum notice provisions which are set-out in common law and in sections 86-91 of the Employment Rights Act 1996. We have set-out below 5 key facts about these provisions:

• The minimum notice which an employee must give to an employer after the first month of employment is 1 week. The minimum notice which an employer must give to an employee in the first year of employment (after the first month has elapsed) is 1 week, rising with each additional complete year of employment up to a maximum of 12 weeks after 12 years.
• Technically, there is no minimum notice period which must be given by either party in the first month of employment. If the contract of employment doesn’t set out anything different then either party can usually (subject to the ‘reasonable notice’ point detailed below) end the employment with no notice during the first month of the relationship.
• Where it is reasonable to do so, the court may imply a longer notice period than the Employment Rights Act 1996 requires. What constitutes ‘reasonable notice’ is decided on a case-by-case basis looking at factors such as the typical notice period for the job; the notice period of any colleagues and the employee’s status and seniority. For example, a one month ‘reasonable notice’ period was implied by the courts for a hospital manager (Hall v John Randall Associates) and a three month period was implied for a company director (Free Newspapers Limited v Urwin).
• There are quirky rules relating to the payment of notice pay where an employee is absent from work at the point that notice is given. They result in those with longer notice periods being potentially worse off. If the notice period to be given by the employer is statutory minimum notice or less than one week more than that minimum then, if an employee is absent during the notice period (either on family leave, sick leave or holidays), they are entitled to receive full pay for their notice period.
• If the notice period to be given by the employer is at least one week more than the statutory minimum then, if they are absent during the notice period due to sickness, family leave or holiday, they are only entitled to what they would usually receive for such absences (e.g. statutory sick pay, statutory maternity pay etc….).

Neonatal Leave and Protection from Redundancy Bills get Royal Assent

Under new laws which have recently received Royal Assent, parents will receive additional support in relation to neonatal care and additional workplace protection from redundancy during pregnancy and family leave.

Under the Protection from Redundancy (Pregnancy and Family Leave) Act, pregnant women and new parents will see an extension of existing redundancy protections, to cover pregnancy and a period of time after parents return to work. Currently, parents are only protected from redundancy whilst on maternity leave, adoption leave or shared parental leave.

The Neonatal Care (Leave and Pay) Act will allow parents whose newborn baby is admitted to neonatal care to take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave. The length of leave and statutory neonatal pay will be based on how long their baby receives neonatal care, and will apply if their baby receives neonatal care for more than seven continuous days before they reach 28 days old.

Both of these new laws will require secondary legislation to implement them so are not likely to come into effect until next year.

Working in hot weather

The UK’s historically wet and cool climate means that businesses here are not used to having to worry about hot weather and its impact on employees and workers. However, global temperatures are rising and the UK has seen record temperatures and prolonged hot spells both in 2022 and, most recently, in June 2023. What do employers need to know about working in hot weather? Here are some handy hints:

• There is no maximum temperature beyond which employees are not required to work in the UK. Regulation 7 of The Workplace (Health, Safety and Welfare) Regulations 1992 (the 1992 Regulations) states that the temperature in all workplaces inside buildings shall be ‘reasonable’. There is no equivalent provision for outdoor workplaces.
• The Management of Health and Safety at Work Regulations 1999 require employers to make a suitable assessment of the risks to the health and safety of their employees and take action where necessary and where reasonably practicable. This obligation applies to the risks posed by extreme heat. Employers should assess the risk posed in their workplace and look at what mitigation measures they can put in place.
• Examples of measures which could be taken to reduce health and safety risk include the provision of fans; moving working hours where possible to avoid employees needing to work in the heat of the day; making sure that water is accessible at all times and relaxing rules on uniform.
• Employers should take special care when considering the risk posed by heat to pregnant workers and any employees with disabilities. If hot weather prevents a disabled employee from carrying out their role then the employer would need to look at what adjustments it could reasonably make to allow that employee to be able to work.

Harassment – you cannot be harassed if you were not aware of the conduct in question

In the recent case of Greasley-Adams v Royal Mail Group Limited the claimant attempted to argue that he had suffered harassment by reason of conduct which he was not aware of at the time it occurred. He only became aware of the conduct when it was revealed as part of a bullying & harassment investigation against him.

The Employment tribunal dismissed his harassment claim. The EAT agreed with the tribunal and held that these incidents could not have violated the claimant’s dignity before the time at which he became aware of them. It also held that when he did become aware of them as part of the investigation into his alleged bullying, it was not reasonable for them to be considered as having violated his dignity.

This case confirms that harassment under the Equality Act 2010 takes place when the complainant becomes aware of the unwanted conduct, rather than when the conduct occurs.

The right to be accompanied

There are specific legal rules about employees’ rights to bring someone with them to work meetings.

• The right to be accompanied applies to disciplinary and capability hearings (including appeal hearings) at which a formal warning, dismissal or some other formal sanction is being considered. It also applies to grievance and grievance appeal hearings. 
• The right is to reasonably request to be accompanied at a hearing. A request is only going to be regarded as unreasonable in very limited circumstances.
• Employees can choose to be accompanied by either a work colleague, a workplace trade union representative who is certified or trained to act as a companion or an official employed by a trade union. The trade union does not need to be recognised by the employer and the employee does not need to be a member of the trade union. 
• There is no easy tool which employers can use to check the identity of a companion who accompanies as a workplace trade union representative. Employers can ask for evidence of certification and/or training. If this is not provided or concerns remain then employers can contact the trade union direct to seek information. The scope to refuse a chosen companion is very narrow so a lack of available credentials should not usually result in a chosen companion being refused.
• If the employee’s chosen companion is not available then the employee has the right to ask for the meeting to be re-arranged for an alternative time within 5 working days following the original time set. If the employee’s chosen companion is not available at all in the 5 day window then, depending on the circumstances and the length of time that the companion will be unavailable, a further delay should be considered to make sure that the employer is not found to have refused a reasonable request.
• Companions can address the hearing and confer with the employee during the hearing. They have no right to answer questions on the employee’s behalf.
• Employees can bring a stand-alone claim if they believe that their employer has refused a reasonable request that they be accompanied. Compensation is limited to 2 week’s pay (subject to the statutory cap on a week’s pay). Any refusal can also impact on unfair dismissal claims as a failure to allow an employee to be accompanied will be a factor pointing to procedural unfairness.
• Employers should always check their policies and employment contracts for any references to the right to be accompanied which extend beyond the legal obligations in this area.

BSI introduces a new standard on menopause and menstruation at work

The British Standards Institution (BSI) has introduced a new standard (BS 30416) aiming to support the health and well-being of all employees who menstruate or experience peri/menopause. The BSI notes that workplaces were first created at a time when women were only a minority of the workforce and were not prioritised by employers. Workplaces and working practices have therefore usually been designed by men, for men and workplaces have, even now, not always been transformed to accommodate or support the specific needs of those who menstruate or experience peri/menopause. It lists actions such as:

• Making adjustments to uniforms, PPE and working patterns
• Providing suitable facilities in which employees can access menstrual products
• Creating a supportive culture
• Appointing workplace menstruation and menopause advocates
• Recognising that not all experiences of menopause and menstruation are the same

The new standard provides a useful starting point for employers who want to be supportive of these issues in the workplace but are looking for a framework from which to start.

Key facts about redundancies

A new survey from ACAS reports that over 40% of large employers and 20% of small and medium sized employers are planning to make redundancies in the next 12 months. Here are some key facts to get you started:

• A redundancy situation arises where a business closes, a workplace closes or where an employer has a reduced requirement for employees to carry out a particular kind of work.
• Redundancy is recognised in law as a potentially fair reason to dismiss an employee but the redundancy situation must be genuine and the employer must act fairly to avoid unfair dismissal claims.
• Redundancies can be stand-alone (where a single position or an entire cohort of employees are at risk) or they may involve pooling. Pooling applies where there is a reduced requirement for employees who do a particular kind of work but the requirement has not ceased entirely. Employers must act fairly in deciding who to keep. This can be done by applying selection criteria to the pool or, in some cases, by way of structured interview.
• Care should be taken to make sure that selection criteria are not discriminatory. Objective criteria are less open to challenge than subjective criteria but are quite restrictive. It may be reasonable to amend the application of selection criteria in some circumstances (for example, ignoring disability or pregnancy related absences when scoring employees against an attendance criteria). Employers need to have fairness at the forefront of their minds when scoring.
• Selection criteria should be discussed with employees and agreed if possible.
• Consideration should be given to having more than one person carrying-out the scoring against selection criteria to avoid allegations of bias.
• In addition to the normal sums payable when an employee is dismissed (notice pay, holiday pay etc…), those with over 2 years’ service will be entitled to receive a statutory redundancy payment. This is calculated using a formula which combines age, length of service and a week’s pay (subject to an annually reviewed cap). Some employers also pay enhanced contractual redundancy pay in addition.
• Employers have a duty to consider alternative employment for employees who are at risk of redundancy. Employees can risk losing their right to a redundancy payment if they unreasonably refuse a suitable alternative job.
• Employees who are on maternity leave when a redundancy situation arises have additional rights. Specifically, they must be offered any suitable alternative employment that exists in advance of any other employees. This is a rare example of positive discrimination in UK employment law.
• Where 20 or more employees are proposed to be made redundant in a 90-day period, special rules apply to the redundancy process including a requirement to consult with representatives for a period of at least 30 days (rising to 45 days if 100 or more redundancies are proposed). This is known as collective redundancy.

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.