Employment Case Law Update February 2024

employment case law update

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Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.

 

Increases in employment tribunal compensation limits from 6 April 2024

Individuals bringing employment tribunal claims in the UK will see a notable increase in the maximum compensation they can be awarded.

Under the Employment Rights (Increase of Limits) Order 2024, the following limits will apply from 6 April 2024:

  • The maximum compensatory award rises from £105,707 to £115,115, allowing individuals to potentially recover higher compensation for losses suffered due to unfair dismissal, discrimination, or other employment tribunal claims.
  • The limit on a week’s pay is increasing from £643 to £700, impacting calculations for various awards, including basic awards for unfair dismissal and statutory redundancy payments.
  • For some types of unfair dismissal claims, the minimum basic award is increasing from £7,836 to £8,533.
  • The daily statutory guarantee payment for employees laid off or subjected to short-time working increases from £35 to £38.

 

Employer takeaways

The increased potential costs should incentivise employers to maintain fair practices and avoid actions leading to successful tribunal claims.

 

Fire & rehire: revised Code of Practice

In February 2024, the Government published a revised Code of Practice for employers on ‘firing & rehiring‘. The guidance is largely unchanged from the draft Code initially published in January 2023, although some changes have been implemented following public consultation. The Code is now awaiting Parliamentary approval, potentially taking effect later in 2024.

The key provisions for employers include:

  • Employers must make sure that the right people are receiving information from them and are consulted as required, whether they be trade union representatives, employee representatives, or individual workers. This will be contingent upon the situation as well as any relevant legal requirements.
  • Employers are required to give workers as much information as they reasonably can, as soon as they reasonably can, so that they can examine the proposed changes, understand the rationale behind them, and submit counterproposals. The Code sets out the details that an employer must think about giving, including the identities of persons who will be impacted by proposed changes and the rationale behind them.
  • The parties should engage in good faith consultation on the proposed adjustments for as long as is reasonably possible in order to get to a mutually agreeable conclusion. All viable alternatives should be seriously taken into consideration by the employer.
  • Employers are not allowed to use the threat of termination as a ‘bargaining chip’ to place undue pressure on an employee when they are not considering termination as a means of accomplishing their goals. They can also not bring up the possibility of dismissal and re-engagement excessively early. Re-engagement and dismissal should be a measure of last resort.
    When it becomes evident that some or all of the suggested changes will not be accepted by those affected, the employer ought to reconsider its plans while considering input from relevant parties. The Code outlines several considerations that an employer must make during this re-examination process, including the potential drawbacks of implementing the suggested changes, the possibility that some workers may be more negatively impacted than others, and whether there are any other options for accomplishing the goals.
  • Before discussing with employees the possibility of termination and reengagement, the employer should first contact Acas.

 

Employer takeaways

While there is no specific legal claim for failing to meet the standards under the Code, in the event of relevant claims, such as unfair dismissal, tribunals can impose a potential uplift of up to 25% in compensation for unreasonable failure by an employer to follow the Code.

 

New guidance on menopause in the workplace

The Equality and Human Rights Commission has published new menopause guidelines for employers, setting out possible support options and the consequences for employers failing to meet their legal obligations under the Equality Act 2010. Failure to comply with these guidelines could lead to legal action, including discrimination claims and financial penalties.

The Equality Act 2010 protects workers from unlawful direct and indirect discrimination, harassment and victimisation on the basis of protected characteristics including disability, age and sex.

Under current laws, the menopause itself is not protected under the Equality Act as a disability. However, the new guidelines clarify that when menopause symptoms can be shown to have a long-term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they could be considered a qualifying disability under the Equality Act. This then places a legal duty on the employer to make reasonable adjustments.

Employers must also ensure they meet their obligations under health and safety legislation to conduct an assessment of their workplace risks.

The guidelines offer practical advice for employers across areas such as making reasonable adjustments and fostering positive conversations about menopause:

  • The guidelines recognise that menopause symptoms can in some cases be severe enough to qualify as a disability under the Equality Act 2010. This means employers have a legal duty to make reasonable adjustments for affected employees.
  • The guidelines emphasise individual needs and encourage open communication between employees and employers to determine suitable adjustments. Examples of adjustments could include:
    • Providing flexible working arrangements such as flexibility of location and varying shift patterns
    • Providing rest areas and quiet rooms
    • Introducing temperature control measures such as cooling systems or fans for women experiencing hot flushes
    • Relaxing uniform policies
    • Providing cooler clothing
  • Employers are encouraged to train managers and staff on menopause awareness, promoting understanding and empathy. Resources and support mechanisms should be readily available for women experiencing menopause symptoms.

 

Employer takeaways

The new menopause guidelines mark a significant step towards creating a fairer and more inclusive workplace for women experiencing menopause. By understanding their legal obligations, implementing recommended support measures, and fostering open communication, employers can navigate this change effectively and contribute to a better working environment for all through measures such as:

  • Creating a comprehensive menopause policy outlining support measures, escalation procedures, and training plans is crucial.
  • Fostering open communication and encouraging dialogue about menopause is key to identifying needs and ensuring effective support. Collaboration between employers, employee groups, and policymakers can drive positive change in workplace culture and policies.
  • Employers should move beyond reactive case-by-case management and adopt a proactive approach to supporting menopausal employees.
  • Implementing these guidelines can not only improve employee well-being and reduce legal risks but also enhance productivity and employee loyalty.

 

Reasonable adjustments in tribunal proceedings

Bella v Barclays Execution Services

The claimant had disabilities including PTSD, sleep problems, anxiety, and depression.
He requested permission from the Employment Tribunal to record a preliminary hearing that lasted three days. The application was denied by the Employment Judge because he was not persuaded by the supporting evidence or that the appellant would suffer a substantial disadvantage, notably since he had taken part in other hearings that had not been recorded.

The claimant appealed.

The EAT held that the tribunal’s decision was unlawful and that the claimant’s reasonable adjustment should have been accepted.

By law, the Employment Tribunal is under a duty to make reasonable adjustments in favour of claimants in appropriate circumstances given its status as an institution of the state.

The EAT noted that in this case, the tribunal had been too “dismissive” to take into consideration the evidence that the claimant’s therapist had provided.

Further, the tribunal should have questioned whether or not the adjustment that was sought would have eliminated the disadvantage that the claimant was experiencing. The disadvantage would not have been eliminated by the options that were provided by the tribunal, which were that the tribunal record the hearing or that the claimant may take a written note. That is because the claimant would not have been able to write a note due to the problems he was experiencing, and he would not have had rapid access to the recording of the tribunal.

Regarding the recording, there was no indication that it would cause any disruption to the hearing or that the recording would have been used by the claimant for any prohibited purpose.

 

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, we can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 29 February 2024

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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