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The Government has backed a Private Members’ Bill which plans to expand special protection in redundancy situations to pregnant employees and those returning from maternity, adoption and shared parental leave. 

What is the background to these proposals?

Currently, employees absent on either maternity, adoption or shared parental leave are afforded special protection in redundancy situations.  The law provides that before making a woman who is on maternity leave (or an employee on adoption or shared parental leave) redundant, an employer must offer the employee a suitable alternative vacancy, where one is available.  In other words, the employee moves to the front of the queue for such roles, ahead of other colleagues.  If an employer fails to comply with its obligations in this respect, the employee may be able to bring an automatic unfair dismissal claim.

In 2019, the Government consulted on extending this protection to pregnant employees and those who had recently returned to work following a period of maternity, adoption or shared parental leave.  The Queen’s Speech delivered at the end of 2019 outlined plans for a new Employment Bill which would introduce these new rights.

Perhaps unsurprisingly, the Employment Bill fell off the Government’s agenda as a result of the pandemic.   However, in 2021, the Government published its response to the Women and Equalities Committee’s report on the gendered economic impact of Covid-19, stating that it remained committed to bringing forward the Employment Bill and, specifically, that it would extend redundancy protection as planned.

However, the Employment Bill did not materialise.  Three years and two Prime Ministers later, the proposals are back in the spotlight again.  This time, by way of a Private Members’ Bill – the Protection from Redundancy (Pregnancy and Family Leave) Bill – sponsored by the Labour MP, Dan Jarvis.  The Government is backing the new Bill, meaning it has a good chance of getting onto the statute books even though it is a Private Members’ Bill.

What changes would the Bill make to redundancy law?

The Bill itself does not make any changes to redundancy law.  Instead, it would amend the Employment Rights Act 1996 to allow regulations to be made which would expand the protection to cover both pregnant employees and those who have recently returned to work after a period of either maternity, adoption or shared parental leave.

The intention is that a woman would acquire protection from the point at which she notified her employer that she was pregnant.  Typically, a woman will notify her employer of her pregnancy after she has had her three-month scan (although this may be done earlier, for example, if the woman has suffered a history of pregnancy loss or the pregnancy is otherwise regarded as high risk).  Therefore, in most cases, this would translate to protection during pregnancy lasting around six months, at which point the maternity leave period would commence.

The intention is that the protection would also apply for six months after the return to work.  For example, a woman who notified her employer of her pregnancy at the three-month stage and then took 12 months’ maternity leave would be protected for a total period of 24 months (i.e. six months’ protection during pregnancy, 12 months’ protection during maternity leave and six months’ protection upon the return to work).  At present, such a woman would be protected for the 12-month maternity leave period only.

The precise scope and mechanics of these new protections will be set out in the regulations themselves.

What will the changes mean for employers?

With the Government’s support, the Bill passed its second reading in the House of Commons on 21 October 2022.  It will now progress to the Committee stage, which will allow detailed scrutiny of the Bill.  After that, it would move to the Report stage and third reading and then to the House of Lords to start the process all over again.  Even if the Bill passes, the new protections will not be introduced straight away.   Regulations will need to be drafted and laid before Parliament.

Therefore, there are no immediate changes for employers to make in light of the Bill.  However, it would be sensible to work on the assumption that the Bill will pass given the Government’s longstanding commitment to introduce these changes.

Assuming that the Bill passes, and regulations are introduced, employers will need to consider the following points:

• Be mindful that the protection may apply where a woman was pregnant but suffers the loss of the child (for example a miscarriage or a still birth).
• Update any relevant staff-facing procedures and internal guidelines on how to manage a redundancy process.
• Train members of HR, and line managers who will have responsibility for redundancy processes, to ensure that they understand the new rules, know how to apply them and understand the consequences of non-compliance.

We will keep you updated on the progress of the Bill.

Protection from Redundancy (Pregnancy and Family Leave) Bill 2022 – 23

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The Government has backed a Private Members’ Bill aimed at extending the obligations on employers under the Equality Act 2010.  Under the proposals, employers will have a new duty to take all reasonable steps to prevent sexual harassment at work and may be found liable for all forms of harassment (not just sexual harassment) committed by third parties. 

What is the background to these proposals?

The current position is that sexual harassment in the workplace is unlawful and employers and individuals can be found liable in claims brought in the employment tribunal.  However, employers can avoid being found vicariously liable for harassment committed by their workers if they can show that they have taken “all reasonable steps” to prevent such harassment from occurring.  In this context, reasonable steps include things like implementing an anti-harassment policy; providing good quality and regular training to staff; and dealing with complaints effectively.  In practice, most employers elect to take such steps, but there is no legal obligation to do so.

Until October 2013, the Equality Act 2010 contained provisions making employers liable for harassment of their staff by third parties (such as contractors or clients), although liability only arose where the worker had been harassed on at least three occasions.  These provisions were repealed by the Coalition Government on 1 October 2013.  

In July 2021, the Government committed to:

• introduce a new legal duty on employers proactively to take all reasonable steps to protect workers from harassment; and
• reinstate employer’s liability for the harassment of workers by third parties.

A new statutory Code of Practice and guidance was also promised, which would explain the steps that employers needed to take to prevent harassment.  This would supplement the detailed technical guidance on sexual harassment published by the Equality and Human Rights Commission (the EHRC) in January 2020 (you can read our briefing on that guidance here). 

Nearly 18 months later, the Government has taken no action to meet these commitments.  However, the Liberal Democrat MP, Wera Hobhouse, has sponsored a Private Members’ Bill – the Worker Protection (Amendment of Equality Act 2010) Bill – which seeks to drive through these promises.  The Government is backing the new Bill, meaning it has a good chance of getting onto the statute books even though it is a Private Members’ Bill. 

What changes would the Bill make to the law on harassment?

Legal duty to prevent sexual harassment

First, the Bill would amend the Equality Act 2010 to introduce a mandatory duty on employers to take all reasonable steps to prevent sexual harassment of workers “in the course of their employment”.  This would cover sexual harassment occurring in the workplace, but also at work-related events such as work Christmas parties or leaving drinks.

The Bill proposal appears narrower than the Government’s original commitment in that it applies to the prevention of sexual harassment only, and not harassment related to the other protected characteristics in the Equality Act 2010, such as race, sex or age. 

The Bill provides that where an individual succeeds in a claim of sexual harassment against their employer, the employment tribunal must consider whether, and to what extent, the employer has breached the legal duty to prevent sexual harassment.  Where a tribunal concludes that the employer has breached the duty, it may award an uplift to the compensation award.  Any uplift must correlate to the extent of the employer’s breach but may not exceed 25%. 

Where there is no claim before an employment tribunal of sexual harassment by a worker, the employment tribunal will not have jurisdiction to rule on whether an employer has breached its duty.  In this situation, the employer’s duty may only be enforced by the EHRC.

Liability for third party harassment

Second, the Bill would make employers liable for the harassment of a worker by a third party.  This liability is not confined to instances of third-party sexual harassment but covers all types of harassment under the Equality Act 2010 (e.g. on the grounds of race, sex, age, sexual orientation etc).  Liability may also arise the first time that the harassment occurs.  This represents an extension of the previous iteration of third-party harassment protection, where an employer was only liable after three instances of harassment. 

The current “reasonable steps” defence will be extended to cover third-party harassment claims, meaning that where an employer can show that it had taken reasonable steps to prevent the third-party harassment from occurring it will not be liable.  However, if the third-party harassment is sexual harassment, then the legal duty to prevent sexual harassment discussed above will also apply.  If the employer has breached this duty, then compensation may be uplifted by up to 25%.   

What will the changes mean for employers?

With the Government’s support, the Bill passed its second reading in the House of Commons on 21 October 2022.  It will now progress to the Committee stage, which will allow detailed scrutiny of the Bill.  After that, it would move to the Report stage and third reading and then to the House of Lords to start the process all over again.  So, there is still some way to go before this becomes law.  Further, the Bill states that its provisions will come into force one year from the day on which the Act is passed. 

Therefore, the reforms are unlikely to come into force until 2024, meaning that there are no immediate changes for employers to make.  However, it would be sensible to work on the assumption that the Bill will pass given that it has the Government’s backing, and it reflects the Government’s previous commitments.

If the Bill passes, employers will need to be able to demonstrate that they (i) are doing enough to discharge the new duty to prevent sexual harassment at work; and (ii) have taken all reasonable steps to prevent all forms of third-party harassment.  In practice, we suspect that this will translate to taking the following steps:

• Having a good suite of policies in place. The EHRC’s existing guidance recommends having separate policies for sexual harassment and other forms of harassment (or having one clearly delineated policy).  These policies should also cohere with other relevant policies such as disciplinary and social media polices.
• Raising awareness of the anti-harassment policies amongst the workforce. This could mean requiring employers to provide copies to staff at regular intervals and before events where harassment has occurred in the past (e.g. Christmas parties).  The policies should be adapted as appropriate and also shared with third parties such as clients and contractors.  In certain workplaces, it may be appropriate to put a notice on display to alert third parties to the employer’s expectations around the treatment of staff and the consequences of any harassment (e.g. a retailer could state that a customer who harasses a worker will be removed from the store).
• Reviewing the anti-harassment policies every year. Policies should have an annual health check and be updated to reflect any legal changes and trends apparent from internal complaints, staff surveys and/or exit interviews.
• Putting in place methods to detect harassment (including third party harassment). This could include informal one-to-ones, sickness return to work meetings, exit interviews and external reporting systems which allow anonymous reports.  We have previously reported on how some employers are making use of apps which permit real time and anonymous reporting of sexual harassment.
• Providing high quality and regular training to staff.  As a recent decision highlighted, an employer won’t have taken reasonable steps if the training it provides to staff does not pass muster.  Such training should also be tailored to the audience.
• Dealing with harassment complaints effectively. This includes taking appropriate disciplinary action against the perpetrator of the harassment.  Where the perpetrator is a third party, in some cases this may mean ending the relationship with them.

While there will probably be work for all employers to do, in many cases it should not require doing anything radically different to what is already in place.  That said, getting the groundwork done now will mean you are on the front foot if and when these changes come into force.

We will keep you updated on the progress of the Bill.

Worker Protection (Amendment of Equality Act 2010) Bill 2022 – 23

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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With no sign of the Employment Bill promised in 2019, the Government has decided to pursue its reforms of the employment law landscape by way of support for a series of Private Members’ Bills covering flexible working, carer’s leave, neonatal leave and tipping practices

In 2019, the Government promised a new Employment Bill which would make various changes to the employment law framework in the UK.  That Bill appears to have fallen by the wayside and, instead, the Government is backing a series of Private Members’ Bills that seek to bring about some of the reforms.  We discuss four of the new Bills in brief below.  You can also read our detailed briefings on the Bills seeking to reform harassment law and redundancy protection for certain employees here and here. 

Changes to the flexible working framework 

In September 2021, the Government published a consultation setting out its proposals for change to the flexible working framework.  In particular, views were sought on whether the right to request flexible working should become a Day 1 employment right (currently, 26 weeks’ service is required before a statutory request can be made).  You can read our detailed briefing on the consultation here.

The consultation closed on 1 December 2021 and, almost a year later, the Government has still not published a response.  Instead, the Government is backing a Private Members’ Bill sponsored by the Labour MP, Yasmin Quereshi, which seeks to make modest reforms to the flexible working framework. The Employment Relations (Flexible Working) Bill 2022-23, would amend the law:

• to remove the requirement for employees to explain in their request what effect they think it will have on their employer;
• to allow employees to make two flexible working requests per year rather than one;
• to require employers to consult with the employee before refusing a request; and
• to reduce the deadline for an employer’s decision on a flexible working request from three months to two months.

However, the Bill would not take forward the Government’s proposal of making the right to request flexible working a Day 1 right.   Overall, the proposals would make the process slightly easier for employees and slightly more onerous for employers.  The Bill passed its second reading on 28 October 2022 and will now progress to the Committee stage for detailed scrutiny. It is not clear when the reforms will come into force if the Bill eventually passes, but it is unlikely that it would be before the first quarter of 2024 at the earliest.

New right to carer’s leave

In September 2021, the Government published its response to a public consultation on proposals for a new right to carer’s leave.  It confirmed that a Day 1 employment right to one week’s unpaid carer’s leave would be introduced “as soon as Parliamentary time allowed”.  You can read our detailed briefing on the proposals set out in the response here.

Over a year later the legislation has not materialised.  Once again, a Private Members’ Bill is attempting to plug the gap.  The Carer’s Leave Bill, sponsored by the Liberal Democrat MP Wendy Chamberlain, seeks to amend the Employment Rights Act 1996 to allow regulations to be made which would entitle employees to take leave from Day 1 of their employment in order to provide or arrange care for a dependant with a long-term care need.  This would cover anyone caring for a spouse, partner, child, parent or other dependant who needs care because of a disability, old age or illness or injury likely to require at least three months of care.

Where eligible, employees taking carer’s leave will remain entitled to take other relevant forms of leave such as unpaid time off for dependant emergencies or unpaid parental leave.  Eligible employees may also be able to request for temporary (or permanent) flexible working arrangements.

The precise scope and mechanics of the new right would be set out in the regulations, but the Bill provides that the right would be to at least one week’s unpaid leave per year.  Employees will be protected from detriment and dismissal as a result of having taken carer’s leave.  Employees will also be able to bring claims for compensation against employers who unreasonably postpone or prevent the taking of carer’s leave.

The Bill has passed the Committee stage and will now progress the Report stage and third reading on 3 February 2023, before moving to the House of Lords.  If the Bill passes, it is expected that the related regulations will come into force some time in 2024.

New right to neonatal leave and pay

In 2019, the Government consulted on proposals to introduce new rights to neonatal leave and pay.  In March 2020, the Government responded to the consultation and committed to introducing these rights.  In what is a bit of running theme, over two and a half years later no further steps have been taken by the Government.

The Neonatal Care (Leave and Pay) Bill, a Private Members Bill sponsored by the Scottish National Party MP Stuart C McDonald, intends to make these commitments a reality.  The Bill seeks to amend the Employment Rights Act 1996 to allow regulations to be made which would allow employees to take leave from Day 1 of their employment where they are the parent of a baby in neonatal care.  Employees with at least 26 weeks’ continuous service would also be entitled to be paid statutory neonatal pay.

Again, the precise scope and mechanics of the leave rights would be set out in the regulations, but the Bill provides that the right would be to take at least one week’s leave within 68 weeks of the child’s birth.  The level and duration of statutory neonatal pay will also be dealt with in the regulations.

The Bill has passed the Committee Stage and will now progress to the Report stage and third reading on 3 February 2023, before moving to the House of Lords.  If the Bill passes, it is expected that the related regulations will come into force some time in 2024 or early 2025.

Tips, gratuities and service charges to be paid to workers in full

Finally, a proposal of relevance to employers operating in the hospitality sector.  The Employment (Allocation of Tips) Bill, a Private Members Bill sponsored by the Conservative MP, Dean Russell, would require employers to ensure that all tips, gratuities and service charges that it receives, or exercises control over, must be paid to workers in full without deductions by the end of the following month.  The Bill would not cover tips paid directly to workers in cash, where those tips are kept by them.

The Bill would also introduce obligations to ensure the fairness of arrangements to distribute tips among workers, either by the employer or an independent tronc arrangement.  A new Code of Practice on Tipping will provide guidance on how tips should be distributed, and employers will also need to have a written policy on how tips are dealt with in their business.  Workers would have the right to bring a claim against employers who failed to comply with the new rules.

The Bill has passed the Committee Stage and will now progress the Report stage and third reading on 20 January 2023, before moving to the House of Lords.  If the Bill passes, it is expected that the changes will come into force some time in 2024.

What do employers need to do now?

There are no immediate changes for employers given that all of these Bills have some way to go before completing their passage through Parliament.  However, it would be sensible to work on the assumption that the Bills will pass into law given that they have the Government’s backing.  In due course, employers will need to:

• update flexible working policies, practices and training to reflect the changes;
• familiarise themselves with the new carer’s leave and neonatal leave frameworks and prepare policies and deliver training to HR and managers;
• consider whether to enhance the right to carer’s leave and/or neonatal leave, for example, by permitting longer periods of leave and offering enhanced pay; and
• where relevant, familiarise themselves with the new tipping framework and Code of Practice and prepare a policy on company practices on tipping.

We will keep you updated on the progress of all of these Bills.

Employment Relations (Flexible Working) Bill 2022-23

Carer’s Leave Bill 2022-23

Neonatal Care (Leave and Pay) Bill 2022-23

Employment (Allocation of Tips) Bill 2022-23

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

 

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The EAT has held that the dismissal of an employee “vanished” as a consequence of her successful internal appeal of a dismissal decision.  To avoid this outcome, the employee should have withdrawn her appeal in no uncertain terms.  Merely stating that she did not wish to return to work was not enough to constitute the retraction of an appeal. 

What happened in this case?

The Claimant was a Sales Assistant who worked in an Iceland store.  She was dismissed in January 2019 for alleged gross misconduct.  She appealed the decision and asked to be reinstated.  An appeal hearing took place but was adjourned so that further investigations could take place.  In the meantime, the Claimant emailed Iceland to say she had lost trust and confidence in them and no longer wished to return to work.  During the reconvened appeal hearing, the Claimant said that she did not wish to be reinstated but wanted an apology and compensation.

Iceland upheld the appeal against the dismissal.  The Claimant was told that she would be reinstated with continuity of service restored, backpay and a final written warning.  However, she refused to return to work.  Three months later, in July 2019, Iceland dismissed the Claimant for her failure to attend work.  The Claimant brought a claim of unfair dismissal in respect of the January dismissal.  She did not bring a claim about the July dismissal.

Iceland said that the claim was not well-founded because the January dismissal had “vanished” when the appeal was upheld and the Claimant had been reinstated.  The Employment Tribunal agreed, holding that the fact that the Claimant had said she did not want to be reinstated was not enough.  She should have gone further and withdrawn her appeal altogether.  She did not, which meant that she could not escape the consequences of a successful appeal.  The underlying motives, intentions or desires of the Claimant were not relevant.  The Claimant appealed to the EAT.

What was decided?

The Claimant argued that her statements that she did not wish to work for Iceland, and that she only wanted an apology and compensation, were tantamount to a withdrawal of her appeal.

The EAT held that it was well-established that when a contractual right of appeal is exercised, the agreement between the parties is that should the appeal succeed, the employee will be treated as never having been dismissed and will be reinstated with backpay.  This is the objective position, and it does not turn on the employee’s personal motives for appealing, however legitimate (e.g. a desire to “clear their name” or a concern not to risk a deduction to a compensation award for failing to comply with the provisions of the Acas Code of Practice on Disciplinary and Grievance Procedures).

Turning to the question of whether the Claimant’s words were clear enough to amount to a withdrawal, the EAT said they were not.  Although excessive formality was not required, at the very least she could have said “I wish to withdraw my appeal”.  Moreover, the Claimant had accepted before the Tribunal that she had not withdrawn her appeal.

The EAT also noted that the Claimant’s wish not to return to work for Iceland and the pursuit of the appeal were not mutually exclusive.  An employee may pursue an appeal in order to clear their name and/or receive back pay and then resign once they have been reinstated (and potentially claim constructive dismissal).

The outcome was that the Claimant was not dismissed in January 2019 and her claim of unfair dismissal could not proceed.

What are the learning points for employers?

This decision is a useful reminder to employers that if an appeal against a dismissal decision is upheld, the original dismissal will be erased, and the employee will not be able to pursue a claim for unfair dismissal in relation to it.  It would remain open to the employee to resign and claim that they have been constructively dismissed, but this is a riskier claim for the employee as they will first need to show that there had been a fundamental breach of contract by the employer.

Importantly, the decision also tells us that appeal processes should be continued even where an employee says that they have lost trust and confidence and/or that the only remedy they want is compensation and an apology.  Clear words are needed for an appeal to be deemed to have been withdrawn.  Stopping an appeal process withouta clear withdrawal has two negative consequences for employers.  First, it would remove the opportunity to erase a flawed dismissal decision, leaving the door open for an unfair dismissal claim.  Second, it could potentially mean the employer has breached the Acas Code of Practice, which could lead to compensation being increased.

Marangakis v Iceland Food Ltd

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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