18 to 24 March 2024 is Neurodiversity Celebration Week. Founded in 2018, it aims to challenge stereotypes about neurodiversity and create more inclusive environments for neurodivergent individuals. 

“Neurodiversity” refers to the different ways a person’s brain processes information and incorporates thinking styles, such as dyslexia, dyspraxia, autism and ADHD. It is now widely accepted that having a diverse workforce has untold positive benefits and the same is as true of neurodivergence as it is with other characteristics.

In the workplace, employers often approach neurodiversity through the lens of the Equality Act 2010, and the law as it relates to disabilities (i.e., a mental impairment that has a substantial (meaning more than trivial), adverse and long-term effect on an individual’s ability to carry out normal day to day activities). While neurodivergence should not be seen as a deficiency, this approach is usually correct as a matter of law, and allows neurodivergent individuals additional protections in the workplace. However, recognising this on its own is not enough to create inclusive working environments for employees who are neurodiverse. 

So what more should employers be doing? 

At the outset, an important point to be aware of is language. Often, neurodiversity is described as a “hidden disability”, so called because it is not always obvious on sight. Although this may be done with good intentions, the language is arguably exclusionary.

The word “hidden” could suggest there is something deceptive, that individuals are deliberately keeping their neurodiversity a secret. It also suggests that these conditions should not be discussed when in fact the opposite is true. 

Better terminology is that these are “invisible” conditions. 

Conversation and flexibility are key. Different people have different communication styles and preferences, and the same person can have different preferences in different situations. A key part of creating a safer and more inclusive workplace is not to make assumptions about what a person with a particular thinking style needs, but to ask them what they need, when they need it and work with them to implement it. This can only be done effectively if managers are given appropriate training in understanding differences in communication styles and how to communicate in a neuro-inclusive manner.

Sometimes, employers may feel confused and even burdened by the duty to make reasonable adjustments. This does not need to be the case. This duty is not supposed to be a shackle for employers, it is supposed to be a positive action, a way of giving some extra help to enable employees to do their job to the best of their ability (which benefits the employer). Crucially, the requirement is to do what is “reasonable” in all the circumstances. If the narrative around the duty to make reasonable adjustments changes, more neurodiverse employees will feel comfortable discussing their status with their employer and asking for what they need to alleviate the disadvantage they are experiencing. Some adjustments will be straightforward, such as using neurodiverse friendly formatting in all written communications as standard. Some will admittedly take more resources, such as offering specialist coaching and training. However, the aim of all adjustments is to encourage greater participation in the workforce and neurodiversity should be valued alongside other forms of diversity. 

Once an employer is open to making these cultural changes, it can then put in place practical measures to make that a reality. 

Disability networks and champions are an obvious place to start, making sure there is a person or group of people responsible for driving change. Providing the contact details of this person/group as part of the application process and encouraging neurodiverse candidates to contact them demonstrates a safe and inclusive workplace from the outset and reduces the chance of an employer losing out on high quality candidates for lack of information on the support available. 

The traditional recruitment process of written application forms followed by verbal interviews can be exclusionary. Instead, an employer should stand back and think about what skills candidates need to be able to do the job effectively. It should then think of the different ways in which candidates can demonstrate those skills and tailor the recruitment process accordingly.

A similar process can be undertaken in respect of performance reviews. Technology can help here, for example if high quality written work is an occupational requirement, that does not necessarily need to be demonstrated by typing: dictation software could be used instead.

The most important thing is to involve employees in the process. If the culture is one where employees can ask for what they need and explain why, employers and employees will be able to work together to everyone’s benefit. By embracing neurodivergence, employers can bring extra creativity, different perspectives and expertise to the workplace, as well as significant organisational benefits such as enhanced diversity of thought, improved innovation, better processes and a richer pool of talent.

Embracing neurodiversity is vital for the future of work – employees may feel marginalised by workplace cultures, processes and technology that fails to consider their thinking styles. By adopting more inclusive hiring practices, providing reasonable adjustments and encouraging awareness of neurodiversity throughout the workplace, employers can ensure their organisation doesn’t get left behind.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Clare Brereton (ClareBrereton@bdbf.co.uk) or your usual BDBF contact.

BDBF Managing Associate Samantha Prosser recently featured on ‘Whistleblowing in the NHS’, the fourth episode of the Parrhesia Tapes, a series dedicated to amplifying the voices of whistleblowers and shedding light on the vital work needed across various sectors and institutions.

Samantha joined Sue Allison, who blew the whistle on a Senior Radiologist within her department who repeatedly failed to diagnose women who had breast cancer at NHS Morecambe Bay Trust.

Samantha has specialist experience in advising private and NHS consultants from leading hospitals on whistleblowing and discrimination claims.

View the full podcast below.

https://www.youtube.com/watch?v=OE6CjsB6UhM

In the latest edition of Discrimination Law Association Briefings, BDBF Associate, Amy Hammond, examines the recent Employment Appeal Tribunal (EAT) case of Blanc de Provence Ltd v Miss Thu Lieu Ha, which addresses the legal principles surrounding harassment related to sex under the Equality Act 2010.  

To view the PDF please click on the image below.

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss an employment related issue, please get in touch with your usual BDBF contact or email info@bdbf.co.uk.

To mark International Women’s Day, lawyers at BDBF are each offering one hour’s free legal advice to an employee facing discrimination and/or harassment at work. To make use of this opportunity, book your appointment on International Women’s Day by contacting us on +44(0)20 3828 0350 or at info@bdbf.co.uk.

The small print:

1. Appointments are limited and will be offered on a first come first served basis. Appointments must be booked on International Women’s Day. We will update this post when they have all been filled.
2. Advice will be provided over Zoom or Teams.
3. We will need to undertake a conflict check and can only provide advice where we do not have a conflict of interest.
4. Clients for free legal advice will need to sign our usual retainer letter and complete our onboarding process (including ID checks).
5. We won’t be undertaking any means testing but would like this opportunity to be used by those who might otherwise not be able to access legal advice.

To celebrate International Women’s Day 2024, we sat down with BDBF Partner, Claire Dawson. Claire has over 20 years of experience in employment law and is a recognised leader in her field. She shares her thoughts on what this year’s campaign theme means to her and talks about her career journey.

1. How does this year’s theme of inspiring inclusion resonate with you?

Diversity and inclusion go together in my mind because the more diverse a workplace is, the more likely it is that more of its people will feel included because there is space for all the differences. The converse is that if a workplace is fairly uniform e.g. a very male-dominated team, a woman joining that team may feel like the “outsider.” In my work as an employment lawyer over the years I have certainly seen examples of that. Inclusion is about everyone in the workplace – regardless of their sex, race, ethnic/national background, disability, age, religion, sexual orientation, gender identity and those who hold different viewpoints and beliefs – feeling respected and included.

2. How can employers inspire inclusion in the workplace?

Efforts to promote change in any area in an organisation need to be modelled from the top. All of us who are leaders in organisations ought to think about the example we are setting in the way we interact with colleagues and our networks. That might mean we need more training for leaders and managers including addressing conscious and unconscious biases and behaviours. The words we speak have power and set the tone for the workplace.

Rather than guessing, consult the workforce about what they’d like to see to make their workplace more inclusive. Review policies on diversity and inclusion. What programmes are in place to support career progression for everyone, especially under-represented groups? Mentorship by senior staff can provide vital support, encouragement and career “nous” for junior employees. Offering flexible working – whether in terms of part-time, remote and hybrid working or job-shares – opens up more opportunities for more people and enables employers to attract the best talent.

Encourage people to bring their full selves to work and share aspects of their life outside work (whether that’s family life, culture, religion, voluntary work, hobbies or more) with their colleagues.

3. Have you faced any barriers in your career due to being a woman? If so, how did you overcome them?

I think some of the biggest barriers were ones I imposed on myself – although likely because of how I was socialised as a girl growing up. Imposter Syndrome, not “leaning in”, and not always having the self-belief I see in others. Some of the things that helped: getting clear about what I wanted from work and life, accepting professional opportunities that presented themselves to me and having the courage to take on new challenges, pep talks with colleagues and friends, having some coaching. I’m lucky to have a great network of interesting and successful people from all walks of life who have been sounding boards and cheerleaders.

4. If you could have dinner with three inspirational women, dead or alive, who would they be and why?

Very hard to pick just three women!

Michelle Obama must be on the list. She’s obviously one of the most famous and stylish women in the world and is a woman of substance too: focused on doing good in the world as well as staying true to her roots.

Sinead O’Connor – first and foremost because she was a phenomenal musical talent in addition to her courage in calling out injustice and speaking openly about her personal struggles. I also think she’d be great craic (fun) and might even sing a few songs by the end of the night.

Last but not least, I’d invite my late mum, Eleanor, who inspired me for many years in the way she lived with serious disability and kept involved in work and community for as long as she could.

Friday, 8 March 2024, will mark International Women’s Day. First celebrated in 1911, it is a global day to celebrate the social, economic, cultural and political achievements of women, and to raise awareness about inequalities and discrimination.

International Women’s Day at BDBF

In honour of International Women’s Day, BDBF will be offering one hour’s pro bono legal advice over Zoom/Teams to anyone facing discrimination and/or harassment at work. To make use of this opportunity, book your appointment on International Women’s Day by contacting us on +44(0)20 3828 0350 or at info@bdbf.co.uk. Appointments are limited and will be offered on a first come first served basis.

International Women’s Day 2024 campaign theme

The theme for this year’s International Women’s Day is #InspireInclusion, which aims to create a sense of belonging, relevance and empowerment amongst women by inspiring others to understand and value women’s inclusion.

By actively participating in International Women’s Day, employers can demonstrate their dedication to cultivating an inclusive and diverse environment where every employee has the opportunity to reach their full potential.

It is important to note however, that inclusivity and diversity are not the same thing. It is possible to have a diverse workplace that is not inclusive. Diversity in an organisation leads to better teams, greater innovation and more efficient decision-making; but inclusion is what connects people to the organisation and makes them want to stay. According to the IWD website, inclusion is the active and intentional effort to break down barriers, challenge stereotypes and create an environment where everyone feels welcomed, valued and respected. 

Building a more nurturing environment for women is part of creating a more inclusive workplace overall, so, how can employers inspire inclusion in the workplace?

1. Training: Implement unconscious bias training for all employees. Diversity and inclusion training can help to alleviate discrimination in the workplace, as well as changing perceptions and fostering a more inclusive workplace culture.
2. Conduct a policy review: Review your organisation’s policies on diversity and inclusion. Ensure that your practices and procedures support the professional growth of women and address any disparities that may exist.
3. Run focus groups or employee feedback sessions: It is important to get an employee view on practices, procedures and organisational norms.
4. Promote mentorship: Establish or highlight existing mentorship programmes that support women in their career paths. Encourage senior staff to become mentors and share their knowledge and experiences with women in your organisation.
5. Recognise contributions: Take the time to acknowledge and celebrate the women in your organisation to provide encouragement and to make them feel valued.
6. Develop a collaborative environment: Building a more collaborative environment often encourages and promotes organisation-wide inclusion. 
7. Create a sense of belonging: This allows organisations to establish a connection with their employees and make them feel comfortable bringing their true self to work. As a result, employees can become more creative and build stronger connections with the organisation. 

 

Research shows that diversity and inclusion improves team performance as well as resulting in better recruitment and retention for organisations. Employers who fail to take steps to build a more inclusive workplace miss out on the unique skills and experiences that more inclusive (and diverse) workplaces have to offer.

You can read more about the women’s movement and the various International Women’s Day events on the IWD website.

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss an employment related issue, please get in touch with your usual BDBF contact or email info@bdbf.co.uk.

BDBF Partner Claire Dawson will be attending International Employment Lawyer’s Spring European Employment Summit in Dublin on 7 March 2024.

Since the COVID-19 pandemic, hybrid working has become the norm for many employees. This has given rise to new obstacles in the workplace, including a rise in the prevalence of cyber bullying. This article considers what bullying is, how that might manifest virtually, legal claims that can arise from cyber bullying and tips for employees on how to respond to cyber bullying. 

What is bullying?

There is no legal definition of bullying, but ACAS guidance on bullying at work describes it as unwanted behaviour from a person or group that is either: “Offensive, intimidating, malicious or insulting. An abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.”

It goes further to suggest that bullying might:

• be a regular pattern of behaviour or a one-off incident;
• happen face-to-face, on social media, in emails or calls;
• happen at work or in other work-related situations; or
• not always be obvious or noticed by others.

It also highlights that it is possible for behaviour to amount to bullying, even where the perpetrator did not realise it or did not intend to bully someone.

The guidance goes on to give a number of examples of bullying at work including:

• constantly criticising someone’s work;
• spreading malicious rumours about someone;
• constantly putting someone down in meetings;
• deliberately giving someone a heavier workload than everyone else;
• excluding someone from team social events; or
• putting humiliating, offensive or threatening comments or photos on social media.

How might workplace bullying manifest in the new hybrid world? 

The rise of flexible working and interacting with other employees and bosses in a virtual world has created new ways in which employees may be bullied by their colleagues. This can take the form of cutting remarks during video calls, leaving colleagues out of remote meetings or expelling them (in a Jackie Weaver-style), purposely ignoring another employee’s messages, emails or calls, sending gossipy messages whilst an employee is speaking or presenting, or purposefully removing employees from workplace WhatsApp chats. These incidents may leave an employee feeling humiliated and isolated, and now that employees often have a better work from home set-up, it may be harder for them to escape from a challenging work environment. 

Flexible working has also given rise to a new issue of ‘virtual presenteeism’, where employees are under pressure to always be ‘green’ or online on Teams or Slack and feel under increased scrutiny by bosses for not being online. Micromanagement is an issue that is rooted in lack of trust and confidence between an employee and their manager and may be exacerbated by remote working, as bosses cannot physically see that the employee is working. This kind of treatment may also amount to bullying depending on the circumstances.

Cyber bullying and potential claims

Although there is no legal claim of “bullying”, if cyber bullying is linked to a protected characteristic or of a sexual nature, employees could bring a claim for harassment. 

Under the Equality Act 2010, harassment is defined as unwanted behaviour that must have either violated the person’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for the person. It is evident that instances of cyber bullying could fall under this definition. In the recent case of Ladd v Lily Head Dental Practice Sales Ltd., the Employment Tribunal determined that preventing an employee on maternity leave from accessing the work group chat amounted to discrimination. 

Sexual harassment is unwanted behaviour of a sexual nature. Sexual harassment in a virtual setting can take the form of getting unwarranted requests for video calls at odd hours, making inappropriate comments on an employee’s appearance during a Zoom or Teams meeting or inappropriate messaging and communications through company messaging platforms, such as sending suggestive messages. Polling done by the Rights of Women, a sexual harassment advice line, found that almost half of women being subjected to a workplace sexual harassment now say it is taking place remotely. 

There is also potential that persistent bullying could give rise to a claim for constructive unfair dismissal, where an employee has no option but to resign because of their employer’s actions. For example, in the landmark case of Horkulak v Cantor Fitzgerald International [2003] EWHC 1918 (QB), it was held that a CEO’s campaign of bullying, harassment and intimidation as a feature of an aggressive management style amounted to such a breach of contract. The judge also refused to accept that frequent use of foul and abusive language in the workplace could remove its power to offend and declined to accept that a different standard of conduct applies to an employer who is paying a substantial salary.

Tips if you think you are being bullied: 

If you think you are being cyber bullied: 

• keep accurate contemporaneous notes of bullying incidents and any evidence, such as filing emails and screenshotting communications; 
• you could ask to record Zoom meetings (although this should not be done covertly as this may breach your employer’s policies and result in disciplinary action being taken, so take advice before doing so); 
• make use of the “blocking” or “do not disturb” function outside of working hours to stop colleagues contacting you at inappropriate times; 
• if you feel that you can, speak to the bully about their behaviour – it may be that they are not aware of how their behaviour is affecting you;
• check if your employer has a policy covering bullying and harassment and whether this refers to online bullying; and
• speak to someone in HR on an informal basis or raise a formal grievance.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Noelle van Wyk (NoellevanWyk@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

On 29 January 2024, the Ministry of Justice opened a consultation on proposals to introduce fees in the Employment Tribunal and Employment Appeal Tribunal system.  In this briefing, we remind you of what went wrong with the old fees regime and outline the new proposals.

Haven’t we been here before?

Yes.  Fees were charged in the Tribunal system between July 2013 and July 2017 (the 2013 fees regime).  Under the 2013 fees regime, different fees were charged in the Employment Tribunal for different types of claims.  The fees operated as follows: 

• Simple claims: £160 to issue the claim and £230 to proceed to a hearing (£390 in total); and 
• More complex claims: £250 to issue the claim and £950 to proceed to a hearing (£1,200 in total).

In the EAT, all appeals attracted a fee of £400 to issue the appeal and a fee of £1,200 to proceed to a hearing (£1,600 in total).

What happened to the 2013 fees regime?

The 2013 fees regime caused a dramatic fall in the number of claims brought to the ET.  Case volumes fell by 53% in the 12 months after the introduction of the regime (from 59,000 cases between July 2012-13 to 28,000 cases between July 2013-14).   

In response, the trade union, UNISON, launched judicial review proceedings arguing that the 2013 fees regime: 

• represented an unlawful exercise of the Lord Chancellor’s powers;
• interfered with the right of access to justice; and
• frustrated employment laws and discriminated unlawfully against women and other protected groups.

On 26 July 2017, the Supreme Court upheld UNISON’s challenge, ruling that the fees were unaffordable in practice and rendered non-monetary and low value claims futile – which had the effect of preventing access to justice.  It also held that the regime was indirectly discriminatory against women and other individuals with protected characteristics, who were more likely to bring more complex claims which attracted the higher fees.  The Supreme Court quashed the 2013 fees regime with immediate effect and all fees paid under the system had to be refunded.  The removal of fees led to a steady increase in claims from 18,000 in 2016-17 up to 33,000 in 2022-23.  

What has changed and what is proposed?

The Ministry of Justice says it recognises that the 2013 fees regime “did not strike the right balance” between its policy aims and protecting access to justice and that lessons have been learned.  In light of this, the Consultation sets out a proposal for a new fees regime.  The policy aims are said to be to transfer some of the cost of the Tribunal system from taxpayers to Tribunal users and to incentivise parties to settle their disputes early through Acas, without the need for claims.  

In the Employment Tribunal, the proposal is that claimants would pay a £55 “claim issue fee”, which would cover the entire journey of the claim – there would be no separate hearing fee.  No fees would be payable by respondent employers.  There is also no intention to alter the rules on recovering costs in the Employment Tribunal, meaning that a claimant would only be able to recover the claim issue fee from a respondent in very limited circumstances.

In the EAT, the proposal is that the appellant (which could be either the claimant employee or the respondent employer) would pay a £55 “appeal fee”.  The fee would be payable per judgment, decision, direction or order of an ET being appealed.  For example, if the Notice of Appeal included appeals against two decisions, the total fee payable would be £110.

Will all claimants have to pay the claim issue fee?

No.  The Consultation proposes that the “Help with Fees” remission which operates in the Court and Tribunal system, will be extended to claimants paying a claim issue fee and appellants paying an appeal fee.  A single person with no children would be assessed as follows:

• Gross monthly earnings below £1,420 and disposable capital below £4,250 – full fee remission.

• Gross monthly earnings between £1,420 and £1,520 and disposable capital below £4,250 – partial fee remission.

• Gross monthly earnings in excess of £1,520 and disposable capital below £4,250 – no fee remission.

• Gross monthly earnings of any amount and disposable capital in excess of £4,250 – no fee remission.

Further, in cases where there are multiple claimants (e.g.in a group equal pay claim), only a single claim issue fee of £55 would be payable – it would be up to the claimants to decide how they split the cost.

What’s next?

It is estimated that the new system could generate between £1.3 million to £1.7 million in fees per year, which seems like a drop in the ocean given the direct running costs of the Employment Tribunal and EAT was around £80 million in 2022-23.   It is also estimated that the new system could lead to a 20% reduction in claims to the Employment Tribunal.

The Consultation closes on 25 March 2024, and the intention is that the new fees regime would be implemented by November 2024.  However, we are due a General Election before then, and it is hard to imagine a Labour Government taking a fees regime forward.

Introducing Fees in the Employment Tribunals and the Employment Appeal Tribunal 

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Employers sometimes try to enforce contractual amendments on their workforce by using a “fire and rehire” strategy – terminating employment and offering to hire staff back on the new terms.   A new Statutory Code of Practice regulating this practice will come into force later this year.  In this briefing, we look at the new Code and what it means for employers.

What’s the background?

Back in 2021, the Government asked Acas to investigate the use of fire and rehire practices and in November 2021, Acas released new guidance in this area.  The overall message of the guidance was that fire and rehire should be used as a last resort.  You can read our briefing on the Acas guidance here.

In March 2022, following the P&O Ferries scandal, where 800 employees were dismissed without consultation, the Government announced plans to introduce a new Statutory Code of Practice on the use of fire and rehire practices.   The intention was that the new Code would set the standards for employers to consult meaningfully about proposed contractual changes.  A consultation on a draft Code commenced in January 2023 and closed in April 2023.

On 19 February 2024, the Government published its response to the consultation, together with a revised draft of the new Code.  The Code will be laid before Parliament and, if approved, will come into force in the Summer of 2024.

What does the new Statutory Code require?

Purpose and scope

The Code underlines – as the Acas Guidance does – that firing employees who do not agree to contractual changes and offering to rehire them is a practice which should be used “as a last resort”.   It states that the purpose of the Code is to ensure that employers take “all reasonable steps to explore alternatives” and to engage in “meaningful consultation with a view to reaching an agreed outcome”.   

The Code is said to apply where an employer:

• is considering making changes to one of more of its employees’ contracts of employment (covering both express and implied terms); and
• envisages that, if the employee and/or their representative does not agree to some or all of the changes, it might opt for dismissal and re-engagement in respect of that employee.

The Code applies regardless of the number of employees affected and regardless of the employer’s reasons for the changes.  However, it does not apply where the only reason the employer envisages it might dismiss the employee is redundancy.

General considerations for information-sharing and consultation

The Code provides that where there is a recognised trade union, the employer should provide information to, and consult with, that trade union.  Where there is no recognised trade union, the employer should provide information to, and consult with, either:

• an existing body of employee representatives who could appropriately be consulted;
• representatives chosen to represent employees in consultations on the proposals; and/or
• each of the employees individually.

Employers should ensure that all affected employees are included in the consultation process, including those absent from work, for example on sick leave or maternity leave.

The Code highlights that employers must comply with other applicable legal obligations to provide information to, and consult with, employees, arising, for example, under collective redundancy consultation law or TUPE.

Information to be provided 

Employers should share “as much information regarding the proposals as reasonably possible” with a view to enabling employees to understand the reason for the proposed changes, be able to ask questions and make counter proposals.  Depending on the circumstances, this could include information about the following matters:

• what the proposed changes are (including the proposed new terms);
• who will be affected by the proposed changes;
• the business reasons for the changes; 
• the anticipated timings for the introduction of the proposed changes and the rationale for those timings; 
• any other options that have been considered; and
• the proposed next steps.

The Code says the information should be provided “as early as reasonably possible”, but it does not prescribe a timeline.  It says it is “good practice” for the employer to provide the information in writing but, again, this is not prescribed.

Consultation process

The Code underlines that consultation should not be viewed by employers as a tick-box exercise; it should be conducted openly and in good faith, with genuine consideration given to the points put forward in response.  Employers should be “as clear as possible” about their objectives and the nature of the proposals and consider reasonable alternative proposals.  

The format and length of the consultation process is not prescribed by the Code.  Rather, it is said that employers should consult “for as long as reasonably possible”.  It is noted that a longer consultation period is likely to allow for a more meaningful consultation.  

Raising the prospect of dismissal and re-engagement

The Code states that if the employer intends to fire and offer to rehire in the event that an agreed outcome cannot be reached, the employer should be clear about that.  That said, raising the prospect of dismissal can be detrimental to the consultation process and so employers should not do so “unreasonably early”.  However, no indication is given as to what would be considered unreasonably early.

Wherever the Code applies, the Code states that employers should (not must) contact Acas for advice before raising the prospect of fire and rehire.

Re-examination by the employer

Where agreement cannot be reached, but the employer still considers it needs to implement the changes, the employer should re-examine its proposals, taking into account any feedback from employees and/or their representatives.  

The Code sets out a list of factors that employers should consider, including whether the proposals could have a greater impact on some employees than others (including those with particular protected characteristics) and whether there are any reasonable alternative ways of achieving their objectives.

If changes are agreed 

If the employer and employees reach agreement on the proposed changes, the Code says it is good practice to communicate the changes in writing.  Where there is a change affecting the statutory particulars of employment, the employer must provide a revised statement of particulars within one month of the change.  In practice, the majority of employers would update the employment contract by either providing a new contract or a side letter amending the original contract.

Unilateral imposition of new terms 

If no agreement is reached, the Code notes that some employers would seek to impose the change unilaterally.  Sometimes this is done by relying on an existing contractual term which gives them the power to impose changes.  However, such clauses are not designed to cover major changes and so the Code reminds employers to consider the scope of the term and the legal limitations on using it.

If there is no such term (or the term does not extend to the change proposed), then the imposition of a contractual change will usually amount to a breach of contract.  The Code outlines the risks that could flow from this, including various legal claims.  

On the employee side, the Code highlights that where an employee chooses to work under the new terms under protest, he or she should make it clear to the employer in writing that this is what they are doing and set out the terms that they do not agree to.

Dismissal and re-engagement

The Code highlights that once an employer has completed a thorough information-sharing and consultation process, it might still opt to fire and offer to rehire.  The Code outlines that the need for any such dismissal to be fair in law (where the employee has the requisite service) and for employers to give notice of the dismissal. 

The employer should then set out the new terms in writing (and update statements of particulars as discussed above) and should offer to re-engage the employees “as soon as reasonably possible”.  The Code also suggests that employers should consider:

• whether employees would benefit from more time in order to make arrangements to accommodate the changes;
• whether there is any practical support it might offer such as relocation assistance or career coaching; 
• introducing the changes on a phased basis (where there is more than one change); 
• committing to reviewing the changes at a fixed point in the future;
• inviting feedback about the changes as the employees adapt to them; and
• what might be done to mitigate any negative impacts of employees.

What are the consequences of breaching the Code?

A breach of the Code does not, in itself, expose employers to a legal claim.  However, a breach of the Code may be taken into account by a Court of Tribunal in relevant claims and may count against them.

Further, the Tribunal may:

• increase the amount of compensation awarded by up to 25% if the employer has unreasonably failed to comply with the Code; or
• decrease the amount of compensation awarded by up to 25% if the employee has unreasonably failed to comply with the Code.

The relevant claims include claims for unfair dismissal, breach of contract, discrimination, detriment and unauthorised deductions from wages.

Next steps for employers

All employers should review the new Code of Practice and keep track of the date that it will come into force.  Although the information and consultation process will vary from case to case, it would be sensible for employers to prepare a template letter covering the information outlined by the Code. This skeleton letter could then be adapted to suit different situations and would ensure that all the recommended points are covered.

It would also be sensible to consider the appropriate timelines for providing information and consulting in different cases.  For example, where a proposed fire and rehire would affect just one employee, a process lasting two weeks might be sufficient.  However, where fire and rehire is one option in a wider collective redundancy exercise, then it would probably make sense to track the collective redundancy consultation process timeline (i.e. at least 30 days where between 20 -99 employees are potentially redundant and 45 days where 100+ employees are potentially redundant).

In all cases where the Code applies, employers will need to take care to ensure they keep records of each stage of the process in order to demonstrate compliance with the Code in any future Tribunal proceedings and avoid the risk of an uplift to compensation.

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Draft Code of Practice on dismissal and re-engagement (February 2024)

The Labour Party has said it would introduce a new equality law if it wins the next General Election which, amongst other things, would allow black, Asian and minority ethnic and disabled workers to bring equal pay claims for the first time.

It has been reported that Labour Party plans to introduce a new equality law if it wins the next General Election.  The new law would:

• extend the right to claim equal pay, which currently exists as between men and women, to black, Asian and minority ethnic (BAME) and disabled workers;

• enact the dual discrimination protections which already exist in the Equality Act 2010, but which have not yet been brought into force; and

• require public sector bodies to report on ethnicity pay gaps.

Equal pay

Currently, if a person is discriminated against on the grounds of sex in relation to non-contractual terms, for example, a discretionary bonus, she or he may bring a sex discrimination claim.  However, if she or he is treated less favourably in relation to contractual pay or other benefits (and there is an actual comparator of the opposite sex) the recourse is to bring an “equal pay” claim.  

The law achieves this by implying a “sex equality clause” into the contract of employment, which works by replacing the less favourable terms with the more favourable terms of the comparator’s contract.  The comparator must be employed in the same employment and perform equal work (i.e. like work, work rated as equivalent or work of equal value).  Establishing that work is equal work can be a time-consuming exercise, for example, if a “job evaluation study” is needed in order to compare the roles and the Tribunal process for bringing such claims is lengthy.   If the work is judged not to be equal work, then the claim fails.

Equal pay claims are usually brought in an employment tribunal, which can require payment of arrears of pay up to six years, although there is no ability to make an award in respect of injury to feelings.  The time limit for bringing an equal pay claim is considerably longer than for discrimination claims, standing at six months from the end of the employment contract in which the sex equality clause operates.  Further, such claims may be brought as breach of contract claims in the civil courts, where the time limit is six years from the date of breach of the equality clause.

The Labour Party’s proposal appears to be that a “race equality clause” and a “disability equality clause” will be implied into the contracts of affected employees, which would require them to bring claims about contractual terms where there is an actual comparator as equal pay claims. 

Other than the increased time limit for bringing claims (which is significant), and the ability to bring claims in the civil courts, it is not entirely clear how this proposal improves the position for BAME and disabled workers.  Equal pay claims are notoriously complex, and it is easy to see how claimants will get bogged down in questions of who the correct comparator is and whether work is of equal value.  Such workers are already able to bring claims about unequal pay as race or disability discrimination claims under the Equality Act 2010, and they do not need to show that the work is “equal” to that of an actual comparator in order to succeed.  Further, they are able claim uncapped compensation for lost earnings and may also claim for injury to feelings.  

Dual discrimination

Enacting the dual discrimination provisions would mean that workers may complain about discrimination arising out of the combination of two protected characteristics, rather than one as is presently the case.

Just last year, there were calls to bring these provisions into force.  Evidence to the Women and Equalities Committee’s Inquiry into menopause in the workplace indicated that because menopause is essentially an intersectional phenomenon (i.e. in the main it affects women within a certain age bracket), the dormant dual discrimination provisions in section 14 of the Equality Act 2010 should be enacted.  The Committee took a robust approach on this issue, stating that the existing law “does not serve or protect menopausal women” and that section 14 is “shelf ready” and should be commenced immediately.

However, the Government rejected this recommendation on the basis that if section 14 were to be implemented, it would create 21 “dual protected characteristics” (this is on the basis that pregnancy and maternity and marriage and civil partnership are not covered by section 14).  The Government said this would place a significant additional burden on employers and service providers.

This has not deterred the Labour Party, who consider the change will help BAME workers, as well as other groups, such as menopausal workers.  It is also said that the reform could help ease backlogs in the Employment Tribunal system – presumably on the basis that a claimant would be bringing one claim rather than two.

Ethnicity pay gap reporting 

It is reported that the new Act would require public sector bodies to report on their ethnicity pay gaps.  On top of this, back in September 2023, the Labour Party published a Green Paper entitled A New Deal for Working People, which outlined plans to require private sector employers with 250 or more staff to report on their ethnicity pay gaps. The Green Paper said Labour would drive efforts to close pay gaps by forcing employers to not only report on their gender and ethnicity pay gaps, but to devise and implement plans to eradicate any such pay gaps. 

It is worth remembering that the Conservative Government consulted on the introduction of mandatory ethnicity pay gap reporting for large employers in October 2018.  In March 2022, it concluded that mandatory reporting should not be introduced “at this stage” to avoid imposing new reporting burdens on businesses as they recovered from the pandemic.  However, businesses were encouraged to report voluntarily on the ethnicity pay gap within their organisations.   Guidance to help employers do this was published in April 2023.

Once again, the Labour Party is not deterred by the burden of increased regulation and has committed to drive this new reporting obligation through.  However, it remains to be seen how the new rules would be taken forward – will they be rolled out in the public sector first and then to the private sector at a later date?  It also not yet clear what the consequences would be for failing to succeed in closing a pay gap.  Gender pay reporting was introduced in 2017 under the mantra “what gets measured gets managed”.  But after years of disappointing gender pay gap results, with little movement in the right direction, it is apparent that merely requiring employers to report is not enough.    

Next steps?

It remains to be seen whether these announcements will make their way into the Labour Party’s election manifesto.  Even if they do, a Labour Government would consult before introducing such changes, which may well result in a reshaping of some of these plans.  That being the case, there are no action points at present for employers, but it is certainly one to watch.

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

In this 1-hour webinar, BDBF’s Principal Knowledge Lawyer Amanda Steadman and Managing Associate Tom McLaughlin look ahead to all the key employment law developments on the horizon for 2024. This webinar was originally delivered on 6 February 2024 and reflects our understanding as of that date. Do get in contact with either of the speakers if you would like to discuss any of the issues raised.

To view the PDF webinar slides please click on the image below, or view the recording of the webinar:

https://youtu.be/RVmG50_Qmnw

Please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk), Tom McLaughlin (TomMcLaughlin@bdbf.co.uk) or your usual BDBF contact, for further advice.