Our tracker highlights new domestic legislation and other key proposals for legislative reform.
Please click the image below to view the full tracker document:
If you would like further information, or to discuss how to prepare for any of these changes, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.
From June to December 2022, 61 UK employers participated in a four-day working week pilot scheme organised by the “4-day Week Campaign”. A report detailing the findings of the pilot suggests that the scheme was a success for both employers and workers, with 92% of employers continuing with the arrangement. Is it time for more employers to give this way of working a go?
What did the four-day week pilot scheme involve?
Under the scheme 2900 workers from 61 different UK organisations were asked to deliver 100% of their normal work output over 80% of full-time hours in exchange for 100% of pay. The pilot scheme ran for seven months, between June and December 2022.
The participating organisations spanned a range of sectors including retail, professional services, finance and insurance and manufacturing. However, two thirds of the participating organisations were small businesses with 25 members of staff or fewer. Only 12% of organisation had more than 100 employees.
Organisations could choose the non-working day, with Fridays being the most popular choice followed by Mondays. Only a few employers opted for a variable non-working day or a combination of two non-working half days.
What did workers say about the pilot scheme?
The participating workers reported that the shorter working week had a positive impact on their work/life balance and overall wellbeing. Notably:
Workers reported using their day off for a range of different activities including getting on top of “life admin”, volunteering, playing sport and helping elderly relatives. Workers were also able to save on commuting and childcare costs – something of particular value during the current cost of living crisis.
What did employers say about the pilot scheme?
Crucially, employers reported that revenue was unaffected, and even improved slightly. On average, revenues increased by 1.4% over the trial period. In addition, absenteeism and staff retention rates improved: sickness absences dropped by a massive 65% and resignations dropped by 57%. Employers also reported that the four-day week arrangement made recruitment easier – one company reported an 88% increase in applications during the pilot.
Overall, the pilot scheme has been a hit with employers with 18 of the 61 organisations committing to make the change permanent and a further 38 intending to continue with the four-day working pattern at least in the short-term.
Should more employers give it a go?
The 4-Day Week Campaign says that the pilot scheme has been a “resounding success” and it has called for more employers to embrace the change.
Employers considering giving it go should ponder carefully how any such change would be viewed by existing part-time workers engaged on an 80% FTE basis. It is far from unusual for part-time workers to work in excess of their contractual hours. Workers in that boat may well feel aggrieved that they are paid only 80% pay for 80% of full-time hours, where they believe that they are delivering value to the business in excess of this. Not only could this damage employee relations, but it could also lead to grievances and potentially even Tribunal claims, for example, for equal pay. Employers would need to consider offering such employees the option of changing to the “five days’ pay for four days’ work” pattern, on the understanding that they would be given a full-time workload.
It should also be recognised that once the move to a four-day working week has been made it will be quite difficult to undo without damaging employee relations. Employees could simply refuse to agree to step back to the old ways of working, leaving employers wishing to backtrack with little option but to dismiss. Indeed, the pilot scheme showed that 15% of workers said that “no amount of money” would induce them to return to a five-day working pattern. For this reason, if employers do not want to make the change permanent initially, it should be made clear to employees that the arrangement is offered on a trial basis only and there has been no permanent change to terms and conditions of employment.
The UK’s Four Day Week Pilot, February 2023.
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
Workers to be given the right to request more predictable working patterns
The Government has announced that it is supporting the Workers (Predictable Terms and Conditions) Bill that would give workers and agency workers a statutory right to request a more “predictable” working pattern.
Last November, we reported on the Government’s plans to pursue employment law reforms by way of backing a series of Private Member’s Bills. You can read more about the proposals to improve redundancy protection here and expand harassment law here. And you can read about four further proposals here.
Continuing this theme, the Government has recently announced that it is supporting a further Private Member’s Bill – the Workers (Predictable Terms and Conditions) Bill – which would entitle workers (and agency workers) to request a more “predictable” working pattern. In this briefing, we consider how the new right will apply to workers.
When will a worker be able to make a request?
Only workers who are employed by the same employer at some point during the month immediately preceding a “prescribed period” ending with the request will be able to make a request. The “prescribed period” will be set down in regulations but is expected to be 26 weeks. In other words, a worker will need six months’ service before a request may be made.
Workers will have the right to make a request for a more predictable working pattern where:
Are there any rules on how such requests must be made?
Applications must be made in writing, state that it is a request for a more predictable working pattern and set out the date on which the worker proposes the change will become effective. The draft Bill states that further regulations may be made about the form that such applications must take.
Up to two applications may be made in a 12-month period, although these may not be made concurrently. It is worth noting that this limit extends to requests made under the separate flexible working regime, where the flexible working request is for a change that would have the effect of delivering a more predictable contract.
What duties will an employer have in relation to such requests?
The draft Bill provides that employers must deal with such requests in a “reasonable manner”. This is not defined in the draft Bill, but probably means that employers will need to hold a meeting with the worker and give them the opportunity to make representations in support of their application.
The employer must notify the worker of its decision within one month of receiving the application (the “decision period”). If the employer grants the request, the employer has a further two weeks to offer the worker a new contract with terms and conditions that, taken as a whole, are not less favourable than the original contract and reflect the change that has been agreed.
Employers do not have to accept requests; however, a request may only be rejected on one of the following grounds:
If the worker’s contract is terminated during the decision period the employer is still required to respond to the request, however, additional grounds for rejecting the request will then be available (namely, that the worker has resigned or been dismissed for a qualifying reason – meaning one of the five potentially fair reasons for dismissal).
Employers will not be obliged to offer a right of appeal but may choose to do so (and if they do, there are limits on how the appeal process should be run).
What rights will a worker have if something goes wrong?
If the employer does not adhere to the statutory procedure for considering requests, or it rejects a request based on incorrect facts, then the worker will have three months to present a complaint to an Employment Tribunal. The Tribunal may order the employer to reconsider the application and/or pay compensation to the worker of an amount it considers to be just and equitable. The maximum amount of compensation may be capped in regulations – we would expect this to mirror the maximum compensation available under the flexible working regime (i.e. 8 weeks’ pay).
Workers will also be protected from detriment and/or dismissal for having requested a predictable working pattern or bringing proceedings to enforce the right to make such a request.
What should employers do now?
Employers do not need to take action just yet. The draft Bill passed its second reading in the House of Commons on 3 February 2023 and is due to progress to the Committee stage and then the Report stage and third reading. It will then have to repeat the process in the House of Lords. So, there is still a long way to go before this Bill becomes law – and additional regulations will be needed. Therefore, it seems unlikely that the right will come into force before 2024. However, employers should keep an eye on the progress of the Bill and ensure that relevant staff, such as line managers and members of HR, are kept updated.
If and when the Bill becomes law, employers will need to introduce new policies setting out how such requests may be made and whether, for example, there will be a right of appeal. Employers will also need to devise processes for handling requests (noting the tight timetable for responding to them) and amending contracts where relevant.
Workers (Predictable Terms and Conditions) Bill 2022 – 23
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
In Glover v Lacoste UK Ltd the EAT said the rejection of a flexible working request on appeal resulted in the “application” of a potentially discriminatory working pattern on the employee. This was the case even though the employer later changed its mind and the employee never had to work under the unwanted working pattern.
What happened in this case?
Ms Glover worked for Lacoste as an assistant store manager. She worked five days out of seven per week, with the working days set out in a rota provided to her every four weeks. She went on maternity leave in March 2020 and her store closed during the Covid -19 pandemic.
In November 2020, Ms Glover made a flexible working request asking to work three days per week. Lacoste rejected her request at the initial stage and also on appeal, although it offered a compromise of four days per week to be worked on a fully flexible basis (i.e. on any day of the week, including weekends). No further right of appeal was offered.
Ms Glover felt that the requirement to work on any day of the week would be impossible given her childcare commitments. Her solicitor wrote to Lacoste asking for the original request to be reconsidered, failing which Ms Glover would constructively dismiss herself.
In April 2021, Lacoste relented and agreed to the original request to work three days per week. At the time, Ms Glover was absent on furlough and so had never had to work under the four-day week working pattern proposed by Lacoste. After Lacoste reversed its position, she returned to work.
Ms Glover went on to present a claim for indirect sex discrimination. She said that Lacoste’s requirement to work fully flexibly across the week was discriminatory because it put women at a disadvantage compared to men (due to the fact that women still have primary responsibility for childcare), and it also put her at a disadvantage individually.
The Employment Tribunal rejected the claim on the basis that the requirement had never, in fact, “applied” to Ms Glover in practice because Lacoste had reversed the decision before she returned to work. This meant that she had not suffered any individual disadvantage. However, the Tribunal went on to say that had the requirement been applied to Ms Glover then it would have been discriminatory and could not have been justified.
With funding from the Equality and Human Rights Commission, Ms Glover appealed the decision.
What was decided?
The EAT allowed the appeal. In particular, the EAT noted that the Tribunal had misinterpreted previous case authority when deciding whether Lacoste’s discriminatory requirement had been “applied” to Ms Glover.
In the case of Little v Richmond Pharmacology Ltd, the employer had rejected Ms Little’s flexible working request and required her to work full-time. Their decision was said to be provisional, and she was offered a right of appeal. However, Ms Little resigned and did not return to work under the full-time arrangement. In Ms Glover’s case, the Tribunal had concluded that the requirement had not been “applied” to Ms Little because she had never worked under that arrangement. They applied the same logic to Ms Glover’s case.
However, this interpretation was wrong. In fact, the real reason the full-time working requirement did not apply to Ms Little was because the employer’s decision was expressed to be provisional and subject to appeal. In other words, the internal process was not over.
Properly understood, Little was authority for the rule that a final determination of a flexible working request amounts to the “application” of the requirement in question, even if the employee never actually works under the arrangement. Therefore, in this case, the discriminatory requirement to work four days per week on a fully flexible basis “applied” to Ms Glover upon the determination of her appeal. It did not matter that Ms Glover never actually worked under that arrangement, nor did it matter that Lacoste later changed its mind
However, the question of whether Ms Glover suffered any disadvantage was remitted to a fresh Employment Tribunal to consider. On one hand, it could be said that the decision was eventually reversed and so she did not have to constructively dismiss herself. However, the EAT Judge said it was hard to see how it could be said that she suffered no disadvantage at all when the request was rejected twice leaving her with no option but to consider resigning.
What are the learning points for employers?
This decision clarifies that reversing a final decision to impose a discriminatory requirement will not extinguish liability for discrimination. The problematic requirement or practice will be deemed to have applied to the employee from the point of the final decision, regardless of what actually happens in practice.
The extent to which the employee has suffered as a result of the decision will be a question of fact. If matters are ultimately resolved in the employee’s favour, and he or she returns to work, there will be no loss of earnings. In such circumstances, the employee’s remedy will probably be limited to an injury to feelings award only. However, as Lacoste no doubt found out, such claims carry with them the risk of unwanted publicity alongside the considerable time commitment and legal costs associated with defending discrimination claims.
Where a flexible working request is feasible, but you have reservations about it (as Lacoste clearly did) the better option might be to permit it on a trial basis. If it proves not to be workable, you will be able to point to evidence underlining why the arrangement cannot be permitted on a permanent basis and you will also be in a much better position to defend any claims that follow.
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
If you are having doubts about whether your job is right for you, it might be time to make the mental shift from “quiet quitting” to “quiet thriving”.
It is not uncommon for employees who are feeling unappreciated or unfulfilled at work to turn away from their employers and start upon what may become the road to the end of their employment. Whilst employers should, of course, do what they can to ensure that staff feel appreciated and fulfilled at work, the trend of “quiet thriving” sees employees stepping into the driver’s seat and taking control of their careers.
“Quiet thriving” is the opposite of “quiet quitting” and can produce totally different emotions in response to the same situation. “Quiet quitting” is often a passive, negative reaction to events, through which employees retire into themselves without the same level of emotional or professional engagement with their role. In contrast, “quiet thriving” involves employees taking positive actions and making mental shifts to help them feel more engaged at work. An employee cannot control every action that happens to them at work; however they can decide to take positive actions in response. In turn, this can encourage colleagues to respond in a positive way. If it works, this virtuous circle can lead an employee to fall back in love with their role, rather than winding away their time in a bitter and unfulfilled state of mind until they eventually walk away (or, worse, are dismissed).
If you are on the verge of quietly quitting, you might want to try out the following “quiet thriving” actions instead:
Before withdrawing into yourself in response to something at work that has taken the wind out of your sails, consider the steps above which may help you “thrive” rather than “quit”. These actions will likely be met with positivity, gratitude and respect from your managers, who will see that you are a loyal and dedicated employee that it is worth their time and effort investing in. And, if not, then it probably means that the time has come to look for pastures new.
BDBF is a leading 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 James Hockley (JamesHockley@bdbf.co.uk) or your usual BDBF contact.
One of the biggest concerns employers have had about the rise of fully remote and hybrid working is the loss of regular impromptu discussions, which are thought to foster team spirit, embed organisational culture and spark innovation. However, research recently published in the Harvard Business Review suggests that this concern is ever more misplaced.
Researchers from the University of Texas and the software company Vyopta scrutinised how remote meetings (defined as meetings where at least one person is remote from those attending in person) have changed since the start of the pandemic. Despite concerns about Zoom fatigue and disengaged staff who are quietly quitting, the research showed that, in fact, remote meetings are being held more frequently, efficiently and informally than used to be the case.
How has remote collaboration changed between 2020 and 2022?
The researchers gathered metadata from all Zoom, Teams and Webex meetings from ten large global organisations from various sectors including technology, healthcare, energy and financial services. The researchers compared snapshots of a six-week period across April to May 2020, with the same periods in 2021 and 2022. This dataset resulted in a total of more than 48 million meetings attended by more than 500,000 employees.
The researchers discovered that remote meetings have changed in several important ways since the beginning of the pandemic:
What are the key learning points for employers?
Overall, the research supports the view that remote workers are not disengaged hermit-like creatures, but active participants in the workplace. No doubt workers have become more adept at using video conferencing technology over the last two years and this may go some way to explaining the increase in remote meetings. However, the change in the nature of the meetings – shorter, smaller and more spontaneous – suggests a more flexible approach to remote meetings has become embedded within organisations. It seems that workers are willing and able to use remote meetings in a more relaxed way, perhaps replacing the corridor catch up and the watercooler chat.
If the research data is representative of a wider shift in the workplace towards more agile remote meetings, then this should allay some of the concerns employers have about the impact of remote working on collaboration and communication. However, the value of in-person meetings will, to some extent, depend on the sector and type of business.
The researchers suggest three action points for employers to help bolster this trend:
Harvard Business Review – “No, Remote Employees Aren’t Becoming Less Engaged”
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.
Two new opinions concerning the scope of data subject access requests under the GDPR have been handed down by advisors to the judges of the European Court of Justice (known as Advocate Generals). We round up the headline points and consider the implications for employers.
Is a data subject entitled to know the identity of employees of the data controller who have accessed their personal data?
In the first case, the data subject worked for, and was also a customer of, a bank based in Finland. He made a data subject access request and argued that he was entitled to know the names and job roles of all the people within the organisation who had viewed his personal data (both in his capacity as an employee and as a customer). The bank refused to provide this information, arguing that the right of access enshrined in the GDPR did not extend to log data of the Bank’s processing system, which recorded which employees had accessed the system and when.
In the Advocate General’s opinion, the right of access within the GDPR does not give a data subject the right to know the identity of employees who have accessed their personal data, where such employees were acting on the instructions of the data controller. Nor could employees acting under the bank’s instructions be regarded as “recipients” of personal data. This is an important point since data subjects are entitled to know the recipients or categories of recipients of their personal data.
You can read the Advocate General’s opinion here.
Is a data subject entitled to receive a copy of the documents containing their personal data?
In the second case, the European Court of Justice (ECJ) was asked to rule on the right of a data subject to receive a copy of their personal data. The Advocate General opined that a data subject’s right to a “copy” of their personal data means a right to be given a faithful reproduction of the data in intelligible form. The exact format of the copy is to be determined by: (i) the specific circumstances of each case; (ii) the type of data requested; and (iii) the needs of the data subject. Although there is no automatic right to obtain a partial or full copy of the documents containing the personal data, this may need to be provided where it is necessary to ensure that the personal data is fully intelligible. An example of this might be personal data contained in messaging platforms commonly used in the workplace such as Slack, where a basic export of the data is unlikely to be viewed as intelligible.
You can read the Advocate General’s opinion here.
What does this mean for employers?
It is important to pause to note that neither of these opinions are strictly binding on the UK Courts. Nor are Advocate General opinions even binding on the ECJ – although they are influential and tend to be followed. The ECJ decisions in these two cases are expected shortly. ECJ decisions are also not binding in the UK, however, they may be taken into consideration by the UK Courts and the UK data protection regulator (the Information Commissioner’s Office (ICO)) where relevant to a matter before them. Given that UK data protection law is based upon the GDPR, it is likely that a UK Court and/or the ICO would have regard to relevant ECJ decisions. Furthermore, ECJ decisions concerning data protection remain relevant to employers with operations in member states of the EU, where the GDPR applies.
In the meantime, the first opinion will strengthen an employer’s ability to resist requests for disclosure of the identity of employees who have accessed an individual’s personal data. The second opinion simply underlines and reinforces the existing position in the UK, as set out in the ICO’s guidance on data subject access requests and reflected in previous decisions of UK courts. The ICO guidance provides that:
“the right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. You may therefore provide the information in the form of transcripts of relevant documents (or of sections of documents that contain the personal data), or by providing a print-out of the relevant information from your computer systems. While it is reasonable to supply a transcript if it exists, we do not expect controllers to create new information to respond to a SAR. Although the easiest way to provide the relevant information is often to supply copies of original documents, you are not obliged to do so.” (emphasis added)
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.
The Court of Appeal has ruled that a Claimant could not proceed with a victimisation claim which had already arisen by the date he had entered into a COT3 settlement agreement with his employer. The broad waiver wording was sufficient to settle potential claims in existence as at the date of the COT3 agreement.
What happened in this case?
The Claimant was employed by Quick Release (Automotive) Ltd for just over one month in 2014. After his employment terminated, he brought a race discrimination claim against them. In January 2018, the Claimant applied for a job with a company called QRG, which was wholly owned by Quick Release. He was rejected for that post on 19 February 2018.
On 1 March 2018, the Claimant and Quick Release settled the race discrimination claim by way of a settlement agreement conciliated by Acas, known as a COT3 agreement. Under the COT3 agreement, the Claimant agreed to settle all claims he had or may have had against Quick Release arising directly, indirectly or in connection with his employment, its termination or otherwise. This included, but was not limited to, any claims arising under the Equality Act 2010.
In May 2018, the Claimant brought a victimisation claim against Quick Release, alleging that they connived to reject him for the post with QRG because he had brought a race discrimination claim against Quick Release. An Employment Tribunal held that the victimisation claim could not proceed as it fell within the scope of the COT3 agreement.
On appeal, the EAT held that the claim should not be considered as victimisation perpetrated directly by Quick Release, but rather as a claim that Quick Release knowingly assisted QRG to carry out the victimisation. However, the EAT said that this claim was still covered by the COT3 agreement since it was a claim under the Equality Act 2010 which had arisen in connection with his employment with Quick Release. The Claimant appealed to the Court of Appeal.
What was decided?
The Court agreed that the claim was properly categorised as a claim that Quick Release had knowingly assisted QRG to commit an act of victimisation. The question was whether such a claim had been waived under the COT3 agreement.
The Court held that the claim was clearly covered by the wording used in the COT3 agreement as the claim arose “in connection with” the Claimant’s employment. Furthermore, the purpose of the COT3 was to settle all claims that the Claimant had against Quick Release as of 1 March 2018, whether or not they were known about at that date. Here, the circumstances giving rise to the victimisation claim arose on 19 February 2018 and so it was within the scope of the agreement. The Court dismissed the appeal.
What does it mean for employers?
Although this decision is helpful, employers should be wary of viewing this decision as giving carte blanche to waive future claims within settlement or COT3 agreements.
We recently reported on the case of Bathgate v Technip UK Ltd, where the EAT decided that a settlement agreement (not a COT3 agreement) could not settle unknown future claims. However, Bathgate concerned a claim arising out of conduct which occurred after the settlement agreement had been signed, meaning the claim in question was a truly unknown future claim. By contrast, in this case, the offending conduct had occurred before the Claimant agreed to waive his claims against the employer (and, therefore, is better described as an existing potential claim rather than an unknown future claim).
In fact, the real issue at play here was whether the broad wording of the COT3 agreement went far enough to cover an existing potential claim that had not yet been brought before a Tribunal. Bathgate said that existing potential claims of this nature could be settled in a settlement agreement, but that general wording seeking to waive any claims would not be good enough. Instead, the existing potential claim would need to be particularised in some way.
However, here, the Court of Appeal was concerned with a COT3 agreement rather than a settlement agreement. The Court held that general waiver wording settling “all claims” arising “directly or indirectly out of or in connection with” the employment, termination or otherwise is effective in a COT3 agreement. Employers wishing to achieve a settlement by way of a settlement agreement rather than a COT3 agreement should follow the approach set out in Bathgate.
Arvunescu v Quick Release (Automotive) Ltd
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
The Court of Appeal has upheld a decision that an employee was not automatically unfairly dismissed on health and safety grounds when he was dismissed for refusing to attend work during the first Covid lockdown.
What happened in this case?
Mr Rodgers worked for Leeds Laser Cutting Ltd. Following the announcement of the first lockdown on 23 March 2020, the Company told employees that the business would remain open but that it was putting in place measures to ensure the safety of individuals.
A risk assessment was carried out by an external professional, which made various recommendations relating to social distancing, wiping down surfaces and staggering start/finish/break times. In fact, the Company already had many of these measures in place prior to the risk assessment.
On 29 March 2020, Mr Rodgers sent a text message to his line manager saying that he would not return to work until the lockdown had eased because he had a young child with sickle cell anaemia who could become very ill if he caught the virus. In addition, he also had a seven-month-old baby who might have had the same health problems.
A month later Mr Rodgers was dismissed on the basis that he was absent without leave or explanation. He brought a claim for automatic unfair dismissal, arguing that he had been dismissed because he had exercised his right not to return to a workplace which he reasonably believed presented a serious and imminent danger to health and safety and which he could not reasonably have been expected to avert.
What was decided?
Decisions of the Employment Tribunal and the Employment Appeal Tribunal
The Employment Tribunal decided that Mr Rodgers had not been automatically unfairly dismissed.
It found that Mr Rodgers was concerned about the pandemic in general terms, but that he did not believe that there were circumstances of serious and imminent danger within the workplace. He had not voiced concerns about any dangers and in his text message to his line manager he did not identify any specific risks nor make any indication that he would return if improvements were made. Furthermore, his actions did not suggest he was particularly concerned, for example, he did not wear a face mask even though they were made available to him, he left his home during a period of self-isolation, and he also worked in a pub during the lockdown.
The Tribunal went on to say that even if he had believed there to be such danger within the workplace, that belief would not have been reasonable. The workplace was large, with only a few people working at any one time, meaning it was not difficult to socially distance. An independent risk assessment had been carried out and there were reminders about the need for regular handwashing. Mr Rodgers acknowledged that this information had been communicated to him. And even if he had a such a belief and it had been reasonable, he could have taken steps to avert the danger, such as handwashing, mask wearing and social distancing.
Mr Rodgers appealed. The EAT upheld the Tribunal’s decision and Mr Rodgers appealed again to the Court of Appeal.
Decision of the Court of Appeal
In a nutshell, Mr Rodgers argued that it was not necessary for the belief in a serious and imminent danger to be confined just to the workplace. Rather, it was sufficient for him to hold a belief that serious and imminent danger was at large in society.
The Court said that it would not be enough for the danger to arise only outside of the workplace, for example on the journey to work, noting that “…it is quite clear that the perceived danger must arise at the workplace”. This did not necessarily mean that the danger has to be exclusive to the workplace – it could arise both inside and outside of the workplace. However, the key requirement is that the employee has to believe that there is danger within the workplace itself.
The Court said that the Tribunal was entitled to find that Mr Rodgers did not hold such a belief, and that even if he had it would not have been reasonable. The appeal was dismissed.
What does this mean for employers?
The decision clarifies how health and safety dismissal claims will be approached by the Courts and Tribunals. Importantly, an employee will not be protected where the danger they are concerned about arises only outside the workplace. For example, if they did not want to attend work due to severe weather conditions or violent protests on the streets surrounding the workplace (however, the employer’s general duties to take care of the health and safety of their employees would be relevant and may mean the employer needs to direct staff to stay away in such circumstances). We know that the danger must arise within the workplace, albeit that it may also arise outside of the workplace.
On the facts of this case, Mr Rodgers actions simply did not suggest that he believed that there was a danger in the workplace. Even if he had got over that hurdle, his claim would still have failed on the basis that it would have been unreasonable in light of the steps taken by the employer to mitigate the danger. The takeaway point here is that where an employer has taken appropriate health and safety measures, complied with relevant laws and guidance and engaged with employees about its strategy, it will be very challenging for an employee to get over the hurdle of showing that they had a reasonable belief that there were circumstances of serious and imminent danger in the workplace.
It is worth remembering that Mr Rodgers did not have two years’ service and so was unable to bring an “ordinary” unfair dismissal clam. This forced him down the route of having to show he was “automatically” unfairly dismissed on health and safety grounds (a claim which does not require two yeas’ service). This was a higher hurdle and one that, on the facts of the case, Mr Rodgers could not meet. Had Mr Rodgers had been able to bring an ordinary unfair dismissal claim he may well have succeeded, and both the Tribunal and Court of Appeal suggested that this could have been the case. To avoid this, employers should always ensure that there is a potentially fair reason for dismissal and that a fair process is followed before deciding whether to dismiss.
Rodgers v Leeds Laser Cutting Ltd
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
The Government has published its response to the Women and Equalities Select Committee report which had recommended significant changes to the law on menopause in the workplace. In this briefing, we outline which reforms the Government has accepted and rejected.
What was the purpose of the menopause inquiry?
On 23 July 2021, the House of Commons Women and Equalities Select Committee (the Committee) opened an inquiry into the impact of menopause in the workplace. The purpose of the inquiry was to receive evidence on current workplace practices and views on whether existing discrimination legislation sufficiently protected workers going through the menopause, or whether more needed to be done. Currently, discrimination against workers going through the menopause is only covered by the Equality Act 2010 where it is connected to one of the existing nine protected characteristics such as age, sex and disability. The inquiry also looked at whether employers should be compelled to put in place workplace menopause policies.
The inquiry closed on 17 September 2021 and the Committee published its report on 28 July 2022. The report made a number of recommendations in the fields of health, workplace and equality. In this briefing we consider the workplace and equality recommendations only.
The Government published its response on 24 January 2023, setting out which recommendations it would take forward and which had been rejected.
Which recommendations will be taken forward?
Appointment of a Menopause Ambassador
The report said that the Government had a key strategic role in helping businesses and should lead the way in developing and disseminating good practice on managing the menopause at work. The report asked the Government to appoint a “menopause ambassador” to work with stakeholders from business, unions and advisory groups to encourage and disseminate awareness, good practice and guidance to employers. The menopause ambassador should publish biannual reports on the progress made by businesses, including real life examples of good and poor practices.
The Government has accepted this recommendation “in principle”. In practice, it proposes to appoint a “Menopause Employment Champion”, something that it had, in fact, already promised in July 2022. As yet, no such champion has been appointed.
The response envisages that the champion will spearhead a campaign outlining the benefits of recruiting and retaining menopausal workers. The appointment will be a DWP ministerial appointment, reporting to and consulting with DWP ministers at regular intervals. The Government says it is supportive of biannual progress reports, but this would need to be determined once the appointment had been made. It is also envisaged that the champion will work with the Women’s Health Ambassador on the issue of menopause and employment, with the champion focusing on matters affecting employers and the ambassador engaging with a broader range of stakeholders.
Introduction of Day 1 right to request flexible working
Flexible working was referred to repeatedly in the evidence before the inquiry as being particularly helpful for menopausal employees. Back in February 2021, the Committee had recommended the introduction of a “Day 1” right to request flexible working and later that year the Government opened a consultation on the issue. That consultation closed on 1 December 2021, and the Government’s response was published in December 2022. In that response, the Government committed to make the right to request flexible working a Day 1 right, as well as supporting a Private Member’s Bill which would make a number of other changes to the flexible working regime. You can read more about that response here.
The report recommended that the Government bring forward legislation before the end of the current Parliament to make the right to request flexible working a Day 1 right for all. In addition, the Government was urged to issue guidance encouraging employers to grant all reasonable requests for flexible working rather than placing the burden on the employees to justify their requests.
Unsurprisingly, in light of the response to the flexible working consultation, the Government has accepted this recommendation, although no timeline for the new legislation has been provided. New guidance may be introduced but no firm commitment is made.
Publication of new guidance on the law
Despite there being existing legal obligations under health and safety and equality laws, the report noted that neither the Health and Safety Executive (HSE) nor the Equality and Human Rights Commission (EHRC) had published any form of guidance on their websites in respect of the menopause. The report recommended that both the HSE and the EHRC publish new guidance on the legal considerations when supporting employees experiencing menopause.
The Government has accepted the recommendation for the HSE to publish guidance. It refers to guidance on supporting disabled people and those with long-term health conditions which is already due to be published by the HSE. It is said this guidance could apply to menopausal workers.
As far as the EHRC is concerned, the response says that as an independent public body it will be for the EHRC to consider what is needed. The response says it will share the recommendation with the EHRC.
Which recommendations have been rejected?
Publication of model menopause policies
Evidence to the inquiry was divided on whether workplaces should be legally required to have menopause policies. The Committee was not persuaded that a legal requirement for every workplace to have a menopause policy would embed meaningful change. However, the report recommended that the Government produce a model menopause policy for employers, which should cover as a minimum:
The Government has rejected this recommendation as it does not believe a model menopause policy is necessary at the moment. It asserts that “many organisations” have introduced workplace policies (without providing any indication of the number or percentage of UK employers that have done this). It points to guidance for employers published by the CIPD and Acas and other initiatives being pursued by the Government related to occupational health and women’s health more generally. In light of all of this the Government rejects the recommendation on the grounds it would “avoid the risk of duplication of efforts”.
Large public sector employer to trial specific “menopause leave”
The report noted that menopausal symptoms can have a significant, and sometimes debilitating, impact on women at work, which often led to periods of sickness absence. The presence of rigid sickness absence thresholds may, in turn, trigger formal absence management processes which lead to women leaving the workplace.
To counter this problem, the Committee asked the Government to work with a large public sector employer with a strong public profile to develop and pilot a specific “menopause leave” policy and publish proposals for a wider roll out within 12 months of the commencement of the scheme.
The Government has rejected this recommendation on the basis that it does not believe it is necessary. It says their policy aim is to support menopausal women remain in the workplace and to ensure that employers are well equipped to support their workforce during the menopause. The Government is focusing its efforts on disseminating best practice and encouraging employers to implement menopause policies and other forms of support such as flexible working. The report asserts, without really explaining why, that specific menopause leave may be “counterproductive” to achieving this goal.
Commencement of the dormant dual discrimination provisions in the Equality Act 2010
Evidence to the inquiry was that because menopause is essentially an “intersectional” phenomenon (i.e. in the main it affects older women), the dormant dual discrimination provisions in section 14 of the Equality Act 2010 should be enacted. Enacting these provisions would entitle a worker to complain of discrimination arising out of the combination of two protected characteristics, rather than one as is presently the case. This change would help menopausal workers who have typically found it difficult to succeed with complaints based on a single protected characteristic. The Committee took a robust approach on this issue, stating that the current law “does not serve or protect menopausal women” and that section 14 is “shelf ready” and should be commenced immediately.
The Government has rejected this recommendation on the basis that if section 14 were to be implemented, it could have to be done wholesale and could not just be enacted to cover sex and age. The response say this would create 20 dual protected characteristics in addition to age and sex (this is on the basis that pregnancy and maternity and marriage and civil partnership are not covered by section 14). The Government says this would place a significant additional burden on employers and service providers
The rejection of this recommendation is unsurprising. In fact, this is the second time that the Government has rejected the proposed enactment of the dual discrimination provisions as a way of tackling menopause discrimination. In November 2021, the Government-appointed “Roundtable of Older Workers” recommended that the Government enact the dual discrimination provisions. The Government rejected their recommendation, stating that the existing legal framework provided sufficient protection and further changes were not needed.
Consult on making menopause the tenth protected characteristic in the Equality Act 2010
There was considerable support for creating a new protected characteristic of menopause on the basis that it would provide a direct and clear protection to those experiencing discrimination because of menopause. Some of those giving evidence to the inquiry pointed out the disparity between the way pregnancy and menopause are treated in the workplace. Pregnancy is legally protected, and menopause is not, even though all women will experience menopause but not all women experience pregnancy. Some of those giving evidence also argued that if a new protected characteristic were created this should include a duty to make reasonable adjustments, in the same way that there is for disabled workers.
The Committee recommended that the Government urgently consult on introducing a new protected characteristic of menopause, including a duty to make reasonable adjustments for menopausal workers. The report recommended that this consultation should launch by the end of January 2023.
The Government has rejected this recommendation. Whilst agreeing that women should be “adequately protected from discrimination in the workplace” they were not satisfied that the evidence fully supported new legislation. It is asserted that introducing a new protected characteristic was not necessarily the best approach to addressing discrimination. It points to alternatives such as expanding the duty to make reasonable adjustments or expanding the definition of disability and/or the age discrimination provisions. Yet, no commitments are made to introduce any such changes.
In rejecting the recommendation, the response highlights the importance of avoiding “unintended consequences” such as discrimination towards men suffering from long-term medical conditions or eroding existing protections. It is said that any substantial changes to the Equality Act 2010 would require a full-scale review which was a “major undertaking which would necessarily be some years away”.
Conclusion
It is hard to view the Government’s response to the Committee’s report as anything other than paltry. Upon closer inspection, the three recommendations which have been accepted are, in fact, existing commitments. Furthermore, aside from the extension of the right to request flexible working (which, it should be remembered, is a right to request and not a right to have), the other two changes amount to the introduction of guidance and advice only. These commitments do not compel employers to make any changes for menopausal workers and nor do they offer such workers any greater form of legal protection. As the Chair of the Committee, Caroline Nokes MP, noted, the Government’s response is “complacent”, represents “a missed opportunity” and left her “unconvinced that menopause is a Government priority”.
Menopause and the workplace: Government Response
BDBF is a leading 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 Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.
Despite a recent fall, the latest figures show that inflation in the UK is 10.5%[1], close to a 40-year high. As high inflation persists, employees are seeking ways to cut costs and make their pay go further. Financial worries often lead to stress and anxiety which, in turn, can have a negative impact on an employee’s performance at work. Employers are increasingly seeing workplace issues due to financial stress, including absenteeism and lower levels of engagement.[2]
One way for employers to tackle this problem is to introduce measures aimed at reducing the financial burden on employees, and the stress associated with financial concerns. This short article details suggestions for employers who are considering helping their employees navigate the crisis.
Financial support
Direct Financial Support
Employers can make a one-off cost-of-living payment to employees. If a one-off payment is to be made, it is important to consider whether it will be a lump sum amount paid to all employees, or an amount linked to salary. Communication around any one-off payment is important. It must be clear that this is an isolated discretionary payment and not one which form’s part of the employee’s remuneration package. Where payments are made only to employees on lower salaries, rather than all employees, this may lead to complaints of unfair treatment.
Alternatively, employers could choose to bring forward annual review dates for salary and bonus increases. Where an annual review of salary is brought forward, the date upon which any increase becomes effective can also be brought forward to allow the employee to benefit from the increase for a longer period.
The National Living Wage (NLW), which takes effect from 1 April 2023, will see the NLW increase from £9.90 to £10.42. This increase to the NLW may have a bearing on how, and for what duration, you choose to offer financial assistance.
Indirect Financial Support
Salary sacrifice arrangements (whereby an employee gives up the right to receive part of their salary in return for a non-cash benefit), are one way in which indirect financial support can be provided. An employer will have the flexibility to select the non-cash benefit and, from an employee’s perspective, participation in the salary sacrifice scheme can lead to savings on tax and national insurance. One such scheme is the cycle to work scheme, run by the government, which may help an employee save transport costs when commuting by cycling to work. We recommend that any employer considering implementing a salary sacrifice scheme takes advice on the tax and NICs implications.
Discounts and subsidies are other measures which may provide effective indirect financial support for employees. As an employer, discounts can include staff discounts on your own goods and services. Alternatively, you can enter agreements with other organisations to provide discounts on their goods and services, such as restaurants or gyms. Discounts can usually be run at a low cost to the employer whilst helping to reduce employees’ costs. These arrangements, depending on how these are tailored, may also increase the appeal of an organisation to any prospective employees.
Providing lunch, or a lunch allowance, on certain weekdays can be another effective way to lower employee costs. To some extent, the effectiveness of these practices will depend on how they interact with any flexible working arrangements that are in place.
Flexible Working
Flexible working is a term that, amongst other things, encompasses remote, hybrid and part-time working, compressed and adjustable hours, and job sharing.
Introducing, or expanding the scope of, a flexible working policy may help employees in different ways. For some employees, working from home more regularly will be beneficial because this may reduce expensive travel costs, or the amount spent on childcare. In contrast, other employees may wish to attend the office more regularly to minimise electricity and heating bills.
Another potential benefit of a flexible working policy is greater productivity. 93% of those interviewed in a recent Chartered Management Institute (CMI) survey[3] said they had seen evidence that stress caused by the cost-of-living crisis was impacting the productivity of their employees. A flexible working policy may help to alleviate stress caused by financial concern and, in turn, boost productivity.
Wellbeing
The importance of employer wellbeing practices has increased substantially in recent years, particularly following the Covid-19 pandemic. The impacts of the pandemic, and the increased demand for healthcare which have followed, have contributed to 81% of employers focusing more on employees’ mental health.[4]
The 2022 CIPD report on health and wellbeing at work noted that the 51% of organisations taking a strategic approach to employee wellbeing were more likely to report positive wellbeing achievements, at both an individual and organisational level. Wellbeing assistance can take the form of financial assistance, in the form of benefits or subscriptions to wellbeing platforms, or staff communications led by managers within the organisation.
Assisting employees – a balancing act
We recognise that it can be challenging for an employer to know how to help employees with any financial difficulties. There is no ‘right’ way to assist. With this in mind, when determining how to provide assistance to employees, employers should consider the context in which they are assisting. Where useful, and feasible, employers can look to involve the employees in this process. For example, an employer can consult with employees about what form of assistance would be most helpful and use any feedback to make an informed decision. In any case, employers should seek legal advice on their proposals and ensure that such proposals are communicated to employees clearly and considerately.
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 Anthony Nzegwu (AnthonyNzegwu@bdbf.co.uk) or your usual BDBF contact.
[1] ONS CPI annual rate change over 12 months (released 18 January 2023).
[2] Chartered Management Institute survey of 1000 managers and team leaders on the cost-of-living crisis and workplace stress.
[3] Chartered Management Institute survey of 1000 managers and team leaders on the cost-of-living crisis and workplace stress.
[4] CIPD Health and Wellbeing at Work 2022.
The concept of “Blue Monday” will be familiar to a lot of people. Falling on the 3rd Monday in January, folklore has developed around this being the most depressing day of the year. But is it really?
The phrase “Blue Monday” was first coined in 2005 by a UK travel company, presumably as part of a marketing campaign to encourage sales of holidays. It was said to be based on a formula, where seven variables affected a person’s mood – weather, debt, monthly salary, time since Christmas, time since failure of New Year’s resolutions, low motivational levels and the need to take action.
Since the original press release, there has been much debate about the concept of “Blue Monday” and the formula used to devise it has been largely debunked by scientists. Mental health charities have also emphasised that low mood is not the same as a medical diagnosis of depression (or any other mental illness), which can occur at any time of year and does not have an exhaustive list of causes. Despite this, #bluemonday continues to trend on twitter year after year.
In 2018, the charity Samaritans launched a campaign called “Brew Monday”, which aims to turn the concept of “Blue Monday” on its head. An extension of its “Small Talk Saves Lives” suicide prevention scheme, “Brew Monday” encourages people to connect with friends, family and colleagues over a hot beverage.
The central aspect of the “Brew Monday” campaign is to encourage people to check in with others and not only ask how they are, but to listen to the answer. The hope is that by doing this, people who are struggling will be able to access support. Importantly, the campaign makes clear that this is not something that should be done only on so-called “Blue Monday”, but throughout the year, recognising that people can struggle with their mental health at any time.
Although positive strides have been made to reduce stigma around mental illness, it still exists, especially in the workplace. It is widely acknowledged that the best way to reduce this stigma is to talk about mental illness. This is to enable employees who are struggling to talk to their managers about mental health and access appropriate support. Therefore, initiatives such as “Brew Monday” can only be positive.
Mental illness is just one factor that can cause employees to struggle at work. The BDBF team frequently advises clients who are experiencing issues in the workplace. Many of our clients feel that they are being discriminated against. While discriminatory treatment can take many forms, a pattern we see time and again is employees being excluded from accessing the full benefits of the workplace enjoyed by their colleagues because of their protected characteristic (age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation). It is this feeling of exclusion that the “Brew Monday” campaign is aiming to prevent. While it is primarily a mental health campaign, its message can be read across into other aspects of working life and benefit employees dealing with other life events, such as returning to work from parental leave, experiencing the menopause or undergoing gender reassignment.
Although conversations over a cup of tea will not solve all workplace issues, encouraging employees at all levels to communicate openly with each other and raise any issues or concerns they have at an early stage will go a long way towards creating and maintaining a healthy and productive workforce. “Blue Monday” takes up just one day of the year, but the concept of “Brew Monday” is relevant on every day of the year and is to be encouraged.
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 Clare Brereton (ClareBrereton@bdbf.co.uk) or your usual BDBF contact.