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In University of Dundee v Chakraborty, the EAT held that legal advice privilege could not be applied retrospectively to the original version of a grievance investigation report where it had been amended afterwards by the Respondent’s legal advisors.

What happened in this case?

Mr Chakraborty was a post-doctoral research assistant at the University of Dundee.   On 10 November 2021 he raised a grievance, alleging racial abuse, harassment and bullying, including an allegation that his line manager had falsely accused him of fraud. An independent member of academic staff was appointed to investigate the grievance and create a report.

By the time the report was finished, Mr Chakraborty had already submitted claims for race discrimination and harassment. The University sought legal advice on the report before sharing it with Mr Chakraborty. Amendments to the report were suggested and these were sent to the investigator. The investigator accepted these and made further changes.

This amended version of the report was then shared with Mr Chakraborty and included within the trial bundle. The report stated “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”.

On the first day of the Tribunal hearing, Mr Chakraborty made an oral application for disclosure of the original unamended version of the report. The University resisted this application contending that it was subject to legal advice privilege. It submitted that the production of the unamended version of the report would permit a comparison to be made between the two versions which could then enable inferences to be drawn about the legal advice that had been given to the University by its solicitors.

The Tribunal did not accept that submission and made an order for the original version of the report to be disclosed.

The University appealed on the grounds that:

• the Employment Judge had erred in law in rejecting the submission that the original version of the report was subject to legal advice privilege; and
• while acknowledging that no argument of litigation privilege had been advanced in the Tribunal, the report was confidential on the basis of litigation privilege.

The University accepted that neither legal advice privilege nor litigation privilege attached to the report when it was first created. However, it claimed that such privilege attached retrospectively to the unamended document because of the advice that was later given about its contents by the external solicitors and that it would be possible to infer the advice given.

What was decided?

The EAT dismissed the appeal.

The EAT commented that any legal advice given about the original document and any amended versions of the original document created for the purpose of litigation would plainly be privileged. Here, it found that the original report was created as part of an investigation of a grievance brought under an internal policy, rather than in contemplation of litigation.

Furthermore, the EAT could find no case law which supported the contention that privileged status could be acquired retrospectively.

As the original version of the report was not subject to privilege, retrospective application could not be applied. This was the case even if the consequence of disclosing the document might allow inferences to be drawn from the differences between the two versions. The EAT Judge noted that, in any event, it would be difficult to ascertain the advice as the investigator had made further changes to the report himself.

What are the learning points for employers?

This case shows that an underlying document cannot be rendered privileged simply because advice has subsequently been sought on its content.

Employers should remember that where a document is created as part of an internal investigation, rather than for the purposes of litigation, then legal advice privilege may not apply, and the document may be disclosable in a future dispute.

To benefit from legal advice privilege, employers should seek legal advice from a solicitor on the content of the document at the time that it is created. Further, employers should control the number of individuals the document is shared with and the number of versions of the document. It may also help to be open with employees at the outset that legal advice might be sought as part of the process.

University of Dundee v Chakraborty

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 Samantha Prosser (SamanthaProsser@bdbf.co.uk) Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The Advisory, Conciliation and Arbitration Service (ACAS) has published new guidance for employers on how to handle staff suspensions. In particular, it focuses on suspension during investigations.

What does the guidance cover?

The new guidance addresses the following key areas:

• Deciding whether to suspend someone;
• The process for suspending someone;
• Supporting an employee’s mental health during suspension; and
• Pay and holiday during suspension.

What does the guidance recommend?

Because of the risk of breaching the employment contract, and the stress that can be caused, the guidance recommends that a suspension should only be used when it is a reasonable way of dealing with the situation.  This may apply where an investigation is being carried out and there is a need to protect evidence, witnesses, the business, other staff or the person being investigated and there are no appropriate alternatives.  A suspension may also be appropriate in order to protect an employee’s health and safety.

The key point is that employers should consider each situation carefully before deciding whether to suspend someone.

What are some of the alternatives to suspension?

Instead of suspension, ACAS advises that employers could require a worker to work:

• in a different part of the organisation;
• from home; or
• from a different office or site.

What does ACAS recommend that employers do to support suspended workers?

• Explain the reason for the suspension, making it clear that it does not mean that it has been decided that they have done anything wrong. Ideally this should be done in person.
• Explain that pay and benefits are unaffected.
• Keep the suspension as short as possible.
• Keep it confidential wherever possible and stay in regular contact throughout.
• It is good practice to allow employees to be accompanied at any suspension meeting and for the suspension to be confirmed in writing.

The ACAS guidance can be accessed by clicking here.

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 Theo Nicou TheoNicou@bdbf.co.uk) Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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The pandemic has prompted greater focus on, and demand for, flexibility for workers and better rights for working families. Sadly, statistics show that the number of childcare providers is diminishing, the gender pay gap increased in 2021, and with the cost-of-living crisis, more parents (usually women) are making the difficult decision to sacrifice career and leave work because of exorbitant childcare costs or inflexible employers.

In response to these issues, on 29 October 2022, Pregnant then Screwed’s the ‘March of Mummies’ will take place at various cities across the UK. The primary purpose of the march is to raise awareness of parental rights.

March of the Mummies

The first March of Mummies took place in 2017, across 6 cities in the UK and in California. At that time, the march focused on demanding recognition and action for working mums and dads.

This year the demonstration is aimed at raising awareness and asking the government to prioritise flexible working, childcare and parental leave.

What are the statistics?

Pregnant then Screwed highlight worrying statistics which have become more concerning during the pandemic. They are that:

• the UK has the second most expensive childcare in the world;
• statutory maternity pay is the third worst in Europe;
• statutory paternity leave is the least generous in Europe;
• 3 out of 4 job advertisements fail to mention flexible working when 82% of British workers want flexible working; and
• mothers face a 45% pay penalty in the 6 years after they have given birth.

What types of leave are available to parents?

The UK offers maternity and paternity leave as well as shared parental leave. There are equivalent rights (in respect of maternity, paternity and shared parental leave) for those adopting.  We have summarised the types of leave below.

Statutory maternity leave

Statutory maternity leave is comprised of 26 weeks’ of ordinary maternity leave, and 26 weeks of additional maternity leave.

Only employees who have 26 weeks’ continuous service and earn on average at least £123 per week, are entitled to be paid over this period under the statutory scheme.

Under the UK scheme, qualifying employees are entitled to 90% of their average weekly earnings (before tax) for the first 6 weeks and then either the statutory minimum (currently £156.66) or 90% of their average weekly earnings (whichever is lower) for the next 33 weeks. Some employers pay enhanced maternity pay.

In comparison, other European and Scandinavian countries such as Bulgaria and Norway are more generous. For example, mothers in Bulgaria receive 90% of their salary (subject to a social security cap) for up to 58 weeks.

Paternity leave

Statutory paternity leave is comprised of either 1 or 2 weeks which must be taken by the employee in one block usually between the date on which the child is born and 56 days after that date. Statutory paternity pay is equal to either the statutory minimum (currently £156.66 per week) or 90% of the employees’ average weekly earnings (whichever is lower). Some employers pay enhanced paternity pay, but these are few and far between. Other countries offer far more favourable paternity leave, such as Lithuania where fathers are entitled to 30 days of paid paternity leave at a rate of approximately 77.5% of their pay (subject to a cap).

Shared parental leave

Shared parental leave is available to parents to share a total amount of 50 weeks leave and up to 37 weeks pay, but this type of leave can only be taken in the first year following the birth of the child. Those eligible may claim share parental pay of up to 39 weeks, less any weeks of statutory maternity pay claimed by their partner. The current weekly rate for shared parental pay is £156.66 or 90% of one’s average weekly earnings (whichever is the lower).

Whilst some companies offer their employees enhanced packages, that is not always the case. Some employers have punitive payback clauses or additional eligibility criteria that put enhanced entitlement out of reach. Again, the UK falls behind other countries who offer significantly more attractive policies, including Norway who offer a shared parental benefit of either 49 weeks at full pay or 59 weeks at 80% pay.

Flexibility

Employees who have at least 26 weeks’ continuous employment may make a request to work flexibly. It remains within the employer’s gift to decide whether to approve the request for flexible working, and they may reject the request based on one or more of the following eight reasons:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

Despite the effects of the pandemic which have led many employers to allow flexible and hybrid working for a period of time, it seems that there is a push for employees to return to the office, and/or to maintain ‘normal’ 9-5 working hours.

Proposals for reform

The harsh reality is that many are struggling to deal with balancing work and family life after having children. Whether it be the lack of flexibility or the financial pressures as a result of childcare, many (mostly women) are either not returning to work or are quitting their jobs to stay home to care for their children. For that reason, it is not surprising that many have called on the government to address the inadequacies in the current policies, and as a result there have been certain proposals for change or government consultations on some of these issues.

Flexible working – a day-one right

In September 2021, a government consultation was launched proposing making flexible working the default position and a day-one right. The day-one right being the right to request flexibility, not the right to flexible working itself. This consultation closed in December 2021 and we are yet to receive the outcome from the government. If any changes are going to be made it is more likely that we will see this in the forthcoming Employment Bill (which also appears to have taken a backseat).

Hybrid working

Following the effects of the pandemic and the sudden change for many employers to switch to hybrid and remote working, in November 2021, the House of Commons Library published the Flexible working; Remote and Hybrid Work briefing paper. This paper considered the legal position and guidance as regards flexible working and highlighted some of the trends observed during periods of lockdown, and what these trends could mean for the future of working. Guidance has also been published regarding hybrid working, which supplements the ACAS guidance on the same topic which you can read here.

A four-day working week

Campaigners are also pushing for a four-day working week for employees, instead of five, saying it increases productivity and morale. This is being trialled across the UK from June this year, as part of a program run collaboratively between the UK 4 Day Week Campaign, thinktank Autonomy and researchers from Boston College, and Oxford and Cambridge universities. This remains an initiative driven by select individual employers only who have agreed to participate and it is yet to be seen whether there will be movement towards a wider policy decision on the matter.

Equalising shared parental leave and maternity leave

Some believe shared parental leave and maternity leave should be equalised, recognising that supporting both parents equally is more likely to lead to true equality when it comes to childcare. This would require employers to offer the same level of enhanced pay to those on maternity leave and shared parental leave. All too often we women stay at home for longer periods as their partner taking shared parental leave receives only the statutory amount for shared parental pay. If the default position was more favourable, we may see more employers offering enhanced pay to parents.

How can you get involved?

If you would like to lend support with your feet, the details of the marches which will take place nationwide are on the Pregnant then Screwed website.

For employers, this is a great opportunity for you to reflect, take stock of your internal policies and think about whether there is room to improve what you offer to your workforce in terms of improved parental rights, enhanced pay and flexibility.

Brahams Dutt Badrick French LLP 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 Blair Wassman (blairwassman@bdbf.co.uk) or your usual BDBF contact.

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Did you know that approximately 6.3 million people in the UK suffer from dyslexia? With around 10% of the population affected, it is important for employers to understand what obligations they have, if any, towards dyslexic workers.  Earlier this month, “World Dyslexia Awareness Week” aimed to raise awareness and help dyslexic people feel seen, heard and accepted for the individuals they are.  In this briefing, we explain what dyslexia is, when it constitutes a disability under the Equality Act 2010 (the Act) and the potential obligations on employers to make reasonable adjustments.

Is dyslexia always a disability?

Under the Act, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.  Dyslexia is classified as a neurodiverse condition because it adversely affects the way a person learns and processes information. Consequently, dyslexia would be regarded as a mental impairment under the Act.  As a lifelong condition, it would also be regarded as having a long-term impact.

However, this does not mean that dyslexia will always qualify as a disability.  Although it has the potential to have a substantial adverse effect on a person’s daily activities, this is not always the case.  For an individual’s dyslexia to have a substantial adverse effect, it must have more than a trivial or minor impact on their ability to carry out normal day-to-day activities.

Protection for dyslexic workers who are disabled

The Act seeks to protect disabled people from discrimination in the workplace and in wider society.  Importantly, employers have a duty to make “reasonable adjustments” for disabled job applicants and workers.  This means that where a person’s dyslexia as amounts to a disability under the Act, a duty to make reasonable adjustments may be imposed on an employer.

This duty will be triggered for disabled dyslexic workers where the employer knows (or ought to have known given the facts available to them), that the worker has dyslexia and that the worker was likely to be placed at a substantial disadvantage compared to non-disabled people, because of:

• a provision, criterion or practice of the employer;
• a physical feature of the employer’s premises; or
• the non-provision of auxiliary aid.

Where the duty applies, the employer must take reasonable steps to reduce the disadvantage.  If an employer fails to comply with their duty to make reasonable adjustments this will amount to discrimination under the Act.  Importantly, employers need to remember that if the duty applies, they are required to take a proactive approach rather than wait for the worker to ask for a change.

When will an adjustment be reasonable?

The duty to make adjustments only requires an employer to take such steps as it is reasonable to take in order to avoid the disadvantage experienced by a disabled person. Measures which would impose a disproportionate burden on the employer do not have to be taken. A holistic approach should be taken in which the effect of all steps is considered, not in isolation, but as a whole.

Further, an employer should consider the extent to which a step will be effective in preventing substantial disadvantages to a disabled person. To improve the chances that that steps will be effective, an employer should seek to consult the disabled person about their proposed step.  When considering whether an adjustment is “reasonable”, the following factors are relevant:

• the practicability of the step;
• the size, nature and resources available to the organisation;
• the financial and other costs of the adjustment;
• the extent to which the adjustment would disrupt the business;
• the impact on other employees;
• the timing of the adjustment; and
• health and safety or other obligations on the organisation.

What sort of adjustments might need to be made for a dyslexic job applicant or worker?

As a starting point, it is good practice for employers to ensure that they proactively review all workplace policies from time to time to ensure that they do not risk causing substantial disadvantages to disabled workers.

Specific adjustments that may be considered reasonable for dyslexic job applicants and workers include:

• affording dyslexic applicants and workers more time to carry out certain tasks;
• giving verbal as well as written instructions;
• providing assistive technology such as a screen reader, scanning pen or text-to-speech software;
• highlighting the key points in documents;
• using different formats to convey information e.g. audio, video, diagrams and flowcharts; and
• permitting the use of digital recording devices in meetings and training sessions so that the worker doesn’t have to take written notes.

The British Dyslexia Association offers further examples of adjustments that may be helpful.

In addition, it can be helpful to keep a record of reasonable adjustments made for disabled workers.  An up-to-date reasonable adjustment record can help an employer ensure that all reasonable adjustments are appropriate and that the information is passed seamlessly between managers.  This saves the worker from having to explain their condition and what they support they need each time there is a change in line management.

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss how you can support members of your workforce who have dyslexia, please contact Anthony Nzegwu (AnthonyNzegwu@bdbf.co.uk), Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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We are pleased to announce that BDBF has once again been top-ranked by Chambers UK in their 2023 Guide with all BDBF’s partners named as leading individuals.

Here is the outstanding feedback on our team.

Employment: Senior Executives – Band 1

The team:

“They are the most tenacious senior executive firm. They are the best at what they do.”

“They are responsive, strategic and willing to take bold risks. They receive great cases and push them as far as they can. I think they are a leader in the field.”

“Brahams Dutt Badrick French are at the forefront of the law and are highly commercial. They are always there when needed.”

“They have carved out a niche and a good reputation, particularly in the whistle-blowing space.”

“The entire team was very responsive and well co-ordinated.”

All of our partners have been ranked as leading individuals and senior associates, Clare Brereton and Emily Plosker, are named as associates to watch.

Gareth Brahams – Band 1

“Gareth is a phenomenal lawyer.”

“Gareth Brahams is excellent at handling sensitive employment matters.”

Paula Chan – Band 2

“Paula is an excellent lawyer. She is a good negotiator and is very dynamic in her approach.”

Claire Dawson – Band 2

“Claire has excellent awareness and commercial judgement.”

Polly Rodway – Band 3

“Polly overall was amazing. She was knowledgeable but combined that with pastoral support and empathy.”

Nick Wilcox – Band 4

“Nick Wilcox is strong in the regulatory space.”

Clare Brereton – Associate to Watch

Emily Plosker – Associate to Watch

Thank you to our clients, referrers and employment law colleagues for the incredible feedback.

If you would like to discuss your employment law needs please contact your usual BDBF contact, email us at info@bdbf.co.uk or call us on 0203 828 0350.

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The Christmas Party season is just around the corner and after years of Covid restrictions, your staff may be raring to let off steam. Yet the heady mix of high spirits and free-flowing alcohol can leave employers with an HR hangover. What can you do to ensure the end-of-year celebration is remembered for all the right reasons?

In our latest lunchtime webinar, our expert team will discuss the following issues:

• How to make sure the Christmas party is safe and inclusive.
• Are you always responsible for the behaviour of staff at social events?
• A look at some common problems that arise including:
  • Budding romances vs. unwanted sexual advances
  • Excessive alcohol consumption and its consequences
  • Drug taking
  • Fighting
  • Office gossip after the event
• Dealing with complaints and employee misconduct.

Event Details

Date: Tuesday, 8 November 2022
Time: 12.00pm – 12.40pm

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We are pleased to announce that we have again been ranked as a top tier firm by The Legal 500 UK 2023.

Please see below the comments made about our team.

Employment: Senior Executives – Tier 1

The team:

Known as a ‘specialist employment boutique with real depth in its offering’, Brahams Dutt Badrick French LLP is ‘very good with senior executives, understanding the regulatory issues as much as the employment issues’. The practice is recommended as ‘a leader in discrimination cases’, as well as providing expertise in whistleblowing and a range of non-financial misconduct matters, including race and sex discrimination and sexual misconduct matters. Core specialisms for the firm are menopause-related cases and employee competition issues, as well as financial services and legal sector matters. Managing partner Gareth Brahams spearheads the group and ‘is top of his game, a tenacious and highly experienced negotiator’. His team includes the ‘highly experienced and professional’ Claire Dawson; Polly Rodway, who has a particular focus advising female executives; financial services and insurance sector specialist Nick Wilcox; and key senior associates Samantha Prosser and Clare Brereton.

Individual rankings:

• Gareth Brahams – Hall of Fame
• Claire Dawson – Next Generation Partner
• Polly Rodway – Next Generation Partner
• Nick Wilcox – Next Generation Partner
• Clare Brereton – Rising Star
• Samantha Prosser – Rising Star
• Paula Chan – Key Lawyer
• Melvyna Mumunie – Key Lawyer

Testimonials:

‘Highly experienced employment lawyers who specialise in representing the senior employees in the Financial Services sector. What sets BDBF apart is their tenacity and ability to represent their clients from a position of strength. BDBF are also leaders in discrimination cases.’

‘Gareth Brahams is top of his game, a tenacious and highly experienced negotiator, he has your corner at all times and will drive home the best outcome without losing sight of the bigger picture.’

‘Claire Dawson is highly experienced and professional with a deep and thoughtful understanding of all employment related law. Claire is very efficient in her work and can turn around high quality responses quickly and concisely.’

‘BDBF have an outstanding practice for individuals. Their partners are extremely experienced, ambitious and adopt novel legal approaches to further their clients interests. A real presence in the employee space, who all senior executives should consider for their employment matters.’

‘Nick Wilcox is a commercially minded, sensible, compassionate but hard-nosed litigator. He takes the ebbs and flows of litigation in his stride, and retains a strategic focus. Clare Brereton is an excellent Senior Associate with outstanding client management skills, and serious litigation nous.’

‘BDBF has a strong boutique employment team, dealing with wide-ranging disputes. An impressive feature of their offering is the expertise in statutory tribunal disputes as well as High Court disputes including bonus and shares claims.’

‘The team is able to draw on this diverse expertise to offer a 360 degree service and is a particular reason why they are strong for high value claimant work and work with a City focus. I consistently recommend them to friends and contacts.’

‘Gareth Brahams is a leading figure in employment law practice and well deserves his top ranking. He brings a depth of experience and legal understanding to his cases as well as strong strategic vision. Gareth leads an excellent team with no weak links.’

Employers – Tier 6

The team:

Brahams Dutt Badrick French LLP’s name partner Gareth Brahams leads a group of ‘technically highly skilled lawyers with emotional intelligence and strategic nous’. Continuing to focus on the regulated financial services and insurance sectors, the group routinely handle matters at the intersection of employment and regulatory law, such as Solvency II, the Remuneration Code, and on Solicitors Regulation Authority implications in respect of sexual harassment. It is also recognised for its capabilities in employment litigation.

Testimonials:

BDBF’s practice for employers is increasing wide-ranging and astute.’

‘Their historical experience of acting for individuals sets them apart from many employer-only firms.’

‘They are an efficient, responsive and resourceful team.’

‘BDBF handles a very significant volume of litigation – possibly more than any other employment team in the UK.’

‘Phenomenal employment law specialists for both employer and employee.’

‘Their lawyers are technically highly skilled but also have huge emotional intelligence and strategic nous which is essential when dealing with employment disputes.’

‘I wouldn’t go anywhere else for contentious employment matters.’

Thank you to our clients, referrers and employment law colleagues for the incredible feedback.

If you would like to discuss your employment law needs please contact your usual BDBF contact, email us at info@bdbf.co.uk or call us on 0203 828 0350.

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BDBF Associate, Melvyna Mumunie, will be participating in a panel discussion for the International Association of Women on 13 October 2022. The panel, entitled “Women in the Workplace: Creating a Culture of Diversity & Inclusion” will discuss the benefits of having greater women representation, women in leadership positions and on boards, and of instituting policies that support gender diversity and inclusion. Register here.

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On 22 September 2022, the Government published the Retained EU Law (Revocation and Reform) Bill.  The purpose of the Bill is to remove the presence and influence of EU law within UK law. This will affect all areas of law, including employment law, and could lead to a significant downgrading of workers’ rights by the end of 2023.

What is the Bill about?

A large proportion of the UK’s legal framework – including its employment law framework – was underpinned by the law of the European Union, primarily a type of law known as a “directive”.  EU directives had to be implemented into UK law, either as an Act of Parliament or a statutory instrument.  Certain other forms of EU law were directly applicable in the UK without the need for any implementing laws – for example, the rights set out in EU Treaties had what is known as “direct effect”.  Decisions of the Court of Justice of the European Union were also binding on the UK.

Brexit required changes to be made to this legal framework.  Acts of Parliament implementing EU directives remained in place, but Parliament would, in theory, have the option of repealing them if, and when, it wished to do so (although this would require another Act of Parliament).  However, all the relevant statutory instruments would automatically fall away once the European Communities Act 1972 was repealed.   To avoid legal chaos when Brexit happened, the Government decided to retain these statutory instruments and transfer them into UK law.  It also chose to retain directly applicable EU law and decisions of the Court of Justice of the European Union made on or before 31 December 2020.  Together, these laws and decisions are referred to as “Retained EU Law”. 

The Government has decided that the time is right to look again at whether Retained EU Law should be kept or repealed.  The Bill provides that:

• all retained EU law contained in statutory instruments; and
• all retained directly applicable EU law,

will automatically expire on 31 December 2023 unless it is preserved (there is a mechanism to extend this until 2026).   

Any Retained EU Law which is kept will be “assimilated” into UK law.  In practice this means that certain EU law principles that govern how these rights operate will disappear.  On top of this, the Bill makes a number of other provisions which are aimed at downgrading the continued impact of EU law on UK law, for example, by making it easier for the courts and tribunals to depart from previous EU case law decisions.

What does this mean for employment law?

Retained EU Law includes a number of important employment law protections including in the following areas:

• working time and paid holiday rights;
• rights upon the transfer of a business / an outsourcing;
• part-time workers’ rights;
• fixed-term employees’ rights;
• agency workers’ rights;
• posted workers’ rights; and
• information and consultation rights.

It will be for Government departments and the devolved administrations to decide which, if any, of these laws are kept.  It is not yet clear how this will be done, or whether there will be any element of consultation with business and trade unions.  In theory, the rights in these areas could simply fall away at the end of next year.  In practice, what seems more likely is that they will be retained but with a reduction in the level of protection.  We discuss below three areas where we think reform is likely.

Working Time Regulations 1998

It is hard to imagine that there could be a complete deregulation of working time and paid leave entitlements in the UK.  Not only would this be hugely unpopular with most of the UK workforce, but it would also not be welcomed by employers who benefit from operating on a level playing field.  However, we think that the rules stipulating a maximum 48-hour working week and governing the calculation of holiday pay could be removed (indeed press reports have suggested that this is the Government’s intention).  This would mean that workers could be permitted to work in excess of 48 hours per week without the employer needing to enter into an express “opt out” agreement with the worker.  It would also mean that holiday pay could be limited to basic pay only, with other components of pay excluded, such as overtime and commission payments. 

Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

TUPE provides that upon a business transfer or outsourcing, employees automatically transfer to the purchaser or new supplier on the same terms and conditions of employment.  In addition, they have the right to be informed and consulted about the transfer and are protected from dismissal.  Again, a total deregulation of this area seems unlikely.  Not only would it be unpopular, but it would also pull the rug out from under those employers who had entered into outsourcing agreements on the basis that TUPE applied and would do so in future. 

Yet one likely candidate for change could be the introduction of a rule which permitted the harmonisation of terms and conditions post-transfer.  When the TUPE regulations were reviewed in 2013, businesses reported that the inability to harmonise the terms and conditions of the inherited workforce was a significant burden.  The Government agreed that the ability to harmonise terms was desirable, but said its hands were tied by EU law.  Now, they have the opportunity to make this change.

Agency Workers Regulations 2010

The Agency Workers Regulations 2010 entitle agency workers to basic employment rights comparable to that of a permanent employee once they have completed a 12-week qualifying period.  These rights cover areas such as pay, annual leave, working hours and maternity rights.  These regulations are widely considered burdensome by employers and, as a result, the Government may simply allow them to expire. 

What does this mean for employers?

This Bill could lead to sudden and radical overhaul of employment rights.  On the other hand, it could mean a series of relatively moderate tweaks made over a period of several years.  At present, the precise path the Government will take is unknown.  Nor is it clear what voice employers and workers will have in this process.   All of which means that employers need to brace themselves for yet more uncertainty.

The first reading of the Bill is due to take place on 11 October 2022.  We will provide further updates as the Bill progresses through Parliament.

Retained EU Law (Revocation and Reform) Bill

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On 4 October 2022, BDBF’s Principal Knowledge Lawyer, Amanda Steadman, will be taking part in “The risks of not supporting employees through menopause” – a LinkedIn live interview with Stella for Work. The talk will consider the hot topic of menopause in the workplace. Find out more and register here.

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On 23 September 2022, the Chancellor of the Exchequer, Kwasi Kwarteng, delivered the Autumn Statement – dubbed the “mini budget” – to Parliament.   In this briefing, we take stock of the key points of interest for employers.

The Chancellor’s mini budget outlined proposals to grow the economy at a rate of 2.5% in the medium term and put an end to the weak economic growth seen over recent months.   The  “Growth Plan 2022” contains several key employment and employment tax measures that will have an impact on employers.  

Repeal of the recent IR35 reforms

One of the most significant and surprising announcements concerned the changes to the IR35 regime.  The off payroll working rules – commonly known as “IR35” – were introduced in 2000 to crack down on the problem of tax avoidance through “disguised employment”. Disguised employment is where a worker supplies their services to an end user client via an intermediary (usually a personal service company controlled by the worker) to benefit from the tax treatment afforded to contractors, when, in reality, the relationship is more akin to one of employment.

The IR35 rules sought to tackle this problem by requiring the intermediary to determine whether the worker would be deemed an employee (or an office holder) of the client for tax purposes if there was a hypothetical direct contract between them (the status determination). Where a worker was deemed to be an employee for tax purposes, then the intermediary was obliged to tax the worker as an employee.  The problem was that the responsibility for making the status determination rested with the intermediary.  In practice, this meant that the worker – with a vested interest in not being an employee for tax purposes – was assessing his or her own tax status. The client in the equation had no role in the process and no potential liability. 

To address this problem, the rules were reformed in 2017 (in the public sector) and 2021 (in the private sector), to remove the intermediary’s role in the process.  Responsibility for making the status determination shifted to the client. If the worker was deemed to be an employee for tax purposes, the obligation to deduct income tax and employee National Insurance Contributions (NICs), and to pay employer NICs, shifted to the entity sitting immediately above the intermediary in the contractual chain.  You can read more about these reforms here.

However, from 6 April 2023, the reforms made to the IR35 regime in 2017 and 2021 will be repealed.  This means that intermediaries will once again become responsible for assessing their own tax status and paying tax and NICs, despite the previous concerns about tax avoidance. 

Removal of the cap on bankers’ bonuses

A cap on bankers’ bonuses has been in place since 2014 and limits bonus payments to either 100% of fixed pay or 200% of fixed pay provided shareholder approval is given, as part of EU-wide regulatory measures put in place following the credit crunch.   The Chancellor announced that this cap would be removed on the basis that it either leads to the inflation of fixed pay or drives banking activity outside the EU.  Further, the Government’s view is that pay in the form of bonuses aligns the incentives of the individual with those of the bank, which, in turn, will support the growth of the UK economy.  However, a return to the days of eye-watering bonus awards may yet herald a rise in disputes about the amount of bonus awarded, as well as sex discrimination or equal pay disputes.

There has been no suggestion that other limitations on remuneration in the financial services sector will be removed, namely the rules on deferrals, malus and clawback.

Cuts to income tax and national insurance

The basic rate of income tax will decrease from 20% to 19% in April 2023.  The additional rate of income tax of 45% charged on taxable income over £150,000 will be abolished in April 2023.  This means that the higher rate of income tax of 40% (which is unchanged) will apply to all income above £50,270.  In addition, the 1.25% increase to the taxation of income earned from dividends will be reversed from 6 April 2023.  Income tax thresholds will remain frozen until April 2026. 

The temporary 1.25% increase in NICs rates that took effect in April 2022 will be reversed on 6 November 2022.  Further, the 1.25% Health and Social Care Levy which was due to replace the temporary NICs increase from April 2023 will be cancelled.

Expansion of company share option plans

Company share option plans (CSOPs) are tax-advantaged discretionary share option plans under which employers may grant options to employees.  Currently, the maximum value of options that may be granted under a CSOP is £30,000.  From April 2023, qualifying companies will be entitled to grant options up to a value of £60,000.   Further, the qualification rules will be relaxed to widen access to CSOPs.  

Introduction of “investment zones”

Discussions are underway with 38 local authorities to create special “investment zones” across England where businesses will, amongst other things, benefit from zero rate employer NICs on earnings up to £50,270 for all new employees who work in the zone at least 60% of the time.   No timescale for introducing the investment zones has been provided.

New limits on industrial action

In response to the train and tube strikes seen over the Summer, the Chancellor announced that new legislation will be introduced to ensure that minimum service levels are in place for transport services.  The aim is to limit the impact that industrial action has on travel.  Further, new laws will be introduced to require trade unions to put pay offers from employers to a members’ vote, with the result that strike action can only be taken if that offer is rejected by members.

Abolition of the Office of Tax Simplification

The Office of Tax Simplification is to be abolished and instead the Treasury and HMRC will be tasked with simplifying the tax system.  We understand that the OTS will continue with its review into hybrid and remote working arrangements, which is due to be published next year.

HM Treasury – The Growth Plan 2022

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The EAT has upheld a Tribunal’s decision that it was fair to dismiss an employee for being persistently late to work, even though sometimes this was by just two or three minutes.  Employees must be ready to start work from the time that they are paid, and employers are not required to show they have suffered any problems as a result of an employee’s lateness.

What happened in this case?

The Claimant began working as a cleaner in the House of Commons in June 2015.  Cleaning staff started work at 6am in order to have finished cleaning before MPs arrived for the day.  Throughout her employment, the Claimant was regularly late for work. 

In December 2017, the Claimant was issued with a first written warning for lateness, because she had arrived late on 17 out of 20 days.  The Claimant’s timekeeping did not improve, and further disciplinary proceedings were commenced.  A final written warning was issued in April 2018, which notified her that if her timekeeping did not improve, she could be dismissed.  There was still no improvement.  The Claimant was late on a further 43 occasions, arriving between two and 33 minutes late each time.  The Claimant was dismissed in May 2019.

The Claimant claimed that she had been unfairly dismissed.

What was decided?

The Claimant admitted that she was sometimes late to work, but that dismissal was a disproportionate sanction.  The Tribunal held that all instances of lateness counted as misconduct, even where it was a matter of just a few minutes.  It was not incumbent on an employer to prove to an employee that there had been actual damage arising from their conduct.  It was also accepted that employees should not just arrive at the workplace on time but be ready to start work from the time that they are being paid.

The Claimant also argued that she had been treated inconsistently with other colleagues who had arrived late but had not been dismissed.  However, the Tribunal accepted that these cases were different because these colleagues had improved their behaviour once they had received a warning, whereas the Claimant did not.  

Unusually, the Tribunal did not have sight of the employer’s Disciplinary Policy in the proceedings, but it was prepared to accept that poor timekeeping is generally regarded by employers as misconduct, and it dismissed the claim.  

The Claimant appealed to the EAT, arguing (amongst other things) that the Tribunal’s conclusion that poor timekeeping is generally regarded as misconduct was incorrect.  The EAT rejected the appeal.  It reiterated that it is incumbent on employees to be ready to begin work at their scheduled start time, and that the Tribunal was entitled to find that lateness is generally viewed as a conduct issue which may justify dismissal.   

It also agreed that the employer did not have to demonstrate that the persistent lateness caused problems, but even if that was wrong, where an employee is in receipt of a final written warning for persistent lateness and had been warned of dismissal, he or she is clearly on notice of the potential consequences, meaning no further explanation is required from the employer.

What does this mean for employers?

Most disciplinary policies will state that lateness will be treated as misconduct and may trigger disciplinary proceedings.  This decision reassures employers that even if their policy does not expressly state this, lateness is generally treated as a misconduct issue.  The decision also underlines that there are not degrees of lateness which are acceptable and should be overlooked.  Rather, employees are obliged to be ready for work at their start time and if they are not, the employer is entitled to take disciplinary action. 

It is important to remember that a fair process should be followed in order to achieve a fair dismissal.  In most cases this will involve issuing warnings before moving to dismiss.  It will also involve taking a consistent approach and listening to the particular employee’s explanation for his or her lateness and making allowances where appropriate (e.g. if the lateness is linked to a disability).

Tijani v The House of Commons Commission

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 Hannah Lynn (HannahLynn@bdbf.co.uk) , Amanda Steadman (Amanda.Steadman@bdbf.co.uk) or your usual BDBF contact.

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