Gareth Matthews, Author at MLP Law

Changes to Holiday Pay

From the beginning of the year, changes to holiday pay calculations, particularly in relation to those with irregular hours or who are part-time, come into force.  Gareth Matthews, Head of Employment at mlplaw, sets out the key points.

Following Government consultation, the following reforms have been made to holiday pay calculations, introducing into UK law:

(1) rolled-up holiday pay for irregular hours and part-year workers;

(2) an accrual method to calculate entitlement at 12.07% of hours worked in a pay period for irregular hours and part-year workers in the first year of employment and beyond;

(3) a method of accrual of annual leave for irregular hours and part-year workers for when they are on other periods of leave (eg maternity/family related leave or sick leave), and

(4) various pieces of retained EU case law considered necessary to retain workers’ overall level of protection and entitlement in relation to carry over of annual leave when a worker is unable to take their leave (eg due to being on maternity/family related leave or sick leave).

The changes also revoke the temporary rules brought in during Covid, so that workers can no longer accrue Covid carry over leave but can use leave accrued prior to 1 January 2024 on or before 31 March 2024.

If you would like advice from the Employment team at mlplaw in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK

Understanding Discrimination Claims in the Employment Tribunal

There are so many layers to discrimination claims in the Employment Tribunal that employers often don’t know where to start.

Avoiding discrimination claims in the first place is clearly the best approach, but if you do receive a claim, how do you defend it? As an employer, it’s vital to understand the complexities of discrimination claims so that you’re ready to tackle the common hurdles which affect employers head-on.

Thankfully, the Employment Tribunal experts at mlplaw have created this blog, especially for employers seeking to protect their business from discrimination claims.

Peel back the layers of complexity:

Discrimination legislation generally, and discrimination claims specifically, can be incredibly daunting for employers. However, with expert guidance, these layers of complexity can be stripped back so that you can protect your business from Employment Tribunal claims.

From recognising the protected characteristics (such as race, age, sex, or disability) to understanding the differences between the different forms of discrimination (such as direct, indirect, or harassment), when you understand the legal framework you can put into practice effective measures to ensure you don’t fall foul of your obligations.

Common challenges for employers and addressing them proactively:

It is all too easy for employers to fail to identify and appropriately tackle discriminatory behaviours, or to overlook the importance of putting in place effective policies and procedures to prevent such behaviour from occurring.

The employment law experts at mlplaw have seen these mistakes and many more. They have also seen how costly they can be for employers and have practical solutions to prevent your business from falling into the same trap.

They know that the key to overcoming these challenges lies in taking proactive measures. Employers need robust anti-discrimination policies, regular training to educate employees on what is and aren’t acceptable in the workplace (as well as for managers on how to deal with discriminatory behaviour), and a commitment to fostering an inclusive workplace culture.

Addressing issues promptly, conducting thorough investigations, and taking corrective action when necessary are all crucial steps in building a workplace that values diversity and combats discrimination.

Tailored Solutions for Employers:

We know that each case is unique and our approach involves providing a bespoke solution that is tailored to your business needs. Whether it’s preventative measures, dispute resolution, or representing you in the Employment Tribunal, mlplaw offers a comprehensive suite of services specifically designed to safeguard your business.

Conclusion:

Discrimination claims may be complex, but with the right expertise and support, proactive employers can tackle the challenges these claims bring and avoid the consequences that can befall the unprepared.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully avoiding and defending discrimination claims in the Employment Tribunal.

Settling an Employment Tribunal Claim: The Strategic Choice?

Picture this: You’re a business owner, and an Employment Tribunal claim lands on your desk. The immediate instinct might be to dig in your heels and prepare for a protracted legal battle, driven by your values as a responsible employer. The sense of injustice can sting, making it feel like a matter of principle to defend your name to the hilt.

However, consider the hidden currents beneath the surface. The time and costs incurred in defending a claim can be like a heavy anchor, slowing down your business voyage. The process itself is like a turbulent storm, and the impact of being absorbed by ongoing employment litigation can’t be underestimated.

Thankfully, there’s a more efficient course of action. Let’s explore the benefits of achieving commercial settlements in Employment Tribunal claims:

  1. Avoid Costs and Minimize Financial Impact:

Think of settling the claim as a strategic manoeuvre, akin to finding a shortcut through the maze. It can help you steer clear of the financial pitfalls of a prolonged legal defence. Settling early in the Employment Tribunal process often means paying a significantly lower settlement sum to the Claimant than the costs incurred by defending the claim through a final hearing. Even if the claim is successfully defended, recovering those costs in the Employment Tribunal is a long shot, meaning this is a serious consideration even in cases where the employer has the strongest defence.

 

  1. Cut Out Distractions and Free Up Your Time:

Consider the Employment Tribunal process as a detour, a long and winding route. Settling is like finding the direct highway to resolution, saving you from the stress and distraction of navigating a legal labyrinth. It’s a faster way to get back to matters that truly benefit your business.

 

  1. Stay in Control:

A settlement places you in the driver’s seat, like holding the reins of your business. You dictate the terms, ensuring that the outcome aligns with your goals and needs. You wouldn’t hand control of your business to a stranger in any other context, so why consider it here?

 

Settling an Employment Tribunal claim isn’t waving a white flag; it’s a strategic advance. It’s a shrewd business decision to utilise your resources efficiently, rather than exhausting your energy, time, and finances in a prolonged legal battle. By freeing up your time and minimizing the financial impact of the claim, you can redirect these valuable assets to more productive ventures within your business. This approach ensures that an Employment Tribunal claim remains an inconvenience, rather than growing into a major distraction and financial strain on your business.

mlplaw is here to support you throughout the Employment Tribunal journey and ensure you have expert representation every step of the way. Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of achieving a successful outcome when defending an Employment Tribunal claim.

The Employment Tribunal Process: From Start to Finish

The Employment Tribunal process can appear daunting for an employer. Understanding the sequence of events is crucial to managing expectations and ensuring a smoother journey through the legal system.

In this blog, we’ll guide you through the Employment Tribunal process from start to finish, offering an overview of what to expect at each stage.

 

  1. ACAS Early Conciliation

Most Employment Tribunal claims begin with the optional step of ACAS Early Conciliation. Before a claimant can submit a claim to the Employment Tribunal, they must notify ACAS, who will aim to facilitate a resolution between the parties before the matter proceeds to a formal claim.

 

  1. Claim Submission

If the dispute is not resolved at ACAS Early Conciliation stage, the formal proceedings will commence the submission of a claim. A Claimant (the person bringing the claim) files an ET1 form with the Employment Tribunal, outlining the details of their complaint.

 

  1. Acknowledgment and Response

Upon receipt, the Employment Tribunal will acknowledge the claim and notify the Respondent (typically the employer). The Respondent must then submit their response using an ET3 form, in most cases within 28 days.

 

  1. Case Management

After the response is filed, the Employment Tribunal will take over the management of the case. This will include scheduling and managing key dates, such as deadlines for submitting documents and witness statements.

 

  1. Preliminary Hearings (if necessary)

In some cases, a preliminary hearing may be held to address specific issues or disputes, or to discuss the case management timetable referred to above. These hearings help streamline the main tribunal process by resolving any procedural matters and setting a clear schedule for the progression of more complex claims.

 

  1. Exchange of evidence

The Claimant and Respondent are required to exchange all relevant evidence in their possession. This can include anything from meeting notes and correspondence to CCTV footage and WhatsApp messages. As the parties are obliged to provide all evidence which is relevant to the issues in the claim, this can also require the parties to disclose evidence which is damaging to their case.

The evidence exchanged allows the Employment Tribunal to assess the strength of the evidence, scrutinise the parties’ arguments, and make informed decisions based on a complete and accurate picture of the situation.

 

  1. Witness Statements

Witness statements play a pivotal role in Employment Tribunal claims as they provide firsthand accounts of the events and circumstances leading to the dispute. These statements are crucial because they serve as evidence presented by individuals who have direct knowledge of the case, such as people who observed key events or who made key decisions (such as disciplinary decisions).

Witness statements help in establishing the facts, corroborating or refuting the claims made by either party, and ultimately influencing the Employment Tribunal’s decision. Witness statements can significantly impact the outcome of a case, making them a vital tool in ensuring a fair and just resolution in Employment Tribunal claims.

 

  1. The Final Hearing

The final hearing is where the heart of the matter is addressed. It’s here that both parties present their case, and witnesses may be called upon to present their evidence and face cross-examination. The Employment Tribunal will evaluate the evidence and arguments before making a judgment.

The final hearing represents the culmination of the parties’ efforts to make their case and is where the Employment Tribunal’s decision, which can have substantial legal and financial consequences, is reached.

 

  1. The Judgment and Remedy

The Employment Tribunal issues its judgment at the conclusion of, or following, the final hearing. The judgment typically outlines the reasoning behind the Employment Tribunal’s decision, and in many cases, or on request, the Employment Tribunal will provide its reasons in writing.

If the claim is successful, the Employment Tribunal may also confirm the remedy which is being awarded, although it is also common for this to be determined at a separate Remedy Hearing. The remedies available in Employment Tribunal include compensation, reinstatement, or re-engagement and the actual remedy awarded will depend on the circumstances and the outcome sought by the Claimant.

 

  1. Appeals (if applicable)

Appeals are relatively rare in Employment Tribunal claims, although either the Claimant or the Respondent is entitled to appeal if they believe the Employment Tribunal made a legal error in reaching its decision. Parties are not entitled to appeal simply because they are unhappy with the Employment Tribunal’s decision. Appeals against decisions made by the Employment Tribunal are heard by the Employment Appeal Tribunal (EAT) and appeals beyond the EAT are also possible in certain circumstances.

 

Conclusion:

We hope this blog will equip you with a good understanding of what the Employment Tribunal process entails, from the moment you are contacted by ACAS during the Early Conciliation process until the Employment Tribunal hands down its judgment.

mlplaw is here to support you throughout the Employment Tribunal journey and ensure you have expert representation every step of the way. Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully defending an Employment Tribunal claim.

What Employers Should Know About the Employment Tribunal Process

Navigating the Employment Tribunal process can be a complex and daunting task for employers. As you prepare to face this legal challenge, you’re likely to have a host of questions swirling in your mind.

We’re here to provide clarity and guidance, and in this blog we address the ten of the most frequently asked questions regarding Employment Tribunal claims. From understanding the role of the ACAS conciliation process to the possibility of recovering costs, we’re ready to shed light on the key aspects of this legal journey.

Let’s dive in and demystify the Employment Tribunal process together.

 

1. What is the ACAS conciliation process?

Before an individual can submit a claim to the Employment Tribunal he or she must participate in the ACAS conciliation process. This means that ACAS help to resolve the dispute by reaching an agreement between the parties, without the need to go to an Employment Tribunal.

 

2. How do I defend a claim against my business?

First, you must ensure that you complete and submit a form outlining your response to the claim (called an ET3).  This can be done online or by post.  You must briefly outline the facts of the case from your point of view and it is also useful to include the legal grounds of your defence. Then, either you or your lawyer must argue your case before a Judge.

 

3. Can an Employment Tribunal reject or ‘strike out’ a claim?

Yes, but it is unusual.  A claim can be rejected if some of the essential information is not contained in the claim form (also known as an ET1). In certain circumstances, the Employment Tribunal may ‘strike out’, for example, if it has no reasonable prospect of success, is brought or conducted vexatiously, or is not actively pursued.

 

4. How long do I have to respond to a claim?

You have 28 days to submit your response to the Employment Tribunal once you have been notified of the claim.

 

5. What happens after the ET3 has been submitted?

Once both parties have submitted the relevant forms, the Employment Tribunal will set out a timetable, outlining further documents that may be required and setting dates for any evidence to be shared between the parties. The Tribunal may also set a date for the final hearing, at which evidence will be given (either in person or remotely).

 

6. What is the difference between a preliminary hearing and a final hearing?

In some claims, a preliminary hearing may be held to determine specific issues, such as whether an employee has a disability (in disability discrimination claims). A final hearing is usually the final stage of a claim, where the Employment Tribunal hears evidence and determines whether the claim succeeds or not.  If the claim succeeds, there may also be a remedy hearing to determine how much compensation should be awarded to the Claimant.

 

 7. Do all claims go to a final hearing?

No. In fact, most claims do not go all the way to a final hearing. Many cases settle before reaching a final hearing, others may be discontinued or struck out for a variety of reasons. However, it is often best to prepare for the claim to go all the way.

 

8. What sort of evidence is considered in an Employment Tribunal claim?

This may vary from claim to claim, but will typically include witness evidence from people who witnessed key events or made decisions relating to the claim, as well as any relevant documents such as contracts, meeting notes and policy documents. It is common for WhatsApp messages, social media posts, and CCTV footage to be referred to.

 

 9. Should I just settle the claim?

It is always worth considering whether settlement might be a viable option. In many cases, there may be commercial merit in reaching a settlement, where this avoids the risk, time, and cost of the claim going all the way to a final hearing.

 

10. If the claim is successfully defended, will I be able to recover my costs?

Possibly, though this is unlikely. Costs awards tend to be the exception, rather than the rule, in Employment Tribunal claims and will only be awarded in limited circumstances, such as where the claim was pursued vexatiously or had no reasonable prospect of success.

 

We hope you find this overview of common questions about Employment Tribunal claims to be informative and helpful. Remember, when it comes to navigating the intricacies of the Employment Tribunal process, having the right legal guidance can make all the difference.

If you find yourself facing an Employment Tribunal claim, or if you have additional questions not covered in this blog, don’t hesitate to get in touch with our team of experts. We’re here to provide you with the support and representation you need to protect your interests. Your peace of mind is just a click or a phone call away.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you’re well-prepared for whatever the Tribunal process may bring.

Common Employment Tribunal Mistakes and How to Avoid Them

Employment Tribunal claims can be a legal minefield for employers, and even the most well-intentioned businesses can stumble into costly pitfalls.

One key to successfully navigating these complexities is to recognise the common mistakes and take proactive steps to avoid them. In this blog, we’ll shed light on some of the most common mistakes employers make when defending Employment Tribunal claims and offer valuable guidance on how to steer clear of these potential hazards.

 

  1. Lack of Proper Documentation:

 

One of the most significant mistakes employers can make is failing to maintain comprehensive records of employment-related matters. In the absence of proper documentation, it becomes challenging to prove that your actions were fair and reasonable in the event of a claim.

To avoid this mistake, ensure that all employment records, including contracts, performance reviews, disciplinary actions, meetings and correspondence, are well-maintained and easily accessible.

 

  1. Mishandling workplace procedures, such as in relation to disciplinary, grievance, performance and absence issues:

 

The complexity of Employment Law means it is all too easy for employers to mishandle workplace procedures, particularly in relation to disciplinary and grievance matters. This typically includes not following the correct processes, not providing an opportunity for the employee to appeal, or showing bias in decision-making.

To avoid this mistake, make sure your internal procedures, such as in relation to disciplinary and grievance matters, are clearly outlined, consistently followed, and that all parties involved are treated fairly and impartially. Best of all, take professional advice on how best to manage issues such as disciplinary and grievance proceedings and performance and absence management.

 

  1. Misclassification of Employment Status:

 

Misclassifying employees or workers as self-employed or as contractors can lead to Employment Tribunal claims. It’s crucial to understand the legal distinctions between these categories and correctly classify your workforce. Misclassification can result in claims for employment rights, including unfair dismissal, holiday pay and minimum wage entitlements.

 

  1. Ignoring ACAS Early Conciliation and alternative dispute resolution options:

 

The ACAS Early Conciliation process is designed to resolve disputes before they escalate to an Employment Tribunal claim.

Failing to engage in this process or closing your mind to alternative dispute resolutions options such as negotiation and mediation can be a costly oversight, not to mention a wasted opportunity to reach a resolution before the cost, time and stress of defending the claim have a detrimental impact on your business.

 

  1. Misunderstanding Time Limits:

 

It’s essential to understand the time limits for responding to Employment Tribunal claims. Missing these deadlines can result in default judgments against you. Keeping a close eye on these timelines and seeking legal advice promptly is crucial.

 

Employment Tribunal claims can be daunting, but with careful preparation and guidance, employers can avoid common mistakes that often lead to unfavourable outcomes. It’s vital to prioritise proper documentation, fair procedures, and a proactive approach to dispute resolution. If you ever find yourself facing an Employment Tribunal claim, seeking expert legal advice from experienced employment lawyers can be your best defence against these pitfalls. Don’t let these errors derail your business – take the necessary steps to protect your interests and maintain a healthy working environment.

Contact us today on 0161 929 9969 or employment@mlplaw.co.uk to schedule a consultation and ensure you give your business the best chance of successfully defending an Employment Tribunal claim.

The ‘Bonfire’ of EU laws

As a result of the Brexit vote in 2016, the Government has long trailed the ‘bonfire’ of EU laws, which were all to be consigned to history by the end of December 2023.  Yet, Gareth Matthews, Head of Employment, considers the recent change of tack which has taken place, with a decision instead to repeal only particular laws, avoiding this so-called ‘sunset clause’ on all EU legislation.

 

With the decision to have a more targeted approach, more is now known about the key areas of employment law that the Government intends to tackle, namely TUPE and Working Time.

 

In terms of changes to TUPE, the requirement to consult with appointed representatives when there are fewer than 50 employees in the business and fewer than 10 transferees, is to be removed.

 

Where Working Time regulations are concerned, employers will now be allowed to pay rolled up holiday pay and will no longer be obliged to keep records of working hours (although this will likely make little difference in practical terms for most employers).

 

Finally, the decision has been taken to remove any distinction between ‘normal’ holiday leave and ‘additional’ holiday leave, to create one entitlement.  This would mean that the 4 weeks under EU law and the 1.6 weeks given under UK law would be merged together, which some say may have implications for the way holiday pay is calculated, with employers no longer having to include overtime or commission etc.

 

The fine detail is still to be revealed but this announcement gives employers a steer as to the areas of employment law to be altered in life outside of the EU.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Swearing at Work

Using the ‘F-word’ at work is no longer shocking in Britain, an Employment Tribunal Judge has ruled.  Gareth Matthews, Head of Employment at MLP, considers the case in more detail.

 

An Employment Judge has ruled recently that swear words have a ‘lack of significance’ in the modern workplace, with phrases like ‘I don’t give a f**k’ being ‘fairly commonplace’. Employment judge Andrew Gumbiti-Zimuto ruled that swear words no longer have the ‘shock value’ they once did.

 

The Judge found in favour of an employee who complained her boss swore at her by ‘dropping the F-bomb’ during a ‘tense’ meeting.  Although, despite upholding the employee’s claim for unfair dismissal, the Judge determined that the claimant’s predicament was not exacerbated by the fact that her boss swore at her during the meeting.

 

So, what should employers take from this case – is it now free reign on bad language at work, in echoes of boardroom scenes from the television show Succession?

 

Well, the short answer is no.  The law has always accommodated a degree of tolerance of swearing in the workplace, particularly in certain locations like the factory floor or high pressured environments in the City, describing it as ‘industrial language’.  Yet, there has also been a cultural shift in recent years, with a move towards treating colleagues and staff in a more gentle and collegiate fashion, especially in light of the rising prominence of consideration of addressing diversity and wellbeing in our language and actions at work.

 

Essentially, context is everything.  Employees should be encouraged to speak to colleagues and others in a professional and courteous manner, which should be reflected in policy documents and the conduct of management and senior staff.  If, however, the odd expletive slips out, it is unlikely to signal a significant legal risk for employers.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Can you retract a job offer?

Can you retract a job offer?

 

Gareth Matthews, Head of Employment, considers the thorny question of retracting a job offer, highlighting the potential risks and how best to address them.

 

Conditional offers of employment

 

An offer of employment can be made conditional on certain promises being satisfied and/or proven. Common examples of this could include proof of someone’s academic results, receipt of two satisfactory references, or proof of someone’s right to work in the UK.

 

If the individual does not satisfy one of these conditions, you will then be able to withdraw the offer with no further consequences.

 

Unconditional offers of employment

 

If the offer of employment is unconditional (and has been accepted), then the above will obviously not apply, and a binding contract will have been created between yourselves and the individual, even if they have not yet joined. This complicates matters. Nevertheless, there are still some limited situations where you may have a legal basis to retract the offer, such as if the individual commits an act of gross misconduct that could justify summary dismissal without notice.

 

You could also consider serving the individual with their contractual notice period before their employment actually starts. As ending the agreement could constitute a breach of contract, you should compensate the individual with the notice pay that they would have received had they actually started working for you to head off such a claim.

 

What if you do not have a legal basis for retracting an offer?

 

If you retract an offer of employment without a legal basis to do so, and without providing any compensation, you are at risk of a breach of contract claim being brought against you in the Employment Tribunal (“ET”).

 

The compensation awarded will seek to put the individual in the position they would have been in, had the contract not been breached, which could be a substantial amount (especially if someone has already resigned, or is a senior employee). Furthermore, it should be remembered that individuals who have not yet begun working for you can still bring a claim for discrimination, so you should not withdraw an offer based on a protected characteristic such as age, race or disability etc.

 

What is the best approach?

 

Taking the above into account, it can be therefore be useful to consider the following when making a job offer:

 

  1.            Ensure your offers of employment are conditional on anything you deem essential for the role.
  2.            Seek legal advice if you are unsure of the grounds of retracting an offer of employment.
  3.            Be aware of your obligations and the potential consequences if you breach the contract of employment.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

 

Fire and Rehire Draft Guidance Published

The Government has published guidance, setting out commercial best practice when employers wish to change or amend the terms and conditions of employees.  Julie Sabba, an Associate in the Employment team, summarises the new draft Code of Practice for employers.

 

The proposed Code provides guidance in relation to situations where an employer takes steps to impose changes to terms and conditions by dismissing affected employees, then offering immediate re-engagement on the new terms.  This is usually done after a period of consultation with either the employees or the relevant union, something which is strongly recommended in the draft Code.

 

Although not binding, failure to adhere to the advice contained within the Code will be taken into account in any unfair dismissal claim, with a potential sanction of a 25% uplift imposed on employers who unreasonably fail to comply.

 

Some of the key points in the Code are:

 

  • An onus on the employer to reconsider its business strategy and avoid the disputed terms, in the event that agreement cannot be reached;
  • Sharing relevant information with employees or representatives;
  • Reintroduction of original terms if circumstances change;
  • Implementing a period of review; and
  • Phasing in terms one at a time, where a number of changes are sought.

 

In summary, the draft Code acts to strengthen the position of employees in such circumstances and prevent unscrupulous employers from quickly forcing through unfavourable terms.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

 

 

Managing Family Friendly Policies

Gareth Matthews, Head of Employment, analyses how best to manage family friendly policies in the workplace, against a backdrop of cultural and social shifts in the working landscape.

 

First, a few pertinent statistics:

 

  • Shared Parental Leave currently has a take up of only around 3-4% of eligible parents, despite a government target of a 25% uptake.  The Department for Business is evaluating its effectiveness but it seems likely that the process will be reformed in some way, to encourage parents to share in the care of a child.

 

  • Only a third (32 per cent) of eligible fathers took paternity leave in the last year – with some suggesting this is largely due to affordability, especially in light of the cost of living crisis.

 

  • In April to June 2021, three in four mothers with dependent children (75.6%) were in work in the UK, reaching its highest level in the equivalent quarter over the last 20 years.

 

  • Finally, the number of part-time workers in the UK has increased from 6 million in May 1992 to 8.7 million in June 2019.  This increase equated to a 45 percent growth in part-time workers compared with an increase of just 22.8 percent in full-time workers during the same period.  From March 2020 onwards, however, the number of part-time workers in the UK has fallen significantly, while the number of full-time workers continued to grow – in large part presumably because the increased use of wfh has removed some of the barriers to working full time for employees with family responsibilities.

 

Clearly, therefore, there have been fairly significant shifts in the way we work and in who comprises the UK workforce, all of which require employers to be nimble and adapt to those societal changes.

 

Responding to Requests

 

There are various types of family friendly leave, which employers may be required to consider and respond to.

 

Types of Leave:

 

  • maternity leave
  • adoption leave
  • paternity leave
  • shared parental leave
  • time off for dependants
  • parental bereavement leave
  • time off work for antenatal care or adoption appointments (certain employees will be entitled to take unpaid time off from work to accompany a pregnant woman or prospective adopter to such an appointment).

 

As you all know, there are protections against any detriment or dismissal that the employee can show was due to the exercise of these rights.  This makes following a sound procedure even more important, as it reduces the risk of a legal challenge by the employee when taking such leave, if their perception is that they were supported and encouraged by the employer during the process.

 

In this vein, small steps can make a big difference, right down to congratulating an employee on any news of a growing family!  I have had clients who have been met with lukewarm or negative responses by managers after revealing their happy news, which has coloured their view of their employer and tainted the working relationship permanently.

 

Indeed, the very nature of such leave means that it is often a moment in an employee’s life where their personal circumstances and their work life collide.  It may mean that an employee is having to reveal intensely emotional details to you and, it goes without saying, that the response of the employer or manager is therefore vitally important.

 

Various factors to consider when responding in the first instance:

 

  • Upon revealing the initial information, the employee should be dealt with in a sensitive manner – the manager must not ask intrusive questions (I thought you and your husband had split up or I didn’t know you were having problems having a baby and had to adopt) but should instead simply note down the information that has been given and promise to follow up.

 

  • The request often reflects a seismic change in the employee’s life and, again, a manager should avoid overloading the employee with demands for information at an early stage – relevant information can be sought, in writing, as the process of managing the leave unfolds.

 

  • Managers should also avoid any questions about coming back to work, becoming part time etc.

 

In essence, the key requirements for an employer in responding to a request under any family friendly policy are:

 

  • Be clear with what is required of the employee going forward, especially in terms of notice periods or documentation which will be required.
  • Clarify the process ahead.
  • Ensure confidentiality of information and any data, especially medical information.
  • Be sensitive.

 

Record Keeping

 

There can be quite a lot of paperwork required for both the employee and the employer.  You should therefore have a clear picture of the relevant documents from the outset – for instance a MATB1 form in the case of maternity leave.  These should be set out in a policy or similar document, to ensure transparency and as a guide for the employee (and, indeed, managers).

 

You should also ensure that you do not require documentation above and beyond that which is necessary under the law, so, for instance, you cannot demand proof of an adoption placement before you allow an employee to take adoption leave but you can require proof of the adoption before you can process adoption pay for the employee.

 

You should keep minutes of any meetings that you hold with the employee (and make those minutes available to the employee).

 

Don’t forget that records relating to such requests could end up being sought by the employee and should therefore be kept entirely professional.

 

You should also keep records of any social events that the employee was included in during leave or to demonstrate that they have been kept up to date with relevant work communications and announcements.

 

Implementing relevant policies

 

Policies can give a flavour of the approach by the employer, regarding both the detail of the leave sought and the ethos of the employer’s culture.

 

Relevant policies should cover:

 

  • The eligibility requirements for the type of leave (for instance length of service).
  • The amount of leave that can be taken and when.
  • The pay that an employee can expect when taking such leave, both in terms of statutory pay and any enhanced pay offered by the organisation.
  • What will happen to other benefits, for instance holidays and pension.
  • Additional factors, like keeping in touch days and the approach to inclusion in training events etc.
  • What the employee can expect in terms of returning to the same or a similar role (usually dependent on the amount of leave sought).

 

Handling Related Meetings

 

  • Ensure that meetings stay on point – for instance, a meeting to discuss how an employee would like his or her shared parental leave to work in terms of weeks to be worked, should not be allowed to morph into a flexible working request meeting.  The best way to do this is to …

 

  • Invite the employee to any meeting to discuss an aspect of their leave in writing; this ensures that both parties are on the same page and the meeting will be effective in achieving its aim.

 

  • The same goes for follow up after the meeting – it is also useful to do this in writing, especially if the employee is required to undertake any action – for instance confirm the date when he or she would like their leave to start. This obviously helps to avoid deadlines being missed or any suggestion that you, as employer, were not facilitating the employee’s right to take the leave in question.

 

  • Ensure that the employee knows of any avenue of recourse if they wish to query a decision that has been made as part of the process or assist with instigating any other related procedure, for instance, a flexible working request.

 

  • Any meetings or keeping in touch days that occur during the leave should be flexible to accommodate childcare, remember the employee is on leave!

 

Pay

 

The majority of types of family friendly leave, other than time off for dependents, are paid, subject to certain conditions being met.

 

The key point to note is that statutory maternity, paternity, shared parental leave and adoption pay are all currently paid at the rate of £156.66 per week.

 

Any enhancements that are offered to the rate of pay should be clearly indicated and expressed in the contract of employment or related policy documents.  It can be quite common to tie any more generous payments to a commitment from the employee to return to the workplace for a certain period of time or face having to repay either all or a percentage of the enhanced amount.

 

Where the leave being taken is unpaid, it can often be conducive to good employee relations to allow the employee to use a period of annual leave to cover the time required, before an employee is faced with a reduction in their monthly pay after taking such leave.

 

Conclusion

 

Employers are increasingly realising that to attract the best and most diverse talent to their organisations, flexible and family-friendly policies can be an effective tool.  The key is to work with the employee and ensure good communication throughout, but especially before the leave commences.

£50K Pay Out for Dyslexic M&S Worker Sacked for E-mail Errors

A former employee of Marks and Spencer has successfully sued the company for over £50,000, after being made redundant without any reasonable adjustments being made to take account of her dyslexia.  Julie Sabba, an Associate in the Employment team, considers the details of the case.

 

Facts

 

Rita Janu, a Clothing and Home planner at Marks and Spencer (M&S), had worked for the company for more than 20 years when she was dismissed by reason of redundancy in July 2020.  Ms Janu has dyslexia, which meant that she struggled to read and did not write lengthy emails due to her condition, preferring to use bullet points.  Her dyslexia also caused issues with her ability to concentrate.

 

When going through the consultation process, Ms Janu was told, “Sometimes communications appear rushed and not thought through before you send.”  Notes made by an M&S manager on Ms Jandu’s redundancy read: “Rita’s performance is good, but there have been question marks over her consistency and accuracy…Rita was ranked accordingly and makes more inconsistent errors than others on the team.”

 

Ms Janu felt that she had been treated unfairly due to her dyslexia and therefore alleged discrimination on the grounds of her disability.

 

Law

 

When managing employees with a disability, employers are required to consider reasonable adjustments, to assist disabled employees in

limiting any detriments that may arise from their disability.  One way in which this duty manifests is to require the employer to take reasonable steps to avoid the disadvantage, for example by not counting any disability related absences in an absence management process.

 

Ms Janu alleged that the errors in her written communications, which were caused by her dyslexia, should have been ignored for the purposes of scoring her against the selection criteria, as such a reasonable adjustment.

 

Decision

 

In awarding more than £50,000, the Judge found that Ms Janu’s managers had ignored the impact that her disability had on her work and allowed the perception that she was rushing and prone to inaccuracies to negatively affect her score in the consultation process, when in fact, such issues were caused by her disability.

 

In doing so, the Judge held that M&S failed to implement a reasonable adjustment – to discount any effects related to Ms Janu’s disability – when assessing her score under the selection criteria.

 

Comment

 

In any process that may result in an employee being sanctioned or dismissed, the utmost care must be taken by an employer to properly consider and tackle any issue that may put that employee at an unfair disadvantage, including ameliorating the effects of an employee’s disability.  It is often best to do this in consultation with the employee and with the input of medical advice, helping to avoid the risk of any claim that certain reasonable adjustments were not fully considered or that there was a failure to implement reasonable solutions.

 

This approach should also be bolstered by appropriate equality policies and tailored legal advice, to take account of the specific circumstances of individual cases.