HR and Employment Law FAQs

January 2024: HR and Employment Law FAQs

2.01.2024

1. What cases should we look out for at the start of 2024?

Various cases will be heard in early 2024, including Union of Shop, Distributive and Allied Workers & Others (USDAW) v Tesco Stores Limited, which is due before the Supreme Court on 24 and 25 January 2024. The central question in the case is whether Tesco’s decision to terminate numerous employees' contracts of employment at its warehouses in Daventry and Litchfield in order to re-employ the same individuals on lower pay was unlawful. This is an important case from a dismissal and reengagement (“fire and rehire”) perspective – an employment practice which has come under close scrutiny in recent years. For further details about the Government’s recent consultation on “fire and rehire” practices (as well as other legislative developments we anticipate during the year ahead) see “What’s in store for employment law in 2024?”.   

Another case to look out for is Hope v British Medical Association, in which the Court of Appeal will consider the fairness of an employee’s dismissal for misconduct, where the employee had brought a number of frivolous grievances and refused to comply with a reasonable management instruction to attend the grievance meetings. 

The case of Royal Parks Limited v Boohene (which is due to float at the Court of Appeal on 20 or 21 February 2024) should provide some useful insight regarding the appropriate pool for comparison in the context of indirect race discrimination claims.

Later this year (May 2024), the Employment Appeal Tribunal (EAT) will grapple with the next stage of Bailey v Stonewall Equality Limited and others, adding to the evolving case law on gender critical beliefs. At first instance, the Employment Tribunal found that barrister Allison Bailey had suffered discrimination and victimisation by Garden Court Chambers because of her gender critical philosophical beliefs, although her claims against Stonewall for instructing, causing or inducing discrimination were dismissed.

It will also be interesting to see the judgments in cases that were heard in 2023, such as McClung v Altrad Babcock Limited (formerly Doosan Babcock Limited) and others (heard by the EAT in March 2023).  In that case, an Employment Tribunal found that supporting Rangers Football Club did not amount to a protected philosophical belief under the Equality Act 2010; let’s see whether the EAT agrees. Employment lawyers will also be interested to read the Supreme Court’s ruling in Mercer v Alternative Future Group Limited and another (Secretary of State for Business, Energy and Industrial Strategy intervening) – heard in December 2023 – about whether protection from detriment for having participated in strike action could be read into section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The Court of Appeal took the view that it could not, but it’s possible the Supreme Court might see things differently.

We will of course keep our subscribers updated on case law developments over the year ahead.  Dates for our Spring Employment Law Updates will also be available soon. If you are a Make UK subscriber, you can speak to your regular adviser for guidance on evolving case law and legislative developments. If you are not a Make UK subscriber, please click here for information on how we can help your business.

2. Have Regulations to implement the new employment rights legislation been published yet?

Yes, the Government recently laid draft Regulations before Parliament setting out the detail of the changes it plans to introduce in relation to protection from redundancy (pregnancy and family leave), and carer’s leave, as well as Regulations to make the right to flexible working a ‘day one’ right.  These various Regulations are due to come into force on 6 April 2024.  For further details, see our December FAQs, below, which we have updated since they were e-alerted to Make UK subscribers on 30 November 2023.  

3. We recently made an unconditional offer of employment, which the employee accepted, but our Managing Director has now instructed us withdraw the offer. Can we withdraw it at this stage?

Yes, you can withdraw the offer of employment, but as the offer was unconditional and has been formally accepted it is legally binding.  This means that the company will be liable to pay the employee for the greater of the contractual notice period that it is required to give, or one week’s notice. Depending on the circumstances, you may be able to argue that the employee’s loss does not begin until the date they were due to start employment – for example, if the contract provides for a four-week notice period, but you wrongfully terminate the contract one week before the employee is due to start work, damages would normally be limited to three weeks' earnings. 

Before withdrawing the offer, you should also consider whether the Managing Director has legitimate reasons for doing so. It is good practice to explain the reasons for the withdrawal to the individual. If you have a legitimate reason, this may reduce the risk of the individual arguing that the withdrawal is due to a protected characteristic and bringing a discrimination claim and/or a claim for automatically unfair dismissal (for which there is no qualifying service requirement).

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about contracts of employment, including template policies and drafting guidance, in the Employment contracts and policies section of our website.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

4. One of our employees is on a one year fixed term contract, which is due to expire in six months’ time. There are no provisions for the contract to be terminated earlier. Can we terminate now without pay in lieu?

December HR and Employment Law FAQs: Special Edition

13.12.2023

1. What are the key features of the Employment Relations (Flexible Working) Act 2023? 

What? The Employment Relations (Flexible Working) Act 2023, which received Royal Assent in July, will change the statutory flexible working regime in various ways. In particular, it will:

• introduce a new requirement for employers to consult with the employee, as a means of exploring the available options, before rejecting a flexible working request;
• allow employees to make two statutory requests in any 12-month period (rather than the current one);
• require employers to reach a decision in respect of a statutory flexible working request within a two month period (rather than the current three months); and
• remove the existing requirement that the employee must explain what effect, if any, the requested change would have on the employer and how that effect might be dealt with.

In addition, new Regulations will make the right to request flexible working a “day one right” (so that no minimum length of service is required before an employee can make a flexible working request).

When? The Government has laid Regulations before Parliament which are due to come into force on 6 April 2024, meaning that the requirement to have 26 weeks of continuous employment will not apply to applications for flexible working made on or after that date. We assume that the Government intends to bring the amendments to the flexible working regime introduced by the Employment Relations (Flexible Working) Act 2023 (outlined above) into force on the same date.

Other points to note? An updated Advisory, Conciliatory and Arbitration Service (Acas) Statutory Code of Practice on Flexible Working, providing guidance on the new regime, has been laid before Parliament. The updated Code sets expectations for the process that employers should follow when handling flexible working requests. Failure to follow the Code does not, of itself, give employees a right to bring an employment tribunal claim, but tribunals must take the Code into account when considering relevant cases. (At the time of writing, the Code has not yet been made available online, but we expect it largely to mirror the draft Code that Acas published for consultation back in July – Make UK was involved in an Acas-led working group looking at the draft Code over the summer. Acas has also not yet published its further guidance on handling flexible working requests, that it has said will accompany the Code.)

In addition, the Government recently undertook a call for evidence on what it refers to as “non-statutory” flexible working – essentially, any form of flexible working that is implemented without a formal statutory request. The call for evidence aims to gather views from individuals and businesses on their experiences of non-statutory flexible working and how it operates in practice. The Department for Business and Trade (DBT) says that responses received will help to inform the Government’s flexible working strategy going forwards. The call for evidence closed on 7 November 2023.

The Government’s Flexible Working Task Force (to which Make UK is an active contributor) has also been exploring ways to encourage flexible working. The Working Families charity is relaunching its “Happy to Talk Flexible Working” (HTTFW) guidance and logo, which can be used as a strapline when advertising jobs of all levels and pay grades as flexible.

Next steps for employers? Once the updated Acas Code and accompanying guidance are available, you will need to review your HR policies to ensure they comply with the new rules. You will also need to provide updated training for anyone in your organisation who handles flexible working requests, such as line managers and those in HR. 

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance on flexible working. When the regulations are finalised, we will update the HR & Legal Resources which are available to subscribers on the Make UK website, which include a policy, drafting guidance, impact assessment and guidance on how to handle a flexible working request.  

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

2. What are the key features of the Protection from Redundancy (Pregnancy and Family Leave) Act 2023?

What? The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will extend the redundancy protections that currently apply to employees on maternity, adoption and shared parental leave to employees who are pregnant or who have recently returned to work from such leave.  

Currently, individuals who are on maternity, adoption or shared parental leave have priority over other at-risk employees for any suitable alternative vacancies in a redundancy situation. The Protection from Redundancy (Pregnancy and Family Leave) Act 2023, together with the newly published draft Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024, will extend these protections to employees who are pregnant or who have recently returned to work from such leave. 

In relation to pregnancy, the Regulations provide that the period of pregnancy is protected from the date on which the employee informs the employer they are pregnant. The additional protected period for employees returning from maternity leave ends 18 months after the date of the child’s birth (or 18 months after the first day of the expected week of childbirth if the employee did not inform the employer of the child’s date of birth during their maternity leave). This means that an employee who takes a year of maternity leave will receive six months of additional redundancy protection after returning to work. 

For adoption leave, the 18 month protected period begins on the day the child is placed with the employee for adoption. For shared parental leave the 18 month protected period begins when the child is born or is placed for adoption. However , for employees taking shared parental leave who have not also taken maternity or adoption leave, there is a six-week threshold of continuous leave that needs to be met for the protected period to extend after shared parental leave itself has ended. Where the six-week threshold is not met, the protection applies during shared parental leave only. This is intended to avoid the situation where, for instance, an employee who took only a couple of weeks off would benefit from the same priority for alternative vacancies as an employee who was out of the business for many months. (Protection on return from shared parental leave will not apply where an employee has also taken maternity or adoption leave and is entitled to protection on their return to work under those provisions.) 

When? The Government has laid Regulations before Parliament which are due to come into force on 6 April 2024. The additional protection set out in the Regulations applies:

• for pregnant employees, where they inform their employer of their pregnancy on or after 6 April 2024; 
• for employees returning from maternity leave or adoption leave, where they return on or after 6 April 2024; 

for employees returning from shared parental leave, where they take a period of at least six consecutive weeks of shared parental leave that commences on or after 6 April 2024.
  
Next steps for employers? It is essential that employers who may be considering redundancies keep in mind this forthcoming extension of protection for those that take family-related leave.  When these changes come into force, anyone involved in any redundancy consultation exercise (such as line managers and HR) will need to be trained about these new rules, so they understand how to manage potentially competing priorities for existing vacancies among the protected group.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access further information on relevant topics such as family leave, redundancy and discrimination, including template policies and drafting guidance, in the HR & Legal Resources section of our website. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

3. What are the key features of the Carer’s Leave Act 2023?

What? The Carer’s Leave Act will give employees who have a dependant with a long-term care need a statutory right to one week’s unpaid care leave per year. (The definition of “dependant” mirrors the definition used for the right to emergency time off for dependants.)

The draft Carer’s Leave Regulations 2024, setting out further details of the right, have now been published. This right will apply from day one of employment and employees will not be required to provide any evidence of their entitlement to the leave.  

The Regulations confirm that carer’s leave will be available to be taken flexibly – as either full days or half days, up to a block of one week in a 12 month period. They also set out the notice requirements for taking carer’s leave: employees must give notice that is twice the length of the time being requested as leave, subject to a minimum notice requirement of three days. Employers cannot prevent employees from taking the leave, although they can postpone it for up to one month if they reasonably consider that the operation of the business would be unduly disrupted by the employee taking the leave on the requested dates. 

Employees who take carer’s leave will be protected from being dismissed or subjected to a detriment as a result.

When? The Government has laid Regulations before Parliament which are due to come into force on 6 April 2024.

Other points to note?  A “long-term care need” is defined as an illness or injury (either physical or mental) that requires or is likely to require care for more than three months, a disability under the Equality Act 2010, or issues related to old age. The focus on a long-term care need is deliberate as the Government has stated that other types of leave (such as time off for dependants or annual leave) should be used for dealing with short term care needs.

Next steps for employers? Once the Regulations have been finalised, you will need to update your policies, train your managers about the impact of this new legislation, and communicate changes to the workforce. Employers wishing to take a supportive approach may also consider whether to enhance the pay provided during carer’s leave, although there will be no legal obligation to do so.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information on relevant topics such as family leave and discrimination, including template policies and drafting guidance, in the HR & Legal Resources section of our website. If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

4. What are the key features of the Workers (Predictable Terms and Conditions) Act 2023?

What? The Workers (Predictable Terms and Conditions) Act 2023 will introduce a statutory right for eligible workers to request a more predictable working pattern. See here for further details.

When? The Government expects the measures in the Act and the relevant regulations to come into force approximately one year after the date of Royal Assent (i.e. around 19 September 2024).

Other points to note? Make UK has been engaging with Government on these issues and will be contributing to the new ACAS consultation on the statutory Code of Practice (which will provide guidance on how to make and handle requests).

Next steps for employers? Draft regulations will be published in due course setting out more detail on the practical operation of the new rules.  In particular, the regulations are expected to state how much compensation an individual will receive if this new statutory right is breached (which is likely to be a specified number of weeks’ pay).  

Regulations should also clarify the qualifying period for eligibility. It is expected that individuals will need to have worked for their employer for 26 weeks before making an application for a more predictable working pattern, although this is subject to parliamentary approval. Given that the new rules aim to support workers with unpredictable contracts, it is envisaged that workers will not need to have worked continuously during the 26-week eligibility period.  

Once the detail of the regulations in known, you will need to update your policies and procedures to reflect the new entitlements, as well as training managers on the impact of this new legislation. You will also need to communicate relevant changes to your workforce.

As with all new legislative changes, Make UK will support subscribers to understand the new provisions and we will keep you updated on developments. If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice when dealing with statutory requests from employees.  If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, click here. 

5. What are the key features of the Worker Protection (Amendment of Equality Act 2010) Act 2023?

What? The Worker Protection (Amendment of Equality Act 2010) Act 2023 will introduce a new duty on employers to take reasonable steps to prevent sexual harassment at work. See here.

Once the law comes fully into force, the new duty on employers will be enforceable by the Equality and Human Rights Commission (EHRC).  In addition, employment tribunals will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has breached the duty. 

When? The new measures will come into force one year after the Act was passed (i.e. on 26 October 2024).
  
Other points note? The EHRC plans to update its technical guidance on sexual harassment to reflect the new duty.

It is interesting to note that the wording of the draft Bill initially placed an obligation on employers to take ‘all reasonable steps’ to prevent sexual harassment at work.  However, that wording was amended in the House of Lords to require employers to take only ‘reasonable steps’ to do so. This amendment stemmed from concerns that there would otherwise be an almost infinite number of steps that employers could be expected to take. In addition, the draft Bill had originally included a provision reinstating protections relating to harassment by third parties, such as clients and customers (which had been repealed in 2013, after that earlier legislation was deemed to be unworkable), but this was also dropped as the Bill worked its way through Parliament.

Next steps for employers? Employers can already be found liable for harassment carried out by their employees, unless they have taken “all reasonable” steps to prevent such harassment.  However once the new regulations are finalised and their implementation date has been confirmed, you will need to update your policies and procedures to ensure they are fit-for-purpose in light of the additional duty, as well as training your managers about the impact of this new legislation.  In addition, you will also need to communicate these changes to your workforce.

Make UK offers a package of support aimed at preventing sexual harassment at work, including a template Anti-bullying and harassment policy (including guidance notes), staff surveys (Pulse surveys) and anti-harassment training for staff (micro-awareness video and/or half day workshop). For further details, click here or email [email protected].

Our HR consultants are very experienced in assisting companies with investigation processes, either in a supporting role or running the process as independent investigators. If you need assistance conducting an investigation into allegations of sexual harassment and would like to find out how we can help you, email [email protected].

6. What are the key features of the Neonatal Care (Leave and Pay) Act 2023?

What? The Neonatal Care (Leave and Pay) Act 2023 will allow eligible employed parents whose newborn baby is admitted to neonatal care to take up to 12 weeks of paid leave in addition to other leave entitlements such as maternity and paternity leave. See here.

This leave is intended to support employees with a parental or other personal relationship with a baby who is receiving neonatal care. The regulations will set out the eligibility criteria in detail, but we assume it will be the same as for paternity or shared parental leave (i.e. the baby’s parents, married to/partner of the baby’s parent or expected to have the responsibility of bringing up the child).

The right to leave will apply from day one of employment, although the right to pay will be subject to a 26 week service and minimum earnings requirement (in the same way as the right to statutory maternity pay). 

Employees who take neonatal care leave will be protected from being dismissed or subjected to a detriment as a result.

When? The exact timeline of implementation of this legislation is not yet known, but these new leave and pay entitlements are not expected to come into force until April 2025 (in order to coincide with the start of a new tax year and give employers, payroll providers and HMRC time to prepare).  We will of course keep subscribers updated on relevant developments.

Other points to note? The definition of neonatal care is yet to be specified, but the general requirement is for the baby to receive at least seven consecutive days of medical or palliative care within the first 28 days of birth. 

The length of neonatal care leave in each case will be dependent on how long the baby spends in hospital, with parents entitled to up to 12 weeks of neonatal care leave and subject to a minimum entitlement of one week. The leave must be taken within the first 68 weeks of the baby’s birth. It is expected that it will be possible to take it in non-consecutive periods of at least a week, as is the case with shared parental leave.

Next steps for employers? Once the regulations are finalised and their implementation date has been confirmed, you will need to update your policies, train your managers to handle requests, and communicate changes to the workforce. Employers wishing to take a supportive approach may also consider whether to enhance the pay provided for neonatal care leave, although there will be no legal obligation to do so.

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance on relevant topics such as family leave and discrimination, including template policies and drafting guidance, in the HR & Legal Resources section of our website.  If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

November HR and Employment Law FAQs

01.11.2023

1. I’ve heard that workers will get the right to request a predictable work pattern – what does this mean?

The Workers (Predictable Terms and Conditions) Bill recently received Royal Assent, becoming the Workers (Predictable Terms and Conditions) Act 2023. This introduces a statutory right for eligible workers to request a more predictable working pattern.  As noted in the Government’s press release, the introduction of this right seeks to redress the “imbalance of power” and “one-sided flexibility” experienced by workers in the gig economy. However, the new legislation also has the potential to impact employers outside the gig economy who use atypical working arrangements, including those operating annualised hours contracts and fluctuating shift arrangements. The Government expects the measures in the Act and (as yet unpublished) secondary legislation setting out full details of how the right will operate to come into force approximately one year after the date of Royal Assent (i.e. around 19 September 2024). To read more, see here.   As with all key legislative changes, Make UK will support subscribers to understand the new provisions and we will keep you updated on developments. If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice when dealing with statutory requests from employees.  For information about planned changes to the current statutory flexible working regime, see our earlier e-alert. If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, click here.

2. Is ADHD a disability (even if the employee is not receiving any medication)?

Whether an individual has a disability depends on whether their condition meets the statutory definition of “disability” under the Equality Act 2010.  

Under section 6(1) of the Equality Act 2010 "A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities".  Broken down into four parts, this means an employment tribunal (and therefore employers) should consider the following questions when determining whether an employee has a disability:

• Does the person have a physical or mental impairment?
• Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? (In deciding whether an activity is a normal day-to-day activity, take account of the extent to which it is normal for most people and carried out by most people on a daily or frequent or fairly regular basis. So, an impairment that only affects a person’s ability to carry out activities of a specialist kind, such as playing a particular musical instrument or taking part in a particular hobby might not amount to a disability.)
• Is that effect substantial? (A person’s impairment is viewed as having a substantial effect if the effect is more than minor or trivial.)
• Is that effect long-term? (To count as ‘long-term’, a person’s impairment must have already affected their activities for at least 12 months, or be likely to do so.)

Attention deficit hyperactivity disorder (ADHD) can be a disability, depending on the facts. It is often an example of a "hidden" or "invisible" disability (along with other conditions such as Autism spectrum disorder (ASD), Dyslexia and Dyspraxia).

Whether or not a particular employee’s ADHD amounts to a disability under the Equality Act 2010 will depend on whether it meets the four criteria listed above. ADHD is very likely to be considered a mental impairment, so it would meet the first of the criteria. It is a lifelong condition so it would also meet the last of the criteria. As for the middle two criteria, the effects of ADHD vary from person to person, but can include things such as difficulty focusing, being easily distracted, poor organisational skills, restlessness, blurting out responses or interrupting others, etc. (see the NHS website for more information). All of these could have an adverse effect on the employee’s ability to carry out normal day to day activities and it is possible that this effect could be viewed as substantial, depending on the facts. 

The fact that an employee is not taking any medication for the condition would not matter when considering whether the employee is legally disabled. The issue is whether their ADHD meets the criteria listed above. (Indeed, even if an employee was taking medication, the legislation provides for the effect of that medication to be disregarded in this context; an impairment will be treated as having a substantial adverse effect on a person’s ability to carry out normal day to day activities if measures are being taken to correct it and, but for the measures, the impairment would be likely to have that effect.)  

Some employers might want to request medical evidence (for example, a letter confirming diagnosis), but where an employee has told you that they have ADHD but does not have this evidence available, it is safest to assume that they may be disabled.  You should therefore take active steps to understand and comply with your obligations under the Equality Act (for example, the duty to make reasonable adjustments).  

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about managing staff with disabilities, including template policies and drafting guidance, in the Discrimination, equal pay and whistleblowing section of our website. Depending on the circumstances, it may be helpful to engage an occupational health adviser to provide further input on how you could best support the employee in question.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

3. Will pay for neonatal care leave be based on an employee’s actual pay or a statutory rate?

According to the explanatory notes to the Neonatal Care (Leave and Pay) Bill, pay during neonatal care leave is likely to be at the statutory rate or, if lower, 90% of the employee's average weekly earnings. The statutory rate will be prescribed by regulations in due course. It is likely that the Government will choose to mirror the prescribed rates that apply for statutory paternity leave, statutory adoption leave and shared parental pay etc (currently £172.48 per week).  To read more about the Neonatal Care (Leave and Pay) Act 2023, see here.  

Make UK’s policy team has been engaging with Government on these issues and will continue to do so as the Regulations are developed.  We will keep our subscribers informed once the Regulations and any accompanying guidance become available.  

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice for supporting staff members who have family and caring related responsibilities. You can also access further information on relevant topics such as family rights, flexible working, discrimination and harassment, including template policies and drafting guidance, in the HR & Legal Resources section of our website. We will be updating these resources to include content on neonatal care leave and pay once full details are available.

If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].

4. For the purposes of calculating holiday pay, is there a definition of what is included in "normal remuneration"?

The concept of “normal remuneration” has been addressed in a long line of cases, starting with the Williams case back in 2011 (which concerned flying allowances for pilots). While there is no definitive definition, it is now clear that normal remuneration includes allowances, overtime (whether compulsory or voluntary, provided it is worked with a sufficient degree of regularity), commission payments and contractual performance bonuses. We assume that the vast majority of employers will by now have adjusted how they calculate holiday pay to take this into account. 

It is worth noting, though, that there are a few issues that still have not been directly addressed in the case law, such as the extent to which non-contractual commission, or discretionary bonuses, should be factored into the week’s pay for holiday pay purposes as part of “normal remuneration”. 

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance on the law and best practice in relation to holiday pay. You can also access further information in the HR & Legal Resources section of our website. 

If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].

To read about the Supreme Court’s recent holiday pay ruling in the case of Chief Constable of the Police Service of Northern Ireland v Agnew, see here. To book a place on our forthcoming webinar, “Holiday entitlement and pay: Agnew and beyond”, click here.

5. Will the extended redundancy protections apply to paternity as well as maternity leave?

No, the Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (which recently received Royal Assent) will extend the redundancy protections that currently apply to employees on maternity, adoption and shared parental leave to employees who are pregnant or who have recently returned to work from such leave (see here and here for further details). It will not apply to paternity leave.  

Although this Act is now on the statute books, the entitlements it will provide are unlikely to come into force before 2024, as further secondary legislation (Regulations) are required to set out the detail of how these new rights will apply in practice. Make UK’s policy team has been engaging with Government on these issues and will continue to do so as the Regulations are developed. Once these provisions come into force, employers will need to update their policies and ensure that HR and line managers understand the new law. We will keep our subscribers informed once the Regulations and any accompanying guidance become available.  

If you are a Make UK subscriber, you can speak to your regular adviser for guidance on the law and best practice for supporting staff members who have family and caring related responsibilities. You can also access further information on relevant topics such as family rights, flexible working, discrimination and harassment, including template policies and drafting guidance, in the HR & Legal Resources section of our website. 

If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].

October HR and Employment Law FAQs

01.10.2023

1. We’ve got an employee who has been off sick for some time. Do we have to comply with particular legal requirements if we want to get a medical report from their GP?

Yes. If you want to get a medical report from an employee’s GP (or a specialist who has been responsible for their care, or your Occupational Health Practitioner (OHP) if they have previously been involved in the employee’s care), then you will need to comply with the Access to Medical Reports Act 1988 (known as AMRA).  

AMRA requires you to obtain the employee’s written consent before asking for a medical report and to inform the employee in writing of their rights under AMRA (such as the right to see the medical report before it is sent to you, the right to ask the doctor to amend the report before it is sent to you, or even refuse consent to the doctor sending you the report).

Note that AMRA does not apply where you ask for the employee’s medical notes from their GP without an accompanying report, or if you request a medical report from a specialist or OHP who has not been involved in the employee’s care.  However, even when AMRA does not apply, the OHPs’ ethical guidelines mean that you still need to get the employee’s written consent to you seeking a medical report. 

In either case, you also need to ensure you comply with the UK General Data Protection Regulation. This means you must identify both an ordinary legal basis for processing the employee’s personal data and – as health data is special category data – satisfy an additional special category condition for the processing. You will also need to tell the employee what you will do with the data you receive (for example, by reference to your employee privacy notice).

If you are a Make UK subscriber, you can speak to your regular adviser for guidance about managing situations where an employee is absent from work for medical reasons, including further information about AMRA and your data protection obligations. You can also access guidance in the HR & Legal Resources section of our website. In addition, Make UK’s HR Consultancy team can provide help with stress and wellbeing surveys, as well as supporting you in drafting and implementing a stress/mental health policy. If you are not a Make UK subscriber, please contact us for further information about how we can help.

We will be exploring how employers should manage situations concerning employees who are absent from work due to work-related stress (including a case study) at our in-person Autumn Employment Law Updates – click here for further details.  

2. Our business needs to cut costs, meaning redundancies are looking likely. Should we ask for volunteers?

You will need to assess what is best for your business, as there is no “one size fits all” answer. Possible advantages are that asking for volunteers might:

• avoid the need for compulsory redundancies altogether;
• have a less demoralising impact on your workforce;
• reduce 'survivor guilt' (i.e. employees who remain in the business thinking 'it should have been me');
• help to show employees that you are seeking to minimise the effect of possible redundancies; and
• be helpful if any unfair dismissal claims were to be made (as an effective 'volunteer programme' clearly demonstrates that you sought to minimise the impact of redundancies).

On the other hand, possible disadvantages of seeking volunteers for redundancy are that it may:

• be more expensive than compulsory redundancies if you offer enhanced terms to attract volunteers (especially if most volunteers are long-serving employees who will receive large redundancy payments);
• require you go through both voluntary and compulsory stages if too few employees volunteer;
• result in a skills/experience imbalance if the process is not managed properly; and
• raise false expectations and result in a loss of morale amongst employees if the process is not managed properly.

Remember that you do not need to accept all applications for voluntary redundancy, particularly if you receive more applications than you need or you consider that it is in the long-term interests of your business to retain certain employees.  

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about redundancies, including template policies and drafting guidance, in the HR & Legal Resources section of our website. 

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business. 

3. A witness in disciplinary proceedings is only prepared to give evidence on an ‘anonymous’ basis.  How should we deal with this? 

As a first step, try to establish why the witness feels the need for anonymity. If the witness is concerned about reprisals from the employee who is under investigation, reassure them that the employee has been told not to raise the matter directly with fellow employees or approach any witness. Emphasise that if an employee breaches this instruction, this will lead to disciplinary action in its own right. 

If the witness is adamant that they will only give evidence on an 'anonymous' basis, you will have to balance the need to protect the witness and the need to provide a fair hearing for the employee under investigation.

You should take a detailed statement from the relevant witness and obtain other corroborative evidence if possible. If practicable, you should give the employee who is under investigation a copy of any 'anonymous' witness statement, redacted or with omissions, to avoid the witness being identified. (Note that such a witness statement will not have been anonymised for the purposes of data protection law (i.e. it will still contain the witness’ personal data, and must therefore be treated in accordance with data protection law requirements)). 

Since some informant witnesses may have reason to fabricate evidence, you should make reasonable enquiries as to the witness’ character and any potential reason they may have to give unreliable evidence. 

Even if you agree to try and protect a witness’s identity, be careful not to give the impression that you are guaranteeing complete confidentiality. There is always a risk that in subsequent legal proceedings, including employment tribunal proceedings, a court or tribunal might order you to disclose details of a witness statement, or notes of an interview. 

If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about disciplinary matters, including template policies and drafting guidance, in the HR & Legal Resources section of our website. You may also find it helpful to read our guide, “How to - deal with reluctant witnesses in disciplinary and grievance proceedings ”, which covers this tricky issue in more detail.

If you are not a Make UK subscriber, you can contact us for further support on this topic or to access our resources. Please click here for information on how we can help your business.

4. One of our employees has just been sent to prison. Can we dismiss them?

The fact that an employee has been sent to prison does not terminate their employment and dismissal in these circumstances should not be a ‘knee-jerk’ response. You will need to investigate the individual circumstances of the case before deciding whether dismissal is appropriate.  If an employee is imprisoned for a fairly short period, for an offence unrelated to their work, it might be considered ‘reasonable’ for you to hold open their job until they are released. 

Factors to consider when deciding whether it is appropriate to dismiss will include: the length of sentence imposed; the nature of the offence (and whether it relates to/impacts on the employee’s job); the effect of the employee’s absence on the business; and the damage (if any) done to the employer’s reputation.

If an employee is imprisoned for a considerable length of time, it might be fair to dismiss on the grounds that the employee is no longer able to perform their contract of employment (i.e. dismissal on grounds of ‘capability’). Similarly, if the nature of an employee’s conviction gives reasonable grounds to doubt an employee’s continuing suitability to carry out their role, or the circumstances of the imprisonment reflect negatively on your business, it might be possible to dismiss fairly for ‘conduct’, or ‘some other substantial reason’ (SOSR). However, you will need to act reasonably and follow a fair procedure to avoid a successful unfair dismissal claim.  

Remember also that the processing of information concerning criminal offences or convictions is subject to restrictions under data protection law – Make UK subscribers can read more in the Employee data and monitoring section of our HR and Legal Resources.  In addition, Make UK subscribers can speak to their regular adviser for guidance on the law and best practice on managing dismissals. Further information on relevant topics, including template policies and drafting guidance, is also available in the HR & Legal Resources section of our website. 

If you are not a Make UK subscriber, our expert HR and legal advisers can also offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].

5. Do we have to allow employees time off for routine medical or dental appointments?

Aside from ante-natal appointments and pre-adoption appointments, there is no specific statutory entitlement for employees to take time off work for appointments. This means that (unless there is an express right in the employee’s contract) the employee will not have a legal right to take time off for a routine medical or dental appointment.  If, however, an appointment to visit a doctor, dentist, optician, or clinic cannot be made outside working hours, it is good practice to allow employees time off to attend them. You should also be consistent in how you deal with these types of requests to avoid detriment or discrimination related claims.

If you are a Make UK subscriber, see our template Policy – time off for medical and dental appointments. If you are not a Make UK subscriber, please contact us for further details.