01.02.2024
1) What changes are planned in relation to paternity leave?
The Government has published draft Regulations setting out changes to the current rules on statutory paternity leave. The proposed changes, which are expected to apply to births where the EWC begins after 6 April 2024 and to adoptions where the expected placement date is on or after 6 April 2024, include amendments to:
- the period within which paternity leave must be taken following a child’s birth or adoption;
- the existing requirement that paternity leave be taken in one single, continuous block; and
- the notice and evidential requirements with which an individual must comply in order to take paternity leave.
To read more about the proposed changes, see here.
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 requests for paternity leave. 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) Our staff receive statutory minimum holiday and our holiday year runs from 1 April to 31 March. In 2024, the Easter bank holidays will straddle two holiday years. How should we manage this?
The first point to flag is that this issue will only impact organisations that have a holiday year running from 1 April to 31 March. Typically, the two Easter bank holiday dates fall within the same holiday year. However, in 2024, the Easter bank holidays will fall on 29 March (Good Friday) and 1 April (Easter Monday) meaning that, for organisations that operate a 1 April to 31 March holiday year, the Easter bank holiday weekend will straddle two holiday years.
The precise wording of your employment contracts will be relevant to determining the best approach for your organisation in relation to this issue. If your employment contracts state that full time staff receive “28 days’ holiday inclusive of all bank holidays”, you can simply honour that wording to ensure that your staff still receive 28 days in both holiday years.
On the other hand, if your contract states that full-time staff are entitled to “20 days’ holiday plus bank holidays”, your workers will not receive the minimum 28 days’ holiday to which they are entitled under the Working Time Regulations in the 2024-25 holiday year. This is because the timing of the forthcoming Easter break means that there will be only seven bank holidays in the holiday year 2024-25, rather than the usual eight.
Given that this is an unusual situation, we think that most employers will opt to reassure workers that they will still be granted 28 days’ holiday in the coming holiday year, even though there is one less bank holiday. (This means allowing workers 21 days’ holiday rather than 20 – but their overall entitlement remains the same at 28 days.) You should communicate this clearly to your workers so that they are aware of their entitlement.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about managing holiday in the Working time and time off 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 or information on how we can help your business.
The precise wording of your employment contracts will be relevant to determining the best approach for your organisation in relation to this issue. If your employment contracts state that full time staff receive “28 days’ holiday inclusive of all bank holidays”, you can simply honour that wording to ensure that your staff still receive 28 days in both holiday years.
On the other hand, if your contract states that full-time staff are entitled to “20 days’ holiday plus bank holidays”, your workers will not receive the minimum 28 days’ holiday to which they are entitled under the Working Time Regulations in the 2024-25 holiday year. This is because the timing of the forthcoming Easter break means that there will be only seven bank holidays in the holiday year 2024-25, rather than the usual eight.
Given that this is an unusual situation, we think that most employers will opt to reassure workers that they will still be granted 28 days’ holiday in the coming holiday year, even though there is one less bank holiday. (This means allowing workers 21 days’ holiday rather than 20 – but their overall entitlement remains the same at 28 days.) You should communicate this clearly to your workers so that they are aware of their entitlement.
If you are a Make UK subscriber, you can speak to your regular adviser for further guidance and/or access information about managing holiday in the Working time and time off 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 or information on how we can help your business.
3) Can we stop an employee from bringing a companion to a disciplinary hearing?
No. Employees have a legal right to be accompanied at a disciplinary hearing.
The companion may be a fellow worker, a trade union representative or an official employed by a trade union. (If the trade union representative is not an employed official, that representative must have been certified by their union as being competent to accompany a worker.) Provided the employee’s proposed companion meets one of these requirements, an employer has no right of veto.
It is unlawful to penalise an employee for taking up the right to be accompanied, or to penalise the companion for carrying out the role. If you deny an employee the right to be accompanied, a tribunal may award them up to two weeks’ pay as compensation. The right to be accompanied is reflected in the Acas Code of Practice on disciplinary and grievance procedures. Accordingly, if an employee brings a successful unfair dismissal claim, the tribunal could also uplift their compensation by up to 25% for your failure to follow the Acas Code. It is automatically unfair to dismiss an employee or their companion for taking up the right to be accompanied, or for acting as a companion, irrespective of how long they have been employed.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on dismissals and/or access further information in the Discipline, grievance and performance and Termination of employment sections 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.
The companion may be a fellow worker, a trade union representative or an official employed by a trade union. (If the trade union representative is not an employed official, that representative must have been certified by their union as being competent to accompany a worker.) Provided the employee’s proposed companion meets one of these requirements, an employer has no right of veto.
It is unlawful to penalise an employee for taking up the right to be accompanied, or to penalise the companion for carrying out the role. If you deny an employee the right to be accompanied, a tribunal may award them up to two weeks’ pay as compensation. The right to be accompanied is reflected in the Acas Code of Practice on disciplinary and grievance procedures. Accordingly, if an employee brings a successful unfair dismissal claim, the tribunal could also uplift their compensation by up to 25% for your failure to follow the Acas Code. It is automatically unfair to dismiss an employee or their companion for taking up the right to be accompanied, or for acting as a companion, irrespective of how long they have been employed.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on dismissals and/or access further information in the Discipline, grievance and performance and Termination of employment sections 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) A new Sales Manager started work for us recently, but we have just discovered that a factual statement on his application form was incorrect. He claimed to have a sales and marketing degree (an express requirement of the job), but in fact he had only completed a year of the degree. Can we dismiss him without notice?
As having a sales and marketing degree was an express requirement of the job, you can take the view that this falsification of information/dishonesty/breach of trust warrants dismissal, but you will need to consider carefully whether you have sufficient reason to dismiss without notice.
The employee does not have unfair dismissal rights (as he has less than two years’ service), so you do not need to have a fair reason for dismissal or follow a fair dismissal procedure. Nonetheless you should make clear to the employee, and carefully document, that you are dismissing him due to the false information he supplied on his application form, in order to reduce the risk of a claim that his dismissal was for some other reason (e.g. that it was discriminatory).
Whether or not you can dismiss without notice or pay in lieu depends on whether the employee has committed a repudiatory breach of the contract. Based on this limited information, it seems likely that he has, but we would recommend that you ask him about the circumstances rather than jumping to conclusions. For example, perhaps it was a genuine misunderstanding or maybe the job advert was not as clear as you thought. In such a case, the employee may still not be suitable for the role and dismissal may be appropriate, but his conduct would not amount to a repudiatory breach. Depending on the length of notice, to reduce the risk of a wrongful dismissal claim, you may in any event decide to dismiss on notice. (Note too that criminal liability can arise where someone has lied on their CV, although those situations are relatively rare.)
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on dismissals and/or access further information in the Termination of employment 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.
The employee does not have unfair dismissal rights (as he has less than two years’ service), so you do not need to have a fair reason for dismissal or follow a fair dismissal procedure. Nonetheless you should make clear to the employee, and carefully document, that you are dismissing him due to the false information he supplied on his application form, in order to reduce the risk of a claim that his dismissal was for some other reason (e.g. that it was discriminatory).
Whether or not you can dismiss without notice or pay in lieu depends on whether the employee has committed a repudiatory breach of the contract. Based on this limited information, it seems likely that he has, but we would recommend that you ask him about the circumstances rather than jumping to conclusions. For example, perhaps it was a genuine misunderstanding or maybe the job advert was not as clear as you thought. In such a case, the employee may still not be suitable for the role and dismissal may be appropriate, but his conduct would not amount to a repudiatory breach. Depending on the length of notice, to reduce the risk of a wrongful dismissal claim, you may in any event decide to dismiss on notice. (Note too that criminal liability can arise where someone has lied on their CV, although those situations are relatively rare.)
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on dismissals and/or access further information in the Termination of employment 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.
5) Can stress, anxiety and/or depression be disabilities?
Yes, there is always the potential for stress, anxiety and/or or depression to relate or amount to a condition falling within the Equality Act’s definition of disability. Under the Equality Act, a disability is a “physical or mental impairment that has a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities”. “Substantial” has been interpreted in the case law as meaning more than trivial, while “long-term” means that the impairment has lasted or is likely to last, or likely to recur, for at least 12 months.
The question of whether an employee has a mental impairment meeting the legal definition of disability will ultimately be for the employment tribunal to determine. To do this, the tribunal would consider all relevant evidence: both medical evidence as we well as evidence relating to the extent to which the employee’s ability to carry on with normal day-to-day activities (including work activities) is reduced.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on managing employees with ill-health and/or access further information in the Sickness and incapacity section of our website, including on stress, anxiety and depression.
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.
The question of whether an employee has a mental impairment meeting the legal definition of disability will ultimately be for the employment tribunal to determine. To do this, the tribunal would consider all relevant evidence: both medical evidence as we well as evidence relating to the extent to which the employee’s ability to carry on with normal day-to-day activities (including work activities) is reduced.
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on managing employees with ill-health and/or access further information in the Sickness and incapacity section of our website, including on stress, anxiety and depression.
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.