• February 2023 Employment Law Update

    Consultation on holiday pay for part time workers
    The recent decision in Harpur Trust v Brazil (2022) has caused headaches for employers who must now allocate 5.6 weeks a year holiday to part time workers, even when they do not work regularly through the year. This has led to an anomaly in some cases where part time workers receive more holiday pay (pro rata) than their full time peers. Now the Government is proposing to introduce a 52 week “holiday entitlement period” for part year workers and zero hour or casual workers, based on the proportion of time spent working during that period. Holiday entitlement would be calculated on the basis of 12.07% of the hours worked in the previous 52 weeks (to be accrued on a monthly basis at the start of a new job). Agency workers would accrue leave on the basis of 12.07% of hours worked each month. The Government also propose to clarify the length of a day’s holiday at a “flat average day” for workers with irregular hours. The “flat average” would be the average length of a working day for that individual over the 52 week reference period.
    The consultation closes on 9 March 2023.


    Dismissal of employee on long term sickness absence not discriminatory
    A disabled civil servant dismissed for long term sickness absence was not discriminated against, the Employment Appeal Tribunal has confirmed.
    The Claimant, Mr McAllister suffered from anxiety and depression and had many extended periods of sickness absence, not always related to his mental health. Both Tribunals found that although the dismissal was connected to the claimant’s disability, such a dismissal could be justified as a “proportionate means of achieving a legitimate aim” (ensuring adequate attendance and fairly managing sickness absence) and managing resources.
    This decision will be of some comfort to employers concerned with the difficult matter of sickness absence issues. The view of the EAT is that satisfactory levels of attendance are a legitimate requirement for an employer, and that the effect of sickness absence on other employees (and company morale in general) can be taken into account when deciding whether to dismiss a disabled employee.
    When seeking to dismiss employees who are long term absent from work on capability grounds it is still important for employers to consider all relevant evidence, including, in some circumstances, an independent Occupational Health report, and to follow a proper process.

    Menopause recommendations rejected
    The Government has rejected the Women and Equalities Committee’s recommendation that a consultation should be held on making menopause a protected characteristic (see the Committee’s report Menopause and the Workplace https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/91/report.html)
    The committee also recommended the commencement of the combined discrimination provision in section 14 of the Equality Act 2010 (EqA 2010) and this was similarly rejected.
    However the Government has confirmed it will appoint a “Menopause Employment Champion” to raise awareness of menopause within the workplace.
    Employers should bear in mind that, employees going through the menopause may still have grounds to bring a grievance or an Employment Tribunal claim on grounds of discrimination if their complaint is linked to other protected characteristics, such as age, gender, sexuality or disability.
    ACAS has a helpful briefing for employers at the following link:

    Employment legislation will not be protected from “Brexit bonfire”

    Attempts to ensure that the Retained EU Law (Revocation and Reform) Bill should contain amendments to protect employment legislation (including protection for workers) have unfortunately failed, together with an amendment that would require the Government to provide a complete list of laws that will be revoked by Clause 1. It remains to be seen what employment rights will remain after the final passage of the Bill.

    Fire and Rehire Update
    The government is seeking responses to the draft “Statutory Code of Practice on Dismissal and Re-engagement” (The Code) to be issued under section 203 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Code is intended to provide employers with a roadmap of alternatives to large scale dismissals and promote negotiation and consultation to find a mutually satisfactory solution. In particular it makes clear that threats of dismissal are not an acceptable tactic to force agreement.
    The Code also cautions dismissal and re-engagement should be a last resort, since unilateral imposition of such changes will usually amount to a breach of contract and are likely to have a damaging effect on industrial relations.
    The Code is not, unfortunately, legally enforceable but Employment Tribunals will be expected to take its recommendations into account when relevant and will be able to increase an employee’s compensation by up to 25% if an employer has unreasonably failed to comply.
    The consultation closes on 18 April 2023 but there is no indication of when the Code will be scheduled for Parliamentary consideration.

    And finally….
    Figures are now out for compensation and costs awarded by the Employment Tribunal and EAT during the year 2021/2022.
    630 claims for unfair dismissal won the maximum award of £165,000 (the average award was £14,000). The largest average award in discrimination claims was for Sexual Orientation (£33,000) and the highest maximum award was for Race Discrimination (£228,000).

    If you are an employer, it makes sense to protect yourself from expensive claims by ensuring your company policies are watertight and staff well trained. When problems do arise, seek advice from expert solicitors before they get out of hand.
    If you are an employee who has been unfairly dismissed or discriminated against at work, find out what your rights are and how you can take legal action.

    Our solicitors are always on hand to give you friendly, professional advice. Please contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com. Mulberry’s has offices in Brighton and London.

    This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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