EmpLaw Newsletter April 2024

Family leave pay - rate increases from April 2024

The Government has announced that, with effect from 7th April 2024, the rate of a week’s pay for the purpose of calculating family leave in the UK will rise to £183.04 per week. This rate increase impacts statutory maternity pay, shared parental leave pay, adoption pay, paternity pay and parental bereavement pay.

£183.04 is the maximum amount payable per week under the statutory regimes. Employees receive their actual pay each week if this is lower.

Extension of redundancy protection for pregnant employees and those on family leave

The law has, for a long time, given extra protection from redundancy to those on maternity, adoption, or shared parental leave. They have the right of first refusal of any suitable alternative roles which exist in a redundancy situation.

This protection is, from April 2024, being extended by the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The table below sets out the current position and how it is changing:

	The current position	The changes	When does the change take effect from?
Pregnancy	No protection.	Protected from the date that the employee informs the employer of her pregnancy for the full period of pregnancy.	Where the employer is informed of the pregnancy on or after 6th April 2024
Maternity Leave	Protected during the period of absence on maternity leave only.	Protected for the period of 18 months from the first day of the estimated week of childbirth (EWC). The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer of the actual date of birth in writing during their maternity leave period.	Where the maternity leave ends on or after 6th April 2024
Adoption Leave	Protected during the period of absence on adoption leave only.	Protected for the period of 18 months from the date of placement for adoption.	Where the adoption leave ends on or after 6th April 2024
Shared Parental Leave	Protected during the period of absence on shared parental leave only.	Protected for the period of 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 continuous weeks of Shared Parental Leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above. Protected during period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken.	Where the period of 6 continuous weeks of Shared Parental Leave starts on or after 6th April 2024

 

 

Where an employee suffers a miscarriage before 24 weeks of pregnancy then they will have protection during their pregnancy and for a 2-week period following miscarriage. If they miscarry after 24 weeks of pregnancy, then this is classed as a still birth and they are entitled to maternity leave and will have the same protection as any other employee taking maternity leave.

Policies will need to be updated to take account of this change and any personnel involved in redundancy consultation need to be informed of the new extended protection for these categories of employee.

Detangling direct discrimination, manifestation of belief and lawful limits on protection

The recent case of Omooba v Michael Garret Associates and others has placed religion and belief discrimination back in the spotlight.

To give you a brief overview of the law as it currently stands:

• Direct discrimination occurs where a person is treated unfavourably because of their religion or belief. It is unlawful and cannot be justified.
• Article 9 of the European Convention of Human Rights extends this protection beyond the belief itself to cover manifestations of the belief.
• There are very narrow grounds on which the employer can object to the manner in which the employee manifests their beliefs – in which case any action will be linked to the conduct and not the belief and will not be discriminatory.

In Omooba v Michale Garret Associates and others the Claimant was a Christian. She was due to play the lead role in the Respondent's production of The Color Purple, a play based on the book by Alice Walker. The book depicts a romantic relationship between two women. The play proposed to include the lesbian relationship. The Claimant was, at the relevant time, unaware of this.

Before rehearsals started, a comment that the Claimant had posted on Facebook some years previously calling homosexuality sinful and urging Christians to stick to their beliefs was retweeted. Following the retweet, the Respondent dismissed her.

The Claimant claimed religion or belief discrimination, harassment, and breach of contract. She acknowledged that, after reading the script following her dismissal, she would not have played the role. The tribunal concluded that, although her beliefs (applying the criteria from Grainger v Nicholson) ‘scrape[d]’ over the threshold of being protected, her claims should fail.

The Claimant appealed.

The EAT, rejecting the appeal, agreed with the tribunal’s conclusions. In terms of direct discrimination, the Claimant was not dismissed because of her expression of her belief but because of the effect of the adverse publicity from its retweet on the cast, the audience, the reputation of the producers and the commercial success of the production. The tribunal had been entitled to reach this conclusion. The message seems to be that if an employer can persuade a Tribunal that it genuinely dismissed an employee because of external pressure, then it won’t have discriminated. Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.

This decision sits rather awkwardly alongside Higgs v Farmor’s School which is currently on appeal to the Court of Appeal. In this case, the Claimant was dismissed after making Facebook posts about her beliefs on same sex relationships and trans rights. Her case of direct religious discrimination succeeded.

The difference between the two decisions appears to be that the ‘reason’ for dismissal in Higgs was the Facebook posts manifesting the Claimant’s belief whereas the ‘reason’ in Omooba was the social media storm which arose from them. It is a very narrow distinction.

What these two cases make clear is that further guidance is needed. This will hopefully come from the Court of Appeal when it hears the appeal in Higgs.

Agency workers

Agency workers are different from employees and workers. They have a contract with an agency. The agency provides their services to a hirer. Typically, there is no direct relationship between the agency worker and the hirer.

The Agency Workers Regulations 2010 (AWR) give agency workers certain rights when they are working on assignments for hirers. In particular, Regulation 5 AWR states that, after 12 weeks' continuous service, agency workers are entitled to the same pay terms as direct employees.

In the recent case of Donkor Baah v University Hospitals Birmingham NHS Trust and others, the Employment Appeal Tribunal looked at whether an overarching agency agreement existed between an agency worker and a hirer, such that the agency worker was entitled to ‘suspension pay’ from the hirer during a nine-month period when she was not allowed to book shifts with them.

The claimant worked nursing shifts for the Respondent hirer through an agency. In February 2019, during a night shift, an incident occurred. The hirer told her to leave. In November 2019, she was allowed to resume booking shifts with the hirer.

The Claimant argued that her assignment with the hirer continued even when she couldn't book shifts. She claimed suspension pay on the basis that direct employees would get this and she was entitled to the same pay terms because of Regulation 5 AWR.

The tribunal held that the Claimant's assignment with the hirer ended when she was sent home in February 2019. Thus, she wasn't entitled to suspension pay. The Claimant appealed. She agreed her assignment had ended in February 2019. But she argued that an overarching 'Agency Relationship' could continue to exist between assignments. This is what had been suspended when the hirer sent her home and the hirer owed her suspension pay as a result.

The EAT rejected this argument. The rights of agency workers in the AWR all relate to a period of assignment when the agency worker is actively working for the hirer. There was no scope in the AWR for an overarching ‘agency relationship’, which could continue between assignments, to exist.

New holiday rules for part-year and irregular hours workers begin to take effect from 1st April 2024

The government has created an entirely new system of holiday accrual and holiday pay for part-year workers and irregular hours workers. For holiday years beginning on or after 1^st April 2024, their holiday rights will no longer come from Regulation 13 and Regulation 13A Working Time Regulations 1998 as with all other workers. Their rights will be set out in Regulation 15B Working Time Regulations 1998.

A person is an ‘irregular hours worker’ if the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable. A person will be a ‘part-year worker’ if, under the terms of their contract, they are required to work only part of the year and there are periods within that year of at least a week which they are not required to work and for which they are not paid.

It is for the employer to decide whether or not a worker is a part-year or irregular hours worker.

Holiday entitlement accrues for these workers, so they accrue leave to reflect the number of hours worked. For holiday years from 1st April 2024, holiday accrual is now calculated in hours and as if there is one composite pot of leave. It accrues at the end of each pay period at a rate of 12.07% of the hours worked in that pay period. ‘Pay period’ has its ordinary meaning and means, for example, each week if the worker is paid weekly.

Irregular hours workers and part-year workers on sick leave or statutory leave (such as statutory maternity or paternity leave) continue to accrue annual leave whilst they are off, under a new calculation set out in the regulations which works by calculating 12.07% of the average hours worked in the 52 weeks prior to the absence on sick leave or statutory leave (including any weeks where no work was done but excluding any weeks where the worker was on sick leave or statutory leave).

For holiday years starting from 1^st April 2024, there are two options in terms of how holiday pay is calculated and paid. Employers can either pay rolled-up holiday pay or they can continue to pay workers when holiday is taken.

Employers will be able to roll up holiday pay for irregular hours or part-year workers as long as:  

• their holiday pay is calculated at 12.07% of their pay and is paid at the same time as their ordinary pay; and
• the amount of holiday pay is itemised separately on their payslips.

Payslips must record rolled-up holiday pay: the worker’s payslip must indicate the amount of rolled-up holiday pay that has been paid during the relevant pay period.

During any period of sick leave or statutory leave, any worker who receives rolled-up holiday pay will continue to be paid rolled-up holiday pay, calculated as an average of the rolled-up holiday pay received in the 52 weeks looking back from the date that the sick/statutory leave began.

If a business doesn’t want to adopt rolled-up holiday pay for irregular hours and part-year workers, then they do not have to. In these circumstances, pay for holiday taken is worked out by taking an average of hourly pay received during the 52 weeks prior to holiday being taken, excluding all weeks where no work was done and any weeks of absence on statutory leave or sick leave (and looking back to earlier worked weeks to count towards 52 in these cases). This calculation would need to be re-done each time a worker took a period of holiday. It is, administratively, a lot more complex than rolled-up holiday.

The government have now issued their own guidance on these changes (see - Holiday pay and entitlement reforms from 1 January 2024 - GOV.UK)

Depending on your business’s holiday year, these changes may impact you in April or they may not. As and when they do, you will need to have done the following:

• Work out if you currently engage any part-year or irregular hours workers.
• Decide whether you wish to pay rolled-up holiday pay to any such individuals.
• Undertake all necessary discussions with payroll functions to make sure that your workplace arrangements are ready to administer this new system of accrual and pay.
• Review any holiday policy in place and make all necessary changes to take account of the new arrangements.
• Consider whether it is necessary to issue revised terms and conditions of employment to reflect these changes.

An employee cannot bring a claim of whistleblowing detriment against his employer where the act of detriment relied upon is dismissal

There are two claims which can be brought by employees associated with whistleblowing. The first is a claim of detriment. Employees can claim against their employer (and a wider category of individuals including colleagues) for unfavourable treatment on grounds of whistleblowing. This is a detriment claim. Employees can also bring a claim against their employer for automatic unfair dismissal where they claim that the main reason for their dismissal is whistleblowing.

It is usually fairly easy to understand which claim should be brought in any given scenario. However, in the recent case of Rice v Wicked Vision, the Employment Appeal Tribunal intervened to prevent a claim of detriment proceeding against the employer in circumstances where the detriment relied upon was dismissal. In this case, the Claimant brought a claim of automatic unfair dismissal against the Respondent. He alleged he was dismissed because he had made protected disclosures. The Claimant later tried to amend his claim to add that the act of the dismissing officer in dismissing him was a detriment on grounds of whistleblowing for which the Respondent was liable. The tribunal allowed the amendment.

The EAT disagreed with the tribunal's decision. The law states that if an employee is dismissed due to whistleblowing, their claim against their employer in relation to the dismissal is for automatic unfair dismissal. The act of dismissal can't be brought as a detriment claim against the employer. The Claimant could have claimed detriment against the individual dismissing officer. But, they couldn't claim the detriment of dismissal against the employer directly.

The correct claim against the Respondent employer was the one originally brought: automatic unfair dismissal.

One principal reason for dismissal should have been identified in COVID-19 health and safety case

The law protects employees from unfair dismissal on health and safety grounds. If an employee, in circumstances of danger which he reasonably believed to be serious and imminent, proposed to take steps to protect himself from the danger and was dismissed as a result, he will have been automatically unfairly dismissed under section 100(1)(e) Employment Rights Act 1996.

The test is a complex one. In the recent case of Accattatis v Fortuna, the Employment Appeal Tribunal looked at it in the context of a dismissal during the COVID-19 pandemic. The Claimant demanded that he be able to work from home or be placed on furlough. He claimed that he made these demands as he reasonably believed that the workplace (and travel to the workplace on public transport) constituted circumstances of serious and imminent danger at the height of the COVID-19 pandemic. The Claimant was dismissed and claimed automatic unfair dismissal under section 100(1)(e).

The tribunal agreed with the Claimant that the COVID-19 pandemic created circumstances of danger which the claimant reasonably believed to be serious and imminent. It also agreed that the Claimant’s proposal to work from home or be furloughed were appropriate steps to protect himself from that danger. However, they found that the Claimant was not dismissed for proposing to take these steps.

They found, instead, that he had been dismissed for two principal reasons: that he was a difficult and challenging employee; and that he had written impertinent emails demanding to be furloughed or to be allowed to work from home. The tribunal found that, neither of these reasons was protected.

The EAT allowed the Claimant’s appeal. The law states that there will be an automatic unfair dismissal in these cases where the ‘reason or, if more than one, principal reason’ for the dismissal is that the Claimant proposed to take appropriate steps to protect himself from serious and imminent danger. The tribunal had erred as they had identified two ‘principal reasons’ for dismissal: sending impertinent email requests for furlough/working from home and being a challenging employee. They needed to identify just one.

The EAT also held that, if the tribunal concluded that the principal reason was the sending of impertinent emails requiring furlough or home working, they needed to look again at whether such a demand was actually an appropriate step which should have been protected.

The case has been sent back to the same tribunal to consider whether demanding to work from home or be furloughed was an appropriate step and whether the principal reason for dismissal was that demand.

Disability discrimination: Reasonable adjustments

Where an employer knows (or ought to know) an employee is disabled, the duty to make reasonable adjustments applies. Under Equality Act 2010, employers must make adjustments to remove any substantial disadvantage that the employee would otherwise face at work because of their disability. The employer only has to make such adjustments as are reasonable.

In the recent case of Miller v Rentokil, the Employment Appeal Tribunal looked at whether it was a reasonable adjustment to place an employee in an alternative role (when their disability meant that they could no longer perform their original role) – even though the employee had been unsuccessful in their application for that alternative role.

The Claimant worked as a field-based pest controller. After being diagnosed with multiple sclerosis, he could no longer work in this role. He couldn’t work at heights (which made up around 40% of his role) and could only work slowly.

The Respondent looked at other jobs in the business and the Claimant applied for an administrator role. He was unsuccessful following an interview process and was dismissed. The Claimant claimed that failing to place him in the administrator role on a trial basis amounted to a failure to make reasonable adjustments under Equality Act 2010. The tribunal upheld his claim.

On appeal, the EAT agreed with the tribunal. The Claimant was placed at a substantial disadvantage because of his disability - he could no longer carry out his duties in his field-based role. Moving the Claimant to an alternative role was a reasonable adjustment which would remove that disadvantage. The Claimant had shown that the alternative role was potentially appropriate and suitable. The burden then passed to the Respondent to show that it was not reasonable to have put the employee into that role.

The tribunal had been entitled to conclude that the Respondent had not discharged this burden. Whilst they should and did take the Respondent’s assessment of the Claimant’s suitability for this role into account, they did not have to agree with it. They had permissibly reached their own objective position taking account of the suitability of the role, whether the employee met its essential requirements and the likelihood of a successful trial. 

Where an alternative role is an option which will avoid a substantial disadvantage to a disabled employee, employers need to tread very carefully if they choose not to offer it. Employers need to be able to put forward compelling arguments why the alternative role is not suitable. Allowing the employee to take-on the role on a trial basis is always a good idea. If the role is unsuitable, then this will show up on the trial. If the role is suitable, then the adjustment is a reasonable one and the employer should make it permanent.

And finally

supporting wellbeing in the workplace is of increasing importance to employers. One hot topic is how those going through menopause or perimenopause can be best supported. Avanti West Coast’s latest attempt to tackle this may have resulted in a bit of an ‘own goal’. They have come under fire after handing out a goodie bag to female employees containing ‘gimmick’ gifts. Avanti confirmed that it had given staff a bag filled with 'gifts' including a jelly baby 'in case you feel like biting someone's head off', a paper clip 'to help you keep it all together', a tissue 'if you're feeling a bit emotional' and a pencil 'to write down the things you might forget'. Other items included a fan 'handy for the hot sweats'.

The Aslef train drivers' union shared a photo of the list and wrote on X: “Avanti the menopause is debilitating for some women, it's not a joke…Rather than handing out insulting gimmicks to female employees you'd be better placed developing workplace policies and procedures that value and support peri-menopausal and menopausal women!”

A reminder, if one was needed, that employers should think very carefully about the messages that their actions send out and be aware of the full range of employee experience when dealing with sensitive topics such as menopause.