In an ideal world, things would evolve in an orderly fashion. Resignations would be in writing after a period of considered thought, and make reference to contractual provisions about notice. In the real world however, that is not always the case. Situations arise where temperatures and voices are raised, and rash things said. How do we then determine what happened and whether reliance can be placed on what was said – or whether it is even clear what was said?

In the recent case of Omar v Epping Forest District Citizens Advice the Claimant made comments during a heated exchange with his manager which the manager took as a resignation. The manager’s evidence was that the comments included “That’s it, from today a month’s notice” and: “I’m done with this place.” The Claimant denied making those comments and said instead that he had only complained that he was treated unfairly. Also, importantly, he did not seek to retract his resignation.

While the Employment Tribunal concluded that the Claimant had resigned, the Employment Appeal Tribunal (EAT) disagreed with the Tribunal’s reasoning for that decision, and set out useful guidance on what has to be considered in such situations.

In particular, the EAT confirmed that a prime consideration is whether the words used were “really intended” when they were said, and whether the resignation was “seriously meant and rational.”

In legal cases, reference is sometimes made to the “reasonable bystander”, i.e. what would an imaginary person have thought was happening if they were looking on when the incident occurred. In these kinds of situations, it is a question of what the reasonable bystander would think if they were in the employer’s shoes, i.e. being the recipient of the “resignation”. In order for the resignation to be effective, the recipient must understand that the employee is actually resigning. However, this is obviously subjective so will not necessarily be the end of the matter. The words of the “resignation” should be looked at objectively in each case. With the above in mind, it is always for the Employment Tribunal to decide matters on a question of fact.

Of course, ‘heat of the moment’ is not just about resignations, as it works both ways – there are plenty of instances where employers have dismissed in the heat of the moment too. Essentially, a similar thought process should apply.

In the end, it is always best to avoid such situations arising in the first place if you can. When such matters are litigated it is always difficult to know how they will resolve. It is a classic case where the credibility of witnesses is at stake. There are no documents to rely upon when analysing the event in question. There may be a flurry of emails afterwards, but they will usually shed only a very subjective light on matters. Getting objective advice as soon as possible after such incidents is imperative in order to make sense of such events and how to handle them.

If you are dealing with a situation involving the ‘heat of the moment’, contact our Employment Team who will be happy to help.

On 8 November 2023 the Government announced that it would be making significant changes to the law on annual leave.

The aim of the new legislation is to alleviate pressure on employers by clarifying certain issues from recent case law.

In particular, following the Harpur Trust v Brazel case, there has been some confusion as to how employers should calculate holiday pay for irregular hour and part year workers, due the fact it was ruled that holiday could no longer be calculated using 12.07% method. The outcome of this meant that in some cases, part year and irregular hours workers were entitled to more annual leave pro rata than some workers with regular hours, plus it also resulted in more work for employers in trying to assess the correct holiday pay each eligible employee was entitled to!

The headline changes being introduced in 2024 are:

New rules for holiday accrual and pay for ‘irregular hours workers’ – including the option of rolled up holiday pay
The Government has decided to create new definitions of “irregular hours workers” and “part-year workers”. Workers who fall into these definitions will be removed from the scope of the existing rules on holiday accrual and pay under regulation 13 and 13A of the Working Time Regulations 1998. Instead, they will be covered by new regulations 15B to 15F, which will be added to the Working Time Regulations. The new regulations will provide:

A new holiday accrual method under regulation 15B, whereby holiday accrues based on 12.07% of the hours worked by the worker in the previous pay period.
An option for employers to use ‘rolled up’ holiday pay (provided that certain conditions are met). This is where holiday pay for regulation 15B holiday can be paid as an additional percentage of pay at the time when the hours are worked, rather than being paid when the annual leave is actually taken.
Importantly, these new changes only apply in relation to leave years which start on or after 1 April 2024. As many employers use the calendar year as their holiday year, that will mean that for them and their staff, the changes will not take effect until 1 January 2025.

For any current leave years, or any leave years that start before 1 April 2024, the position will still be covered by the law as it currently stands (i.e. including the Harpur Trust v Brazel position).

It is interesting to see that ‘rolled up’ holiday will soon officially be permitted. Over the years the courts had declared it to be unlawful to pay ‘rolled up’ holiday pay, but because it was a convenient method to use when dealing with casual or variable hours staff, some employers had still continued to use it anyway. We expect that many employers who aren’t using rolled-up holiday pay for their irregular hours workers will now look to switch to that system so as to try to ease their administrative burden.

Changes to rules on carry forward of holiday – for all workers
All workers will be able to carry forward their leave if they have been prevented from taking it for any of the following reasons:

Being on family-friendly leave
Sickness
If they were denied holiday by their employer
If the employer has failed to give the worker a reasonable opportunity to take holiday or has failed to encourage them to do so
If the employer hasn’t warned the employee that the holiday will be lost at the end of the leave year.
These changes are intended to bring the law into line with the recent developments from legal cases, although arguably they go further. Employers may need to update their policies to reflect these rules, as well as ensuring managers are appropriately trained about encouraging staff to book their leave.

If you have any questions (or need help adjusting!) or if you need any advice on your position regarding staff holiday, please do not hesitate to contact our Employment Team.

So many changes to employment law have been announced lately that you can be forgiven if you are struggling to keep track! Luckily we are here with a handy guide to what changes are coming and when they will take effect.

Flexible working changes

We gave the details of the forthcoming changes in our previous article here. The new changes are expected to come into force in July 2024.

The headline changes are:

Employees will be able to make two requests in any 12-month period, rather than one
Employees will no longer have to explain the effect that their request will have on others
Employers won’t be able to reject a request without discussing it with the employee first
Employer will have 2 months to reach a decision on a request rather than 3
A new ACAS Code will be issued
The Government has also said that they will remove the requirement for an employee to have 26 weeks’ service in order to make a request.

New duty to prevent sexual harassment

Sexual harassment is unfortunately all too topical at the moment, as we looked at in our recent article here.

To try to combat the problem, the Worker Protection (Amendment of Equality Act 2010) Act 2023 has now been given Royal Assent, and it is due to come into effect in October 2024.

The Act includes a new duty on all employers to take ‘reasonable steps’ to prevent sexual harassment. This is a weaker version of what was originally proposed, as that would have required ‘all reasonable steps’ – a small but significant difference!

There will be a forthcoming ACAS Code of Practice as well as guidance for employers to follow.

Having effective policies and procedures and ensuring that staff are properly trained will be key in order for employers to show they have complied with their duty. Please contact us if we can help you with this.

Right to request a more predictable working pattern

The Workers (Predictable Terms and Conditions Act) 2023 has now received Royal Assent and will enable eligible workers and agency workers to make a request for a more predictable working pattern. As with flexible working, it is important to remember that it is purely a right to make a request, it is not a right to make a demand.

Eligible workers will be able to make a maximum of 2 requests in any 12-month period.

There are still some details to be clarified in due course, but we know that it will be necessary for the person making the request to have 26 weeks’ service, and there will be statutory grounds that an employer can rely on to refuse the request (which mirror the grounds for refusing a flexible working request).

It is thought that the Act will come into effect in September 2024.

New rules on third-party harassment

Although the original version of the Worker Protection (Amendment of Equality Act 2010) Act 2023 contained provisions aimed at preventing third-party harassment, those ended up being removed by the House of Lords and will not be coming into effect.

Carer’s Leave Act 2023

This new Act received Royal Assent in May 2023 and when it becomes law, it will introduce a new flexible entitlement of one week’s unpaid leave per year for those who are providing or arranging care for a dependant with a long-term care need.

No implementation date has been announced yet but it is thought that it might be April 2024.

Neonatal leave and pay

This is another new piece of legislation that received Royal Assent in May, but for this one the rights to leave and pay are not expected to apply until April 2025.

The new law will give an additional right to 12 weeks of paid leave on top of other existing family-friendly leave such as maternity and paternity leave. It will apply to parents of babies that require specialist neonatal care. Further details will be announced in due course, but pay is likely to be at the same rate as statutory paternity leave.

Protection from redundancy for those taking family-friendly leave

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 will mean that those who are pregnant or who have returned from maternity, adoption or shared parental leave will benefit from the same protection against redundancy as currently applies to women on maternity leave (sometimes known as the ‘maternity trump card’). It is thought that the protection will apply for six months after an employee returns from leave, but details are yet to be announced. As yet, there is no set implementation date for the new law.

We will of course keep you up to date on these and any other future changes. If you have any queries about anything to do with employment law please contact a member of our friendly team for assistance.

Contact our Employment Team if you have questions about this or any other employment law matter.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

In many disability discrimination cases it is important for an Employment Tribunal to consider what an employer knew and when. This is because an employer cannot be liable for direct discrimination or failure to make reasonable adjustments if it did not have knowledge of the disability and/or the particular disadvantage suffered.

There are two ways that an employer can have knowledge for this purpose – either ‘actual knowledge’ or ‘constructive knowledge’. Constructive knowledge is where the employer hasn’t been specifically told, but they “ought reasonably to know” about the disability or particular disadvantage in the circumstances. As a recent case (AECOM v Mallon) showed, this can cover a situation where an employer fails to ask follow up questions of the individual.

Background
Mr Mallon wanted to apply for a job at AECOM at its London office. He had previously worked at the Birmingham office but had been dismissed in 2017 after an extended probationary period. After his dismissal he had brought a disability discrimination claim (his disability was dyspraxia), and a settlement had been reached between him and the company. It had been agreed between the parties that the settlement would not prevent Mr Mallon from applying for a job with the company in future.

For anyone who wished to apply for the London role, the company had an online application process. As part of this, candidates had to create a personal profile, which required them to input their email address, create a username and provide a password consisting of eight digits and a special character.

Mr Mallon did not complete the online application process. Instead, he sent emails to the company’s HR team in which he said he wished to apply for the role. He attached his CV (which included mention of dyspraxia) and said that he wanted to do an oral application by phone to talk about his experience. He said that he wanted to arrange this by email and offered to provide his phone number.

The company’s HR manager corresponded with Mr Mallon to explain that the online process was a requirement but asked him to let her know if there were parts of the form he was struggling with. Mr Mallon’s disability meant he was not able to create the username and password, but he did not make the HR manager aware of this. She did not ask the Claimant for his phone number, so they did not speak on the phone.

Mr Mallon was not successful in obtaining the role and brought a claim for disability discrimination. (During the Tribunal process it was also revealed that he had brought a total of approximately 60 Employment Tribunal claims against various employers relating to online application forms).

The decision
The Employment Tribunal found in Mr Mallon’s favour, i.e. that by not calling him, AECOM had failed in its duty to make reasonable adjustments for his dyspraxia. The company appealed against this decision to the Employment Appeal Tribunal (EAT).

There were two main grounds put forward for the appeal. The first was that Mr Mallon was not a genuine applicant for the role, because it was a role that he had been dismissed from not long before. The second was that the company should not have been seen as breaching the duty to make reasonable adjustments when it had asked Mr Mallon on several occasions to clarify the aspects of the online application process that he was struggling with, and he had failed to answer.

(It is worth pointing out that there was no dispute in the case that AECOM had actual knowledge of Mr Mallon’s disability (dyspraxia) from his previous employment and from the fact that he had mentioned it in his email correspondence. However, the second issue in dispute related to whether the company had had constructive knowledge of the particular disadvantage he suffered in relation to the completion of the online form.)

The Employment Appeal Tribunal agreed that the Tribunal’s reasoning on the first point was incorrect, and sent the case back to the original Tribunal to reconsider. However, in relation to the second point, the EAT rejected the appeal. This was because the EAT felt that AECOM should have telephoned the Claimant as he had requested.

“… it is hard to see how the Tribunal could reasonably have reached any other conclusion than that the respondent ought to have telephoned the Claimant both to ascertain what the nature and extent of his claimed disadvantage was, and in order to make the reasonable adjustment.”

Lessons for employers
Having read the background to the case it is hard not to have sympathy for the employer in this situation, particularly when they were up against someone who has brought so many claims. Although fortunately serial litigants like Mr Mallon are in the minority, the case does still contain an important learning point for employers, which is that if an applicant informs you that they have a disability and that this is causing them to struggle with some aspect of your recruitment process, you need to follow that up with them proactively to find out more about their particular disadvantage, otherwise you run the risk of a disability discrimination claim. This case is an example of how far Employment Tribunals expect employers to go in complying with the duty to make reasonable adjustments.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

If you are an employer still looking for that Brexit benefit you may find it in the current review of the Working Time Regulations 1998, which were of course derived from an EU Directive.

One of the knottiest issues that has come from the Working Time Directive has been how to calculate holiday pay. What should be included in the calculation? How does it work with irregular working? What if that irregular working is only in term time in education establishments? What overtime needs to be considered?

The drafting of the Directive is not the clearest. The UK Regulations could be regarded in the same light, albeit that there is a calculation included in them. However, even that does not solve all the problems.

So, in the time-honored fashion, it has been left to case law to decide. That is how our system works – on the basis of interpretation where a piece of legislation cannot cover all of the possibilities that arise in daily life.

The problem is that you do not always get the cases you want, and cases can get settled before the desired clarity is reached at the Court of Appeal or the Supreme Court.

The history of cases addressing holiday pay is not straightforward and legislative amendments have also confused the picture. The latest case of Chief Constable of the Police Service of Northern Ireland & another v Agnew & others does give us some, but not complete, clarity on how far back employees can claim for underpayments relating to holiday pay.

Previously, the idea was that a claim could only be made for deductions within the previous three months unless there was a series of deductions, of which the latest was within three months before the claim was made. If there was a gap of three months or less in that series, it remained intact. Any longer and the chain was broken and the count back could go no further.

The Supreme Court in Agnew considered the point and decided that the three-month limit does not restrict the meaning of ‘series’ in the way that had previously been decided.

We are often used to hearing that all the relevant circumstances have to be considered, and this type of analysis is what the Supreme Court felt was relevant here. In doing so they relied on the EU principle of equivalence, holding that a gap of three months does not necessarily break the series. Other factors can come into play, such as the size and impact of the deductions.

So, does this mean that there will be a flood of cases looking at deductions going all the way back to 1998 when the Working Time Regulations came into force? Well, currently, in Great Britain, those regulations have been amended so that claimants can only look back two years. The crucial detail in Agnew is that this amendment does not apply in Northern Ireland, so the liabilities run into the tens of millions.

Now to sit back and wait for the next case to come along!

Contact our Employment Team if you have questions about this or any other employment law matter.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

We are often asked to advise employers on situations involving employees who resign or threaten to resign. Unfortunately, there are a lot of misconceptions and myths about resignations, so we wanted to try to lay some of the most common ones to rest.

Myth #1 – Resignations need to be accepted

This is far and away the biggest misconception out there, possibly because it is frequently reported in the media that an employer has “refused to accept” a resignation (this seems to particularly arise in relation to football managers and politicians!).

In an employment relationship, there is no need for a resignation to be accepted by the employer. Resignation is purely a decision for the employee, in the same way that dismissal is purely a matter for the employer – the employer cannot refuse to accept a resignation.

Myth #2 – Resignations need to be in writing

Not necessarily. This may depend on the wording of the contract of employment (assuming there is a written contract). A verbal resignation could be effective if there is nothing to indicate that written resignations are required. If there is a dispute as to what was said (or what was meant by what was said) it may be a matter of evidence for the Tribunal to decide.

If the contract states that notice has to be given in writing, then a resignation will only be effective when it is actually received by the employer. It is also worth noting that in practice, an email will generally meet the definition of being ‘in writing’, and the employer will be deemed to have received an email when it has been read.

Myth #3 – An employer can assume that someone has resigned from how they have behaved

We often receive queries about situations where an employee’s behavior appears to indicate that they no longer consider themselves to be employed, but they haven’t actually clearly stated that they have resigned. Unfortunately despite what a lot of people tend to think, there is no concept of ‘deemed resignation’ or ‘self-dismissal’ in UK law, so it is always best to take advice if you have a situation that you feel is unclear.

Myth #4 Employees can’t change their mind and stay

Although, as stated above, a resignation is purely a decision for the employee and not the employer, there are certain circumstances where an employee may be allowed to change their mind. However, the situations where this could apply are fairly limited.

The most common example is when an employee resigns in the ‘heat of the moment’. If this happens, then case law shows that they should be given a reasonable opportunity to retract their resignation. In these situations, it will quite often be the case that the employer doesn’t want to allow the employee to retract it, and it is then a good idea to take specific advice on whether this needs to be permitted. Often this will depend on how much time has passed since the resignation.

Myth #5 – An employee can’t bring a claim if they stay

The last one in our top 5 can be true in some cases, but we’ve still included it as a myth because it can sometimes be confusing to people. If an employee hasn’t resigned, it is true that it is extremely unlikely that they will be able to claim constructive dismissal (as to bring that type of claim it is normally essential for the employee to have resigned). However, it’s important to be aware that if someone doesn’t resign it doesn’t mean they can’t bring a claim at all, because there are also several other types of claim that someone can bring whilst they remain in employment, including things like unlawful deduction from wages, equal pay, and discrimination.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The recent allegations about Russell Brand and the ongoing saga involving Luis Rubiales illustrate why it is important for employers to be vigilant about sexual harassment in the workplace and to ensure that allegations are dealt with properly.

The legal definition of sexual harassment is when a man or woman is subject to unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of either violating the person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Conduct of a sexual nature can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, as well as things like displaying pornographic photographs or drawings or sending emails with material of a sexual nature.

Sexual harassment can lead to claims being made in the Employment Tribunal under the Equality Act 2010, and an employer may be vicariously liable for the actions of the harasser. Vicarious liability is a legal term which deals with the situation where someone is held responsible for someone else’s actions. Generally, an employer will be liable for the acts of its employees, provided the relevant acts are done in the course of their employment. However, individual employees can also be personally liable for acts of sexual harassment too. There is no cap on the compensation that can be awarded for sexual harassment claims.

Ensure a fair investigation
Any grievance or complaint raised by an employee should be properly investigated, but complaints of sexual harassment require a particular level of sensitivity, caution and discretion due to their subject matter. Due to the nature of these kinds of allegations it can be worth considering appointing an external investigator if your organisation lacks sufficient resources or expertise internally.

It may be appropriate for the alleged perpetrator to be suspended while the investigation is undertaken, but employers should also consider whether other options such as temporary relocation or redeployment might be possible. If the employee is suspended then the period of suspension should be kept to a minimum.

Important points to be aware of
Despite what some people believe, ‘banter’ is capable of amounting to sexual harassment. The Employment Tribunals have frequently rejected employers’ attempts to defend sexual harassment claims by saying that it was only ‘banter’, or by trying to defend claims with evidence that the employee bringing the claim also participated in similar comments. For example, in the Employment Tribunal case of Smith v Renrod Ltd (2015), Miss Smith was employed as a sales executive in a car dealership and claimed she had been sexually harassed by her manager, who had made comments to her which were of a sexual nature. The Employment Tribunal concluded that there was a culture of sexual banter in the workplace in which both Miss Smith and her manager actively participated, and that Miss Smith had not been shocked by the day to day banter between colleagues.

However, it found that the comments made by her manager did go too far. While the Employment Tribunal found that Miss Smith was relatively robust and not adverse to participating in, or even initiating, sexual banter on some occasions, the conduct and comments of her manager still went beyond what was acceptable to her and therefore amounted to harassment within the legal definition.

It may not be necessary for a victim of sexual harassment to have previously complained about the behaviour. Employment Tribunals recognise that the employee is normally in an unequal relationship with the harasser, and that it is a natural reaction not to wish to create further conflict for fear of losing their job. In Munchkins Restaurant and another v Karmazyn and others (2009), the Employment Appeal Tribunal upheld a claim that a restaurant manager had sexually harassed four waitresses. This was despite the waitresses putting up with the conduct for some time, and even initiating talk of a sexual nature as a method of coping with his behaviour.

It is also possible for an individual to claim sexual harassment even when the offending remark or action is not directed at that person. For example, a woman who overhears a sexist remark could bring a sexual harassment case, even if the person who made the comment did not realise that she was listening at the time.

What can employers do to help prevent sexual harassment claims?
Employers should make it clear that sexual harassment in the workplace is unacceptable, and a statement to that effect should be included in your equality policy. You should also make clear how incidents of sexual harassment can be reported.

However, we recommend organisations go further than this and provide training to all employees about avoiding discrimination and harassment, as well as training managers on how to deal with situations where sexual harassment is involved (and/or other forms of discrimination).

Employers should act quickly to stop banter or behaviour that is getting out of hand. The first step could be informally speaking with the employee or employees who are engaged in the behaviour to ask them to stop (and commencing a disciplinary process if they do not stop).

Complaints about sexual harassment should never be ignored and should be dealt with in a timely and reasonable way so as to be fair to both the alleged victim and the alleged perpetrator. It is also crucial to ensure that all staff are aware of your equality policy and that discriminatory behaviour will not be tolerated. Ensuring this awareness could prove crucial in your defence against a discrimination claim. Even better, you could offer equality training to your staff – please contact us if we can help with this.

If you are dealing with an allegation of sexual harassment in the workplace, then we can help.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.