Lessons for employers from the Herbert v Main Group unfair dismissal case

The Employment Tribunal case of Herbert v Main Group Services has grabbed national attention as it relates to an office manager who was summarily dismissed for gross misconduct after calling her manager and a director “dickheads.”

Despite her remark being inappropriate, the Employment Tribunal found the dismissal unfair, ruling that a single heated outburst did not amount to gross misconduct, especially since proper disciplinary procedures had not been followed.

The Tribunal emphasised that context and procedure matter as much as content.

Background

Ms Herbert had discovered documents suggesting her job might be at risk, and had become distressed when her manager confronted her about her performance. During that tense meeting, she made the impromptu remark, which triggered an immediate dismissal by her manager (who used an expletive when dismissing her!).

The Tribunal found that the firm’s policy allowed for dismissal only in cases of threatening or intimidating language; therefore merely insulting someone fell short of that threshold and therefore a warning would have been more suitable. Since Ms Herbert had received no prior warnings, the Tribunal concluded that her dismissal was both procedurally and substantively unfair.

As a result, Ms Herbert was awarded over £15,000 in compensation and an additional £14,000 in legal costs, bringing the total to nearly £30,000.

However, unfortunately for Ms Herbert, it seems she may be unlikely to be paid that amount, as the Tribunal was informed that the Respondent company had ceased trading and was insolvent.

From a legal point of view this case is not binding on other Tribunals, but nevertheless it serves as a critical reminder that even unprofessional or offensive remarks do not automatically justify summary dismissal, especially when they are made under emotional stress and the employer’s policies are applied without proper process.

What are the lessons for HR and employers from this case?

  1. Always follow procedure: Even in cases where behaviour seems obviously inappropriate, employers must adhere to disciplinary processes, including issuing warnings where appropriate, before moving to dismissal.
  2. Consider the context: Tribunals will weigh up the circumstances surrounding an incident, including factors such as employee stress, provocation, and prior conduct, when assessing fairness.
  3. Distinguish between misconduct and gross misconduct: Not all inappropriate remarks or behaviour will meet the threshold for summary dismissal. Your policies should make this distinction clear.
  4. Ensure your policies are applied consistently: Applying rules unevenly or disproportionately increases the risk of a successful unfair dismissal claim.

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.

Assessing when a neurodivergent condition qualifies as a disability under the Equality Act 2010

In many Employment Tribunal claims involving allegations of disability discrimination, the first hurdle for an employee will be to establish that they are a disabled person under the Equality Act 2010.

An individual is disabled under the Equality Act if they have a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.

In recent years, increased awareness of neurodivergent conditions has led to more people seeking diagnoses. Consequently, there has been an increase in Employment Tribunal claims which concern allegations of discrimination involving neurodivergent conditions.

Neurodivergent conditions include, but are not limited to: Autism Spectrum Disorder, ADHD, dyslexia and OCD. Neurodivergent conditions can vary greatly in how they present in each individual. As such, determining whether an individual with a neurodivergent condition is disabled under the Equality Act is not straightforward and involves a careful analysis of the impact the condition has on the individual’s daily life.

Harry Stedman v Haven Leisure Ltd

In the recent case of Harry Stedman v Haven Leisure Ltd [2025] EAT 82 the Employment Appeal Tribunal needed to consider whether Mr Stedman was disabled under the Equality Act as a result of his diagnosed conditions of Autism Spectrum Disorder and ADHD. The appeal followed a previous Employment Tribunal decision which held that Mr Stedman was not disabled.

The Employment Appeal Tribunal overturned the previous decision and the Employment Tribunal will now need to reconsider the question. The following points from the appeal are of note when considering whether a neurodivergent condition has a ‘substantial adverse effect’:

  • An individual’s achievements in one area (for example, public speaking) should not be used to discredit their difficulties in other areas
  • An individual’s abilities should be compared to what their hypothetical abilities would be without the impairment, not to what the average person’s abilities are. For example, if an individual achieved above average academic results, there would still be a substantial adverse effect if, without the impairment, they would have achieved even better results.
  • A medical diagnosis of Autism Spectrum Disorder or ADHD (and potentially other neurodivergent conditions) will be evidence of an impairment, but can also be evidence of a ‘substantial adverse effect’. This is because the diagnosis will be a reflection of a clinician’s opinion on the individual’s daily functioning ability.

Whilst the points raised in this case are of particular relevance when considering neurodivergent conditions, they are also relevant when considering any other mental or physical impairment.

Other considerations

It is common for neurodivergent conditions to co-occur. Where an individual has multiple impairments, the cumulative effect of them can be considered in determining whether an individual is disabled.

Whilst a diagnosis will be useful evidence, it should be noted that a clinical diagnosis is not mandatory for the Equality Act definition to be fulfilled. This is relevant in the context of an individual who is awaiting an assessment for a neurodivergent condition.

If you would like assistance in either pursuing or defending a potential disability discrimination case, please contact any member of our Employment Team.

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 controversy surrounding Gregg Wallace’s behaviour on MasterChef and his subsequent suggestion that being autistic explains his behaviour, raises an important question: how should employers respond when an employee’s behaviour is inappropriate, yet potentially rooted in neurodivergence or other health conditions?

While some have dismissed Wallace’s explanation as a deflection or excuse, doing so outright risks missing a crucial point.
Employers have a legal duty to understand and take reasonable steps to support neurodivergent employees, even when their needs manifest in complex, socially awkward, or uncomfortable ways.

Protecting colleagues from unacceptable behaviour is absolutely essential. Ensuring a safe and respectful working environment must always be a priority, regardless of the reasons behind someone’s actions.

At the same time, it’s important to recognise that challenging behaviour may sometimes stem from unmet support needs, particularly in neurodivergent individuals.
Addressing this doesn’t mean excusing the behaviour. It means exploring whether additional understanding or adjustments could prevent future issues and could support everyone involved.

Neurodiversity includes a broad range of conditions such as autism, ADHD, dyslexia and others, each of which can impact communication, sensory processing and social interactions.

For example, someone with autism might have difficulty interpreting social cues, managing boundaries, or responding to feedback in conventional ways. These traits aren’t inherently harmful, but if misunderstood or unmanaged, they can result in behaviour that raises concern.

When employers witness odd, challenging or inappropriate behaviour, the response should never be silence or disciplinary action without considering the context. Instead, it’s an opportunity for open, sensitive dialogue and structured support.

Here are some key tips for employers when navigating such situations:

1. Avoid assumptions, but stay observant

If an employee is exhibiting behaviour that seems unusual or disruptive, try to resist jumping to conclusions, whether that’s assuming they are neurodivergent or dismissing their behaviour as purely problematic.

Instead, take note of any patterns and as part of your decision-making, consider whether there may be a support need that hasn’t been identified.

2. Create a safe space for disclosure

One of the biggest barriers neurodivergent employees face is the fear of stigma. If you suspect a neurodivergent condition might be relevant, do not ask “Are you autistic?” or “Do you have ADHD?” directly.

Instead, try to use open-ended, respectful language. For example: “We’ve noticed that there have been some challenges around interactions in the team which others have found difficult. I want to understand if there’s anything we can do to better support you. Is there anything you’d like us to know or consider that could help in this area?”

This invites disclosure without pressure and signals that the workplace is a safe, supportive environment.

3. Understand that neurodivergence is not an excuse but could be a relevant factor

Autism or any other form of neurodivergence should never be used to excuse harmful behaviour.

Accountability remains essential. However, understanding how a condition contributes to certain behaviours allows for a fairer, more constructive response.

If someone crosses professional boundaries due to difficulties with social cues, that context matters in how support and discipline are balanced.

4. Ensure HR policies reflect legal obligations

Under the Equality Act 2010, employers are legally required to make reasonable adjustments for employees with disabilities, including neurodevelopmental conditions.

These adjustments might include clearer communication, structured routines, or access to a mentor or support specialist.
Ignoring signs of neurodivergence or failing to explore the question of reasonable adjustments can amount to discrimination.

5. Don’t pick and choose which disabilities you’ll accommodate

Disability isn’t always visible, neat, or easy to navigate.

Employers cannot cherry-pick which manifestations of neurodivergence they are comfortable with.

It is not enough to support a dyslexic employee with spelling tools while ignoring an autistic employee’s need for clear boundaries and predictable routines.

6. Train managers to spot and support neurodivergence

Line managers are often the first to witness challenging behaviour.

They should be trained not only in legal obligations but in recognising potential signs of neurodivergence and how to have supportive conversations.

Compassionate leadership is a core part of inclusive practice.

Employers must strike a careful balance between accountability and support. By fostering a culture of openness and compassion, organisations not only protect staff but create a more inclusive, productive workplace for all.

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 government estimates that around 250,000 pregnancies in the UK end in miscarriage every year. Miscarriage and pregnancy loss can profoundly affect those involved, both emotionally and physically, and someone who experiences pregnancy loss will often need time away from work to grieve the loss as well as deal with any physical symptoms.

Current employment rights in the UK provide support to employees in the form of statutory rights to leave and pay in cases of stillbirth after 24 weeks of pregnancy. Under the existing law, employees in this situation retain a full entitlement to maternity and paternity leave and pay, as well as an additional right to 2 weeks of parental bereavement leave. In cases involving the death of a child shortly after birth (known as neonatal death) employees may also be entitled to neonatal care leave and pay.

However, if a miscarriage occurs in the first 24 weeks of pregnancy, there is currently no entitlement to statutory maternity/paternity leave or pay, nor is there any right to parental bereavement leave. Of course, there are many employers who voluntarily allow employees to take paid or unpaid compassionate leave in such cases, but if not, any time needed to deal with such an event often has to be taken as sick leave or annual leave.

The Women and Equalities Committee (WEC), a parliamentary select committee, has recently put forward proposals to extend parental bereavement leave to cases of miscarriage and other pregnancy loss occurring before 24 weeks of pregnancy, as part of the new Employment Rights Bill (ERB) currently being debated in parliament.  This means that those experiencing pregnancy loss due to a miscarriage, ectopic pregnancy, molar pregnancy, a medical termination or in some circumstances an unsuccessful round of IVF may be entitled to a new type of leave. The new right would apply both to the woman who experienced pregnancy loss and her partner.

The government’s response to the WEC’s recommendation was positive, acknowledging that more could be done to support parents who experience pregnancy loss before 24 weeks. This follows the recent launch of a baby loss certificate designed to formally recognise the loss of a baby during pregnancy before 24 weeks, to help ensure parents feel supported through their grief.

On 7 July 2025 the government announced its intention to include, as a ‘day one’ right, an entitlement to at least one week’s leave for parents who experience pregnancy loss before 24 weeks of pregnancy. However, the new proposals do not include any entitlement to paid leave, therefore arguably this may leave employees in no better situation than they are now, being forced to take other types of leave such as sickness or holiday in order to qualify for some pay.

The rules would apply to employees who have experienced pregnancy loss “of a specified kind”, but at this stage it is unclear what that means or at what stage of pregnancy it would apply. It may make it difficult for employers to navigate employees’ rights at very early stages in pregnancy, for example, after only a few weeks, and the leave might come as a surprise if employers weren’t even aware of their employees’ pregnancies. It remains to be seen what eligibility criteria employees will have to satisfy in order to qualify for the rights.  Further consultation on the new rights is expected in Autumn 2025, with the new right indicated to take effect in 2027.

The employment team at Mayo Wynne Baxter are closely following developments of the new Bill and will provide updates as soon as more information is available.  In the meantime, if you would like assistance with an employment issue, please contact any member of our employment team.

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 delighted to announce the appointment of Nicole Humphreys as a Partner in our highly regarded Employment Law team.

Nicole brings over 15 years of extensive experience in employment law and dispute resolution to the firm. She joins Mayo Wynne Baxter from Acumen Law, where she served as Head of Employment, advising both employers and employees on a comprehensive range of contentious and non-contentious matters.

Specialising in all facets of employment law, Nicole’s expertise spans unfair dismissal, discrimination, contract and policy drafting, redundancy, settlement agreements, TUPE regulations, and disciplinary and grievance procedures. She is also highly experienced in delivering engaging employment law training and seminars for clients across diverse sectors.

Commenting on her appointment, Nicole said: “I am delighted to have joined a firm with such a strong reputation and a robust employment team. I was particularly drawn to the collaborative and client-focused culture here. I look forward to becoming an integral part of the team and a go-to contact for clients needing employment law support.

“Employment law is a constantly evolving area that interacts with many other aspects of law, including commercial and dispute resolution matters. I’m excited to bring my experience, empathy, and practical approach to the firm. Whether advising on internal processes or navigating complex tribunal claims, my goal is always to deliver fair and commercially sound outcomes.”

Throughout her career, Nicole has successfully represented clients in complex cases including whistleblowing, race discrimination, and unfair dismissal. She has also provided crucial advice on TUPE issues during business sales and service provision changes, and offered guidance on restrictive covenants and cease and desist actions.

Nicole’s recent achievements include securing a successful outcome in a pregnancy and maternity discrimination claim, which was conceded by the respondent and resulted in a tribunal costs award for her client. She has also effectively advised on and defended a sex discrimination and flexible working claim through to successful settlement negotiations, supported clients through intricate redundancy processes, and expertly drafted and negotiated favourable settlement agreements.

Nicole joins an established and growing employment law team at Mayo Wynne Baxter, which continues to provide pragmatic, commercial, and responsive legal advice to clients across a wide range of sectors.

Nicola Brown, Partner and Head of Employment at Mayo Wynne Baxter, added: “We are thrilled to welcome Nicole to Mayo Wynne Baxter. Her depth of knowledge and practical approach will be a significant asset to our employment law team and the wider firm. Her appointment reinforces our commitment to providing high-quality, strategic employment advice to our clients across Sussex and beyond.”

 

Is an employee entitled to notice pay if they have been on long term sick pay?

Our clients question

We have an employee who has unfortunately been off sick for a long time. He has exhausted their entitlement to sick pay, and we have received a medical report which confirms he will not be fit to return to work for the foreseeable future. We have no suitable redeployment options available. We are currently discussing the situation with him, and he has asked us to confirm what he would be entitled to if he is dismissed due to ill-health, particularly bearing in mind that he has exhausted his sick pay entitlement. Would he be entitled to notice pay in this situation?

Answer

The employee will be entitled to notice in accordance with his contract, or the statutory minimum notice if that is greater. The statutory minimum notice required by an employer is 1 week for each year of service, up to a maximum of 12 weeks. So, for example, if a contract of employment says that someone is entitled to 4 weeks’ notice, but they have been employed by the employer for 6 years, they will be entitled to 6 weeks’ notice.

However, the position regarding notice pay when someone is dismissed due to ill-health in these kinds of circumstances can be complicated, because it isn’t necessarily straightforward whether they should receive pay for their notice period or not.

Logic suggests that if the employee has used up their entitlement to sick pay, then they should not be paid for the period of notice – after all, if the employer did not dismiss and simply left them as an employee, then they would not get paid. However, the law is not that logical or simple! Under the legislation, an employee in this situation is entitled to be paid for notice of dismissal given by their employer if their notice period is either the statutory minimum, or up to 6 days more than the statutory minimum. However, if their notice period is 1 week or more greater than the statutory minimum, they are not entitled to be paid during their notice period.

Here are some examples help to illustrate the workings of this strange statutory provision:

An employee has a contract of employment which provides for 1 month’s notice. The employee is dismissed after 30 months due to ill health and his entitlement to all sick pay has been used up. He is therefore entitled to statutory minimum notice of 2 weeks (2 full years’ service). His contractual notice at 1 month is more than 1 week greater than this, so the employee is not entitled to be paid.

The same employee has 4 years’ service when he is dismissed. His statutory notice is now 4 weeks, so he is entitled to be paid as his contractual notice of 1 month is less than 1 week more than his statutory notice.

An employee with 20 years’ service has a contract of employment which provides for 3 months’ notice. She is dismissed for ill health and her entitlement to all sick pay has been used up. Her statutory notice is 12 weeks (the maximum), so her contractual notice at 3 months is 1 week more than this. She is therefore not entitled to be paid.

The same employee has a contract which provides for 1 month’s notice, or one week for each year of service up to a maximum of 12 weeks, whichever is the greater. Her notice entitlement is therefore 12 weeks, which is the same as her statutory notice. She is therefore entitled to be paid.
It is worth noting that the position may be different if the employer makes a payment in lieu of notice, so if you are considering doing that then it is best to take advice (we can help!).

So why was the legislation drafted in this way? We have no idea! The rules have been like this for many years, and we have never understood the logic behind them, nor have we read anything which shines any light on the thought process (if there was one!) which went into the drafting.

Please do contact our Employment Team if you need assistance with any aspect of employment law.

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 recent years, significant attention has been given to the practice of ‘fire and rehire’, including a number of high-profile cases reported in the media. The practice involves employers dismissing employees and re-engaging them on a new contract of employment with less favourable terms.

This could include, for example, changes to salary, working hours, annual leave entitlement or the length of notice required by each party to terminate the contract. Whilst such changes may not be desirable, there may be economic pressure that would cause employers to consider making such changes.

Whilst the practice itself is permissible, it has drawn a lot of criticism and could lead to employees pursuing an Employment Tribunal claim for unfair dismissal if they do not wish to accept the new terms being offered to them. Employers should therefore ensure they act reasonably at all times.

This has led to the Government announcing in March 2022 that they would publish a statutory Code of Practice on Dismissal and Re-engagement. The draft Code was published in January 2023. Following a consultation period, the Government have now published an updated Code and their response to the consultation.

The Code sets out what is expected from employers when they are seeking to make changes to the terms and conditions of an individual’s employment. It aims to strike a balance between allowing employers to adapt to competing business needs and protecting the interests of employees. It acknowledges that there may be circumstances in which employers will need to consider making such changes, but that engaging in ‘fire and rehire’ should be seen as a ‘last resort’ for employers when wishing to implement changes.

The Code states that employers should take reasonable steps to avoid engaging in ‘fire and rehire’ and should explore alternatives before deciding to do so. This will include engaging in meaningful consultation with individual employees or trade unions, explaining the business need for any proposed changes to terms and conditions and seeking approval. Crucially, employers should not raise the prospect of dismissal prematurely or use dismissal as a threat to persuade employees to agree to a change where dismissal is not actually being contemplated.

In order to seek approval to a particular change that would be disadvantageous to the employee, and avoid engaging in ‘fire and rehire’, employers could consider whether they can implement a more favourable change alongside this, in order to improve the overall package being offered to the employee. For example, if an employer wishes to decrease an employee’s salary due to economic downturn, an employer may consider offering an employee an increased annual leave entitlement in order to seek their approval for this change.

Following the consultation process, some minor amendments were made to the draft Code. Some of the key amendments are as follows:

  • The Code now states that employers should contact ACAS before they notify employees that they may engage in the practice. Previously, ACAS could be notified at a later stage.
  • The Code now states that it is good practice for information to be provided in writing to employees throughout the process.
  • When implementing multiple changes, the Code previously said that employers should implement these on a phased basis. The Code now states that employers ‘might wish to consider’ implementing these on a phased basis.

Now that the consultation has concluded and the Code has been updated, the Code is expected to be approved by Parliament and come into force at some point later in the year. Whilst the Code will not be legally binding, Employment Tribunals will be able to give consideration to the Code and may increase an award of compensation by up to 25% if an employer is found to have unreasonably complied with the Code. For this reason, employers should carefully consider the Code. Following the Code will minimise the risk of an employee pursuing and succeeding in any claim for unfair dismissal that arises following an employer seeking to dismiss and re-engage an employee on less favourable terms. If uncertain, employers should seek advice on the process they should follow when seeking to implement changes to an employee’s terms. Do contact us if you require any assistance.

If you would like assistance with an employment issue, please contact any member of our employment team.

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.

At the moment, the law states that where employees on maternity leave, shared parental leave or adoption leave are at risk of being made redundant, employers must offer suitable alternative employment to them ahead of anyone else that is also selected for redundancy.

So for example, if you have 5 employees doing the same role and you need to reduce the numbers to 3, if one of the employees is on family-friendly leave at the time of the redundancy exercise then they have to be given one of the available roles.

This is sometimes known as a ‘trump card’, as people in that situation have to automatically be offered the suitable available roles by their employer, even if they are not the best candidate.

From 6 April 2024, this ‘trump card’ is going to be extended further, so that as well as applying during family-friendly leave itself, it will also apply in the following circumstances:

Employees who notify their employer that they are pregnant on or after 6 April 2024 will be protected up until the day their statutory maternity leave starts (as well as being protected during maternity leave as they are now).

Where an employee is on maternity leave, they will be entitled to 18 months’ protection, starting from the week after the expected (or actual) week of childbirth. Where an employee is on adoption leave, they will be protected for a period of 18 months after the date of the child’s placement. This means that for those employees who take 12 months’ maternity or adoption leave they will continue to be protected for 6 months after they return to work.

The rules around shared parental leave are also undergoing change, but this is more nuanced and employees will only qualify if certain criteria apply. Given the complexity around shared parental leave it is always best to take specific advice about whether the particular situation you are dealing with might be affected.
It will be important for employers to be mindful of these changes so that they are not inadvertently caught out. Although most businesses are aware of the extensive protection offered to employees during pregnancy and whilst on maternity/adoption leave, the fact that the protection will be continuing after the employee returns to work means that this is something else that will need to be taken into account before conducting any redundancy selection exercise.

Employers should be wary of the fact that failure to apply the ‘trump card’ (where vacancies actually exist) will risk claims for automatically unfair dismissal and unlawful discrimination. Do get in touch with us if you need legal guidance on the best way to tackle a fair redundancy process.

If you would like assistance with an employment issue, please contact any member of our employment team.

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.

As it turns out, not as much as one employer thought!

There are specific regulations covering the rules around taking statutory parental leave, and there is also a separate statutory right to claim automatic unfair dismissal if someone is dismissed because they took (or sought to take) statutory parental leave. In the recent case of Hilton Foods Solutions Ltd v Wright, the employee, the father of an autistic son, was dismissed for reasons which he claimed were connected to him seeking to take unpaid parental leave and were therefore automatically unfair. The employer tried to strike out the automatic unfair dismissal claim on the basis that Mr Wright had not started any stipulated formal process to apply for leave, therefore, in the employer’s view, he had not sought to take it.

An HR representative at the company had informed Mr Wright of the process for applying to take unpaid parental leave, and Mr Wright had subsequently indicated his intention to take it and had a meeting about it. However, before any formal application was the submitted, Mr Wright was dismissed by reason of redundancy. Mr Wright felt the real reason for his dismissal was the fact that he had told his employer about his plan to take parental leave.

The employer had received no formal application for parental leave from Mr Wright, so they argued that it could not be the case that he had been dismissed for seeking such leave. They applied, on a preliminary point, to have the case struck out on the basis that it had no reasonable prospect of success.

At the first stage of the case the Employment Tribunal found in favour of Mr Wright. The Employment Judge found that making informal enquiries, along with a stated intention to take leave, was sufficient to pass the threshold of seeking to take unpaid parental leave.

The employer still felt that a formal application was required, and therefore submitted an appeal to the Employment Appeal Tribunal (EAT). However, the EAT agreed with the Employment Judge who had heard the case in the Employment Tribunal and therefore dismissed the appeal.

The EAT stated that if Parliament had intended to limit the protection against dismissal given by the legislation to those who had given formal notice of wanting to take the leave, it would have been worded differently. As it was, the EAT confirmed that the legislation covered two separate situations. The first was the one relevant to this case, where someone sought to take leave, and the second, where the employee was able to exercise a right to leave because the appropriate notice had been given.

The EAT felt that the employer was attempting to argue that there could be no protection just because no formal application had been submitted, even if there had been an unambiguous statement by the employee of their intention to take parental leave. However, there was nothing in the legislation to specify that a formal application had to have been made in order for someone to be regarded as having the protection. A formal application would leave no doubt about the intention to seek to take leave, but it was not a statutory requirement.

So what does this mean for employers? This case shows us that employers need to be wary of situations like this where people can gain statutory protection in ways that they might not have expected. Although this case was about statutory parental leave, the same principles would apply to other statutory types of leave, and claims for automatically unfair dismissal can be brought with no minimum period of qualifying service.

If you would like assistance with an employment issue, please contact any member of our employment team.

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.

From 06 April 2024, there will be a new statutory right to unpaid carer’s leave for employees. Where an employee looks after someone with a long-term care need, they are entitled to take one week’s unpaid leave per year, which can be taken all at once or in blocks. There is no minimum period of qualifying service required, and so this is a “day one” right.

The Government’s aim with this change is to provide additional support to long-term carers who until now have had to use their annual leave to carry out their caring duties around their work commitments. The hope is that it will help carers to stay in work, and in turn help businesses to reduce their staff turnover.

Who does it apply to?

All employees that have a dependant are covered. This includes the usual groups of people such as spouses and children but also, more widely, any person who reasonably relies on the employee for care.

(It is worth noting that this new right does not change the statutory right to take time off for dependents, which is also unpaid and is designed to provide short-term leave to cover emergency situations).

What counts as a “long-term care need”?

The law is prescriptive on this point, and states that it must be one of the following:

  • an illness or injury that will require (or is likely to require) 3 or more months’ care.
  • a disability under the Equality Act 2010.
  • care in connection with old age.

How much notice is required?

The required notice period is either twice as many days as the period of leave required, or three days, whichever is the greater, and the notice need not be in given writing. The notice can also be waived if the employer chooses to do so.

Is evidence required?

An employer cannot request evidence in relation to the request before granting the leave and they may not outright decline a request, however, they may postpone leave where all of the following apply:

  • It would lead to excessive disruption to business operations; and
  • The employee is allowed to take that leave within a month of the period initially requested; and
  • The notice of postponement is given in writing within 7 days of the initial request setting out why and when it can be taken instead.
  • If employees already have an existing contractual right to take carer’s leave, an employee will only be permitted to take advantage of whichever entitlement is more favourable, so they cannot benefit twice. In either case, the employee will still benefit from the protection of the statutory scheme, e.g. protection from dismissal.

What happens if an employer breaches this new legislation?

An employee will be able to bring an Employment Tribunal claim in the event their employer unreasonably postpones or prevents an employee from taking this leave.

Now that the new right is coming into force, employers should consider what practical adjustments they need to make, for instance adding details of carer’s leave to staff handbooks, leave policies and making changes to internal HR booking systems. It will also be important to ensure managers are trained so that they are aware of the new right and know how to handle requests.

If you would like assistance with a potential constructive dismissal case, please contact any member of our Employment Team.

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.