I am sure you will have seen the recent news that the Government has decided to abandon its plan for ‘day one’ unfair dismissal rights and will instead be introducing a six month qualifying period. This has rightly made the headlines – but there are some key points linked to this announcement that haven’t received the attention they deserve.

The change of plan was largely due to the pushback received from the House of Lords and employer organisations about the difficulties that bringing in ‘day one’ rights would potentially cause. The Employment Rights Bill had already been going back and forth between the House of Commons and the House of Lords for several months (a process known as ‘ping pong’) and there hadn’t been much sign of progress. Rather than risk their flagship legislation being delayed even further, the Government decided that it would be better to go with a qualifying period of six months (although they have said that they aren’t abandoning the idea of day one rights and will try to introduce it later).

The qualifying period has varied over the years since the law on unfair dismissal was first introduced in 1971. The longest the period has been is 2 years (as it is now) but it we have had a six month qualifying period before – in 1974 (and for the following five years).

Having a shorter qualifying period means that the number of claims is expected to rise significantly, which is of concern given that both ACAS and the Employment Tribunals are already struggling to cope with their existing workload.

1 January 2027

The Government is intending for the change to take effect from 1 January 2027. It is subject to the Bill being approved by the House of Lords, but it is expected that the Lords will be much more likely to accept, now that the concession on the qualifying period has been made.

The new qualifying period of only six months means it will be even more important for employers to monitor new joiners’ performance at an early stage to ensure that they are right for the role.

Removing the statutory cap on compensation?

Another point that not all of the mainstream media have picked up on is that while the Government has been making the arrangements to change the qualifying period, they also seem to be seeking to make another very important change – removing the statutory cap on the compensatory award.

At the moment, the cap on the compensatory award in ‘normal’ unfair dismissal cases is either one year’s gross pay or £118,223, whichever is the lower. The upper limit increases each year, but always with an overall maximum.

When announcing the changes to bring in the six month qualifying period, the Government also said that they would be removing section 124 of the Employment Rights Act 1996, which is the part which contains the limit on the compensatory award. If they really do intend to remove it, then this would be a seismic change, and one that would be being made with no prior warning or consultation.

There had been speculation that the Government might scrap the limit of one year’s gross pay, and just have an overall limit (as was the case pre 2013), but no one seems to have anticipated they would seek to remove the cap completely.

The main group who would benefit from the cap being removed is high earners. One of the reasons that we rarely see highly paid people such as footballers bringing unfair dismissal claims at the moment is because their earnings dwarf the potential maximum awards and it is often not worth their while. That would all change if there is no limit on potential compensation – which would of course lead to more claims, and those would clog up the Tribunal system even more.

So far the Government has said very little about this, and it remains to be seen whether this point makes it through the House of Lords. We will be watching with interest to see how things develop, and will of course keep you updated.

[Update: In the evening of 10 December the Bill was debated in the House of Lords, and it was rejected. This was largely due to the removal of the cap on compensation – there was concern about the late stage at which the change had been introduced and the lack of consultation. The Bill will now ‘ping pong’ back to the House of Commons, so we will need to wait see whether the Government is willing to move on this and whether the Bill gets passed before Christmas.]

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 we have seen significant developments in the technological capability, and popularity, of artificial intelligence (AI) tools. The wave shows no signs of stopping!

AI tools can unlock opportunities for businesses to increase workplace efficiency. However, the potential misuse of such tools comes with several risks, including inaccurate or biased output being relied upon, as well as data protection issues and intellectual property concerns. These points could result in reputational damage, loss of business and even legal claims.

It is paramount that employers get ahead of this wave and implement workplace policies which deal with the use of AI tools by employees.

The purpose of such a policy would be to promote the benefits of AI tools whilst acknowledging the possible legal, ethical and financial implications of their misuse. Setting out clearly what is and isn’t permissible would make it easier for you to take any necessary action following an employee’s misuse of AI tools, including disciplinary action where appropriate.

Even you are not seeking to actively promote and invest in AI tools currently, having a policy is still recommended. Individual employees may already be using AI tools of their own volition, a concept being referred to as ‘shadow AI’, so a policy is key to make clear what they are and are not allowed to do. It is far too risky for any employer to allow unfettered use of AI tools in their workplace.

What should an employer’s AI policy include?

Which AI tools are permitted

Various AI tools exist, including ChatGPT, Microsoft Copilot and an array of industry specific tools. They vary in their approach to the data which is submitted to them, particularly regarding confidentiality. The recommended approach would be to identify specific authorised tools and to state that only such tools are permitted.

What activities the use of AI tools is permitted for

AI tools can assist with various tasks, including, drafting text, proofreading, summarising documents and completing research. We recommend that your policy specifically includes detail of any specific tasks that you believe would benefit from the use of AI and/ or any specific tasks for which the use of AI tools is prohibited.

An emphasis on human oversight

Whilst incredibly capable, AI tools do of course make mistakes. Your policy should emphasise that your employees ultimately remain accountable for the output produced by an AI tool that they choose to use. This is particularly important if any output is sent to a third-party (e.g.. a client).

Details of any types of information that should never be submitted to AI tools

Due to data protection concerns, including the requirements of the employer’s policies with both its employees and third parties (i.e. clients and suppliers), it is important to specifically prohibit the use of any confidential information being entered as a prompt unless you can be sure that the AI tool has appropriate safeguards for the data. It would also be necessary to consider how intellectual property rights owned by third parties would restrict the data that can be submitted (e.g. copyrighted work should not be input without the copyright owner’s consent).

Details on any record keeping and monitoring

The policy should make it clear that you reserve the right to lawfully monitor employees’ use of AI tools. This could be for individual performance or disciplinary related purposes, or to more broadly review the accuracy of approved AI tools, the frequency of their use within the workplace and their overall impact on business performance. Most AI tools should automatically keep a record of their prompts and outputs, but the policy should prohibit employees from deleting such records.

An AI policy is likely to interact with a number of other policies, including your data protection policy, disciplinary policy and IT and communication systems policy, so it will be important to cross-check them for consistency.

Please do get in touch with a member of our Employment Team if you require assistance in drafting an AI policy for your workplace.

Please note that this article is specifically about the use of AI tools by employees for business purposes. Specific considerations would arise if employers are intending to use AI for their own people management functions, such as for recruitment or performance monitoring purposes, particularly if automated decision-making is being considered. Our Employment Team can assist further with this.

That was the question posed in the recent case of AB v Grafters Group Ltd when the Employment Appeal Tribunal had to consider whether or not the person who carried out the assault was acting in “in the course of his employment.”

AB, a hospitality worker, missed the transport arranged and therefore accepted a lift from a colleague, CD. CD was not working at the time but had been working earlier. AB thought that she was scheduled to work that day, but this turned out to be incorrect. When AB discovered she was not scheduled to work, she asked CD to drop her at a bus stop. CD refused and took her to a golf course and sexually harassed her. The act of the harassment was not in dispute, but the question to be decided was whether or not their employer could be held liable for it.

There have been many cases over the years where Employment Tribunals have had to decide whether something occurred ‘in the course of employment’, sometimes with differing results. The law states that anything done by an employee “in the course of their employment” is treated as having also been done by the employer, but each case must be considered on its own facts, and there needs to be an examination of whether what happened was sufficiently connected with work to render the employer liable. Relevant factors to consider include whether the incident happened on work premises, whether it was during working hours or immediately after work, whether either the victim or harasser were on duty, and whether the event included partners, customers or unrelated third parties. Where something happens at work it is usually more clear-cut, but when it occurs outside of work and outside working hours, the Employment Tribunal needs to consider whether there is a sufficient connection with work.

The Employment Tribunal concluded that CD’s actions were not done in the course of employment, and AB appealed the decision to the Employment Appeal Tribunal (EAT).

The EAT said that even though the incident did not happen at work, the Tribunal should have analysed whether there was a sufficient connection with work. The EAT said that CD’s conduct in the hours immediately preceding the incident was relevant (he had sent AB sexual text messages while he was working) and the Tribunal should have considered whether this formed part of a course of conduct alongside the sexual harassment when he gave AB a lift. The Employment Tribunal should also have analysed the connection between CD’s job and why AB was in his car, including the fact that he had previously driven her to a job for work purposes.

The EAT felt it was highly relevant that CD took advantage of the fact AB thought she was due to work and that he was offering her a lift as part of his work duties. They felt that the Tribunal had placed too much reliance on the fact that CD was not working that day. The case was sent back to the Employment Tribunal for consideration and the final decision is yet to be published. Our Employment Team have our own predictions on what will happen but it is for the Employment Tribunal to decide. We will update you on their decision in due course.

Employers can defend claims if they can show they took all reasonable steps to prevent harassment happening, including having robust policies in place. However, policies alone are not enough, and any policy should be alongside regular training on equality and discrimination, and it is a good idea for employers to carry out risk assessments to identify risks and find measures to mitigate them where possible. Importantly, employers must also be seen to be taking appropriate action if something does happen, as well as encouraging reporting of incidents and setting examples of acceptable conduct.

Our Employment Team at Mayo Wynne Baxter can advise on cases of potential harassment, but we can also provide policies and equal opportunities training to support those policies. If you would like to discuss this, or any employment matters with us, please contact any member of our employment team.

There has been ongoing debate as to whether time spent travelling to work falls under the category of “time work”, and the Employment Appeal Tribunal has recently provided some clarification in the case of Taylor’s Services v HMRC.

Employers are obliged to ensure that they pay at least National Minimum Wage (NMW) rates for the hours a worker works. Currently, for those aged 21 or over, the NMW rate is currently £12.21 per hour. However, whilst employers may think they are paying their workers the correct NMW rates, an increasing number are falling foul of the rules for failing to account for “time work” within the meaning of the rules.

In a nutshell, under NMW rules, “time work” is essentially any period of time where a worker is at their employer’s disposal or carrying out any duties or training required for the job. This includes time spent waiting for tasks, travelling between work assignments, attending mandatory training, or being on standby at the workplace. Typically, it does not include commuting from home to a fixed workplace. This is the foundation for the Taylor’s Services case.

The case concerned workers who were on zero hours contracts working in the poultry industry. Their employer provided a minibus for the workers to get to and from their home to the various farms where they worked across the country. The journeys on the minibus could last up to eight hours, and workers were paid a flat rate of £2.50 an hour for time they spent travelling.

HMRC argued that this time should be classified as “time work” and believed that the workers should be paid the full NMW for their time spent travelling to work. They issued notices of NMW underpayment, amounting to approximately £62,000 in wage arrears and £59,000 in penalties.

The employer appealed against the notices to the Employment Tribunal, who agreed with HMRC that the workers had been underpaid as the travelling time should be treated as “time work.”

However, Taylor’s Services then appealed to the Employment Appeal Tribunal (EAT), which disagreed with the Employment Tribunal’s decision, finding that the time spent purely travelling is not “time work” under Regulation 30 of the National Minimum Wage Regulations 2015 unless it is deemed to be such by Regulation 34.

Regulation 30 defines time work, whereas Regulation 34 qualifies this by specifying when travel time counts as time work. Regulation 34 states that travel time is treated as working time only if the worker would otherwise be working, and it specifically excludes travel between a worker’s home and a place or work (or assignment), i.e., commuting.

Upon reviewing the facts of the matter, the EAT concluded that the workers were able to do whatever they wanted (such as read or watch films) whilst they were travelling, and therefore this was not time spent “working”. The EAT acknowledged that travel can amount to “time work” in certain circumstances, such as attending a business meeting whilst on a train, but this case was not one of those situations.

HMRC appealed to the Court of Appeal, but the Court of Appeal upheld the EAT’s decision. They criticised the Employment Tribunal for treating regulations 30 and 34 as “sequential” or separate provisions, and held that they must be read as a “harmonious whole.”

This case highlights the complexity of ensuring compliance with the NMW rules, and how easy it is (even for the Employment Tribunal itself!) to misinterpret the regulations.

If you are dealing with a situation involving the NMW rules, we can help. Please contact any member of our Employment Team.

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?

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.
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.
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.
Ensure your policies are applied consistently: Applying rules unevenly or disproportionately increases the risk of a successful unfair dismissal claim.

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.

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.

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.