Employment Law Update – Summary November 2022

One of the benefits for being a member of My People Partner is that you receive an in-depth Employment Law Update at the start of every month.  What follows is a summary of the November 2022 report.

Carer’s leave – on 21st October 2022, the government announced that it was backing the Carer’s Leave Bill, a Private Members’ Bill. This introduces a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for which, it is hoped, should ensure a smooth process. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment because of having taken time off.

Redundancy – on 21st October 2022, the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, a Private Members’ Bill.  Currently, the Employment Rights Act 1996 allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999, before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer. 

The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. While the detail will be provided by the regulations, the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.

Disabled employees – On 17th October 2022, the government announced a new online service to help employers support employees with disabilities and health conditions. The online service will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or out of work. The service will be free and can be accessed by any employer although it is aimed at smaller businesses who may not have in-house HR support or access to occupational health services. It is hoped this service will help small businesses develop more inclusive workforces.

An early test version of the Support with Employee Health and Disability service  Support with employee health and disability – GOV.UK (dwp.gov.uk) is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.

Acas guidance on supporting women going through menopause – a recent survey has found that one in three employers do not feel well equipped to support women going through the menopause. Acas advises that employers:

  • Develop a menopause policy that explains how the menopause can affect people differently and what support is available. For an example of a menopause policy.
  • Provide awareness training for managers on the menopause and how to deal with it sensitively and fairly.
  • Consider making practical changes at work to help staff manage their symptoms, such as the availability of cold drinking water and temperature control.

Redundancy consultations

The Employment Appeal Tribunal has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision.

The employee and another nurse in a similar role were employed on a series of fixed-term contracts. The employee was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that she should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.

The EAT noted that consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.

Here, the Trust’s decision to dismiss the employee as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of her was arbitrary, related solely to the date on which her fixed term

Members of the My People Partner programme also received information relating to:

  • Changes to UK Immigration Rules
  • Whistleblowing
  • Professional Qualifications Act
  • Case Law
    • Redundancy consultations

To discuss any of the information within this document or to find out more about My People Partner, contact us at KCA


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