In Bugden v Royal Mail Group Ltd [2024] EAT 80, the Employment Appeal Tribunal (EAT) ruled that a tribunal had made a mistake by not considering the possibility of redeployment when assessing the fairness of a disabled employee’s dismissal. However, the tribunal did not make a mistake in failing to consider redeployment as a reasonable adjustment, as this issue had not been argued or included in the list of issues.

The EAT found that the tribunal failed to evaluate whether the employer had considered redeployment as an alternative to dismissal. The employee, who had multiple physical and mental disabilities, was dismissed under an attendance management policy after 32 periods of ill-health absence totalling 297 days over four years. Although the tribunal initially rejected his claims of unfair dismissal and disability discrimination, the EAT upheld his appeal regarding unfair dismissal. The EAT decided that the employer should have considered redeployment before dismissing the employee. The tribunal erred by failing to address this issue when determining whether the dismissal was reasonable, even though it was not raised by the parties. Consequently, the unfair dismissal claim was sent back for reconsideration.

However, the EAT dismissed the appeal regarding the failure to make reasonable adjustments. The tribunal was not wrong for not considering redeployment as a reasonable adjustment, as this argument was not presented at trial or included in the list of issues. Although the employee’s mental health was a contributing factor to his absences, redeployment was not identified as a necessary adjustment by the occupational health reports, the employee himself, or the employer.

In Adams v Edinburgh Rape Crisis Centre (ETS/4102235/23), an employment tribunal found that an employee had been discriminated against and constructively dismissed due to her gender-critical beliefs.

The tribunal determined that Ms. Adams, who believes biological sex is real and distinct from gender identity, had been supportive of trans inclusion but held that survivors of sexual violence should have a choice about the sex of their support worker. Ms. Adams worked at Edinburgh Rape Crisis Centre (ERCC), which had an occupational requirement of hiring only women and a policy supporting women, trans, and non-binary people. After the appointment of a new CEO, a trans woman without a gender recognition certificate, Ms. Adams grew concerned about ERCC’s stance on gender identity, which conflicted with her beliefs. When a service user questioned the gender of a colleague who had adopted a male name, Ms. Adams suggested responding that the colleague was born female but now identifies as non-binary.

Before an investigation was conducted, the CEO emailed staff, claiming Ms. Adams had humiliated the non-binary colleague, that they would not work together again, and implied Ms. Adams was transphobic. These actions were held to be gross misconduct, and her grievance was dismissed.

The tribunal concluded that Ms. Adams had been harassed, and that these actions also amounted to direct discrimination. Furthermore, the ERCC had indirectly discriminated against her by treating the expression of her gender-critical views as a disciplinary issue. The CEO’s own beliefs played a role in the decision to take disciplinary action. The tribunal found that ERCC had breached the implied term of mutual trust and confidence, resulting in Ms. Adams’ constructive dismissal.

Employers are increasingly pushing for a return to the office, with some companies advocating for a full five-day workweek, while others set a minimum number of required in-office days. In some law firms, office attendance has even become a performance metric, motivating partners to spend more time at the office.

This has riled employees, resulting in a rise in employment tribunal cases. According to HR consultancy Hamilton Nash, tribunal claims involving remote working increased from 27 cases in 2021 to 47 cases in 2022, compared to just six cases in 2019, before the COVID-19 pandemic. However, employers were thankful after an employment tribunal earlier this year rejected the case of a senior manager who sued the UK Financial Conduct Authority (FCA) because she wanted to work at home full-time.

A survey conducted by KPMG predicts that 63% of UK-based global leaders will have their staff return to office-based work by 2026.

As of April 6, 2024, employees have a statutory right to unpaid carer’s leave. In light of this change, both the UK government and Acas have released brief guidance to help clarify what carer’s leave entails and how it should be managed in the workplace. Here’s a breakdown of the key points from these updates.

1. Government Overview

The government’s guidance offers a straightforward introduction to the new statutory right. It covers the essentials, including:

• Eligibility: Which employees are entitled to take carer’s leave.
• Duration: How much carer’s leave can be taken and under what circumstances.
• Process: How employees can request carer’s leave and what steps employers should follow.
• Delays: The situations where an employer may legally delay the taking of carer’s leave.

This basic guide is designed to help employers quickly understand their obligations and implement policies that comply with the new law.

2. Acas Guidance: A Closer Look at Carer’s Leave

In addition to the government’s overview, Acas has provided more detailed guidance, offering further clarity on the statutory right to carer’s leave. Here are some of the key aspects they highlight:

• Employee Rights During Carer’s Leave: Acas outlines what protections employees maintain while on carer’s leave, ensuring employers understand their duty to safeguard these rights.
• Flexible Leave Options: Recognizing the variety of work patterns, Acas includes practical examples of how employees might take carer’s leave—whether in blocks or as individual days—based on different working schedules.
• Notice Requirements: Sets out how much notice employees are required to give when requesting carer’s leave, offering employers a clear guide to managing requests efficiently.
• Unpaid Leave: While carer’s leave is unpaid by law, Acas suggests that employers could choose to offer pay during this period to provide additional support to their employees.

3. Flexibility and Short-Notice Requests

One of the key takeaways from the Acas guidance is the emphasis on flexibility. Employers are encouraged to be accommodating when it comes to carer’s leave, particularly when employees need to take it at short notice. This flexibility can foster a more supportive work environment and help employees manage their caregiving responsibilities without unnecessary stress or pressure.

4. What Employers Should Do Next

With the statutory right to carer’s leave now in force, it’s crucial for employers to review their existing policies and ensure they are aligned with the new regulations. For help and support, please contact [email protected]

The City & Guilds Foundation has released its 2024 Neurodiversity Index, highlighting both progress and ongoing challenges in Neuroinclusion. The report shows that more organisations are developing Neuroinclusion strategies.

Despite these positive changes, the report reveals significant hurdles remain. Half of neurodivergent workers surveyed took time off in 2023 due to challenges related to their neurodivergence. More concerningly, over a third reported receiving no guidance from their employers, and one in five are still waiting for promised adjustments, indicating a gap between policies and their implementation.

The report offers several recommendations to address these issues:

1. Inclusive Job Descriptions: Companies should create clear, skill-specific job descriptions to make roles more accessible.
2. Pre-Interview Support: Providing interview questions in advance, as John Lewis now does, helps neurodivergent candidates prepare and reduces anxiety.
3. Transparent Onboarding: Clear communication during onboarding sets expectations and supports neurodivergent employees from the start.
4. Workplace Accommodations: Employers should ensure physical, technological, and communication adjustments are in place to support all employees.
5. Employee Resource Groups (ERGs) and Mentorship: Implementing ERGs, neurodiversity champions, and mentorship programs fosters community and support for neurodivergent staff.
6. Policy Reviews: Regularly updating workplace policies helps remove barriers and create a truly inclusive environment.
7. Representation at all Levels: Encouraging neurodivergent representation at all levels within organisations promotes a culture of inclusivity.

While the 2024 report reflects progress, it also underscores the need for continued efforts to create truly inclusive workplaces. By adopting these recommendations, employers can bridge the gap between intent and action, fostering environments where neurodivergent employees are supported and able to thrive.

In a bid to make its hiring process more inclusive, John Lewis has taken a fresh approach by publishing job interview questions on its website. This allows candidates to prepare their responses in advance, helping to reduce anxiety, especially for neurodivergent applicants. While the questions are available ahead of time, John Lewis assures that the selection process remains as thorough as ever. During interviews, candidates will be asked follow-up questions to ensure their answers are genuine and well-considered.

This move aims to help candidates feel more confident, allowing them to showcase their true potential without being held back by nerves. The initiative is particularly beneficial for those who thrive with additional preparation time, such as neurodiverse individuals.

This inclusive initiative isn’t unique to John Lewis. The Centre for Digital Public Services, which also provides interview questions in advance, has seen similar positive results. They’ve found that offering candidates this preparation time has not only reduced stress but also made their hiring process more accessible to neurodivergent individuals and those with varied learning styles.

On April 9, 2024, the UK government released updated guidance for line managers, specifically focused on recruiting, managing, and developing disabled employees. This latest version, crafted in partnership with the Disability Confident scheme and the CIPD (Chartered Institute of Personnel and Development), is designed to provide practical tools and knowledge to managers, enhancing their confidence in supporting disabled workers.

The new guidance comes after the CIPD’s 2023 report – Health and Wellbeing at Work  report. The report highlighted a significant challenge faced by many organisations: managers often lack the knowledge and confidence to effectively manage employees with disabilities or long-term health conditions. With this in mind, the updated guidance is intended to strengthen managers’ ability to foster a more inclusive workplace. By doing so, businesses can expect improvements in team morale and performance, higher employee retention rates, and a reduction in sickness-related absences.

The guidance is comprehensive, covering various stages of the employment journey, including:

• Legal obligations
• Inclusive language and behaviour
• Making reasonable adjustments
• Recruitment processes
• Supporting new starters
• Confidentiality and disclosure
• Career development
• Managing sickness absence
• Retaining talent or supporting an employee’s transition when leaving the organization.

Additionally, the guidance includes specific advice on accommodating disabilities like long COVID and neurodiverse conditions.

This updated guidance underscores the vital role line managers play in fostering inclusive workplaces, ensuring that every employee, regardless of ability, can thrive in their career.

The guidance can be found here: Recruiting, managing and developing disabled people: a practical guide for managers – GOV.UK (www.gov.uk)

The Equality and Human Rights Commission (EHRC) has released new guidance aimed at helping employers better understand their responsibilities toward pregnant employees and those entitled to family-related leave. These updates, highlight key changes that will impact how businesses handle maternity, paternity, adoption, and shared parental leave. Here’s a breakdown of what employers need to know.

1. Pregnancy and Maternity Discrimination: What Employers Should Be Aware Of

The EHRC’s updated section on pregnancy and maternity offers a comprehensive summary of employers’ duties toward pregnant workers. It emphasizes the importance of avoiding pregnancy-related discrimination, detailing the key steps businesses should take to comply with the law.

2. Returning to Work After Pregnancy, Adoption, or Maternity Leave

For employees returning to work after taking time off for pregnancy, adoption, or maternity, employers have specific obligations. The EHRC’s updated guidance explains how to navigate this period, ensuring a smooth transition back to the workplace. Employers are encouraged to be mindful of new parents’ needs, offering flexibility and understanding while maintaining a compliant return-to-work process.

3. Family-Related Leave and Pay: What’s Changed?

One of the most significant aspects of the updated guidance addresses the employer’s responsibilities around pay during family leave, which includes maternity, paternity, adoption, and shared parental leave. The document clarifies how these different types of leave should be managed and paid, helping employers ensure they meet their legal obligations while supporting employees through significant life changes.

4. Practical Advice and Best Practices for Employers4

Alongside legal updates, the EHRC has included practical examples and advice to help businesses implement these changes. These examples are designed to provide clarity on typical scenarios employers might face.

Final Thoughts: Stay Compliant and Supportive

If you haven’t yet, now is the perfect time to review your policies and ensure you’re fully aligned with the new regulations. For further help and advice, please contact [email protected].

The PwC’s 2024 report has revealed that AI exposed sectors are witnessing the greatest growth in labour productivity, with the jobs requiring AI skills attracting substantial wage premiums.

Productivity and AI: A Winning Combination

The report reveals that productivity growth is almost five times higher in industries where AI can be easily integrated. Financial services, IT, and professional services are leading the charge, showcasing how AI can revolutionize work efficiency.

The New Gold Standard

UK employers are recognizing the value of AI skills, offering an average wage premium of 14% for roles requiring such expertise. The legal and IT sectors are particularly lucrative, with AI skills fetching wage premiums as high as 25% in some global markets. Additionally, the requirement for candidates to have AI skills within the UK job market is growing 3.6 times faster than the overall job market.

A Solution to Labour Shortages

The report observed that companies are using AI to tackle staff shortages, supposedly a promising development for markets grappling with a decreasing working-age populations.

PwC’s findings stress the transformative impact of AI on productivity and wages, marking a pivotal shift in how businesses and employees approach the future of work.

A London restaurant, Ping Pong, has introduced a new tipping policy in anticipation of the upcoming Employment (Allocation of Tips) Act 2023.

Understanding the Tipping Act

The Employment (Allocation of Tips) Act will introduce key provisions, including:

1. Mandatory Passing of Tips: Employers must pass on 100% of tips to staff without any deductions, except those required by tax law.
2. Statutory Code of Practice: Employers will have a duty to observe the Code of Practice which will profile principles of fairness and transparency.
3. Written Policy Requirement: Employers will be require to have a written policy on tips that ensures consistent distribution.
4. Equality for Agency Workers: Agency workers will be entitled to the same benefits under the Act as regular employees.

Tipping Policy

Ping Pong is piloting a policy that eliminates card-based tips. Customers can still leave cash tips, but the previous optional 12.5% service charge (of which 90% went to staff) has been removed from customer bills. In its place, the restaurant is introducing an optional 15%, “brand fee” directed towards franchise fees and other brand-related expenses.

To compensate for the removal of the service charge, Ping Pong is raising staff wages by 19%, bringing the minimum hourly wage to £12.44.

A Strategic Trial

This proactive approach by Ping Pong highlights the restaurant’s commitment to fair compensation for its staff while navigating the new regulatory landscape which may occur due to the Employment (Allocation of Tips) Act 2023. As the hospitality industry adapts to changing legislation, it will be interesting to see how other establishments respond and what long-term impacts these changes will have on employee earnings. For specific help and guidance on what this means for your business, please contact [email protected].

A recent study by the University of Warsaw has shed light on a significant issue facing remote workers in the UK. The research indicates that individuals who work entirely from home are less likely to receive pay rises and promotions compared to their office-based counterparts. This revelation raises concerns about the potential career drawbacks of remote work, a mode of employment that has become increasingly common.

Key Findings

The study surveyed 937 managers across the UK and revealed that:

• Promotion Disparities: Managers were 11% less likely to promote staff who worked exclusively from home compared to those who worked entirely in the office.
• Pay Rise Inequities: Employees working entirely from home were 9% less likely to receive a pay rise than their office-based peers.
• Impact on Hybrid Workers: Those who split their time between home and the office were, on average, 7% less likely to be promoted or receive a pay rise.

Gender Pay Gap in Remote Work

The research also highlighted a concerning gender pay gap among remote workers:

• Men: Managers were 15% less likely to promote men working entirely from home and 10% less likely to give them a pay rise compared to those working entirely in the office.
• Women: Female remote workers faced a 7% lower chance of promotion and an 8% lower chance of receiving a pay rise.

Impact of Demanding Work Cultures

The study found that the penalties for working from home were even more pronounced in organizations with demanding work cultures. In such environments:

• Men: Male remote workers were 30% less likely to be promoted and 19% less likely to receive a pay rise compared to their office-based colleagues.
• Women: Female remote workers in these demanding cultures were 15% less likely to be promoted and 19% less likely to receive a pay rise.

Implications for Remote Work

These findings underscore a critical issue for employers and employees. With remote work becoming more common, it is essential for employers to address any disparities to ensure equitable career advancement opportunities for all workers. Employers should reassess promotion and pay rise criteria to prevent bias against remote workers, potentially through structured performance evaluations and clear, objective criteria for advancement.

In a significant decision, the Employment Appeal Tribunal (EAT) has decided that a volunteer can be classified as a worker if they are entitled to remuneration for their activities. This ruling emerged from a case Groom v Maritime & Coastguard Agency [2024] EAT 71.

The Case Background

Mr. Martin served as a volunteer for the Coastal Rescue Service (CRS), an organization that operates with around 3500 volunteers. These volunteers are guided by a handbook that emphasizes the voluntary nature of their roles while setting expectations such as attending training sessions and maintaining a reasonable level of incident attendance. For specific activities, volunteers could claim reimbursement for minor costs associated with their service, including disruptions to personal life, employment, and for attending unsocial hours call outs.

Mr. Martin challenged the denial of trade union representation at a disciplinary hearing, arguing that he qualified as a worker.

Initial Tribunal Decision

Initially, the tribunal decided that Mr. Martin was not a worker, citing the absence of a contract between him and the CRS. The tribunal emphasised that there was no automatic right to remuneration and noted that numerous volunteers did not claim their expenses. Consequently, the agreement between Mr. Martin and the CRS was deemed voluntary.

Mr. Martin subsequently appealed this decision.

The EAT’s Ruling

Upon appeal, the EAT overturned the tribunal’s decision. Notably, the EAT rejected the notion that a volunteer relationship is inherently unique. Instead, the tribunal highlighted the absence of a legal definition for “volunteer,” acknowledging that volunteer status can vary based on the agreement between the relevant parties.

The EAT found it immaterial that remuneration was not automatic or that other volunteers chose not to claim it. The critical point was that a contract formed at the point a volunteer had the right to receive remuneration for their attendance. Furthermore, volunteer attendance was regulated by a Code of Conduct, mandating minimum attendance at training and rescue incidents.

Conclusion and Implications

Both parties concurred that if an obligation was present, it pertained to personal service. As a result, the EAT designating Mr. Martin as a worker. Nonetheless, the EAT did not address whether Mr. Martin was considered a worker during unremunerated activities, leaving this issue unresolved.

This ruling illustrates the importance of the specific terms and conditions governing volunteer arrangements and their potential implications for employment rights.

For specific help and guidance on what this means for your business, please contact [email protected].

Effective from April 6, 2024, the Maternity Leave, Adoption Leave, and Shared Parental Leave (Amendment) Regulations 2024 extend the existing statutory protection against redundancy. These regulations now safeguard pregnant women, new parents returning from any period of maternity or adoption leave, and those who have taken at least six weeks of shared parental leave.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 provides protection for pregnant employees from the moment they inform their employer of their pregnancy until 18 months after the birth. Additionally, employees returning from adoption or shared parental leave are protected against redundancy for at least six months after their return to work.

These employees are granted special protection in redundancy situations. They have the right to be offered a suitable alternative vacancy, if one is available, before other employees.

On 6 April 2024, the new Code of Practice on flexible working requests came into force..  

This aligns with the enactment of the Flexible Working (Amendment) Regulations 2023, which established the right to request flexible working from day one of employment.

The Employment Relations (Flexible Working) Act 2023 brings workers new benefits, including:

• Flexible working requests becoming a day-one right; 

• Employers must consult before rejecting a flexible working request; 
• Two statutory requests in any 12-month period; 
• Decision time reduced to two months; and
• Elimination of requirement for employees to explain impact of requested changes on employers.

The updated statutory Code of Practice encompasses the changes outlined in both the Act and the Regulations. The code can be accessed here: Code of Practice on requests for flexible working | Acas

The Paternity Leave (Amendment) Regulations 2024 (SI 2024/329) apply specifically to children expected to be born or adopted after 6 April 2024, or whose placement for adoption or entry into Great Britain for adoption occurs on or after the same date.

Here’s a breakdown of the key revisions introduced by the regulations:

• Fathers and partners can now split their paternity leave into two separate one-week blocks, providing greater flexibility in scheduling;
• The time frame for taking paternity leave has been extended, allowing fathers and partners to use their leave at any point during the first year following the birth or adoption of their child;
• Notice periods for taking leave have been shortened in most cases; and
• Fathers or partners who have already submitted notice for leave can now adjust their chosen dates provided 28-days’ notice is provided.

An employment tribunal has recently ruled in favour of a disabled council employee, granting her a substantial £4.6 million following her dismissal while on sick leave. The employee, who suffers from ADHD and post-traumatic stress disorder (PTSD), held the role of Director of Public Service Reform at Hammersmith and Fulham Borough Council for less than nine months.

The tribunal found that her disabilities were known to the employer at the time of dismissal. Moreover, it was determined that her dismissal was directly linked to her PTSD, stemming from her involvement in the response to the Grenfell Tower tragedy.

The tribunal partially upheld the employee’s allegations of harassment, direct discrimination, and discrimination arising from her disability. Additionally, it found that the employer had unreasonably failed to adhere to the Acas Code of Practice on Disciplinary and Grievance procedures regarding both the employee’s grievance and her termination.

In addition to the above, the tribunal also concluded that senior officers at the council, including the chief executive, had attempted to deliberately mislead both the employee and the tribunal.

During the remedies hearing in January 2024, the tribunal heard expert evidence that suggested that the employee was unlikely to return to work, with her health decline being directly linked to the council’s actions.

While the written reasons behind the award are pending, it is understood that the £4.6 million includes an amount for exemplary damages. This award is believed to be one of the highest made for disability discrimination.

Despite the ruling, the council is reportedly contemplating an appeal.