Hi everyone and welcome to today’s webinar. Ciphr is presenting an employment law update with our friends at Shoosmiths. It’s great to have so many of you with us today. I’m Cathryn, Ciphr’s head of content. And I’ve got lots of friendly faces on the call with me today. And joining me is my Ciphr colleague Jacqui, and she’s one of our account development managers and she’ll be giving you a little overview of Ciphr solutions before we dive into the employment law. So welcome, Jacqui. Thanks for joining us.
Hi, everyone. Thanks for joining and really looking forward to the next hour or so
and then from Shoosmiths, we’ve got Stuart, Charlotte and Antonia they’re our trio of employment law experts. Stuart, great to have you back with us. Some of people on the call might have joined our October employment webinar with you. And it’s great to have you back once again.
Yeah, on behalf of me and the rest of the shores Shoosmiths team, thanks so much for inviting us back. Delighted to be here. And I hope there is something for everybody on the call to take away.
Yes, so many on the call today join in may already have an existing HR system, maybe it’s something you may consider in the future. But cyphers platform, it helps organisations to manage their end to end employee lifecycle so that you can deliver amazing experiences for your employees. Cypher helps all of our organisations to be confident that they can access the people data in one place, make sure it’s secure, most definitely create time savings and efficiencies. And I’ll talk a little bit more about our API connections to not only our own solutions, but also third party tools in tune to the next one, Catherine. So just to expand a little bit on the API, this is a push and pull at rest API integration. So this will make sure that data is moving not only across all of our own solutions, which include HR, payroll, learning, management, and training solutions, but also integrates to third party platforms. And so far, today, we’ve got over 150 integrations across 50 different business systems. And that list just keeps on growing. So today, we want just wanted to focus really about challenges. So for those of you that are currently using an HR system, lots of organisations have outgrown the HR and payroll systems. And they may be experiencing labour intensive processes, struggle with insights to people and performance and looking at ways that they can improve. Challenges, often that we discuss in the early days with anyone looking at HR systems, is lack of employee engagement, getting their employees to use the system, unable to trust the information that it’s not always accurate and up to date. There’s lots of duplication that when we first meet customers, they complain about things, processes, still being very labour intensive, and also having to maintain multiple systems, which again comes back to data not always been accurate. That’s one. So how do you get the right system, lots of things to consider when you embark on considering investing in a system. So you need to consider how it’s going to streamline your work, not getting in your way, reports need to be easy to compile and make sure that they’re accurate, you should always be to configure automation. So instead of doing things manually, you need to be create those automatic notifications, those automatic reminders such as holidays, how much holiday somebody’s got left, when managers need to maybe carry out on appraisal. And it’s really important more so now that your HR on your payroll will integrate. So it’s all about making sure that your staff are paid on time that paid accurately and making sure that that HR data change transitions nice and smoothly over into your payroll. So by building the right processes into systemic means managers and employees can take responsibility for managing their own data. It can make payrolls quicker, it can make HR data more accurate. And most importantly, it can free the HR team up to make more of those strategic and organisational decisions. So it’s important that your HR system is intuitive. It’s important that you get buy in from all of your community and everybody wants to use it. So the right HR system, we can include onboarding, so it’s critical that you get the right staff that you onboard them in the right way that you’re going to get them being productive as quickly as possible, and most importantly, that you’ll retain the right staff and So integration with third party providers again, helps with that journey. And we can even do clever things like create now identity and background checks, right from that recruit recruitment process as well. Next one, Catherine. So I’ve just put a snapshot of customers, we’ve got a huge diverse range of customers. So we’ve got over 600 customers using Cypher solutions. That’s globally. And they range from public sector, private sector, not for profit. One of our key clients who have also helped us develop the system is the Information Commissioner’s Office. So you can see in the centre there, we’ve got organisations like the Natural History Museum, and the Met Office. And one of our most recent acquisitions who have noticed a notable change is Marshalls who just embarked on a programme implementing the cypher learning management solution. So last slide, Catherine. So in terms if you want to know more about Cypher, and you want to learn more about why Cypher why Cypher customers love using our systems, which popped up on the screen there, our website, but please feel free to raise any queries or pop onto the website. Thank you.
Thanks so much, Jackie. For that quick look at over solutions. If you do want any more information at the end of this broadcast is going to be Thursday, we can just tick a box and one of our team members will get back to you. I should mention of course it is all being recorded. So if you want to revisit any information at any time, and we can absolutely do that. We will send out the recording to you after this broadcast is going to take it away for me.
Fantastic, Katherine, it’s me. Thank you, Jackie. Good morning again, everybody. On behalf of Charlotte and Tony and I we are absolutely delighted to be delivering our second employment law webinar for Cypher this morning. By way of brief introduction, my name is Stuart Lorenson. I’m a partner here at shoosmiths. Joined by Charlotte staples, who’s one of our fab senior associates most of our Nottingham office who leads on everything that we do with regards to online training for clients, and absolutely brilliant, professional sports lawyer Antonio Blackwell, who is going to be helping wade through your questions that you’ve got the ability to ask now we’ve got nearly looking at the numbers over 400 people online at the moment. Unfortunately, we’re unable to have you all on audio. But it has already been mentioned, you’ve got the ability to raise questions through the chat function. Please do do that. We’ll either pick them up as we go along. Alternatively, we’ll try and build in some time for some questions at the end, but yeah, now the seminar this morning is going to follow the same sort of format as of last year. Thanks for the feedback in relation to the autumn seminar. We’re glad it landed well. But you’ll see there’s some familiarity in relation to what we’re going to cover. So in relation to what we’re going to cover. Next slide, please, Katherine, let’s have a quick overview of what we’re going to do deal with, we’re going to kick off with a really, really quick legislation update is actually gonna be incredibly brief on the basis that not much has happened for once in six months from a legislation perspective, then we’re going to give you an update in relation to what is on the horizon. So all those things that is looks like it’s coming down the track so that you’ve got an idea of what you need to prepare for. And then we’re going to finish off by looking at some of the most recent important cases that have been reported. Since last October, we’ve do to finish about 1215. I’m an absolute Stickler when it comes to timing. So I’ll make sure that we’re done and we don’t overrun. So we can skip through a couple of slides, then we’re going to kick off with legislation Update, I’m sticking with that. And I’m going to kick off with a topic I believe may have been covered briefly on one of your cyphers other webinars, but it is a subject that is particularly close to my heart, and that is the updates in relation to national minimum wage. When we delivered the first webinar, I mentioned the fact that I’d advised at that time on the three national minimum wage investigations, I’ve now been instructed in relation to four national minimum wage investigations. They’re incredibly complex, time consuming, and the liabilities for companies, if they get it wrong, can be absolutely vast. So the slide set out the new rates of pay there were effective from the first of April 2023. So all national minimum wage rates have been increased. By 9.7%. It’s the largest increase since the national living wage was increased in to introduce her in 2016. And that simply reflects inflationary pressures and cost of living. So they should all have been implemented by now. So depending on you know, to the extent that you pay individuals either close or just above national minimum wage, all these pay rates should now be in place. So depending upon how often you pay your employees, they should already have started to feel the benefit of these, or if you’re paying on a monthly basis, they’ll get Their first new increased pay packet at the end of April. The other point to flags I flagged last time, is the fact that these rates, you need to always ensure that these are paid above or you comply with national minimum wage, less any points that need to be deducted. So things like salary, sacrifice, cost of uniforms and alike, they all need to be taken into account, you need to make sure that you’re paying these and that your national minimum wage is net of those deductions. And the slide also includes the amount that can be offset by way of accommodation offset. Next slide, please by way of legislation update is the increase in relation to statutory rates of pay. And this change slightly different date, I’ve got no idea as to why there’s a slightly different changes, but as the data concerned that these were all effective from the 10th of April. So the slide sets out the increases to statutory sick pay, maternity pay and alike and the maximum weeks pay that are relevant for things like calculating statutory redundancy pay. And the basic award to the extent that you’re facing a claim of unfair dismissal was also increased is the maximum compensatory award for ordinary unfair dismissal. And I’ve been doing this job long enough that I can remember when that figure was a lot a lot lower. And it seems to me I don’t know about Antonius Sharpe, it seems to be that that figure seems to be increasing even quicker than inflation. And there’s not many things that are increasing quicker than inflation. So the maximum compensatory award is, is the lower of either that 105,000 707 figure or a year’s salary, and what’s not on the slide, which is also of interest is the fact that the bands for discrimination Awards, the Vento guideline bands have been increased as well. And it’s very rare nowadays for Charlotte or itu or any of the national team here to face straightforward claims of unfair dismissal. Usually, there is some element of discrimination. And again, they have increased significantly over the years. And he feels like yesterday that the first band was between 505,000 pounds. But believe it or not, if you’re facing a discrimination claim, the lowest bands or the lower bands have one off acts of discrimination, or the least offensive forms of discrimination, the lowest band award of compensation is between 1000 111,200 pounds. middle band is now between 11,230 3700 and the upper band is between 33,750 6200. That’s not the maximum in exceptional cases, you can go beyond that. But but they are the new bands. That’s it for legislation update, I told you it was brief, we’re now going to move on to what’s on the horizon. So as I say, this is the section of this morning where we are going to basically give you an update as to what’s coming down the track. Some of these we touched on briefly in October last year. And so therefore, some of what we’re going to cover relates to just basically updates as to as to how things have moved on from there. I’m going to give an update briefly in relation to where we are in relation to carers leave and enhance rights for pregnant employees and new mothers. And then Charlotte’s going to cover some potential changes in relation to flexible working. And at that point, I just probably pause and say, it’s probably one of those areas flexible working where we are seeing not only an increase was one of those areas, we’re getting a spike of queries from clients, but it’s it’s always been a difficult area to advise on dealing with flexible working requests. But our view is that it’s becoming increasingly difficult to deal with flexible working requests. And if we’ve got time, we might share our views in relation to that later. Charlotte’s then going to deal with the other points on those slides. So for me, carers leave and what do want to say about that? Well, I suppose the position in relation to carers leave is that and I suppose carers genuinely is that this is one of those topics that has received a lot of press attention, I suppose the general position is that the position in relation to carers is that they are quite an unsupported group, whether or not that’s generally but also in the context of any any rights that relate to their employment and their relationship with their employer. But what it looks like is that it won’t be long before employees providing or arranging care will have an entitlement to one weeks unpaid leave. This started larger so that you can understand where we’re at from a from a timing perspective. And it had its first reading it was a private member’s bill it had its first reading back in June 2022. And the second reading actually took place pretty much on the same day as we delivered the last Cypher webinar. The right if it is introduced, and we think it’s pretty likely that it will be introduced, will enable carriers to basically have One weeks unpaid leave, it’s going to be a day one right? There is going to be no qualified service. And it’s expected that’s going to have a significant impact on employers up and down the country. Why? Well, according to statistics, believe it or not, there are 2 million working employees out there all workers out there, who the statistics show, provide care. So there’s potentially 2 million employees and workers who will potentially have this entitlement to an extra day off every day off an extra week off a year. They and currently carers don’t have any statutory entitlement to take leave. So therefore, they have to look to either take normal leave, or any other form of statutory leave in order to take off, take time off to assist with their caregiving responsibilities. What it appears is that it’s going to be quite a relaxed piece of legislation. So carers are not going to need to provide any evidence of how the levy is going to be taken or how it’s going to be used. And I think the the intention behind that is to simplify things, both from an employer perspective and an employee perspective. Employees who take this leave are going to have the same rights of protection in relation to employees who take leave for any of the other statutory reasons. So they’re going to be protected in relation to not suffering a detriment, or from being dismissed as a result of exercising this right. The only eligibility requirement is that employees are going to have to be able to show a relationship between them and the person that they’re caring for. And it’s expected that relationship is going to mirror what’s currently in place in relation to dependent care at leave. And it’s currently proposed that when taking that leave, a carers will be able to take that off either in half days, in single days or under as a full week block. And the only other thing that I’d say, having read around the subject, is that the only other commentary I’ve seen is that whether or not actually the provision of one week is actually sufficient, and query whether or not actually we’re going to end up with carers having a greater entitlement, possibly up to two weeks leave. But that very much looks like that’s coming into into force. I haven’t got an exact date yet. But I expect that may well be. Certainly I’d be surprised if it’s not introduced by the end of next year. Okay, moving on to the extension of redundancy protection. And this is another one that’s received an awful lot of press attention. And it relates to the possible extension afforded to pregnant women, and new parents returning from maternity adoption, shared parental leave where redundancy situation arises. Now I’m sure everybody on the call will be aware today that there are an awful lot of protections for women whose role is identified as redundant whilst they’re off on maternity leave. For the purposes of today’s webinar, what I’m not going to do is I’m not going to go into every single right, nor am I going to provide advice about what process you should follow, should there be a redundancy situation when someone is off, but what I want to do is I want to drill down on one particular current, right and explain how that it’s being proposed that that is going to be changed. So as I’m sure most of you are aware, probably the in the context of a redundancy situation. The key last stage of any redundancy process is to ensure that if you’re going to dismiss them fairly, that you comply with your duties with regards to considering an at risk employee of redundancy in relation to suitable alternative employment. When the redundancy proposal impacts women on maternity leave, where suitable alternative vacancy arises, and she must be offered it, she’s got really enhanced protections, there’s no need for her to apply to it, she goes to the front of the queue. And this is one of those rare occasions of positive discrimination. We see that pretty, pretty infrequently in the world of employment law. But the brutal reality of this and this applies during what’s called the protected period, is that and just to make sure that you everyone’s got an understanding as to what Charlotte and I and the rest of the shoosmiths employment team do. Here excuse me, as we do 90% of what our work for employers and 10% for senior execs. But the brutal reality of this right is that it means that an awful lot of employers will put off redundancy processes until the employee has returned from maternity leave, so that the employees outside of the protected period, and then the employee doesn’t have those enhanced protections. And so what that often means is that unfortunately, individuals come back from maternity leave and Then they face a redundancy situation that then results in a redundancy situation. Don’t just take mine and Charlotte’s and the rest of them aren’t the shoosmiths improvement teams word for it, the Equality and Human Rights Commission conducted a poll. And they’ve suggested that as many as, and this is a really shocking figure 54,000 women a year were pushed out of work having become pregnant, and a lot of those arise from redundancy situations when they return. So, in October last year, the government announced that it was backing a private member’s bill to basically extend the protections to women in the context of a redundancy situation beyond the current protective period. So that what the protection is now going to last for is either 18 months from the point of birth, or from the point that they returned to work, depending upon the type of leave that’s been taken. Again, this is in relatively advanced stages, it’s passed through its readings at the House of Commons is now at the House of Lords. And again, the expectation is that this will come in in some shape or form in the not too distant future. It’s not in the books at the moment. But the only other thing in talking about this subject is to highlight one really useful reference point. And given that there is quite a lot of commentary about there being a large number of redundancies, later on in 2023, early 2024, depending on whatever happens with the economy. But there isn’t a cast guide out there dedicated to managing redundancies for pregnant employees, or those on maternity leave. And I’d very much point you in the direction of that to the extent that you need assistance with dealing with redundancy with somebody’s off on maternity leave. Okay, that’s enough for me for my opening back to Charlotte.
Thanks to you, and good morning, everybody. So carrying on with the what’s on the horizon. The next topic we’re looking at is the flexible working bill. Now, this is very much come about following the post pandemic era, and many businesses operating so successfully at home for such a long period of time. So the this bill is currently in the House of Lords. And just if you’re not sure about the process, going through Parliament, it starts off in the House of Commons goes to the House of Lords goes back to the House of Commons, and then potentially receives royal assent of everybody agrees on that process. So we’re at the second stage. Now this is in the House of Lords. There could, therefore be a few changes that are applied, but the basic things that we think are likely to go ahead when this comes into effect, or that flexible working week will become a day one, right? You don’t need any minimum period of service or you won’t need any minimum period of service to request it. And you will have the ability to make two statutory requests in any 12 month period, whereas at the moment, it’s just one. Now, there’s still going to be the state same statutory grounds on which a business can refuse a flexible working request. But and this comes with a really big but asked you it says flexible working is becoming a very tricky area. And that’s because so many businesses, as we’ve said, have operated very successfully at home. Many office workers particularly are set up to work from home computers, laptops, phones, etc. And to turn down a flexible working request, you’ve got to have a legitimate reason why it’s not going to work at home. And if it has already worked and been working for a very, very long period of time, then a business is going to find it very, very difficult to turn down. So the other change in this is the temporary is it going to be required to consult with employees, before rejecting any requests that elevates the level of discussions that has to go take place from at the moment, whereas at the moment, there has to be a meeting you have to talk about it. But consulting about something is definitely a higher level a higher requirement really between the parties, rather than just having a chat about it in a meeting. So very much watch this space. But it I think this is really empowering employees to choose where how when they want to do their work. And the government is very much supporting individuals, because of because their home environments mean, we’ve just heard about the carers bill going through as well. So this is really giving a lot of flexibility to those employees who who need it. So watch this space. The second thing, the second bill on this slide is the worker protection bill. Now this is also in the House of Lords at the moment. But there has been more pushback on this bill, I think than than the other ones that I’m talking about this morning. And now the worker protection bill creates a liability for employers to be liable for harassment by third parties. So third parties might be customers, clients, suppliers, anybody coming in and contractors, and if those third parties, harass your staff, and then you could be liable for for not putting in place the measures that could have prevented that harassment in the first place. And Now the reason that this bill’s had quite a lot of pushback is because of the onus and the extra responsibility, this is potentially going to have to put on employers who can’t necessarily control. Joe Bloggs general public, or any suppliers or customers and things coming on your site. And if you imagine scenarios, for example, like the NHS, where you’ve got so many patients and members of the public going through, going through buildings go through the system and interacting with employees on a day to day basis, it’s going to be very, very difficult for some employers to put those controls in place effectively. So the types of things that employers are going to have to have are absolutely clear policies and procedures, which we recommend that you have anyway, because, you know, we’re already in the place of potentially being liable for harassment between colleagues and between staff. So you should already have clear policies and procedures in place, which you train your own staff on, that this is making these policies and procedures clear to the outside world and to other people who may come onto your site and interact with your staff. So there’s probably going to be an elevated requirement to carry out risk assessments. So if you are putting your employees and potentially, you know, trying to work out who your most vulnerable staff within there, and then do those risk assessments so that if they’re interfacing or interacting with any third parties, you know, what the risks could be of those interactions. And also updating things like your website notices that are around your sites so that customers and people coming onto your site are very, very clear that you have a zero tolerance policy in relation to any harassment. So they’re the kinds of steps that employees are likely going to have to put in place in the future. But we’ll see how this bill progresses through Parliament, I do think it will come in in some form. But we will have to wait and see kind of the level of responsibility and liability that’s placed on employers, once it makes its way back to the commons. Okay, next slide, please, Catherine. Right. The next thing I’m talking about is the neonates. Bill, this is a new right, which is going to give up to 12 weeks paid leave for parents and babies requiring near and neonatal care. This is also in the House of Lords at the moment, that doesn’t seem any reason why this shouldn’t go through as it is. But we do before it will come into effect. Some regulations will have to be drafted. And as far as I know, they haven’t been started yet. So this leave, as we said, gives 12 weeks 12 weeks paid leave now that paid leave is at a statutory rate of pay, which is likely to be very similar to say such a maternity adoption, percent shared Parental Leave Pay. And it’s available from the first day of work. So the leave itself is available if somebody has from day one, right. But the pay will only kick in when somebody has got the 26 weeks service and pay with their current employer. And they’ve been paying the national insurance through that time. And then and then they meet the minimum level of pay to get the statutory rates of pay. And now this right is available to parents of babies who are admitted to the neonate unit. And those babies are under 28 days old, and end up staying in the neonatal unit for seven or more full days. Now, the lead doesn’t have to be taken at that time. And what is more likely to happen, especially if you’ve got a mom who’s given birth to a premature baby is that the the maternity leave will kick in as soon as that baby is born. But the neonatal leave can be taken up to 68 weeks after the baby is born. And that leave is likely to be tagged on to the end of the maternity leave. So they’re still getting the extra leave for having to be kind of in the neonatal unit and having that stay in hospital. But it’s likely to be tagged on to the end. And the same for any father or adopter have a neonate. And they will be able to take that leave at a time of their choosing within the first 68 weeks of the child’s life. So as we said we were waiting for the regs to be drafted on that. And that will give us more information. But it does look like that will come in. Next slide please. So the last on the horizon slide is the predictable Terms and Conditions bill. Now this is something that was proposed as a result of the good work plan that I think was came out in 2019. So it was a number of years ago now. And this is likely to have effect in probably in early 2024 that this comes in. Now again, we’re in the situation where we are waiting for regulations to be written to give us a bit more information about how this will work. But it’s basically going to give a right to work as an agency workers where they have an unpredictable work pattern to request more predictability. Now it is a request and it’s not a guarantee that they’re going to get that but this enable them enables those people to say, Can I have a more predictable work pattern for example, A, B or C If they can make two applications within a 12 month period, and employers can absolutely reject that request. And there are statutory grounds on which they can reject the request, which are very similar to the grounds on which you can request reject a flexible working requests. So I think especially if you’ve got staff who were on very unpredictable shifts or work patterns, or shifts that change all the time, or lots of maybe zero hours, contract workers, or zero hours employees, you may see those requests coming in, you will have to comply with certain timetables and dealing with them and responding to them. But you won’t necessarily have to approve them all. We’ll have to wait and see what the regulations say in terms of the level of whether there have to be a meeting, for example, or whether you can reject it without having a meeting. And the level of information you have to give back once, or if you give a rejection. So again, watch this space, and we’ll see what happens when the regulations come out. And next slightly. Moving on to the case law update. I’m going to kick off with the first case. Thank you, Katherine. So the first case is something that I’ve been doing quite a lot of work. And actually it’s a holiday pay
case, which has been through the courts in Northern Ireland and is now at the UK Supreme Court. Now this is the case of the police service of Northern Ireland against Mr. Agnew and Mr. Agnew is joined by many, many other claimants in this case. Now, just in terms of little bit of history about holiday pay, there’s been a raft of holiday pay cases over the last let’s say last 10 years and those holiday pace it cases have covered things like should we include overtime in holiday pay, should we include voluntary overtime, compulsory overtime, should we include Commission’s or the payments that employees get, and also how much of an employee’s holiday pay should be paid taking into account all of these things? Now, in 2014, there was the case of bear Scotland and bear Scotland set some principles which are currently applied in the UK. And those principles say that normal remuneration, so that’s remuneration taking into account anything compulsory and voluntary overtime that the employee works, any Commission’s that they earn, all of that has to be averaged out, and that becomes an employee’s normal remuneration. And you have to pay normal remuneration for the first 20 days of an employee’s holiday. So employees get 20 days holiday under the European Working Time Directive, they get a further eight days holiday under our UK working time regulations, and then some stuff on top of that will get extra contractual leave. So some people might get under their contract 28 days plus the bank holidays. And those extra days then counted to be contractual leave. But in the UK, everybody is entitled to 28 days. But the difference is that the first 20 days come from the Working Time Directive, which is the European legislation. And that is the proportion which has to be paid according to normal marine remuneration. So taking into account the overtime and the Commission’s and things. Now, in the UK, we also have a two year backstop. And that two year backstop says that even if you pay holiday pay incorrectly, in the UK employees cannot claim more than two years back to Northern Ireland, they don’t have that backstop. So with holiday pay is paid incorrectly. And the employees still employed and we still have a series of deductions going back over a period of time they can claim back right back to the beginning of when those deductions started being made. So in Northern Ireland, it has been a more significant problem than it has in the UK. Now the case that’s come through at the Northern Irish courts, went to the Northern Irish court of appeal. And I’ll tell you what the outcome of that is at the moment and that and that’s the law in Northern Ireland. But the reason that it’s it’s important is that it’s now in the UK Supreme Court. Because once the case has gone all the way up to the Court of Appeal in Northern Ireland, it can’t go any higher than that in Northern Ireland, and it comes to the UK Supreme Court, and the US UK Supreme Court make the decision. And that impacts on everybody in the UK, Northern Ireland. So there’s two main things we need to take away from this decision. And we are waiting for it at the moment. And I’m watching the website on a weekly basis to see when the decision will be published. It was heard by the Supreme Court in December, and it should come out any day. So the two things to be aware of is that the Northern Irish court said we shouldn’t be treating holiday differently. So whether it’s the 20 days under the Working Time Directive, the extra eight days that we get in the UK, under the UK regs or contractual leave, all holidays should be treated the same and it should all be paid at the level of normal remuneration. So taking into account overtime holiday pay, etc. So that’s the first thing to be aware of. And the second thing to be aware of, is that That’s the best Scotland case in 2014 found that if there had been a, if there’d been a series of unlawful deductions, so a series of underpayments of holiday pay, but there was a period where the employer paid it correctly for three months, that would break the chain. And the employee couldn’t then claim the unpaid holiday pay from behind that three month period. Now, the Northern Irish courts have said, No, we’re not having that issue, there shouldn’t be a three month break. Even if there’s been a three month period, but holiday pay is paid correctly, the employee should still be able to claim for the more historic payments as well. Now, it is expected that the Supreme Court will agree with the Northern Irish courts on these two points. So the reason it’s quite important is that a lot of inputs because of the cost of paying holiday pay to include commissions and overtime and everything else, a lot of employers do only apply it the first 20 days of leave. And if you are one of those employers that is doing that, you really do need to keep an eye on this case, because if this case comes in and overturns that, which we expected might do, then you will have to make sure from that point that you are paying holiday pay correctly for the employees full contractual leave, whatever that might be. So hopefully we can bring you more news about that case in the next one, but it is certainly one to watch out for if holiday pay has been an issue for you. Next case, please, Katherine. Right. And moving on to I’ve got two cases now on redundancies and reasonable adjustments. Now redundancies have definitely been restructured have definitely been a trend that we’ve seen a lot of recently, I seem to be jumping from one large restructure project to another at the moment. And I think many employers, again, post pandemic are really looking at changing their business around and potentially making efficiencies in the business to make everything more profitable. So the first case of Mr. Hilaire and Luton Borough Council involved Mr. Hilaire, who suffered from depression and arthritis. Now, he had been offset throughout the whole of this restructure process. And his employer went about this restructure. And they decided that if any employees wanted a role in the new structure, they would have to apply and interview for those roles. And that was how they were going to select who would be successful in the new structure. So they invited applications from everybody. And then they interviewed those people who wanted the jobs. So Mr. Hillier wasn’t treated any differently to anybody else in the process. And again, even despite the fact that he had these conditions, he had to go through the same process for everybody else. However, he wasn’t happy with the way he’d been treated in his sick leave, and he refused to attend the interview. And as a result of that, he wasn’t offered a job in the new structure, and was made, made redundant, so dismissed by reasonable redundancy. Now, He then brought a claim and said that the employer Limbo council had failed to make reasonable adjustments, and he said they should have made reasonable adjustments. And he argued that a reasonable adjustment in this situation would have been to give him one of the roles in the new structure without any interview or application process, they should simply have slotted them in. Now, this case went all the way up to the EA t. And this was good news for Luton Borough Council and good news really, for employers, they, the bat said that slotting them into a roll without any interview would not have been a reasonable adjustment, and it would actually impact it detrimentally against the other people who were also waiting. I think there were 13 people who’d also applied for this same job. And they were waiting for an outcome. So it would have impacted them, detrimentally to simply slot him into the role. Now, the bat looked at the adjustments that Luton Borough Council had made and they said they had actually made some adjustments. They’ve given Mr. Hiller more time to attend. So when he said I can’t attend, because I’m not very well, they actually delayed the interview process. They made everybody else wait a little bit longer to try and find out the outcome. But he still didn’t turn up. But the nail in the coffin really for Mr. Hillier in this situation was that he’d actually sent an email to his employer at some stage saying, even if I wasn’t offset, I still would not have attended this interview because I am not happy with the way that you’ve treated me whilst I’ve been off sick. So the EA t actually found that the real reason for his non attendance that interview was because he had lost faith in his employer. And he was trying to use that as a backdoor way really to bring a claim for unfair dismissal. Now, the key learnings really from this claim, are that if you’ve got an employee who is disabled and you’re going through a redundancy process, then you must consider what reasonable adjustments you should be making for that employee as you go through any selection or scoring credit scoring process and whether you should be doing anything if you’re not sure. It’s always a good idea to seek advice, whether it’s from us or occupational health in the first instance. Now, the The other thing that the tribunal said here is that if you are making a reasonable adjustment, it has to actually either alleviate the disadvantage that the individual is suffering or remove it completely. So you’ve either got to reduce the disadvantage or remove it completely by the reasonable adjustment. If there is an adjustment doesn’t do either of those things. It doesn’t reduce the disadvantage, and it doesn’t take it away completely. It is not a reasonable adjustment in legal terms. Okay. So if you are thinking to implement any reasonable adjustments you you do really need to be thinking about is it doing one of those two things. And one of the points mentioned here is that reasonable adjustments as well are to help people either back to home or in their job. So one of the questions we frequently get asked is, the individual who’s on sick leave wants us to extend their company sick pay, is that a reasonable adjustment? Uh, no, that will never be a reasonable adjustment to extend company sick pay because you’re actually encouraging somebody to stay off sick even longer. So the whole idea of the reasonable adjustment is that we get people back to work and we help them in their job. Okay.
Next slide, please, Katherine. So our next case involves a household name of m&s and it involves a lady called Mrs. jamu. Now, Mrs. Chandu, had worked for m&s for 22 years, and she had dyslexia. She had been put through a redundancy process and was made redundant at the end of that process. Now, she only lost out by one point, and the selection criteria that m&s had applied throughout the redundancy process. They looked at leadership skills, technical skills, and behaviours, and they scored all of the employees in the pool on those three categories. Now, the managers were totally aware of Miss standees dyslexia, and she had made it known through her career, the assistance that she needed, and people generally had been very good at helping her with those things. They proofread important emails for her they colour coded certain things so that she was aware of importance and things like that. And at no point were any performance issues raised with her about the things that she was scored negatively on. So m&s Have not referred Mrs. Janda at any point to occupational health. And as part of the redundancy selection process when she was told about her scores and the scores against these three specific selection criteria. She raised her Dyslexia as a reason for these issues, and m&s. His response was that we are not here to talk about your dyslexia, and they brushed it away. Now, the issues which were raised, and which affected which impacted negatively on her scores with it, they felt her emails were rushed. They tended to be very brief, often set out in bullet points rather than kind of more verbatim tone. There were many spelling errors. They also raised issues with her time management, and a failure to adapt the tone of her written communications to different audiences. Now, the tribunal found that all of these issues could be attributed to her dyslexia, and m&s should not have brushed that aside and should actually have taken that into account and thought about whether they should make any reasonable adjustments, you know, for those for those issues, given their knowledge of her dyslexia. Now, the other thing that m&s did wrong here is that they used those things to mark her down on every single one of the scoring criteria. So when they looked at her leadership skills, they took into account the poor email writing and the time management and the spelling errors in relation to leadership. Then they went on to technical skills, and they took the same things into account in relation to his technical skills. And then they wanted to have behaviours and took the same things into account. So she was actually scored down for the same reason three times. And if she hadn’t done that, then she would absolutely have scored those extra one or two points, which would have saved her in the redundancy process. So m&s are obviously a kind of very household name, a big retail giant, and the tribunal found that m&s Absolutely had the result, the resources to make the reasonable adjustments, which they should have done for Mrs. Jambo. So the learnings coming out of this case, and there’s several really, firstly, if you have any employees with performance issues, do raise them and raise them quickly and early doors, and then hopefully, firstly, you can nip them in the bud and maybe put things right to start with. But it does mean that if you find yourself in a redundancy process with an employee, and you’ve already raised performance issues, you will have documentary evidence of those and you’ll be able to rely on it and use it in the scoring process. Secondly, and what one touching on from the Hilaire case that we’ve just talked about, if an employee does have a disability and is being put through a redundancy process, you really need to be considering about do we need to make any adjustments as part of this redundancy selection or scoring process because of this employees condition and get advice on that if you need to things you might need to make for example, or giving them more time I’m giving them breaks. If there’s an interview, maybe they need regular breaks. Maybe questions need phrasing slightly differently, it obviously depends on the disability. But you certainly need to take account and think about what adjustments be making and make a note of it as well so that you’ve got evidence that you’ve gone through that process, and you can show you’ve done it. And then just some general guidance that if you are going through a redundancy process, you really do need to be using objective scoring criteria and not subjective criteria. One of the biggest downfalls I think, that we see in redundancy processes is people often want to score on very subjective criteria, and especially if you’ve got a large scale redundancy, and you’ll say, scoring on, let’s say, communication, style or communication skills, it’s a very soft skill. And it’s very subjective, then for that person’s manager to be saying, Yeah, I think they’re a good communicator or a bad communicator. And it’s very unlikely that you’ve got hard documentary evidence to back that up. So you’re much better choosing objective scoring criteria, and criteria that you can back it up with, with documentary evidence, you also need very clear skip scoring guidance. So say you’re scoring out of five, what do you need to get five? What do you need to get four, three and two, and be very, very specific about the points that somebody needs to achieve to get those different scores. And especially that helps if you’ve got a lot of managers who are involved in the scoring process, so that there’s consistency across the managers as to how they’re approaching that scoring criteria. Okay, next slide, please. Right. This is the last one from me. And this is a disability discrimination case, and a case involving long term sickness and dismissal. Now, in this case, revenue, and customers did everything right. And this case really gives some useful commentary from the Employment Tribunal if you’re going to launch a defence against a disability discrimination claim. So just a few facts, Mr. McAllister suffered from anxiety and depression. Now, this case is quite at fact specific in terms of his level of absence. Now, he had had a full 245 days absence in two years, are really, really high level of absence. And at the time of dismissal, he’d been off sick for seven months. And occupational health, he’d be referred to occupational health. As I said, they did everything right, and occupational health and said he’s not fit to return in any capacity at this time. And so he, Revenue and Customs said that his absence was having a really detrimental impact on productivity and staff morale. They tried to make all the reasonable adjustments that had been suggested, but obviously, he wasn’t fit to return in any capacity. So they decided to terminate on the grounds of capability. Mr. McAllister bought a claim for discrimination arising from his disability. Now, the reason he brings that claim is because he was actually dismissed for his level of absence and not the disability itself. So because he’d been dismissed for the level of absence, he brings the disability discrimination arising from a disability claim. And it is possible for an employer to defend that claim, if they can what’s called objectively justify the decision to dismiss. Now the objective justification Defence has got two strands to it, the first strand is that an employer must have a legitimate aim that it is seeking to achieve. And then the second strand to the aim is that was there a more proportionate way that they could have achieved that aim? In other words, they’ve got this aim they’re trying to achieve? Could they have done it in a less discriminatory way that didn’t discriminate against the particular claim. And in this case, the tribunal looked at all the facts, and they said, No, Revenue and Customs did do everything right there couldn’t have achieved these legitimate aims in a more in a less discriminatory way. And they found in favour of Revenue and Customs. Now, the reason this case is is useful for employers is because three legitimate aims were put forward by Revenue and Customs here. And I think these are really wide aims and helpful for employers. So they said, our legitimate aims are ensuring that staff demonstrate a good level and good standard of attendance. That was number one. Number two, is that we want to ensure that we give our services, our customers a good customer service. So that was number two. And their third legitimate aim was the need to follow their own policies and procedures for consistency purposes. That was, after all, the reason that you’ve got policies and procedures in the first place. So that’s really useful, because there’s been very little guidance in the past on the type of legitimate aims that employers could rely on in this situation. And these are very broad aims. And so the second question then was, could they have achieve those aims in a less discriminatory way? And that will obviously depend on the facts of the case, but in this case, Mr. McAllister have got such a high level of absence, that there was no doubt really that it was impacting on morale. Now, the one piece of advice I would generally give if you’ve got an employee who has been sick for a very, very long time before you do As Miss, you always need to refer to occupational health. And if somebody said, Oh, we did an occupational health referral four months ago, I would say you need another one, you need an up to date one, especially if there’s been recent changes. And they’ve been off sick, you don’t know what’s happened in the meantime, from a medical perspective. So you need an up to date medical health, occupational health report before you go through the dismissal process. And if you get to that point, ideally, you’re looking for occupational health to say they’re not fit to return in any capacity. And ideally, for several months going forward, if occupational health were turning around saying, Actually, they’re not fit to return in any capacity at the moment, but give it three or four weeks, and I think there’ll be back then No, you shouldn’t, you know, that’s Tuesday, you shouldn’t be dismissing. But if you’ve got a much more longer term kind of prospect of them staying off and not fit to return in any way, then you’re going to be, you know, in a much better position to proceed with a capability process. The capability of dismissal should always be the last, the last resort, and you should be looking around for other options best. Right, I think it’s better to do it now. Thank you. That’s
okay, back to me for the last four cases. So first case is the McCain case. And it’s a word of caution for anyone out there who thinks that term, making employees redundant is is overly simple. And when I make that comment, I try and frame it the right way. And as much as I’m quite happy to accept the fact that over the years, I have said on more than one occasion, to clients that dismissing an employee on the grounds of redundancy is, is arguably the easiest way of effecting a fair dismissal, particularly when you’re looking at a pool of one. But it doesn’t mean to say it’s really easy, and it doesn’t mean to say that there is no risk associated with that. And this is a really useful case. For employers, it’s a word of caution. These are not overly simple, and it highlights still in need for appropriate consultation. So in order to bring this to life, as we will leave cases, it’s good to provide you with the facts. So Mrs. M was employed by the trust as a band six nurse, and a series of fixed term contracts. There was another band six nurse who is also employed under fixed term contracts, but Mrs. M’s contract was the one that was going to come to an end. First, in March 2019, she was invited to a meeting and she was told that the trust was facing some financial difficulties. And a short time after that, the trust decided to basically make a redundant because her contract was ending at the soonest. Now, in making that decision, or distress that the trust didn’t just make that decision will click fingers, they still went through redundancy consultation process, but they very much concentrated they chose her because of the fact that her contract was coming to the end sooner than the other band six, nurse. And they then complied fully with complying with their duties of considering her pursuit of alternative employment. She went to the employment tribunal, and they rejected her claim finding that she’d been fairly selected for redundancy. And what then happened is that She appealed that case, we went to the employment Appeal Tribunal. And the employment Appeal Tribunal made reference to some of the, I suppose the seminal cases in the context of redundancy. And basically reminded, or both parties that consultation is, is a fundamental aspect of any fair redundancy process, whether or not you’re looking at small scale redundancies, or whether or not you’re looking at redundancies that trigger the duty to collectively consult. And what we always say, and this isn’t trying to go to school is that consultation needs to be genuine and meaningful. And it must take place at a time when either if you’re consulting with individuals, and the employee can influence the outcome or if you’re consulting with employee reps, that the employee reps can influence the outcome of that process. So the key point here is in the context of this case, the choice of the selection criteria had the practical result of basically selecting the person to be made redundant from the outset. And they said, well, actually that didn’t then amount to meaningful consultation, because consultation should take place prior to that decision to be taken. So in this case, what they should have done is they should have consulted about whether or not it was appropriate to use the fact that the contracts were ending soonest as being the selection criteria. What the 80 went on to say is that whilst a pool of one can be fair, in appropriate circumstances, it should not be considered without prior consultation where there is more than one employee. So this had an adverse negative impact on on Mrs. M, and she was successful from the 80 is concerned. So, you know, in this case that the trust had gone to great lengths with regards to comply with his duty to consider for suitable alternative employment. But that wasn’t enough. So the word of caution is to make sure that you don’t, I suppose, overly simplify redundancy consultation processes, even when you think that you’re looking at a very small pool, always make sure that the process that you’re following builds in appropriate consultation, whatever that might mean, and to make sure that you take the fact that the meaning that the processes is a meaningful work. Okay. And I suppose the good news is just picking up on so Charlie’s point is that, you know, there was lots of debate last year wasn’t there about that being the year of the great resignation and whether or not 2023 was going to be the year of the great redundancy. I just think, at this point, probably share with everyone that whilst we’re seeing pockets of redundancies and projects, we’re not seeing absolute mass redundancies at the moment. Whether or not there’s more to come down the line? We’re not sure but that’s certainly what’s landing on the desks of of us up and down the country. Okay, next one. From redundancies to settlement agreements, the case of Bathgate looked at how far a settlement agreement can go with regards to settling unknown claims. For those of you who deal with settlement agreements regularly will know there’s much debate about how far a settlement agreement can go and a case back in 2004 summarised two key principles. One is that blanket settlement agreements are unlawful. That said, despite the fact that the general position is that blanket agreements are prohibited and agreement that identifies an actual or potential claim, by way of general description or reference to the section in the legislation that that gives rise to can still validly settle that claim. So a good settlement agreement. It says in a slightly cheesy comment, like all the ones that we draft here at choose Miss will be tailored to the individual circumstances that you are facing in the in the main, we will not include any claims that definitely have no relevance. We include tailored wording and then we include additional wording to make sure we try and catch all those other claims that might apply. But we won’t adopt the kitchen sink approach that some lawyers do. The second principle is that whilst parties may agree that a settlement agreement is to cover future claims, in respect of which an employee does not or could not have knowledge of to do so effectively, the terms of the agreement must be plain and unequivocal. And our advice when we’re talking to clients about this is to always make sure that they’ve got an awareness that there is some uncertainty about the enforceability of settlement agreements that seek to settle claims that aren’t, I suppose automatically, in the minds of the employees or haven’t yet arisen. So this case looked at, I suppose, the second limb The second main principle there, and the facts of the on the slide, but I’ll run through them quickly. So Mr. B took voluntary redundancy under a settlement agreement, which included a term for a future payment under a collective agreement, unknown to Mr. B, when he when he signed up to the settlement agreement under the terms of the collective agreement, no payments could be made for anyone who was aged over the age of 61. And as a result, he didn’t get any of the monies that he was expecting. And surprisingly, he brought a claim for age discrimination. And rather, unsurprisingly, from a company perspective, they sought to rely on the terms of the settlement agreement. Again, this was another case that ended up at the 80. And the 80 concluded that the statute requirement for a qualifying settlement agreement to really relate to a particular complaint requires an actual complaint to exist or circumstances where the grounds for complaint to exist as well at the time. So the general view being is that it comes down to what was known at the time that the Settlement Agreement was entered into. So the context of this case, if it was known, if Mr. Bean knew at the time of the fact that he wasn’t going to have a potentially entitlement to this additional monies, then it could have validly settled that claim, but because it wasn’t in his awareness at that time, the Settlement Agreement couldn’t validly be used, and therefore, the company didn’t have the protection of the settlement agreement. So how has that impacted on the advice that we’re giving our clients? It shifted it ever so slightly, but not in any major form. We still flag to clients the uncertainty in relation to the possibility of settling future claims, but we’d what we do make sure is that we do I suppose extrapolate when we’re taking and instructions, you know, we ask very, very clear questions in relation to what issues could have arisen or potentially could have arisen during employment that could give rise to claims to enable us to, I suppose, word our settlement agreements as bespoke as possible. Okay, next slide, please. The penultimate slide for me actually relates to a set of circumstances that are very similar to a case that I advised on recently. And it looks at what happens to the employment relationship where an employee appeals a decision to dismiss. The employer then offers reinstatement. But then the employee doesn’t want to return to work. I don’t know if you’ve ever felt faced situations like that. But it is something that does, as I say, landed on our desks reasonably frequently. So before telling you what the outcome of this case was, let’s look at look at the facts again. So the claimant in this case was dismissed for gross misconduct in January 2019. She appealed the decision. And she indicated that she wished to be reinstated. But then she changed her mind. And she sought to argue that there’d been a breakdown in mutual trust and confidence between the parties. And at the appeal. She said, All I want is an apology. And I want some compensation. Isn’t it the case often the case that just employees want its compensation, but whether or not it was a tactical decision or not, the outcome of the appeal for Iceland was that they basically reinstated her. But she didn’t. She basically refused to come back to work. And she was dismissed again in July 2019, for failing to return to work. And she brought a claim for unfair dismissal. And she sought to rely on the dismissal, not in the July, but she sought to rely on the dismissal that had taken place in the January. And the tribunal, in the first instance concluded that it had no jurisdiction to hear the claim as the January dismissal, it basically vanished as a result of her reinstatement. And She appealed that decision. And it’s always good that we go to the 80, because that gives us better authority. And I’m pleased to say he says you can tell that I’ve got slight slant, haven’t you towards employers, but the 80 agreed with the tribunals decision. And they said that basically, it’s clear that the outcome of the successful appeal in a situation like that was to treat the dismissal as if it not having occurred irrespective of the employee’s subjective wishes. So one thing what the claimant could have done in a situation like this, if I was advising the claimant, I would advise her to have withdrawn the appeal. Now that might have impacted on the amount of compensation she could have claimed before the tribunal. But if she would have then only have had one dismissal to rely on rather than I suppose the to the second thing, which which isn’t really talked about, as far as the case concerned is that that limited her from bringing a claim in relation to the January dismissal. She could potentially, I suppose, also sought to bring a claim of constructive unfair dismissal. If she could have shown it wasn’t reasonable for her to have returned back in that July. But that’s beyond the summary here. So and then last but not least, is the case of LifeShare. Which is again, another really interesting case, probably one that’s may not lamb, but it raises really interesting questions, and it looked at basically, I suppose the question of whether or not the double jeopardy will apply in the context of employment proceedings. So the double jeopardy role is usually arises in the context of common law cases where basically says that you can’t litigate the same issue twice. Most people probably heard about this depends on how old you are. I’m gonna show my age a little bit here. But the very, very famous Stephen Lawrence proceedings. That was one that got a lot of press, I suppose, probably quite a lot of frustrations from the public perspective about the fact that people could try it for the same offence. But the headline common to this case was the Court of Appeal held that there was no absolute rule against double jeopardy in the world of employment. And this was in the context of an unfair dismissal claim where an employee had already been taken through a disciplinary process that hadn’t resulted in a dismissal in the first instance. So to explain the unusual circumstances are going to the facts. So in this case, the claimant was a director of transformation at the NHS Trust who had responsibility for improving race and equality. And she was the chair of their BME network. She was disciplined and given a final written warning, for instance of bullying and victimisation and employee by seeking to interfere in an investigation of sexual orientation discrimination, racial harassment and discrimination against another employee. You have to pause at that moment don’t even think actually why did she only get a final written warning but anyway, she was only given a final written warning in the first instance. What happened then was that the Care Quality Commission CQC you I’ve heard about them, but they carried out an inspection. And they concluded that bullying was rife within the trust. And they put it into something called Special measures. And what happens when special measures takes place is that then the trust gets taken over by another trust. And the managing director of the new trust basically came in and they were, he was so concerned about, I suppose compliance from a regulatory perspective, he was concerned that whether or not the claimant was fit and proper to provide leadership on issues in relation to equality, and that then triggered a further disciplinary hearing that was held by the new trust CEO. And that resulted in her dismissal on the grounds that her conduct did fatally undermined her ability to perform her leadership role. And one of the arguments that the claimant then pursued at the at was the fact that it was it was unfair for basically her to be subjected to a disciplinary hearing. It also to discipline matters, sorry, that had already been considered as part of the original disciplinary process that resulted in her getting a final written warning. And basically, it said, as I said, endorsed by the court of appeals that actually there was nothing to prevent this this issue to be considered again, they said that what happened in relation to the earlier disciplinary hearing was just one part of the circumstances that an employer can take into account. They did the court, though, did take into account other factors. And that was the findings of the CQC report. The claimants continued unwillingness to accept any responsibility, and the CEOs conclusion that the claimant was basically unfit to lead on issues such as race equality in light of conduct. So So one of the lessons of this case, I suppose the lessons of this case are that, you know, it’s good news from an employer perspective, that potentially you can revisit issues like this, I think the facts will be, you know, we pretty unusual that these sort of facts will arise for you, I suppose. There is one similar set of circumstances that I did want to a highlight. And that was just to remind everybody whether or not if you go through a disciplinary process, and an individual appeals that decision whether or not you can actually increase the sanction as part of that disciplinary process. And I just wanted to highlight the fact that there is authority for the fact that you can’t do that. The reason why and that was a case of McMillan. And that was the reason the reason for that is that the appeal process is there to benefit the employee, not the employee. And also the fact that if you appeal something, and then you get with get a given us a more tougher sanction, you’ve got no further right of appeal. And also, an a cast is pretty clear as to what their view is in relation to that. If you do want to have the ability to increase a sanction as a result of appeal, and then you can have that within your contractual procedures. But please do make sure that you make it clear that if that’s the outcome of your disciplinary process, that the employee has got a further right of appeal. So whilst I imagined that the facts of the case life area are pretty unusual, there are some similar cases that hopefully useful takeaways for the purposes of today. So that’s it. 2008, we left some time for some questions. I’m going to pass over to Antonia to see if there’s any things being asked that we need to pick up on.
Yes. So don’t suppose it’s gonna surprise you that we’ve had a question about holiday pay. That seems to be the thing that causes the most headaches. So I think the way the question is phrased, so it’s looking at overtime, and what overtime you include in holiday pay calculations. So this particular question has looked at ad hoc overtime for zero hours workers. And my understanding is that if it’s genuinely ad hoc, and isn’t something that you get regularly, then it it’s not part of your normal remuneration, and therefore, isn’t included, but where the dividing line is between ad hoc payments and then becoming regular enough to be included, is kind of the million dollar question. Would you agree with that?
Absolutely. Absolutely. I think there’s the massive question on when it becomes regular. And each scenario will be different. I mean, I had one a couple of weeks ago, where they said, Oh, yeah, they’re just doing overtime, you know, maybe like once a month or something. And I said, What once a month for how many months? You know, because once we get into once a month, two months or three months, that’s regular. So, you know, it’s really looking at the timeline, like you say, and working out. Is it truly ad hoc? Are we saying kind of once here and then seven months later, another one here, or is there any kind of seek In this video on what’s happening,
yeah, I’d simply endorsed that it’s that and that there’s no legal definition. Well, it’s only those situations where it is genuinely ad hoc that it doesn’t need to be taken into account. So it’s about reviewing patterns at the end of the day. Really, really tricky area to advise on. But yeah,
I think if there’s any discrepancy a tribunal is more likely to come down on the employee side. So if it’s like, okay, well, we might be seeing a pattern, but we might not, you know, and you’re kind of at the 5050 on the fence side, and the Tribunal is possible, you know, I think they’d like be more likely to come down on the employee side.
So we’re having some more questions coming in thick and fast. So what I guess this is another one that we come across quite a lot. So what happens? I think, so you were talking in the cases, particularly Charlet, around the need to engage with occupational health and to understand the up to date, medical position. But what happens if the employee refuses to engage with occupational health? And I think, in my experience, as long as the employer has attempted to get that up to date evidence, and has made it clear to the employee that if they won’t cooperate, the employer has to make a decision based on the evidence that they’ve got. But ultimately, that’s all you can do. You can’t force somebody to cooperate with you.
Absolutely. And I had a case that went to tribunal that was just that, you know, and the employee, the company tried to refer them to occupational health and actually asked on several occasions, and had documentary evidence of the fact that they they’ve done that and the employees refusal, and they went all the way to tribunal. And the tribunal said, you know, the company has done what it could you know, what it should have done, it’s complied with all its obligations. And the fact that the employee has refused to go means that the company can only make a decision on the evidence available. And the evidence available didn’t include medical information. So they absolutely came down on the company side.
Yeah. And if you’ve got anything in the contract that you can point to, or your sickness management procedures, or whatever, that you can’t never force anybody to be subjected to MediCal. But if you’ve got something that says, Actually, we’ve got a contractual right, then that can strengthen your position as well. Yeah.
And then perhaps just one quick clarification. So on the extending redundancy protection, are we saying that employees on maternity leave should have priority over other employees? And yeah, that’s that essentially, that’s what happens if, if there is a redundancy situation, one of the people who’s selected for redundancy is on maternity leave, they have the right to be given a suitable alternative employment, if it is, if that exists. Yeah.
You’ve got you’ve got different tiers of prioritisation, haven’t you in a redundancy situation? So let’s say for example, we’re going through a redundancy situation that puts two people at risk of redundancy in you’ve got one vacancy, if they’re two employees who are not when they need them off on maternity leave, and they will have priority over your other employees who in fact, have external candidates, if they’re suitable for that? Well, they should be offered it at something that causes a lot of frustration for employers, but it’s all about protecting employment for employees. right not to be unfairly dismissed, if one of those employees is within the protected period. And they’re both suitable. She gets the role. It’s, you know, even if the other person is more suitable than her she will go to she has that much extra it’s gold, gold plated protection. Okay,
so I’m conscious, we’re just coming up to two code paths. And we’ve had a few more questions. But it might be we can have a look through those and come back to people separately after the event rather than I know, Stuart, you said you’re a stickler for time.
Thanks, Antonia. Okay. Yeah.
We tried to squeeze in as many of your questions as possible. But once we open up the q&a, they do tend to come in thick and fast. But I’ll get those across to the Shoesmith team afterwards. And we’ll try to compile some answers and make those available to you. either individually or just sort of as like a combined document. So leave it with this. We’ve got them all noted down, because see lots are coming in. And thank you to everyone who joined us today and made it all the way through to the end. You’ve done it you’ve completed today’s employment law webinar by then we hope you found it really helpful and you’ve enjoyed the Insight not only into Cypher solutions from Jackie but also all the explanation of upcoming legislation, case law and missile q&a and shoosmiths team. If you want more information either about cyber or from the team at shoosmiths. There’ll be an exit survey at the end of this broadcast. Just check the relevant box. And we’ll get back to you. And that’s why they also asked you for some feedback about the webinar today. And if there’s anything you’d like to see from us, particularly on employment law matters in the future, do take the time to fill that in if you can, because it really helps us kind of each programme of webinars. And, and just as a reminder, all this has been recorded, and the recording will be emailed to us. That’ll be all the audio explanation and the slides so you can rewatch that and revisit it at your leisure. So you can just revisit any bits that you might need extra clarification on. So thank you, Jackie, for joining us today. Thank you, Antonia and Stuart and Charlotte for sharing your expertise. I really appreciate you joining us today. It’s been great. And thank you so much, everyone for joining us and being so attentive and engaged. We really appreciate it. And we hope to see you again another Cypher webinar soon. Take care and have a great day. Thanks again.
Bye bye. Thank you. Cheers. Bye
About this webinar
Join HR software provider and employment law experts Shoosmiths for a free employment law webinar. All information was correct at time of broadcast (April 2023)
- Stuart Lawrenson, partner, Shoosmiths
- Charlotte Staples, senior principal associate, Shoosmiths
- Jacqui Whyman, account development manager, Ciphr
- Cathryn Newbery, head of content, Ciphr (moderator)