News 📰
Employment Rights Bill update
Negative opinion on the Impact Assessments for the Employment Rights Bill
Before the dust has had time to settle on the recently released details of the Employment Rights Bill, the Regulatory Policy Committee (RPC), an independent scrutiny body for the Government, has produced reports on the impact assessments for the Bill:
· The RPC has rated the overall impact assessment as “red” (not fit for purpose)
· Out of 23 individual impact assessments, 8 were marked “red”
· Problems included a lack of evidence to show that there was a problem (e.g. a power imbalance between employees and employers) that needs to be resolved, insufficient consideration of the effect on businesses, and failing to assess alternative proposals, instead only comparing the proposed policy against a “do nothing” approach
· The RPC found that the Government had not identified adequate reasons for introducing legislation relating to:
o Day one unfair dismissal rights
o Repeal of Strikes (Minimum Service Levels) Act 2023
o Flexible Working
o Employer liability for all workplace harassment of employees by third parties
· A suggested area of improvement was to consider the potential negative impact of the legislation, which the RPC indicated may include: making it more difficult for the unemployed to access jobs, making it more difficult for young people to enter or parents to return to the workforce, and encouraging employers to offer temporary or fixed term contracts rather than offering permanent employment.
The overwhelmingly critical assessment of the Government’s impact assessments is likely to be a topic of debate as the Bill goes through Parliament.
Amendments to the Employment Rights Bill have been published
Changes to the Bill have been published already – both government amendments, and changes from Members of Parliament. Government amendments include:
· to change the time limit for bringing any claim in the employment tribunal from 3 months to 6 months
· to include an “initial information period” relating to the right to guaranteed hours. During this period, any worker who would potentially be a “qualifying worker” at the end of the period would have to be provided with information about their rights relating to a guaranteed hours offer.
Get Britain Working White Paper released
The Government has released further plans for reform, to provide an employment support system to get often-excluded groups back into the labour markets. These reforms are far-reaching across multiple different sectors and public services, including:
· Supporting the NHS to target a reduction of waiting lists to the NHS Trusts with the highest level of health-related economic inactivity
· To expand the NHS Talking Therapies service, to address health issues that contribute to unemployment
· Working with local government to implement the Youth Guarantee, which will expand opportunities for young people, and help them to develop skills to get into work
· To transform Jobcentre Plus into a public employment service, which builds relationships with employers to improve understanding of their recruitment needs, and help reduce reliance on international labour
· Undertaking an independent review into the role of UK employers and how they can promote healthy and inclusive workplaces, in an effort to keep people with health conditions or disabilities in work, rather than becoming economically inactive.
Case Law Update 📢
Mendy v Manchester City Football Club Ltd
The Employment Tribunal heard a claim for unlawful deductions from wages with a value of £11 million.
Benjamin Mendy, a Manchester City Football Club player, faced criminal charges that had led to a Football Association ban, which prevented him from taking part in matches and other activities. As a result, the club stopped paying him, pending the outcome of those criminal charges, from which he was later cleared.
While the charges were still pending, Mr Mendy spent some time in custody, but otherwise was unable to train and play because of the Football Association ban and his bail conditions. In the Employment Tribunal, the judge found that the Claimant had been ready, willing and able to work during the periods he was not held in custody, and he was only prevented from working by factors that were unavoidable and involuntary on his part. During custody, he was prevented from working due to his own act (breaching his bail conditions).
The judge decided that the company owed the Claimant for pay during the time he was not remanded in custody, because there was no clause in the contract that allowed the company to withhold pay in those circumstances. As a result, the claim succeeded with an approximate value of £8.5 million.
This is a good reminder of the importance of including a clause in all employee contracts allowing deductions to be made from wages in appropriate circumstances.
Alexis v Westminster Drug Project
The Claimant had been put at risk of redundancy, as three roles were being amalgamated into two roles. Each affected employee had to apply for the new roles and had to go through an interview process. The Claimant was unsuccessful at interview. She raised a grievance, complaining that this was because she had dyslexia, so should have been provided with the questions in advance. The grievance, and a grievance appeal, were both rejected, prompting the Claimant to send a flurry of emails to the decision maker and the chairman at the company. This led the decision-maker to decide that the employment relationship had irretrievably broken down, and so the Claimant was dismissed for some other substantial reason.
The Employment Appeal Tribunal upheld the Employment Tribunal’s finding that the dismissal was fair, despite the Claimant arguing that the Tribunal had not taken consideration of her length of service, or of alternatives to dismissal. The Employment Appeal Tribunal held that once the relationship had irretrievably broken down, dismissal was the only option, and so consideration of alternative roles was not appropriate, and length of service was not relevant.
Gallagher v McKinnon Auto and Tyres
The Claimant had been absent from work due to illness, during which time the company decided that his position (Branch Manager) was no longer needed. They proposed a redundancy process. The company then held a protected conversation meeting “off the record” to offer a settlement agreement, with an indication that he would be subject to redundancy if he did not accept the offer.
The Claimant declined the offer and was dismissed for redundancy. He brought a claim for unfair dismissal and attempted to use the settlement discussions as evidence. Protected conversations are generally inadmissible in the Tribunal, unless there has been improper behaviour.
The Tribunal held that there was no improper behaviour, and so the evidence was inadmissible. The Claimant appealed to the Employment Appeal Tribunal, on the basis that the employer had put undue pressure on him to accept an offer, contrary to the ACAS Code of Practice. The EAT agreed with the Tribunal that the conversation was inadmissible. The company had offered a settlement agreement, but had not threatened dismissal if he did not accept, only redundancy, and it did not follow that a redundant employee would always be dismissed.
Deksne v Ambitions Ltd
The Claimant made a claim for unlawful deductions from wages, based on wrongly paid holiday pay (which the company admitted). In the Tribunal, it was held that the claim was out of time, as there was more than 3 months between some underpayments (following previous case law).
The Employment Appeal Tribunal overturned this, instead finding that there had been a series of deductions based on the circumstances of the case, including that all the underpayments made were based on the same calculation.
The Employment team at Roythornes wishes all our readers and clients a safe and happy Christmas, and we look forward to a busy year ahead in 2025 as the ramifications of the Employment Rights Bill become more clear!
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill, George Miller and Natasha Ewins.