This month’s bulletin looks at some recent case law and news that will be of interest to employers and HR professionals, including draft statutory guidance on “fire and re-hire”, the Strikes (Minimum Service Levels) Bill, and flexible working queries.
News 📰
Draft statutory guidance on “fire and re-hire” published
Making changes to employees’ terms and conditions can be difficult for employers without agreement. One way that employers can do this is to dismiss the employee (with notice) whilst at the same time offering them a new contract on amended terms. This has become known as “fire and re-hire”. This can be a risky approach as employees with more than two years’ service could bring claims for unfair dismissal, regardless of whether they accept the new terms.
To regulate the practice of fire and re-hire, the Government has published a new draft code of practice that employers will be expected to follow, once the code has been finalised. Failure to follow the code could lead to successful claims of unfair dismissal and increases of up to 25% in any compensation awarded.
The draft code requires employers to share information with and consult employees, including any recognised trade unions, about any proposed changes with a view to seeking agreement. Employers will have to demonstrate that their consultation was genuine and undertaken in good faith – consulting as just a ‘tick box’ exercise in respect of a decision that has already been made will be inadequate. If agreement is not reached following consultation, the code requires employers to reconsider their business plans and suggests that fire and re-hire should only be used in respect of changes that are “truly necessary” and with no alternative options.
The code aims to curtail the use of fire and re-hire and ensure that it is only used as a last resort. The code is not yet in force and the government is consulting on the draft until 18 April 2023. Employers with any views on the draft code are encouraged to submit them before the deadline.
Strikes (Minimum Service Levels) Bill approved by the House of Commons
The Government’s bill to ensure that minimum levels of service are maintained during strike action has been approved by the House of Commons without any amendments. The House of Lords will now consider the bill before it becomes law.
If passed, the bill will allow the Government to set minimum levels of service in various sectors including health, transport, education, fire and rescue, and border control. Trade unions would need to ensure that those minimum service levels are met during any strike action, with the unions being held liable if they fail to do so.
The bill aims to minimise the disruption caused by strike action, which in turn would decrease the bargaining power of the unions in these sectors.
Case Law Update 📢
Earl Shilton Town Council v Miller [2023] EAT 5
The Employment Appeal Tribunal (EAT) has upheld a decision that the inadequate provision of female toilets was discriminatory.
The Respondent is a small town council which operated from part of a building that only had a male toilet. Female toilets were in another part of the building, however this was used by a playgroup. To access the female toilets you had to attract the attention of one of the playgroup’s staff, which was not always easy, and then wait for them to check the toilets were free before you could be let in. The Respondent later allowed women to use the male toilets, however this was still unsatisfactory as there was no sanitary bin.
The Employment Tribunal found that these arrangements amounted to less favourable treatment for women, and were therefore discriminatory on the basis of sex.
The case is a useful reminder that discrimination can occur due to the differences in the adequacy of facilities such as toilets and changing rooms for different sexes. Facilities should be adequate for men and women, as well as those who are transgender.
Case C-154/21 Österreichische Post
The European Court of Justice has decided that under the General Data Protection Regulation (GDPR), employees who make a data subject access request (DSAR) have the right to know the identity of anyone who has received their personal data. Although the decision is not strictly binding following Brexit, the UK may still follow this decision as the UK’s data protection law mirrors the GDPR.
If followed in the UK, the decision will make responding to a DSAR even more complex for employers. On top of the existing obligation to provide the employee with any personal data the employer holds, employers will also need to identify and disclose the identity of anyone who has access to the employees’ data. That could include other employees, customers or suppliers, or other third parties such as accountants or training providers.
Trentside Manor Care Limited & Ors v Raphael [2022] EAT 37
The Employment Appeal Tribunal (EAT) has decided that legal advice privilege did not apply to advice given by HR and Employment advisers.
Mrs Raphael made a request for flexible working which was granted on a trial basis. Following an incident at work, she was dismissed. She claimed that the misconduct charges were a pretext for dismissing her because of her flexible working request which related to her disability. She claimed unfair dismissal, direct disability, age discrimination and disability discrimination.
Mrs Raphael applied for disclosure of documents relating to communications between her employer and their HR advisers, Citation Ltd. The respondents claimed that the documents were protected from disclosure by both litigation privilege and legal advice privilege. Advice had been given by an HR and Employment Law advice team, headed by qualified solicitors, where all but one manager had legal qualifications.
The EAT confirmed that documents relating to advice from the suspension decision onwards were covered by litigation privilege, but documents following the flexible working request were covered by neither litigation privilege nor legal advice privilege. The dominant purpose of seeking advice was not because there was a reasonable prospect of litigation.
The giving of advice was not covered by legal advice privilege. On the evidence presented, the fact that the advisers were part of a team headed by a solicitor, in which all but one of the managers were qualified lawyers, did not have the effect of extending legal advice privilege to their advice: There was no sufficient basis to say that the non-qualified advisers in the team were the agents of the head of the team or of the other solicitors who were managers within the team. There was no evidence that whoever the respondents spoke to was in fact managed by a qualified lawyer or whether, in relation to the advice given, any qualified lawyer had any knowledge of or input into that particular advice.
Flexible Working queries
Following on from that case that involved a flexible working request, a number of clients have asked us whether the new rules around flexible working are now in force. The simple answer is no, the bill is still going through Parliament.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill and George Miller.