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In February's edition of our employment law & HR update, we have published a selection of case studies, news and insights including:
- Revised Code of Practice on 'Fire and Rehire';
- Making reasonable adjustments in holding a remote interview;
- New EHRC guidance on menopause in the workplace; and
- Lessons to be learned from EAT ruling on affirmation and delay in constructive dismissals.
If you require further information on anything included in this update or any employment issue you may be facing, please do not hesitate to contact the Employment team on 01332 226 126 or by replying to this email. |
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NEWS
Government releases revised Code of Practice on 'Fire and Rehire'
The Government has published an updated version of the Code of Practice on dismissal and re-engagement, commonly referred to as 'Fire and Rehire.' Pending approval by Parliament, the Code is expected to come into effect later this year.
While the core provisions remain unchanged from the original draft published in January 2023, some adjustments have been made following public consultation last year.
Key highlights of the updated Code include:
- Strengthened Requirement: Employers are now mandated to contact Acas at an early stage, before initiating discussions on 'fire and rehire' with their workforce if agreement cannot be reached.
- Emphasis on Written Communication: The Code now underscores the importance of providing information in writing as good practice.
- Phasing-in Changes: Previously an obligation, phasing-in changes have been downgraded to best practice in the revised Code.
- Applicability: While the Code does not apply in redundancy situations, it becomes applicable if both redundancy and fire and rehire are being considered as options.
- Consultation Period: Employers are required to consult "for as long as reasonably possible," without a minimum time period specified, unlike collective redundancy consultations.
- Prohibition of Coercion: Employers are prohibited from using threats of dismissal to coerce employees into accepting new terms and conditions.
- Exploration of Alternatives: Employers are mandated to explore alternatives to fire and rehire, engaging in meaningful discussions with employees and trade unions to reach agreement.
- Avoidance of Empty Threats: Employers are advised against threatening dismissal if it is not genuinely contemplated.
- Last Resort Measure: Fire and rehire should only be utilised as a last resort, according to the Code.
While there is no separate claim for failure to adhere to the Code, tribunals can consider it in relevant cases, such as unfair dismissal. Tribunals have the authority to increase compensation by up to 25% if an employer unreasonably fails to comply with the Code.
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Employer did not fail to make reasonable adjustments in holding a remote interview Glasson v The Insolvency Service [2024] EAT 5
Mr Glasson had applied for promotion after 15 years of service at the Insolvency Service. Part of the interview process included an oral interview. This was in 2020 and the interview was held via videoconferencing due to the Covid-19 pandemic.
Mr Glasson had a stammer and he had made his employer aware of this prior to the interview, notifying them that he may take longer to answer questions. Adjustments were made accordingly. He performed well but was not the preferred candidate and was therefore not awarded the promotion. He then notified his employer that his stammer caused him to go into a “restrictive mode” during the interview meaning that he would give shorter answers which would attract a lower score. He had not raised this as an issue until he found out that he had not been successful in his application.
The Employment and Employment Appeal Tribunal both found that there was a provision, criterion or practice (a “PCP”) applied that put him at a substantial disadvantage, but that his employer did not have actual or constructive knowledge of the fact he might go into this “restrictive mode”. Of particular relevance was the fact that Mr Glasson had 15 years’ service and had previously participated in similar interview processes and not raised any concerns. Furthermore, the role required oral communication skills and whilst Mr Glasson may have been treated less favourably because of something arising from his disability, the treatment was justified on the grounds that (a) the interview was held remotely due to the pandemic and (b) the role required certain oral skills that he had failed to demonstrate.
Our top tips:
- Review your recruitment processes to identify whether they potentially discriminate against certain groups.
- Consider what adjustments you could make in terms of interview techniques - for example, the style of questions and the time given for answers.
- Ensure you can justify the methods you use- and consider if there are better (less discriminatory) ways to achieve this.
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EHRC publishes guidance for employers on menopause in the workplace
The Equality and Human Rights Commission (“EHRC”) has published guidance for employers in respect of menopause in the workplace (22nd February 2024.)
The guidance aims to help organisations understand their legal obligations when supporting staff experiencing menopausal symptoms. It gives an explanation of menopause and perimenopause and how the symptoms experienced can have a negative impact on someone’s working life.
Due to an ageing population in the UK, it is estimated that one-third of the UK workforce is over 50 and therefore a growing number of employees are impacted. Furthermore, cases appearing before the Employment Tribunals in relation to menopause have increased dramatically (the last available figures show a 44% increase in such cases).
The guidance summarises an employer’s legal obligations under the Equality Act 2010. Menopause is not a separate Protected Characteristic, it is also not a disability in and of itself. However, we know that the symptoms associated with it could be classified as such. Some cases are also brought on the grounds of age and/or sex discrimination, but the key point about cases concerning disability is that it puts the employer under a positive duty to make reasonable adjustments to overcome the disadvantage suffered.
The new EHRC guidance suggests carrying out workplace assessments under health and safety legislation and provides examples of how to support staff experiencing symptoms. This includes changes to the work environment, promoting flexible working arrangements and recording menopause-related absence separately from other forms of absence. The guidance also suggests holding conversations with all staff to promote an open culture, and setting up support networks and regular training.
If you require assistance in developing a menopause policy or menopause awareness training then please contact us.
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EAT ruling on affirmation and delay in constructive dismissal case
Dr P Leaney v Loughborough University [2023] EAT 155
Key aspects of the law on constructive dismissal were examined in the recent Employment Appeal Tribunal (EAT) case of Dr P Leaney v Loughborough University [2023] EAT 155.
The EAT ruling underscores the importance of a thorough examination of the circumstances surrounding constructive dismissal claims and the need for employers to consider the individual context of each case.
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Contact our employment law experts
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© Flint Bishop LLP The content of this email is provided for general interest and information. It contains only a brief overview of aspects of the subject matter and is not intended to provide comprehensive statements of the law. It does not constitute legal advice and is not intended to provide a substitute for it. Your information will be processed in accordance with our privacy notice. Flint Bishop LLP is a Limited Liability Partnership, registered in England and Wales. Our registration number is OC317931. Its registered office is Pinnacle Building, 2 Prospect Place, Pride Park, Derby DE24 8HG. We are authorised and regulated by the Solicitors Regulation Authority (SRA ID 509657). A list of members’ names is available for inspection at our registered office. Any reference to a Partner of Flint Bishop LLP means a member or an employee with equivalent standing and qualifications. Flint Bishop Solicitors and FBDebt are trading names of Flint Bishop LLP.
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