Issues during the Employment Relationship

Many changes to the rights of parents and carers are in the offing. For starters, from 8 March:

• The right to request flexible work is extended to employed agency workers returning from maternity/paternity leave;
• Unpaid parental leave goes up to 18 weeks for each child.

The Children and Families Bill 2013, which recently has its second reading in the Commons, implements proposals to:

• Allow parents to share maternity leave (after the first 2 weeks’ compulsory leave) as parental leave, which will be paid, subject to the same qualification rules as for maternity and paternity pay. BIS have launched a consultation on how the new right will be administered, looking at issues like whether the one year period will run from the beginning of maternity leave or the birth of the child, and how employees should give notice to end maternity leave and pay where they propose to share leave.
• Allow (i) partners of pregnant women, (ii) intended parents in a surrogacy arrangement, and (iii) second adoptive parents to have time off for antenatal appointments and adoption meetings for the first time. Leave will be unpaid, and limited to two appointments not exceeding six and a half hours each. Single adoptive parents, and one adopter in a joint adoption, will be entitled to more time off for appointments.
• Extend the right to request flexible working, and remove the current statutory prescribed rules to be followed to make or consider a request. Instead, employers will have to consider the request reasonably, give an answer within 3 months (or longer if the parties agree), and employees will be deemed to have withdrawn their request if they fail to turn up to 2 consecutive meetings without good reason. Acas have issued a very short draft code of practice on flexible work requests for consultation.

The decision of the European Court of Human Rights in the cases of Eweida, Chaplin, Ladele, and McFarlane has unsurprisingly received a lot of attention this month, and it seems certain to have a big impact. All of the cases centred around the right to manifest a religious belief, and whether UK law protected that right sufficiently. Two of the cases concerned how far an employer has to accommodate an employee’s wish to wear a necklace with a crucifix pendant at work, and the others concerned a relationship counsellor and a registrar respectively, who did not want to perform those parts of their jobs which conflicted with their views on same sex relationships, which in turn were based on their Christian beliefs.

The government is firming up on some of the many proposals to change employment law mooted in recent months, so we have a rash of consultation papers to digest and implementation dates to look forward to. (What happened to only introducing changes in April and October, to give employers a bit of a chance to keep up, by the way?)It looks as if fees for bringing a tribunal case will come into force in July. Fees will be charged to both start a claim and before a hearing can be listed, and will range between £160 to start a simple low value claim, (for example about unlawful deductions) and £950 for a hearing in a more complex claim.

Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.

• While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
• Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
• When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial “ at the other – if an effect is not trivial, it is substantial
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Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the EAT in Stuart v London City Airport.

Reinstatement and reengagement are remedies a tribunal must consider wherever a claimant indicates a desire for either of these remedies. Arriva London Ltd v Eleftheriou looks at the situation where a tribunal finds that a dismissal is unfair, but on the facts there is a chance that the claimant would have been dismissed fairly had a fair procedure been followed. Can a tribunal order reinstatement in such a situation?

Demotion and/or redeployment are relatively rare as potential outcomes of disciplinary procedures, not least because it would be a risky strategy to impose them without an express contractual power. Piper v Maidstone & Tunbridge NHS Trust demonstrates a pitfall for employers who do include these penalties in their disciplinary procedures.

In the continuing harsh economic climate, it is not uncommon for employers and employers to strike a deal whereby employees agree to work shorter hours, or take lower wages, to avoid being made redundant. Abercrombie & v AGA Rangemaster Ltd deals with just such a situation, and in it the EAT considers the relationship between such agreements and the right to a guarantee payment under Employment Rights Act 1996 (ERA) s28 if work is not provided for them on a day when they would normally work.

Two important cases have come up on the vexed question of employee rights to holiday or payment in lieu of holiday when on sick leave.