February employment law round-up

‘Fire & rehire’ Code of Practice

The Government has published a response to its consultation on a draft Code of Practice on dismissal and re-engagement, which closed on 18 April 2023. Along with the consultation response, the Government has also published a revised draft Code, which is now awaiting parliamentary approval. According to the Government’s press release, published on 19 February 2024, the new Code is likely to take effect “later in the summer”.

The Code will apply to all employers who are seeking to make changes to their employees’ contracts of employment, and who envisage that if the changes are not agreed, they may dismiss the employees and offer re-engagement on the new terms. For further details of the new Code and the potential consequences of not following it, see our recent article.

Tribunal fees: new consultation

The Government has published a new consultation on re-introducing fees for bringing claims in the employment tribunal, and for making appeals to the EAT. This is intended to achieve consistency with the approach to charging fees in other courts and tribunals and reducing the cost to taxpayers.

In 2017, the Supreme Court ruled in R(UNISON) v Lord Chancellor that the introduction of fees in 2013 for bringing claims in the employment tribunals was unlawful, under both domestic and EU law, as the fees had a disproportionate impact on access to justice. The court quashed the original order that brought the fees into effect.

The proposed new fee would be £55 for issuing all tribunal claims, other than claims for payment from the National Insurance Fund where the employer is usually insolvent. The £55 fee would cover any number of complaints, and any number of claimants on the claim form. No separate hearing free is proposed. A fee remission scheme will apply to those on low incomes and with savings below the applicable threshold. It is estimated that the scheme would generate income of £1.3 – £1.7million per annum, a tiny fraction of the current annual £80million cost of funding the employment tribunals.

As the proposed fee is significantly lower than the original fees under the 2013 scheme, it is much less likely to be open to challenge. In the ministerial forward to the consultation it states: “The Ministry of Justice has carefully considered the 2017 Supreme Court ruling on the previous approach to fees in the Employment Tribunals and has endeavoured to ensure that the fees proposed in this consultation are proportionate and affordable, in line with the judgment.”

The consultation closes on 25 March 2024. There is no confirmed date for the fees to be introduced, but the consultation assumes implementation in November 2024.

EHRC menopause guidance for employers

The Equality and Human Rights Commission (EHRC) has published new guidance for employers on the menopause, with an explanation of the menopause and its associated symptoms, and how these can impact the individual at work. It also provides a summary of relevant legal obligations under the Equality Act 2010.

The guidance makes it clear that depending on the impact of the symptoms on the individual worker and their ability to undertake day to day activities, they could be regarded as ‘disabled’ for the purposes of the Equality Act 2010. The guidance also provides suggested workplace adjustments to help alleviate the effect on the worker.

There have been a number of previous tribunal cases where an individual suffering from menopausal symptoms has brought a successful claim for disability discrimination against their employer (see for example, Lynskey v Direct Line Insurance Services Ltd). This new EHRC guidance helps employers to understand their obligations and hold conversations with workers about adjustments to their work, reducing the risk of future claims.

New CIPD guidance available

The Chartered Institute for Personnel Development (CIPD) has recently published two useful pieces of new guidance for HR professionals.

The first, published on 23 January 2024 is a new guide on how to support and manage employees with a terminal illness. This follows recent research which indicates that only around a third of UK organisations have made any specific provision relating to terminal illness.

The new guidance suggests how employers can create a supportive and inclusive culture, how to develop a policy dealing with terminal illness and how to support managers who have a staff member with a terminal illness. It also suggests how employers can support carers and staff who are bereaved following a terminal illness.

The latest guidance, published on 20 February 2024, is on the subject of neuroinclusion at work. It sets out the benefits of having a neuroinclusive and fair organisation, and how to support neurodivergent people at work.

This guide advises employers on how to create a neuroinclusive workplace by considering office design, being flexible over working patterns, and dealing with different preferences in communication, instructions and meetings.  It recommends creating a culture of psychological safety and ensuring managers know how to have open conversations with staff and deal with requests for workplace adjustments. The guide also recommends considering neurodiversity in recruitment and promotion processes.

Seven key principles are identified for creating a neuroinclusive organisation:

• Understand where you are now and commit to a long-term plan
• Focus on creating an open and supportive culture
• Proactively consider neurodiversity in all people management interactions
• Allow individual employees to be masters of their own journey
• Embrace flexible working
• Practice ongoing attention to wellbeing
• Empower neurodivergent voices

For more discussion of neurodiversity in the workplace, see our recent article.

National Minimum Wage: employers named and shamed

The Department for Business and Trade (DBT) has recently ‘named and shamed’ 524 employers for failing to pay the national minimum wage (NMW). This forms part of the Government’s strategy of raising awareness of NMW enforcement and deterring employers from breaking the law.

The list of employers includes many household names, including Estee Lauder Cosmetics, Easyjet and Greggs. The main reasons for underpayment of the NMW have been identified as: deductions from wages (such as food, uniform, equipment, childcare costs and salary sacrifice schemes); unpaid working time (including travel time and additional working hours), and failure to pay the correct NMW rate or apply the accommodation offset correctly.

The NMW rates will increase from 1 April 2024 as follows:

From 1 April 2024, the top NMW rate, known as the National Living Wage, will be extended from workers aged 23 and over to include those aged 21 and 22, who are currently entitled to be paid at a lower rate.

In addition, the National Minimum Wage (Amendment) Regulations 2024 will take effect from 1 April 2024, and will remove the current NMW exemption for domestic live-in workers.