Employment Law Bulletin - March 2023

There is a one-off bank holiday on Monday 8 May 2023 to celebrate King Charles’ coronation. Are your staff entitled to an extra day’s paid holiday, and can they insist on taking it on 8 May?

The answer depends on the wording of your employment contracts. If your contracts say employees are entitled to (say) 20 days’ paid holiday plus bank/public holidays, then they will be entitled to an extra paid day’s holiday this year.

But if their contracts say that they are entitled to (say) 20 days’ paid holiday plus eight days’ bank/public holidays, then they will not be entitled to an extra paid day’s holiday. Similarly, if their contracts specify the total number of days (eg 28 days) without reference to bank holidays, then they are not entitled to an extra day’s holiday, and it is entirely your decision whether to give them an extra day.

Separate from whether they are entitled to an extra day is whether they can insist on taking a day’s holiday specifically on 8 May (bearing in mind the coronation itself is on 6 May). The short answer is ‘no’ – employers are allowed to refuse holiday requests for particular dates (subject to a few exceptions) – but there is little an employer can do if the employee calls in sick on 8 May unless they want to go down a disciplinary route.

Having said that, irrespective of the legalities, many employees will feel ‘entitled’ to an extra day off. We know many of you are planning to take it on the chin and accept the extra day’s paid annual holiday as part of the cost of doing business.

Tim Lang

Menopause

Last year, an independent report commissioned by the government put forward a range of measures to improve support for menopausal employees at work. They included appointing a Menopause Ambassador to publish a report every six months on the progress made to support those going through the menopause – a recommendation that the government has accepted (although it’s being called a ‘Menopause Employment Champion’).

However, the government has rejected the other proposals, which would have gone much further. It has declined to produce model menopause policies to help employers and employees, declined to introduce a pilot on ‘menopause leave’, and declined to amend the Equality Act 2010 to introduce a new protected characteristic of menopause, including a duty to make reasonable adjustments for menopausal employees.

Employees Behaving Badly (in employment tribunals)
Smith v Tesco Stores

Litigating employees sometimes think that the tribunal system is against them, or that the judge is biased. They sometimes withdraw their cooperation from the process, and insist on going straight to a trial without complying with normal processes first (such as providing further information to clarify their case when asked to by the judge, or exchanging witness statements). To what extent will they be allowed to misbehave before the tribunal throws their case out?

In Smith v Tesco Stores, Tesco said Mr Smith had been dismissed for various conduct issues (including abuse to a customer). He brought a variety of claims, including a variety of vague discrimination claims. The judge asked him to clarify some of those claims, but instead Mr Smith added a plethora of further allegations. Over various hearings (five in total), Mr Smith continued to try to add to his allegations, and failed to follow tribunal orders to shorten and clarify what he was claiming.

At the fifth hearing, Mr Smith refused to speak to the judge (and insisted he would only speak to the tribunal clerk), and spoke over the judge when the judge was talking. This went on for a while, after which Mr Smith walked out the hearing. The judge concluded that the lack of clarity in Mr Smith’s allegations, combined with his behaviour, meant a fair trial was not possible and accordingly he struck out Mr Smith’s claims.

The Employment Appeal Tribunal agreed the claim should be struck out, but sounded a note of caution that this was an exceptional case. The judge emphasised that “tribunals of this country are open to the difficult”, not just reasonable and cooperative litigants, but said that in this particular case, Mr Smith’s own behaviour had “robbed himself of the opportunity” to have a proper trial.

Managing a Remote Team: Top Tips for Employers

How do you keep your team productive and engaged when you can't see them in person? How do you ensure that your data is secure when your team is working from different locations? Here are some top tips for managing a remote team:

Communicate: Communication is key when managing a remote team. Make sure that you have regular check-ins with your team members, and that you're clear about your expectations for their work. Use video calls whenever possible, as this can help to build trust and improve communication.
Set clear goals and deadlines: It's important to set clear goals and deadlines for your team, so that everyone knows what they're working towards. Make sure that your goals are achievable and that your deadlines are realistic. If your team is working across different time zones, make sure that you're clear about when you expect them to be available, and that you're flexible if they need to work outside of regular hours.
Use the right tools: There are a ton of tools out there to help you manage a remote team, from project management software to time tracking tools. Make sure that you're using the right tools for your team's needs, and that everyone knows how to use them. If you're concerned about security, make sure that you're using a secure platform, and that you're regularly updating your software.
Encourage breaks and social interaction: Working from home can be isolating, so it's important to encourage your team to take breaks and to interact socially. You could set up a virtual coffee break, where everyone takes a break at the same time and has a chat over video call. You could also encourage your team to take breaks throughout the day, and to get outside for some fresh air and exercise.
Trust your team: Finally, it's important to trust your team. If you've hired the right people, then you should trust that they can work independently and get their work done. Avoid micromanaging and focus on the results, rather than the process. If you're concerned about productivity, then set clear goals and deadlines, and check in regularly to make sure that your team is on track.

Toilet Trouble
Earl Shilton Town Council v Miller

You’ve probably never heard of Earl Shilton, a market town in rural Leicestershire. And after reading this, you’ll probably hope you never have to visit its town council, which got into trouble recently because of its staff toilets.

It’s such a tiny town council that it operates out of a local church. Male employees get to use the church toilet. Female employees had to use a nearby toilet in the adjacent local children’s playgroup, and they had to attract the attention of a member of the playgroup staff to get in, meaning the toilets weren’t suitable if they had to be used in a hurry.

So Earl Shilton town council had a brainwave. Or not. It decided to let its female employees use the men’s toilets, consisting of a urinal trough and a cubicle. The door could not be locked (there was a sign a woman could hang outside to warn men that a woman was in there, but it often fell off). That meant a woman entering the toilet, or exiting the cubicle, might see a man using the urinal. By contrast, a man would not see a woman on the toilet, as she would be locked in the cubicle.

The Employment Appeal Tribunal said this was sex discrimination. Female employees were forced, by the employer’s inadequate facilities, to see men using the toilet – but men were not forced to see women using the toilet. (There was another issue about the sanitary bin not being emptied on a schedule, but only if requested, which was also held to be sex discrimination.)

Consultation on Fire and Rehire

Firing and rehiring or, as it’s technically called, dismissal and re-engagement, is something employers can do if they need to employees to sign new contracts but some employees refuse. The employer needs to show a good business reason for the dismissal (and offer of re-engagement under the new contract terms), and go through a fair consultation before dismissing. If it does both those things, the dismissal will be fair, rather than unfair, and the dismissed employee won’t have any legal claims they can bring.

This entirely lawful practice comes in for criticism from unions and the press from time to time. This was seen when British Gas dismissed hundreds of its engineers in 2021 and offered them new contracts with new terms and conditions, and more recently when P&O Ferries dismissed 800 employees and tried to replace them with lower paid agency workers.

The government is introducing a new Code of Practice, which will apply to all employers thinking about going down the ‘fire and rehire’ route (irrespective of how many employees are affected). It includes very detailed consultation processes, and a longer timeframe that the law currently requires. Failure to follow the code can result in a dismissal being unfair, and also in a 25% uplift to compensation.

The Code is likely to come into force this year, although we do not have details of the date yet.

Employment Tribunal Delays

The average time between an employee starting a claim at the tribunal, and the first hearing, is 49 weeks (a 50% increase in waiting times since 2018).

In complicated cases, that doesn’t mean a final hearing – 49 weeks until a judge meets the two sides and sets a timetable for a full hearing. In straightforward cases (such as an employee saying they haven’t been paid their normal wages), they have to wait nearly a year for a judge to decide whether they’re right. Since there are (rarely) any interest or costs penalties for defending employment tribunal claims, this delay incentivises bad employers not to pay (eg) final salary payments, since they know it will take a year before anything can be done about it. Meanwhile, according to separate statistics issued by the government, there is for the first time a backlog of over 50,000 employment tribunal claims awaiting a hearing or decision, with the number increasing each month.

And Finally...

According to an article in Personnel Today, new buzzwords are gaining traction in many workplaces.

First of all, we have one you’ll have heard of: ‘Quiet Quitting’, referring to employees who turn up to work intending to do just enough work to avoid being dismissed. Its lesser-known cousin is ‘Quiet Firing’, with 439m views on TikTok. Quiet firing is when employers deliberately hold back on training and development in the hope of pushing someone out – an approach which would probably amount to constructive dismissal if it could be proven (and if the employee has been working for at least two years).

But our personal favourite is ‘Frolleagues’. Apart from possibly being the world’s ugliest word, it describes colleagues who are also friends. Better, we suppose, than ‘Collenemies’.