Happy New Year to everyone.

In this newsletter we look at forthcoming legislation, case law judgements, sickness, and other elements.

We hope you find this information helpful, if you would like more detail on any aspect please contact us.  Don’t forget to take a look at our website to see the full range of our services.

From basic Contracts of Employment to a fully Outsourced HR service we can help.  If you would like to know more about any of our support, consultancy, and training services, and see how we can help you, please visit our website or contact us at info@connectivebusiness.co.uk to arrange a Free no-obligation consultation.

Legislation Updates

Forthcoming New Employment Rights Bill

The Government has confirmed that the new Employment Rights Bill is continuing its path through parliament and will cover a number of new worker rights and protections including:

  • Day-one protection from unfair dismissal
  • A default right to flexible working from day one of employment
  • A ban on ‘exploitative’ zero-hour contracts and right to an average-hours contract
  • A new ‘right to disconnect’.

Whilst the exact details are yet to be confirmed, we have provided a brief overview based on current information available.

  • Day-one protection from unfair dismissal – This proposal will protect professionals from being unfairly dismissed from their first day of employment, after passing their probationary period. This period will currently be between three and nine months, with the exact duration to be set out in future regulations.
  • A default right to flexible working from day one of employment – It is proposed that flexible working is default from day one, only excluding situations and professions where it isn’t reasonably viable. The details around implementing this measure remain unclear. The proposal could lead to even more flexibility around work, with less scope for employers to refuse their employees’ requests for it.
  • Ban on ‘exploitative’ zero-hours contracts and right to an average-hours contract – It is planned to outlaw ‘exploitative’ zero-hours contracts, introducing anti-avoidance measures while bringing in a new right to a contract of average hours which would be calculated using a 12-week reference period of hours worked. This proposal will impact industries where demand can vary hugely and who may find it harder to commit to set hours, e.g. hospitality and retail sectors.
  • Tribunal claim time limits to double – It is proposed to extend the time limit for employees to bring forward tribunal claims from three months to six months.
  • Gender equality plans – The amendments explicitly include menstrual issues under the scope of ‘matters related to gender equality’, potentially obliging employers to develop action plans addressing these concerns. Companies currently have no legal duty to explain how they will support staff going through menopause; however, employers with 250 or more employees will soon be required to publish annual equality action plans outlining steps to address gender pay gaps and support staff experiencing the condition.
  • NDAs and harassment – A proposed new clause will void any non-disclosure agreement that attempts to prevent workers from disclosing information about harassment, including sexual harassment.

Case Law

Trainee optician has received £14,588 in compensation after being dismissed for taking time off following a miscarriage.

Taylor had been signed off work by her GP for one week after experiencing a miscarriage and was “struggling to come to terms” with it, the tribunal heard. Despite this, her employer, Bingham & Young Optical, terminated her contract.

The company argued that her dismissal was unrelated to her miscarriage, citing performance issues and a failure to adhere to the dress code as reasons for the decision.

T began working as a trainee dispensing optician in January 2022.  On 2 March, T mistakenly ordered a pair of lenses for a patient, which cost £120 instead of £32, an error she attributed to insufficient guidance.  Taylor’s boss and a director of the company, U, complained that she had cost the business “hundreds of pounds”. T had offered to cover the cost, but U had told her it was not an issue, saying: “We will just need to be more careful next time. Thanks.”

On 24 May, T told U she had pain and discomfort in her abdomen, and might need some time off.  Shortly afterwards, she sought medical advice from a doctor and was told she needed an urgent ultrasound to check for an ectopic pregnancy.  T informed U that she was pregnant on 9 June, and he responded: “thanks for letting me know. I have just picked up your message. As discussed yesterday we have your probation period review booked for next Tuesday. We can discuss it then as I am in clinics all day. There is an email questionnaire to be completed before Tuesday. It’s in the inbox. If you could start working through it. Thanks”.  The next day, T felt unwell at work, and was referred to the early pregnancy unit, where she was told to go home and rest.  She texted U saying: “I’m so sorry I had to leave today. I’ve spoken to both my GP and the early pregnancy unit and both have said that I need to rest for the next few days in case it’s a threatened miscarriage so unfortunately I won’t be able to come in tomorrow, I’m really sorry.”  On 13 June, a scan revealed T may have miscarried, necessitating further blood tests.

T’s probationary review took place on 14 June, without any witness present or notes taken at the meeting.  U extended her probationary period by three months without specifying the areas she needed to improve.  The miscarriage was confirmed on 15 June, and T was signed off work by her GP. Despite this, she attended work on 16 June and informed U the following day that she had miscarried and was struggling emotionally.  U expressed sympathy but terminated her employment later that day, citing “complaints from customers”, which the tribunal found to be fabricated.

The ET ruled T faced discrimination during her pregnancy and was dismissed because of miscarriage-related absence, not because of customer complaints.  The ET stated it was “the only reason that she was being dismissed was because of the time off that she was taking because of her miscarriage”, also stating “We are satisfied that the incident has affected her self-esteem, her confidence and her feelings of self-worth, and her unjustified dismissal has caused her considerable upset”.  The ET believed U’s claims of poor performance were him “retrospectively looking for an excuse for dismissing her”.  The tribunal found that aside from minor issues U was satisfied with T’s performance, and they did not believe that she was sacked because of these.

Training

Operational Managers are key to a Company’s success, and how they work with and manage their teams is an essential part of this.  Failing to provide them with the essential training they require will lead to more issues within the workplace.

We run a number of ‘1 to 1 HR Coaching for Managers’ modules, all of which are delivered remotely via Microsoft Teams:

  • Being an Effective Manager / Responsibilities of a Manager;
  • Dealing with Misconduct (Discipline), Poor Performance (Capability) and Grievances;
  • Managing Attendance / Sickness Absence;
  • Managing Performance / Developing People;
  • Dealing With Conflict;
  • Managing Recruitment;
  • Managing Investigations.

Each module is focussed on the key elements involved, and takes around 1½ hours, with Managers also completing a workbook containing a number of questions and scenarios which is then analysed and feedback provided to ensure an in-depth understanding of the subject(s).

We can also provide classroom based training courses which can be delivered at your premises.

More details on all of the above can be found on our website.

Menopause and the law in the workplace

CIPD research has found that nearly two thirds of working women aged between 40 and 60 had experienced a negative impact of their menopausal symptoms at work, including issues with concentration, increased stress, less patience with others, less physically able to carry out work-related tasks and having to take time off because of their symptoms.

Currently there are no specific legal protections for those going through menopause. However, the Equality Act 2010 prohibits discrimination related to an individual’s protected characteristic.

In a recent case, a CEO told another member of staff that he thought the claimant was acting in this way because she was menopausal. She successfully brought claims to the employment tribunal for sex and age discrimination based on the menopause comment as the judge stated that such a comment would not have been made to a hypothetical male or younger female comparator.  As such, employers should convey the message to employees that comments of this nature can be hurtful and even discriminatory.

Another recent case has shown that, where they are sufficient to meet the definition under section 9 of the Equality Act, the symptoms of menopause can be classed as a disability. Where this is the case, the employer is under a duty to make reasonable adjustments under the Equality Act. Under section 9, a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.  In this case, the claimant was refused a pay rise and subjected to a disciplinary process because of alleged poor performance despite a clear link with her menopause symptoms, which included ‘brain fog’, concentration issues and memory problems. The employment tribunal found that the employer failed to consider the impact that menopause was having on her performance and no adjustments were made to support her in the workplace. She successfully brought claims for failure to make reasonable adjustments and for discrimination arising from a disability and was awarded £64,645.07.  Practically, employers should be considering what reasonable adjustments can be made to the workplace and to processes where the employee is, or is likely to be, disabled under the Equality Act. Here, this would have included making reasonable adjustments to internal processes to ensure the employee does not suffer a disadvantage because of their menopause symptoms.  Training managers on how to handle such matters sensitively is a good step to take, also having a menopause policy demonstrates to your employees that you are prepared to offer them support that is individual to their specific needs.

An open, inclusive environment where employees feel they can raise concerns about how menopause is affecting them with no stigma or embarrassment attached is the first step.  Employers should discuss circumstances on an individual basis with employees and consider what reasonable adjustments can be made to the workplace based on their individual circumstances. These include, for example, ensuring that there is fresh air or temperature-controlled spaces, comfortable desk seating and a private room or space with fewer distractions.

Partner Services

We have long-term partnerships with key providers which enables us to provide other recommended services to our clients covering:

  • Legal Services
  • Financial Services;
  • Health Insurance and Staff Healthcare Benefits;
  • Health and Safety.

Visit our website to see full information on our partners and their services.