Employment Law Update – April 2023

The first quarter of 2023 has seen some significant and interesting decisions in employment case law and news headlines concerning workplaces which include, widespread industrial strike action and some companies trialling a 4-day working week.

In June 2022, 61 UK businesses from a broad cross section of industry commenced a 6-month trial of a 4-day working week, data collected this year suggests that the trial was a success with 56 of the participant companies continuing with the new working pattern and 18 making it permanent.  The feedback is that the 4 – day pattern boosted productivity and promoted a healthy work- life balance, with company revenue’s staying broadly the same.   Whilst this structure may not suit all industries it does reflect the more flexible and agile direction in which many companies have begun to move towards since the pandemic.

2023 has also seen industrial action taking place across the public sector.  Government reforms to legislation in July 2022 enabled businesses to provide skilled agency workers to fill vital staffing gaps caused by industrial action, and 2023 has seen the government introduce a new bill which seeks to ensure that during strike action vital public services will have to maintain a basic function and deliver minimum safety levels.  The consultation on this continues.

As from the start of April 2023 the below updated pay rates apply and all employers should take note;

New pay rates

• National Living Wage (age 23 plus) = £10.42
• Age 21 – 22 = £10.18
• Age 18 – 20 = £7.49
• Age 16 – 17 = £5.28

There are also increases to the limits and statutory caps that can be claimed in relation to unfair dismissal/redundancy pay.   The limit on a statutory week’s pay has increased from £571 to £643.

The maximum statutory redundancy payment and unfair dismissal basic award is now £19,290. 

The cap on the compensatory award that can be awarded for unfair dismissal has increased from £93,878 to £105,707.

Businesses should note that the capped weekly amount is used when calculating statutory redundancy payments.  Therefore, for any businesses which are undertaking a restructure or carrying out redundancies this will be relevant.  

Other pay increases include;

Family related benefits (statutory maternity, adoption, paternity, and shared parental pay) have risen from £156.66 to £172.48 per week.

Statutory sick pay (SSP) has increased from £99.35 to £109.40 per week.

Case law updates of interest…

McQueen -v- The General Optical Council

This case was heard in the Employment Appeal Tribunal (EAT) and considered whether an employee can be disciplined for aggressive behaviour which was a result of a disability.

The case also considered the topic of neurodiversity which is the diverse way in which different individuals think, learn, process, behave and interpret information.  

The facts

The Claimant (Mr McQueen) who was employed by the Respondent (the General Optical Council) has conditions which amount to disabilities including, dyslexia, Asperger’s syndrome, neurodiversity and partial hearing loss.   The facts of the case established that Mr McQueen’s conditions impacted on his ability to interact with colleagues, Mr McQueen was short tempted and would often raise his voice/ use inappropriate language/tone when faced with stressful situations.  During his employment Mr McQueen was referred to Occupational Health (OH), a psychologist and a psychiatrist. 

The medical recommendations included that Mr McQueen should be sent instructions for tasks he was required to carry out by email.  Despite this adjustment, incidents with colleagues continued described by the Tribunal as ‘meltdowns’ which resulted in Mr McQueen being disciplined for performance related issues. 

The Law

Mr McQueen presented a claim at the Employment Tribunal under section 15 of the Equality Act 2010.

The EAT considered whether Mr McQueen’s aggressive conduct and short temper was something arising as a consequence of his disabilities under section 15 of the Equality Act 2010 (EA).

Section 15 of EA refers to discrimination arising from disability and is defined as;

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B’s disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

The outcome 

The Employment Tribunal found that the work conflicts involving Mr McQueen did not arise from his conditions but were a result of his short tempter when being given instructions.   The decision was appealed and dismissed by the EAT.

The outcome of his case highlights the importance of employers obtaining medical guidance and ensuring that any recommendations given to assist an employee and the employment relationship are followed where possible.  

Burke -v- Turning Point

A Scottish Tribunal has concluded that the condition of Long Covid amounts to a disability under UK law.  

The Claimant (Mr Burke) was dismissed from work after a period of 9 months, his absence was due to Long Covid.  Mr Burke presented a claim at the Employment Tribunal in respect of disability discrimination. 

The Employment Tribunal held that Mr Burke’s condition had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities and that his condition could last for 12 months or more.  Therefore, the definition of disability within section 6 of the Equality Act 2010 was satisfied. 

The outcome

This decision establishes that individuals suffering with Long Covid could be classed as disabled. Additionally, and more recently the Trades Union Congress (TUC) and the charity, Long Covid Support have recommended that the UK government class Long Covid as a disability.

This case highlights that employers must always consider the individual facts and medical evidence on a case-by-case basis before taking steps to dismiss.  The effects of Long Covid are still being explored but is likely to be categorised as a disability.    

Brazel -v- Harpur Trust

The Supreme Court rejected an appeal raised by a school trust regarding  holiday payments to a part-time teacher.

The Claimant (Mrs Brazel) complained that the 12.07% allowance she received for holiday pay was unlawful given that she was a term time worker and as such her holiday pay should have been based on her average pay before her holiday was taken.

The outcome 

The ruling determined that holiday pay for permanent staff who only work part of the year (such as term-time workers) should get a full 5.6 weeks of annual leave a year.  Paying a 12.07% allowance to a worker did not accurately reflect the holiday pay entitlement of a worker who was permanently employed but worked only part of the year.  

The decision highlights to employers that the principle of applying a pro-rata reduction to the accrual of holiday entitlement will only apply in respect of the hours worked over a week and not the weeks worked over a year.  

Teixeira -v- Zaika Restaurant Ltd

The Employment Appeal Tribunal (EAT) found that the Employment Judge had erred in law when deciding to reduce the compensatory award made to the Claimant (Mr Teixeira) to zero on the basis that the Respondent (Zaika Restaurant Ltd) could reasonably have decided on a pool of one during a redundancy exercise and therefore, there was a 100% chance that Mr Teixeira would have been dismissed on the same date.

The Facts

Mr Teixeira was employed in August 2015 as a tandoor chef.   Mr Teixeira worked in a team of 10 chefs, he was the most junior and only non-specialist chef in the team. 

In April 2020, Mr Teixeira was notified of his dismissal due to a reduction in work because of Covid.   Zaika Restaurant Ltd failed to follow any process before dismissing Mr Teixeira and he was given no warning or consulted with.   Mr Teixeira was the only one of the team of chefs that was selected for redundancy. 

Mr Teixeira brought a claim for unfair dismissal at the Employment Tribunal, and it was found that his dismissal was procedurally unfair due to the lack of consultation.  The Tribunal held that it was not unreasonable for Mr Teixeira to have been placed in a pool of one and that he would have been dismissed had a fair procedure been followed.  As such, they reduced his compensation by 100%. 

The decision was appealed and the EAT concluded that being in a pool of one did not mean a redundancy was guaranteed to occur (e.g. if consultation of some sort had taken place a larger pool may have been established, or alternatives to redundancy discovered).  Therefore, it was held that some compensation was due to the Mr Teixeira and the claim was returned to the Employment Tribunal. 

The outcome

This case highlights to all employers the important of conducting a fair and full process in a redundancy situation, this includes a fair pooling selection and consultation process.

Hilaire -v- Luton Borough Council

Mr Hilaire (the Claimant) suffered from depression and arthritis, Luton Borough Council (the Respondent) underwent a restructure process and Mr Hilaire was required to apply and interview for a role. 

As a result of Mr Hilaire’s medical conditions, he was offered extra time/ support to complete his application, however, he did not attend his interview and provided a fit note to the Respondent regarding his non-attendance.   Mr Hilarie did not respond when Luton Borough Council contacted him about when he might be fit to attend his interview.  Mr Hilaire was later dismissed by reason of redundancy.

The Law 

Mr Hilaire presented a claim for disability discrimination on the grounds of a failure to make reasonable adjustments (section 20 Equality Act 2010). 

Mr Hilaire suffered from poor memory and social interaction due to depression and claimed that the requirement to attend an interview placed him at a substantial disadvantage and that it would have been reasonable to adjust the process, so that he did not have to interview and was given the role. 

The Employment Tribunal rejected Mr Hilaire’s claim and the decision was appealed.  The EAT concluded that Mr Hiliare’s non-attendance at the interview was not related to his disability and was because Mr Hilaire had lost confidence in his employer and believed that the redundancy process was simply a way to dismiss him.  Therefore, the duty to make reasonable adjustments did not arise in relation to the interview process.

The outcome 

The decision in this case highlights that a fair process must always be carried out and that whilst there is a duty on an employer to make reasonable adjustments/ remove a particular disadvantage there is no duty to give an advantage to an employee (i.e., in this case to have simply given the role to Mr Hiliare).

If you have any queries in relation to any of the matters in this update or would like to discuss an employment matter with us, please do not hesitate to contact one of our team.

• Vicky Beattie – [email protected]
• Sarah Obrien – [email protected]
• Paul Stedman – [email protected]
• Phone – 0161 832 2500