Top 5 recent workplace developments – October 2021

This is our selection of 5 recent developments which we consider will impact on HR practice.

1. Flexible working – UK government consultation

The UK government has published a consultation document proposing reforms to the current right for employees to request flexible working, taking into account changes in working practices brought about during the COVID-19 pandemic.

The UK government has published a consultation paper seeking views on a range of measures intended to imbed greater flexibility across all workplaces, including opening up the right to request flexible working to all employees from the start of their employment.

The key proposals outlined in the consultation are:

• making the right to request flexible working a day one entitlement – instead of requiring 26 weeks’ continuous service as is currently the case
• looking at whether the eight business reasons employers can give for refusing a request all remain valid
• if an employer cannot accommodate a request for flexible working, requiring the employer to think about what alternatives they could offer
• considering whether employees should be allowed to make more than one flexible working request a year
• considering whether to cut the current 3-month period that an employer has to consider any request to a shorter period
• how to encourage more employees to utilise their ability to request a temporary flexible working arrangement

Practical point

These proposed reforms would not give employees the right to work flexibly and do not change the fundamental position that the right is merely a right to request to work flexibly.

Although employers are required to handle requests reasonably, there is no proposal to introduce a reasonableness test when it comes to looking at the employer’s decision on whether or not to grant a request. In practice many responsible employers will already adopt most of the proposals, not least to try to avoid the potential risk of indirect discrimination claims that often arise out of the same facts.

For a detailed update on this consultation, see Changes on the horizon – Government consultation on flexible working : Clyde & Co (clydeco.com).

2. Disability discrimination: Menopausal symptoms

The Employment Appeal Tribunal held that it was not a reasonable adjustment to continue to pay an employee her previous higher teacher rate after being moved to a lower paid supervisor role because of her disability.

Ms Rooney worked as a council childcare social worker. She suffered menopausal symptoms, including hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. When the council referred her to occupational health, she asked for a female doctor but was told there was none available. Ms Rooney went off sick and the council subsequently issued her with a written warning under its absence management procedure. She later resigned.

Ms Rooney brought various claims, including for disability discrimination. The tribunal held that her menopausal symptoms did not amount to a disability. She appealed to the EAT.

In the EAT's view, the tribunal's conclusion that Ms Rooney did not have a physical impairment, or that any impairment was not longstanding, was inconsistent with the description she had given of her menopausal symptoms. The EAT therefore allowed her appeal and remitted the issue of whether she was disabled to the tribunal.

Practical point

Menopausal symptoms may amount to a disability and will do so where they have a substantial and long-term adverse effect on the individual's ability to carry out normal day-to-day activities.  Care therefore needs to be taken in properly assessing in any particular case if the symptoms meet the statutory test.

The recommendations of the Women and Equalities Committee's inquiry are awaited. These are expected to include whether further legislation is required to adequately protect menopausal women from discrimination at work.

See also our article, The taboo that is menopause in the workplace

Rooney v Leicester City Council

3, Disability discrimination: Reasonable adjustments

The Employment Appeal Tribunal held that it was not a reasonable adjustment to continue to pay an employee her previous higher teacher rate after being moved to a lower paid supervisor role because of her disability.

Ms Aleem, a science teacher, could not continue in her teaching role due to a mental health condition but could work as a cover supervisor, a position with a lower rate of pay. The school continued to pay Ms Aleem at the teacher pay rate temporarily, while she tried the cover supervisor role for a three-month probation period and then until her internal grievance had run its course. After the Occupational Health advice indicated that she remained long-term unfit to return to her teaching role but could carry out the supervisor role, she accepted an offer to continue in the supervisor role at the applicable lower rate of pay. However, she subsequently brought a claim for failure to make reasonable adjustments.

An employment tribunal dismissed the reasonable adjustments claim, finding that it was not a failure to comply with the duty to make reasonable adjustments by not continuing to pay Ms Aleem at the higher rate of pay.

The EAT dismissed her appeal. It found that it was a reasonable adjustment to maintain the higher rate of pay during the probation and return to work processes in order to support her return to work, but these considerations subsequently ceased to apply. The EAT noted that the tribunal had taken into account that the employer was facing financial pressures at the time when concluding that the salary adjustment was not reasonable.

Practical point

This decision demonstrates that salary may not always need to be protected indefinitely where an employee moves into a different role attracting lower pay – but it will depend on the circumstances. In this case, it is notable that there was a clear point at which a line could be drawn - and the salary adjustment could therefore be stopped (on completion of the probation period, the return to work process and the grievance process) - and the employer, which was publicly funded, was facing financial pressures.

Aleem v E-Act Academy Trust Ltd

4. Whistleblowing – reason for dismissal

The Employment Appeal Tribunal ruled that an employee who was dismissed for criticising a colleague about a protected disclosure was not automatically unfairly dismissed.

A draft audit report prepared by Ms Kong, Head of Financial Audit at the bank, raised concerns that a legal agreement relating to a financial product did not provide sufficient protection against risk, which amounted to protected disclosures under the whistleblowing legislation. Their Head of Legal, Ms Harding, disagreed with these views and a discussion followed in which Ms Kong questioned Ms Harding's legal awareness about the relevant issue.  Ms Harding later complained to the Head of HR (Ms Yates) and CEO that Ms Kong had criticised her professional integrity and gave Ms Yates the impression that she could no longer work with Ms Kong. A collective decision was then taken, by Ms Yates, the CEO and Ms Kong’s line manager, that she should be dismissed. The termination letter referred to Ms Harding’s view that Ms Kong had questioned her integrity and said that her approach was entirely unacceptable as it fell short of the professional behaviour expected and was contrary to the principles of treating colleagues with dignity and respect. A wider review had identified other incidents, and concluded that Ms Kong's behaviour, manner and approach with colleagues resulted in them not wanting to work with her.

The employment tribunal rejected Ms Kong’s automatic unfair dismissal claim, finding that the decision makers had decided to dismiss on the basis of her conduct in questioning Ms Harding’s legal awareness, not the protected disclosures.

The EAT dismissed her appeal. It found that the tribunal was right not to attribute Ms Harding's motivation to the bank and that Ms Kong's protected disclosure was properly separable from her expression of concern about Ms Harding's legal awareness.

Practical point

The tribunal found that Ms Harding’s treatment of Ms Kong after their confrontation (which included limiting their subsequent interaction) amounted to an unlawful detriment because of Ms Kong's protected disclosure. This claim only failed because it was out of time.

This decision is a reminder for employers both of the need for caution when dismissing an employee following a whistleblowing incident, and the importance of separating the reasons for dismissal from the subject matter of the protected disclosure.

Kong v Gulf International Bank (UK) Ltd

5. Carer’s leave – UK government response to consultation

The UK government has confirmed that it will introduce a new statutory right of up to one week of unpaid carer's leave.

The UK government has published its response to the consultation on carer's leave. The response recognises that juggling caring responsibilities and work can limit the participation of unpaid carers in the labour market and as women tend to be the primary caregivers within families, they tend to be disproportionately affected.

The new statutory right to carer's leave will:

• Be available to employees regardless of how long they have worked for their employer.
• Rely on the relationship of the employee with the individual being cared for, broadly following the definition of "dependant" which applies to the right to take time off for dependants - a spouse, partner, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of being their employee, tenant etc.) or who reasonably relies on the employee for care.
• Depend on the individual being cared for having a long-term care need – a disability, long-term illness or injury or issues relating to old age. There will be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.

Carer's leave entitlement can be taken flexibly, in either individual days or half days, up to a block of one week. Employees will be required to give notice of carer's leave which is twice the length of the leave being requested, plus one day. Employers cannot deny a request for carer's leave but will be able to postpone a request where they consider the operation of the business will be unduly disrupted – and a counter-notice will be required.

Dismissals for reasons connected with exercising the right to carer's leave will be automatically unfair.

Practical point

Although the government says the policy will be implemented "when Parliamentary time allows", there is no indication as to when this will be and it is not expected to be introduced imminently.

Employees will be able to self-certify their entitlement to carer's leave without having to provide evidence, and if a false application is submitted, employers can deal with this in the same way as a as a false claim for sickness absence or any other disciplinary matter.