Welcome to our May and June 2024 edition in which we cover workers' rights being a key battleground in the general election, TUPE reform, WorkWell pilots, the Employment (Allocation of Tips) Act 2023, Fire and rehire: Statutory Code, Buckland's review of autism employment and a case update of an employee who was awarded £4.6 million in her Employment Tribunal.
Election campaign underway
With the news that the general election will be held on 4 July, the campaign to win the hearts and mind of the electorate starts in earnest. A key battleground will be workers’ rights with the opening salvo delivered by Labour’s green paper ‘A New Deal for Working People’. Indications are that the party is already tweaking its proposals, such as rowing back on the ban on zero hours contracts and putting in safeguards to maintain minimum standards instead. In addition, the Labour party are seeking to implement the right to claim Unfair Dismissal as a day one right, in order to strengthen the position of employees. The 2024 employment legislation programme is already busy, something that is unlikely to change much if Labour win. We will look forward to reporting on the outcome in our next bulletin.
TUPE reform
From 1 July 2024, employers can consult directly with employees about a planned transfer if the business has fewer than 50 employees, or if the transfer itself involves fewer than 10 employees regardless of size. This change applies unless there are already employee representatives in place. In addition, the government has opened a consultation on restricting TUPE to employees only, meaning that workers will not be covered by the regulations; and on confining the transfer of a contract of employment to one employer only, rather than being split between one or more. The consultation runs until 11 July 2024 and can be accessed here.
WorkWell pilots
One of Jeremy Hunt’s main objectives outlined in his 2023 Spring Budget was to get people back to work with a package of measures including additional funding and wider access to occupational health services. The Department of Health and Social Care and the Department for Work and Pensions will launch the WorkWell pilots across 15 areas in England in October 2024. The aim is to help those with a health condition or disability either get back to work or help them to stay in work via personalised support from a Work and Health coach. The service is voluntary and people can either self-refer or be referred by their employer or GP. It is open to anyone and not just those receiving state benefits. Whether or not this initiative survives the election remains to be seen but it could be a valuable resource for employers looking to support their employees who may be struggling to stay in the workplace.
Employment (Allocation of Tips) Act 2023
This legislation (the Tipping Act) originally due to come into force on 1 July 2024, has been pushed back to 1 October. It is designed to ensure that all those in (primarily) the hospitality sector are treated fairly when it comes to the distribution of tips. Employers will be legally obliged to distribute any tips, gratuities, and service charges fairly without any deductions (“qualifying tips”). The Department for Business and Trade updated its statutory Code of Practice in April. The Code defines a ‘qualifying worker’ and a ‘qualifying tip’ and gives employers guidance on how they should meet their obligations under the Act including record keeping.
Fire and rehire: Statutory Code
The government has confirmed that its response to last year’s consultation on its proposed Code of Practice, designed to regulate the ‘firing and re-hiring’ of staff, will be published, along with a formal version of the Code, in the Spring. The Code is designed to cover the steps employers need to take when consulting with employees over proposed changes to their employment contracts or as part of a redundancy exercise. Failure to follow the Code correctly could result in a 25% uplift to a tribunal award.
Buckland Review of Autism Employment
Sir Robert Buckland’s review into employment opportunities for those with autism is designed to help employers recruit and retain autistic people. The report highlights that 29% of autistic people are employed; they face the largest pay gap of all disability groups; they are most likely to be on zero hours contracts; autistic graduates are most likely to be overqualified for the job they do; and they are twice as likely as neurotypical graduates to be unemployed after 15 months. The overriding theme is to highlight that many autistic people have much to contribute and with more understanding (particularly around recruitment and interview methodology) and support they would be a great asset in the workplace.
Case update
£4.6m payout for employee dismissed within her probationary period
Wright-Turner v London Borough of Hammersmith and Fulham
In March 2024, the Employment Tribunal awarded £4.6m to a former senior employee of Hammersmith & Fulham Borough Council (HFBC), believed to be the largest award of its kind to be handed down by a tribunal. The original tribunal in 2021 upheld (in part) the claimant’s claims for harassment, direct disability discrimination, and discrimination arising from a disability. During the case, it was revealed that the Council’s senior team had failed to follow their own procedures and policies, the ACAS Code of Practice on Disciplinary and Grievance Procedures and had also tried to mislead the tribunal by giving wrong and contradictory evidence. The tribunal found that the Council’s CEO, the second respondent, had ‘acted to deliberately mislead’ by backdating written correspondence when extending the claimant’s probation period, and later when sending the termination letter.
The claimant, Rachel Wright-Turner, had been employed by HFBC in late 2017 to set up a new Public Services Reform department which was mainly concerned with Adult Social Care, Public Health, and Children’s Social Care. Prior to taking up her appointment, Ms Wright-Turner had been involved in the response to the Grenfell fire. As a result of her experience, she was diagnosed with PTSD and received counselling as a result. She also suffered from ADHD for which she was taking medication.
As a result of a funding shortfall and an understaffed department, Ms Wright-Turner ended up working excessive hours which took a major toll on her mental health, exacerbated by problems at home. The CEO claimed that she had not revealed her ADHD during her recruitment. She was signed off on sick leave in May 2018, during which time she was informed that her probationary period would be extended by three months. Towards the end of this period, Ms Wright-Turner sent the Council a ‘holding’ grievance, putting them on notice that she intended to submit a formal grievance, relating to her belief that she had been subjected to disability discrimination and harassment. The Council sent her a termination letter, dated before her grievance note arrived. It was subsequently found to have been backdated and had, in fact, been sent after the grievance note had been submitted.
At the Tribunal it was revealed that there had been no performance concerns that would have warranted a probationary extension and that the ‘decision to extend was unfavourable treatment related to the claimant’s disability-related sickness absence’. The Tribunal upheld the harassment and direct discrimination claims on the grounds that the Ms Wright-Turner had not been warned she was at risk of dismissal, given any opportunity to make representations before the decision was taken, and was given no opportunity to appeal. There was a failure to follow the Council’s Probationary Procedure or its Sickness Absence Policy, and the Tribunal found that a ‘hypothetical comparator who did not have the claimant’s disabilities would not have been dismissed in the same circumstances’. It also found that the Council’s non-compliance with the ACAS Code was unreasonable. Additional claims relating to protected disclosures, detriment and dismissal were not upheld.
The Tribunal Judge has still to hand down his reasons behind awarding such a large compensation amount and the Council has stated its intention to appeal against what it considers to be an ‘excessive’ award. This case serves as a useful reminder that policies and procedures are in place to be followed, particularly where disability is concerned, regardless of whether or not the employee is within their probationary period.
