Why mediation is a better way to resolve workplace disputes
Taking a dispute to tribunal is costly, time consuming and distracting, which is why more and more employers should consider mediation as a way to resolve disputes with employees. As a qualified mediator and experienced employment lawyer, Mali Smith can advise you on how mediation can help to resolve all types of employment-related disputes and grievances. Unlike some grievance and disciplinary policies and certainly tribunal proceedings, the mediation process is very flexible, largely informal and can often be convened at short notice. Mediation can be used at any stage of an employment relationship or even after it has been terminated. Please get in touch with Mali who would be delighted to talk to you about how it can help your organisation save both time and money. Click here for more information on mediation, how it works, and how Mali can help you.
Fire and re-hire: the government is consulting
The government has finally launched its promised consultation on its proposed Code of Practice, which is designed to regulate the ‘firing and re-hiring’ of staff, following the abrupt dismissal of hundreds of P&O Ferries’ employees in March 2022. The draft Code covers 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 process correctly could result in a 25% uplift to a tribunal award. The consultation runs until 18 April and you can have your say here.
Legislative update: Private Members’ Bills (PMBs)
It is unusual for so many PMBs to receive government support but several focusing on employment matters are currently progressing through Parliament and look likely to reach the statute books. The Protection from Redundancy (Pregnancy and Family Leave) Bill (extending redundancy protection for pregnant employees); the Carer’s Leave Bill (introducing one week of unpaid leave for employees who care for someone with long term care needs); and the Worker Protection (Amendment of Equality Act 2010) (protecting workers from sexual harassment in the workplace) have all reached the House of Lords. If employers have not yet reviewed their policies in relation to the above, we strongly recommend that they do so in anticipation that these Bills will pass into law.
Government support for another PMB
Earlier this month, the government announced its support for yet another PMB, the Workers (Predictable Terms and Conditions) Bill, sponsored by Scott Benton MP. If passed, the Bill will amend the Employment Rights Act 1996, allowing agency workers and workers (in specified circumstances) to request a predictable work pattern after 26 weeks of service. This Bill reflects another recommendation from the 2017 Taylor Review to tackle ‘one-sided flexibility’ as well as proposals from the Low Pay Commission to counter irregular work patterns. There are suggestions that the imprecise definition of ‘predictable’ contained within may give rise to a plethora of future ET claims if the Bill continues unamended. We await the outcome with interest.
Case Update: EAT considers failure to make reasonable adjustment
Hilaire v Luton Borough Council
This long running disability discrimination claim case was finally resolved at appeal in November 2022. Luton Borough Council (LBC) was restructuring its youth support department and, as part of the redundancy process, invited employees to apply for new posts which involved an interview. Mr Hilaire, who suffered from depression and arthritis (the pain of the latter impacting the severity of the former), was ill during the consultancy period and was unable to meet the application deadline. He was given an 11-day extension and additional support to apply. Illness prevented him from attending the interview so he was asked for alternative dates when he could attend, to which he did not respond. At this point, 13 other candidates had been interviewed and were waiting to hear the outcome.
During the course of his claim, it transpired that Mr Hilaire, part way through a grievance process, believed that redundancy was simply an excuse to dismiss him. It was this belief, rather than his disability, that explained his reluctance to be interviewed. In the light of this, the EAT had to determine if the respondent’s decision not to make further adjustments to accommodate Mr Hilaire’s application process was reasonable. It considered if extending the application / interview timeline was an adjustment designed to mitigate a disadvantage and decided that it was not, agreeing with the ET’s approach that there were no further steps that LBC could have taken without putting other candidates at a material disadvantage: “making reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.”
Making an adjustment in order to remove a disadvantage rather than one conferring an advantage is an important distinction for employers to understand when dealing with such requests.
