Further protection for pregnant women
The Pregnancy and Maternity (Redundancy Protections) Bill is now wending its way through Parliament after several false starts. Pregnant women and new parents returning to work will receive greater protection from redundancy if the new Pregnancy and Maternity (Redundancy Protection) Bill is passed.
Under current rules, if a redundancy situation arises during an employee's maternity leave and "it is not practicable by reason of redundancy" for the employer to continue to employ her under her existing contract, the employee is entitled to be offered a suitable alternative vacancy where one is available, above anyone else whose role has been put at risk of redundancy.
The Bill proposes to extend protection to apply from when a woman tells her employer she is pregnant until 18 months after the birth, meaning for those taking a full 52-week maternity leave there will be additional six months protection once they return to work.
For those returning from adoption and shared parental leave under the plans they will also get the additional 6 months protection from when they return to work. In contrast to expectant mothers, they will not get protection prior to their leave commencing.
ACAS guidance on suspending staff
ACAS has recently released new guidance for employers on how to deal with staff suspensions, particularly while an internal investigation is underway. A suspension is where an employee is asked by their employer to temporarily not carry out their duties or attend the workplace. The guidance published by ACAS covers the circumstances in which suspension should be considered; the correct process; providing adequate support for the suspended individual; and how to deal with pay and holiday during the period of suspension.
It is important for employers to remember that whilst suspension does not constitute any form of disciplinary action against an employee, it should only be used where appropriate, and usually as a last resort where alternatives to suspension, such as altering work patterns or duties temporarily, have been considered prior to deciding to suspend an employee.
Carer’s Leave Bill
The Carer’s Leave Bill has also started its progress through Parliament. The Bill is designed to allow employees responsible for caring for someone with long term care needs, one week of unpaid annual leave (in addition to their usual holiday allocation) to help with them balancing their caring responsibilities with work obligations. Eligible employees will be able to qualify for this leave from day one of their employment, and there will be no requirement for employees to provide evidence to their employer of how such leave entitlement is used.
Christmas comes but once a year
For many businesses the period between Christmas and New Year can be quieter than most. If this is the case for your business, it is a good time to make an early start on your admin spring cleaning and review all your workplace policies and/or contracts. Your policies should focus on both statutory (for instance health & safety, equal opportunities, working hours, absence, flexible working, maternity/ paternity/adoption leave and whistleblowing) and non-statutory (such as dress code, social media and use of mobile devices) procedures which the business follows. Contracts should refer employees to such policies and procedures, and comply with the Employment Rights Act which dictates certain information to be provided to all employees from day one of their employment. For any advice on which policies you need, and how to frame them, or advice on the current contracts utilised within your workplace, please do contact us.
Case Update
Redundancy used as a cover for dismissal
Sommer v Swiss RE Corporate Solutions Services
A timely example of the reputational damage caused by failure to implement a proper redundancy process was provided by Swiss Re which recently lost its appeal against a former employee who brought various claims, including for sex discrimination, sexual harassment, victimisation and unfair dismissal.
The Claimant, Ms Sommer, was employed as an underwriter by Swiss Re. She claimed that she was subjected to a series of inappropriate comments and unwarranted criticism, primarily from her line manager, Mr Llewelyn, both at after work social events and during meetings in the office. In response, concerns were raised over her management style and treatment of more junior colleagues; she was also criticised for ‘behavioural issues’ such as raising her voice in heated discussions, talking over people, being aggressive and not listening.
The Tribunal heard that, by spring 2019 when Ms Sommer had announced her pregnancy, it was clear that Mr Llewelyn was taking steps to manage her out of the business: she was subjected to a 360-feedback session and a personality test, neither of which the remainder of the team had to undertake. Ms Sommer had also asked to work from home, due to a number of pregnancy-related health issues, but her request was refused despite a male colleague being given permission to do so after breaking his foot. In the meantime, various email exchanges between Mr Llewelyn and other managers showed he was actively trying to remove her, resulting in her role being placed at risk of redundancy when she returned from maternity leave. The Claimant subsequently submitted a grievance raising her concerns regarding her treatment, with documentation provided in support of such concerns.
The Tribunal concluded that Ms Sommer had been unfairly dismissed, and ‘considered the use of redundancy was retrofitted onto a pre-existing decision to exit the Claimant’ and that her dismissal was an act of direct sex discrimination. It also found that she had been subjected to pregnancy-related unfavourable treatment. Although she did not succeed in all her claims, those in which she did succeed are likely to result in substantial compensation, the amount of which will be determined at a later date.
This is useful object lesson for employers. If the correct performance management process is not followed when managing an individual seen as difficult to work with, they risk facing a barrage of claims. Getting rid of someone under the guise of redundancy, particularly when they have returned from maternity leave is a sure-fire way to end up with a tribunal claim.
Interestingly, this case also considered the use and boundaries of the without prejudice rule, given Swiss Re has sent a without prejudice letter to the Claimant including several strongly worded allegations. Ultimately, it was held that this protection of the without prejudice rule continued to apply despite the letter’s contents being forceful, because the allegations were proved to be founded, albeit exaggerated. However, this is a good reminder to employers that just because documentation is titled as without prejudice does not prevent it being disclosed in Tribunal if it is considered there is improper behaviour within such correspondence.
