1. Changes to Flexible Working requests

The key changes are:

  • The right to make a request will be a “day one” right – which means employees no longer need 26 weeks’ service.
  • Employees can now make 2️ flexible working requests in any 12-month period;
  • Requests should be resolved within 2️ months, unless an extension is agreed.
  • Consultation is required before a request is refused.
  • Employees won’t need to explain the effects of their request and how they might be dealt with.

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The top (maximum) awards that can be made in certain types of Employment Tribunal claims and limits to employment payments have been increased from 6 April 2024 as follows:

Award Type Previous Limit New Limit
Minimum Basic Award (Unfair Dismissal) £7,836.00 £8,533.00
Maximum Award (Unfair Dismissal) £105,707.00 £115,115.00
Limit on Week’s Pay £643.00 £700.00
Statutory Guarantee Pay £35.00 £38.00

3. Vento Band Annual Update

The Vento Bands provide the scale used to determine the award made for injury to feelings in discrimination cases. The changes which will be implemented are as follows:

  • Lower band range between £1,200 and £11,700.
  • Middle band range between £11,700 and £35,200. 
  • Upper band ranging between £35,200 and £58,700. 

NOTE: Despite the upper band limit being £58,700, exceptionally serious cases can exceed this figure.

4. Holiday leave and pay

The key changes (which apply in respect of holiday years beginning on or after 1 April 2024) are: 

  • Certain additional payments must be included within the calculation of a week’s pay for holiday pay purposes under new Reg 163ZA of the Working Time Regulations (“WTR). These include payments intrinsically linked to the performance of tasks the worker is obliged to do; payments linked to professional or personal status; and payments regularly paid to the worker (such as for overtime) made in the previous 52 weeks;
  • The calculation of holiday leave for certain part year workers, and irregular hours workers. Under new Regulation 15B WTR, these workers will have no fixed entitlement to annual leave and will accrue holidays at the rate of 12.07% of their actual hours worked, meaning their entitlement has to be earned. 
  • The calculation, and payment, of holiday pay for these new Reg 15B workers. If holiday pay is to be paid to Reg 15B workers at the point they take their leave, they must be paid at their average hourly rate for each hour of leave taken under Reg 16 (1A) WTR. This is calculated by taking their average weekly pay (calculated by dividing their average amount of pay over the previous 52 weeks) and dividing this by the average number of hours they worked in the same previous 52 weeks. 
  • The addition of Reg 16A WTR, which allows Reg 15B workers to be paid rolled up holiday pay throughout the year. This entails employers uplifting their pay by 12.07% each pay period. 
  • FYI, a Reg 15B worker is defined under Reg 15F WTR as one of the following:  
    • Irregular hours workers – those whose number of hours worked in each pay period under the terms of their contract are mostly or wholly variable;
    • Part year workers – those who have periods in the year of at least one week where they are not paid and do not work. This excludes salaried part year workers who are usually paid throughout year.

5. Extended protection from redundancy

More categories of individuals than present will benefit from enhanced protection from dismissal in a redundancy situation. Currently, individuals on a period of maternity, adoption or shared parental leave in a redundancy situation have the right to be offered any suitable alternative vacancies as a priority over other employees. However, this protection will now be extended to the following groups:

  • Pregnant employees, for the duration of their pregnancy (where they inform their employer of this on or after 6 April 2024); and
  • Employees who suffer a miscarriage before 24 weeks of pregnancy, for the duration of their pregnancy, and the two-week period following their miscarriage. These employees will be further protected during any period of maternity leave they take.  

As well as this, the duration for which this protection applies will be extended, as follows:

  • Maternity leave – the protection will last for 18 months beginning on the expected week of childbirth. Alternatively, the protection can begin on the actual date the child is born where the employee informs their employer of this date in writing (during maternity leave) and that they want it to be amended to start on this date. This will apply to any period of maternity leave that ends on or after 6 April 2024. 
  • Adoption leave – the protection will last for 18 months beginning on the placement date. This will apply to any period of adoption leave that ends on or after 6 April 2024. 
  • Shared parental leave – the protection will last for 18 months from birth/placement for adoption only where the employee takes at least 6 continuous weeks of shared parental leave. Where the employee is already protected due to taking maternity/adoption leave, this protection will not apply. This will apply to periods of shared parental leave of six continuous weeks that start on or after 6 April 2024. As well as this, as is the case now, employees will also be protected during any period of shared parental leave where these are fewer than 6 consecutive weeks.  

6. Carers leave

Employees will now have a day one right to take carers leave. This will available to employees who care for a dependent with a long term care need, and eligible employees can take up to one week of unpaid carers leave in any 12 month period. 

7. Paternity Leave

Leave will be able to be taken in two separate one week blocks and can be taken at any time within the first year of birth/adoption. In childbirth cases, employees only need to give their employer 28 days’ notice of their intention to take leave, but still have to give their employer 15 weeks’ notice of their entitlement to take leave.

Case Reports

Disability DiscriminationGlasson v The Insolvency Service [2024] EAT 5

The Appellant employee in this case had been employed by the Respondent since 2005. He had a stammer which the Respondent was aware of. He applied for a promotion to a position with two vacancies in 2020. The application process involved an oral interview which was to take place remotely due to the pandemic.

Prior to this interview, the Appellant noted that he may require some additional time to complete his answers on a form about adjustments in relation to the interview (due to his stammer). He was said to have performed well in the interview but had scored one point behind the second most successful candidate. This meant the Appellant missed out on the promotion. 

He raised initial proceedings arguing that reasonable adjustments were not made in accordance with the Equality Act 2010. He said that he was in a “restrictive mode” because of the adverse impact his stammer had on his ability to answer questions in that kind of environment. The Tribunal heard how the Respondents had not received intimation of the impact the stammer would have on the Appellant’s performance. 

The Tribunal did draw a connection between the Appellant’s stammer and the “restrictive mode” he suffered during the interview. However, his argument regarding reasonable adjustments failed as the Tribunal held that the Respondent did not have “actual knowledge of the disadvantage relied upon” nor “constructive knowledge of it.” 

The Tribunal’s opinion was upheld on appeal and the appeal dismissed. The Appellant’s performance may well have been impacted by his disability. However, the Respondent was not held to have constructive knowledge of the Appellant’s disability. It was not privy to facts to an extent that they ought to have known of the extent of the Appellant’s disability

Race DiscriminationLogo v Payone GMBH and others [2024] EAT 9

In this appeal, the employee argued that the Tribunal failed in its duty to adequately consider the justification aspect in their claim which ultimately led to a decision in favour of the Respondent (employer). The Tribunal had struck out the employee’s indirect race discrimination case, concluding that there was no reasonable prospect of establishing justification. 

When the Appellant began working for the Respondent in 2016, he quickly became aware that most of the work internally in the business was conducted in German. However, English translations were provided – particularly for his work. 

He applied for a promotion in May 2020. This post was only advertised in German, but the Appellant was able to translate and apply. The Appellant received an invitation to a discussion of the position. However, this was in German. This led to the Appellant missing the initial invitation. 

A subsequent discussion was organised. At this discussion the Appellant was informed that he would not be successful as he did not speak German. 

At the initial Hearing the Tribunal held that, on grounds of justification, the matter should be struck out. They said it was “obvious” that the business could not be expected to carry out dealings in English for the benefit of one employee. This was appealed to the EAT. 

The EAT held that no consideration had been paid to the previous adjustments made to accommodate English speaking employees. The working practices or business considerations were not considered to an appropriate degree. The Tribunal’s failure to consider the document bundles of 2,300 pages and witness statements in their decision was highlighted in the EAT’s decision to allow the appeal. 

Dismissed for an inappropriate comment? Valutex UK Ltd v Robert Bialas [2024] EAT 19

This appeal concerned an inappropriate comment which was posted by an employee on his employer’s intranet system. The question posed to the Tribunal was whether a dismissal was a reasonable response to such an action. 

The employee had an untarnished service record. He apologised for the comment he made. But he was dismissed. In the initial claim the ET held that he had been unfairly dismissed given his record and remorse following the incident. A final written warning was viewed as being the highest form of penalty appropriate for the his conduct. 

In this appeal, the EAT disagreed with the initial Tribunal’s findings. The EAT held that the Tribunal were wrong to substitute their view of what merited an appropriate response to the Respondent’s actions. It was for the Tribunal to determine whether the action taken by the Appellant was reasonable. The EAT held that their actions were reasonable and consequently viewed the dismissal as fair.

Health and Safety dismissalAccattatis v Fortuna [2024] EAT 25

An employee argued that he had been dismissed on unfair health and safety grounds. He argued that he acted accordingly when presented with the dangers of Covid-19 to work remotely and protect himself and others from the dangers of the virus. 

He claimed that he had been subjected to unfair dismissal arising from a failure to make reasonable adjustments and disability discrimination. He said that his employer’s failure to accommodate him in an administrative role represented a failure to make reasonable adjustments. the Employment Tribunal agreed and he won his claim. This was appealed. 

On appeal the EAT upheld this judgement. The Claimant had been detrimentally impacted by the treatment received and this treatment by the employer was as a direct result of his disability. The Claimant was deemed to have demonstrated that an alternative, office-based role would have been suitable as a reasonable adjustment and would have removed the disadvantage. 

It was for the employer to demonstrate that such adjustments would not have been reasonable – even on a trial basis. It was recognised that the initial Tribunal had considered the Respondent’s own assessment but had reached its own conclusion by focusing on the suitability of the role and whether the Claimant met the necessary requirements and criteria for the position. 

The Appeal Tribunal instructed the ET to reconsider whether working from home was to be treated as an appropriate, protected step regarding health and safety and whether these demands were the main reason for the dismissal.

Religious or belief discriminationSeyi Omooba v Michael Garrett Associates Ltd and Leicester Theatre Trust Ltd [2024] EAT 30

This is a case which gained a significant amount of traction in the media given the subject matter. It concerned a Claimant who was an actor cast to play Celie, the lead role in the play The Color Purple

This character is highly regarded in the LGBTQ+ community given that the story centres around a relationship between two women. The Claimant was a Christian and had been unaware at the relevant time of the same-sex relationship which her character was part of. 

A screenshot of a Facebook post by the Claimant some years prior to her casting in this role had been retweeted by an actor who was not involved in the production of The Color Purple. The post made by the Claimant described homosexuality as a sin and urged Christians to unite behind their beliefs. She had also expressed her view that homosexuality was a choice. 

This post gained significant traction and ultimately led to the dismissal of the Claimant by both the theatre production company and her agency who had been representing her for some time. Her dismissal resulted in a claim being raised at the Employment Tribunal. 

The Claimant argued that she had been subjected to religious or belief discrimination, breach of contract, and harassment. The Tribunal applied the 5-point Grainger test to determine whether her beliefs should be protected. There was a fair degree of contention to the application of this test over the Claimant’s belief that homosexuality was essentially a choice. However, the Claimant “scraped over the threshold” and her beliefs were held to be protected.

Nevertheless, the Tribunal ruled that the Claimant’s claim should not succeed. It materialised that the Claimant would have ultimately resigned from the role due to her personal beliefs conflicting with the requirements of the part. The Claimant appealed the ET’s decision.

On appeal the Claimant argued that she had been treated unfavourably due to the expressing of her religious beliefs. The EAT considered these arguments but ultimately upheld the initial decision. The Claimant was dismissed because her conduct on social media had seriously jeopardised the commercial success of the production. 

There is a short, interesting podcast summarising the facts of the case and the reasoning of both the Employment Tribunal and Employment Appeal Tribunal which can be accessed here.

Dismissed for working from home?  Goldstein v Herve [2024] EAT 35

This case concerned an employee who worked from an office at the Respondent’s family home. In the first coronavirus lockdown of 2020 the Claimant had worked from home as her partner was vulnerable. When this lockdown lifted the Claimant returned to the office on a reduced basis. 

In November 2020 the second lockdown began, and the Claimant had said again that she would work from home on a full-time basis due to the lack of social distancing and mask wearing in the Respondent’s home and her need to commute via public transport. 

The Respondent took issue with this arrangement and said the hybrid working setup should remain in place. this prompted a resignation from the Claimant. In response the Respondent accused the Claimant of being unprofessional. 

The issue was brought to the Employment Tribunal where it was held that the Claimant had been unfairly dismissed and treated detrimentally on grounds of health and safety. This decision was appealed by the Respondent. 

The EAT upheld the Tribunal’s decision. The Claimant’s motivation for working from home was deemed to be reasonable. The Claimant’s refusal to return to work at the beginning of the second lockdown was also deemed to be reasonable given the dangers she felt. The Claimant’s resignation being as a direct consequence of the Respondent’s refusal to allow her to work remotely triggered an automatic unfair dismissal on grounds of health and safety.

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