All change at the top: what this may mean for employers
The replacement of Liz Truss with Rishi Sunak as Prime Minister is likely to herald further changes which we will monitor with interest: watch this space for updates.
EU law: the Retained EU Law (Revocation and Reform) Bill (introduced to Parliament on 22 September 2022) is designed to end the special status of retained EU law from 31 December 2023 (i.e., EU-derived legislation preserved by the UK within the European Union (Withdrawal) Act 2018). This will enable the Government to repeal, replace or assimilate retained EU law over a three-year transition period. Individual departments will decide which parts of EU law they want to incorporate into primary domestic legislation, meaning there is potential for regulations contained in secondary legislation, such as the Working Time Directive and TUPE, to be consigned to the history books unless specifically retained. With the “sunset date” (31 December 2023) only just over a year away, we could start experiencing major changes to UK employment law given that many rights we now take for granted are derived from EU legislation. We will keep a close eye on how this develops, particularly given the current political uncertainty.
National Insurance: the 1.25% rise in National Insurance Contributions, introduced under ex-Chancellor Rishi Sunak in April this year, will be scrapped from 6 November 2022, as will the new social care levy due to come in next April. That being said, promises have been made that increased funding for health and social care services will remain despite the levy being cancelled. The July 2022 increase in the National Insurance threshold from £9,880 to £12,570 remains.
IR35: as part of the Government’s “Growth Plan” outlined in September 2022, it was proposed to repeal the IR35 reforms (only introduced in April 2021) from 6 April 2023. However, to the dismay of many employers, this decision has now been reversed. Organisations employing the services of contractors will continue to be responsible for determining their employment status and for paying their tax and National Insurance.
Reporting requirements: the Government announced on 3 October 2022 that it is changing the definition of an SME from a business with fewer than 250 employees to one with fewer than 500. This change will exempt more businesses from mandatory reporting requirements, such as the gender pay gap or directors’ remuneration. However, many businesses may wish to continue complying with such reporting as part of their EDI commitment and for the sake of transparency.
Unions: the government has signalled its intention, via the Transport Strikes (Minimum Service Levels) Bill, to impose minimum service levels on public transport in a bid to prevent unions from closing down the rail network entirely through strike action, which has severely disrupted people’s journeys over the past few months. Other proposals include requiring members to vote on pay offers with strikes only to be authorised if a majority reject the offer.
World Menopause Day – 18 October
As you may recall, we reported in last month’s news update that the Government is not proposing to include the menopause as a protected characteristic. However, its response to the independent report, ‘Menopause and the Workplace: How to enable fulfilling working lives’ , includes a number of recommendations for employers to consider, including promoting a more open environment within the workplace to enable conversations around how the menopause affects women at work, as well as implementing practical steps such as flexible working and workplace adjustments. Given that the menopause is being cited in an increasing number of employment tribunals dealing with discrimination and disability claims, we recommend that employers draft a menopause policy and deliver staff training. You can read more on this subject on our website here.
Poor timekeeping led to fair dismissal
Tijani v House of Commons Commission
The Claimant, Ms Tijani, brought a claim against her employer, the House of Commons Commission (“HCC”), after she was dismissed for persistent poor timekeeping. Ms Tijani had been employed as a cleaner in the House of Commons and was regularly late for work by a few minutes, and often by considerably more. After she was dismissed, she brought a claim for unfair dismissal on the basis that other cleaners were also late and that she had not been told why her lateness impacted on the business. The EAT had to determine whether the HCC had followed the correct disciplinary procedure in arriving at their decision, particularly as they did not have a written disciplinary policy.
Ms Tijani’s first written warning was served in December 2017 after she was late 17 days out of 20. Further warnings followed until a final written warning was issued in April 2018. She understood the implications of the warning and that it would remain in place for two years. She did not appeal the outcome of receiving such a warning.
Ms Tijani’s frequent lateness continued after receipt of the final written warning, with over 50 further occasions of lateness being recorded. The Tribunal found for HCC, but the Claimant was given leave to appeal on the following two grounds: (a) that the knock-on effects of her lateness had not been adequately explained; and (b) that the HCC’s approach towards other employees who had also been late had been inconsistent. A particular anomaly of this case was the absence of a disciplinary policy in the original tribunal bundle, meaning there was no clear yardstick against which to measure the extent of Ms Tijani’s alleged misconduct and ‘the reasonable range of responses' available to HCC.
The EAT upheld the original Tribunal’s findings and dismissed the appeal. It found that an employer does not have an obligation to demonstrate the knock-on effects of an employee’s lateness. Nonetheless, it was deemed that Ms Tijani was well aware of the likely consequences of her persistent lateness as not only she had been warned about it numerous times, but she had also been told that her continued lateness could result in her dismissal. Therefore, a clear and detailed explanation from HCC was not required. Ms Tijani could not name other cleaners who, she claimed, were also persistently late and with similar lateness records to her. Therefore, the tribunal found no evidence she was singled out in her dismissal, while noting that there was no reason for HCC to have done so if others had also had similar records of lateness.
It was found that the disciplinary process HCC followed was thorough and fair and, throughout it, Ms Tijani was fully aware that dismissal would be the inevitable consequence of her persistent lateness. Although the HCC followed the correct disciplinary procedure, the absence of a disciplinary policy could have proved a major stumbling block. We strongly recommend that employers have such a policy in place that is regularly reviewed and updated as necessary to govern the disciplinary process and ensure it remains in line with ACAS guidance. Defending a dismissal case without such a policy to hand could be a high risk strategy where the facts are not as clear cut.