Top 5 recent workplace developments – December 2022

This is our selection of recent developments which we think will impact on HR practice.

1. Flexible working reforms

The government has published its response to the 2021 consultation on updating flexible working laws.

Here are some of the key points:

• the right to request flexible working will become a Day One right so employees will be able to make a request to work flexibly from the first day of their employment (currently employees need 26 weeks' continuous service). The government emphasises that this remains a right to request flexible working and not a right to be granted flexible working
• employees will be allowed to make two requests within a 12-month period (previously only one request could be made in a 12-month period), and the time employers have to respond will reduce to two months (from three months)
• there will be a new duty to discuss alternatives to the request - so that if an employer intends to reject a request, it must discuss whether there are alternative forms of flexible working available. It is not clear whether this will be a statutory requirement giving rise to a potential claim or just guidance
• the procedure for requesting flexible working will be simplified by removing the requirement for employees to set out how the effects of their flexible working request might impact upon the employer. It is not clear whether other requirements will be dropped, such as the requirement to date the application and expressly state that the request is made under the flexible working legislation
• there will be no change to the list of eight reasons employers have to refuse a request for flexible working.

The consultation paper notes that primary legislation is required to bring some of these changes into effect but has not included any draft legislation with the response or set a timetable for this. However, the government has also said it will support an existing Private Members' Bill on flexible working, so it may be that some of these changes which are included in the Bill, such as allowing employees to make two requests within 12 months and reducing the time to make a decision to 2 months, come into effect sooner.

The government notes that often what people need is ad hoc or informal flexibility that allows them to manage elements of their lives, such as attending appointments or managing fluctuations in their health. The government plans to issue a call for evidence on informal or ad hoc flexible working. It also plans to develop enhanced guidance to raise awareness and understanding of how to make and administer temporary requests for flexible working.

Practical point

Employers should look out for further developments and update their policies and procedures to comply with these changes as and when they come into force.

2. Disability discrimination: Reasonable adjustments

The Employment Appeal Tribunal (EAT) has found that it was not a reasonable adjustment to slot a disabled employee into a new structure as part of a redundancy exercise.

Luton Borough Council carried out a redundancy exercise in which employees who were at risk of redundancy were invited to apply for roles in the proposed new structure. Mr Hilaire was at risk of redundancy and applied for a role in the new structure. He was given extra time and support with his application as a result of his disability (depression). Mr Hilaire was invited to interview for one of the roles, but he was signed off sick by his GP for a further month and indicated that he could not attend an interview. He was later dismissed as redundant.

Mr Hilaire brought a reasonable adjustments claim, among other claims. He argued that the requirement to attend an interview was a provision, criterion or practice that put him at a substantial disadvantage due to his disability. He said it would have been a reasonable adjustment to slot him into a role in the new structure without requiring him to attend an interview. An Employment Tribunal rejected his claim. It decided that Mr Hilaire was not placed at a substantial disadvantage by being required to attend an interview and was able to attend an interview if he wanted to.

On appeal, the EAT found that the Tribunal had not considered how Mr Hilaire’s disability might affect his ability to participate in, as opposed to simply attend, an interview. The EAT noted that the claimant’s disability meant he had problems with memory, concentration and social interaction, which would hinder effective participation in the interview. However, the evidence showed that the real reason he did not attend was because he had lost confidence in his employer and believed the redundancy process was a means of disguising the real reason for his dismissal - his sickness absence. Mr Hilaire’s reasonable adjustments claim therefore failed.

The EAT went on to note that slotting Mr Hilaire into a role was objectively a step which would have alleviated any disadvantage, but it would have affected other employees who had taken part in the selection process. The EAT said that the Tribunal was entitled to conclude that there was no other reasonable adjustment that the employer could have taken and it would not have been reasonable to slot him into a role without interview. The EAT took into account the surrounding circumstances and impact on other employees who were also at risk of redundancy.

Practical point

This case provides useful guidance on the lengths employers are expected to go to in making reasonable adjustments for disabled employees. Although what adjustments it is reasonable to make will always depend on the specific circumstances, this case shows that an adjustment may not be reasonable where it impacts on other employees.

Hilaire v Luton Borough Council [2022] EAT 166

3. Constructive dismissal: Long-term sickness and social media activities

An employment tribunal has ruled that a bank worker on long-term sick leave was constructively dismissed after her line manager confronted her about her Facebook activity promoting her cake-making business.

Ms Lindsay, who was employed by HBOS from 2000, experienced post-traumatic stress disorder following a family bereavement in 2016. While on sick leave after suffering a panic attack in October 2021, she felt some contact with her manager was inappropriate, including comments that medical practitioners ought to review her treatment and pressure to consider redeployment to another role. She was concerned she was being "managed out" of the business, as she had previously had a significant period of absence because of anxiety.

She was still on sick leave in December 2021, when her manager made an unplanned call on a withheld number about her Facebook post (that she hadn’t posted on Facebook for six months and she was posting pictures of cakes she’d made over that period) and her colleagues' reaction to it. Ms Lindsay suffered a panic attack, and later resigned and claimed constructive dismissal.

The tribunal concluded that HBOS had breached the duty of mutual trust and confidence and she was entitled to resign in response to that breach. It noted that Ms Lindsay’s manager called her about the Facebook post despite knowing she was suffering from severe anxiety, which was exacerbated by contact with work, and she was concerned about her ongoing employment.

Practical point

This case is a reminder of how sensitivity is required when managing employees with mental health conditions.

Managing the implications of long-term sickness has long been an issue for employers, and a recent ONS report shows not only that this will continue to be the case, but it seems likely to be a growing issue. For further information about the ONS report, see our update "Long-term sickness rise in individuals leaving the labour force".

Lindsay_v_HBOS_Plc

4. Sexual harassment

The government has given its support to a Private Members bill which introduces a number of reforms designed to encourageemployers to prevent sexual harassment in the workplace. 

The Worker Protection (Amendment of Equality Act 2010) Bill:

• creates employer liability for harassment of their employees by third parties
• introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment
• provides that the new duty will be enforceable in two ways:
  • by the EHRC in the same way they can enforce certain other provisions of the Equality Act 2020 (EqA) – meaning that the tribunal will not have jurisdiction to hear standalone complaints about a breach of statutory duty as that would be a matter for the EHRC; and
  • by the employment tribunal where it has first upheld a claim for sexual harassment
• provides for a discretionary compensation uplift of no more than 25% in sexual harassment cases where there has been a breach of the employer duty

The Bill takes forward the government’s two key legislative proposals for reform as promised in its response to its 2019 consultation on Sexual Harassment in the Workplace, and in the government’s strategy for Tackling Violence Against Women and Girls (both published in July 2021).  The consultation response also included other non-legislative commitments such as supporting the Equality and Human Rights Commission (“EHRC”) to produce a statutory code of practice on workplace harassment, alongside producing Government guidance for employers on sexual harassment. According to the Bill’s explanatory notes, it is intended that the introduction of the employer duty will be supported by the EHRC’s statutory code of practice on workplace harassment which is due to be published in time for the Bill’s implementation.  

The Bill is currently making its way through the various stages of the legislative process and is currently set to move to the Report stage and have its third reading in the House of Commons on 3 February 2023.

Practical point

Employers should keep track of the progress of the Bill and look out for the EHRC statutory code on sexual harassment as well as more guidance from the government which will help employers to better understand their legal responsibilities to protect staff from sexual harassment. In the meantime, employers should review and revise their own strategy for preventing and tacking sexual harassment, including their own policies and procedures so they will withstand future scrutiny. A good starting place is to review the EHRC 2019 technical guidance on sexual harassment which contains a number of suggestions to help prevent and tackle sexual harassment, and is expected to form the basis of the Code.

5. D&I: Socio-economic diversity

The Socio-Economic Diversity Taskforce has published a Five Point Pathway with its recommendations for tackling the lack of socio-economic diversity at senior levels in the financial and professional services sector.

Although aimed at the financial and professional services sectors, the Taskforce’s Recommendations can be followed by businesses across all sectors to tackle the lack of socio-economic diversity at senior levels. The Pathway sets out tangible steps for employers to take, along with recommendations for Government, regulators and sector bodies to support employers.

The Taskforce’s recommendations are:

• Leadership: appoint a senior champion as well as a system of reporting on ongoing strategy and progress in increasing socio-economic diversity at senior levels
• Assess: collect data across the workforce on an annual basis and analyse this against different levels of seniority
• Take action and monitor what works: develop role models and ‘champion networks’ within the organisation, and analyse recruitment and promotion processes to ensure they do not involve barriers to progression
• Set goals: set targets for employee self-disclosure and take a holistic view of data collected alongside other characteristics such as gender and ethnicity
• Publish performance: publish data on socio-economic gaps publicly and share any progress towards closing the gaps with employees, investors and clients.

The Taskforce is calling for 50% of senior leaders in the financial and professional services sector to come from a working class or intermediate background by 2030.

Practical point

The Pathway outlines the direction of travel on socio-economic diversity in the financial and professional services sectors, with suggestions on how to achieve the recommendations.

The Taskforce stresses that businesses need to reshape their cultures so that progression is fair and equal – and that, once managers and senior leaders have had training on helping employees from non-professional backgrounds climb the ladder, they must be held accountable for socio-economic diversity within their teams. This will involve ensuring promotion practices are fair and transparent, so that success is based on merit.