Top 5 recent workplace developments - March 2023

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

1. Four-day week trial results – 92% of companies participating to continue with four-day week 

The results are in following a trial of a four-day working week, which saw employees receive 100% of their usual pay whilst working a shortened week. Around 2,900 employees from 61 companies took part in the six-month trial conducted by campaign group 4 Day Week Global, which ran from June to December 2022.

Of the 61 participating companies, 92% have extended the four-day week - which equates to 56 companies, with 18 of them having made the change permanent.

According to a report by Autonomy (an independent research organisation), those participating reported a variety of benefits including:

• 39% of employees considered they were less stressed, 71% reported reduced levels of burnout, 40% were sleeping better and 54% found it easier to balance work and home responsibilities at the end of the trial
• sick days fell by about two-thirds and 57% fewer staff left the companies taking part compared with the same period a year earlier
• companies' revenue stayed broadly the same over the trial period, rising by 1.4% on average, weighted by company size, across organisations who responded to the survey. When compared to a similar period from previous years, organisations reported revenue increases of 35% on average – which potentially indicates healthy growth during this period of working time reduction.

Companies taking part in the trial, which included a range of organisations from diverse sectors and sizes, were not required to rigidly deploy one particular type of working time reduction or four-day week, so long as pay was maintained at 100% and employees had a 'meaningful' reduction in work time.

Each company designed a policy tailored to its industry, organisational challenges, departmental structures and work culture. As a result, a range of four-day weeks were used, from ‘Friday off’ models, to ‘staggered’, ‘decentralised’, ‘annualised’, and ‘conditional’ structures.

Practical point

The results of this trial give an interesting insight into the potential for employers to rewrite the rules on what a normal working week looks like for them. However, the longer-term outcomes are yet to be seen and for some sectors there will be greater challenges to overcome than others in introducing a shorter working week.

For a look at some of the practicalities for employers thinking about moving to a four-day week to consider, you can read our earlier article, Will the four-day week ever be the new norm?

2. Government backs plans for a new right to request a predictable working pattern

In a move designed to combat ‘one-sided flexibility’, where workers are often on standby for work that never comes, the government has announced that it is backing a Private Member’s Bill that would give workers a right to request a predictable working pattern.

The plans, which would apply to all workers and employees including agency workers, would allow people to request a predictable working pattern where:

• they have first worked for the employer for a set period before they make their application – the period is expected to be 26 weeks according to the government’s press release
• there is a lack of predictability as regards any part of their work pattern - although fixed-term contracts of 12 months or less are presumed to lack predictability
• the change relates to their work pattern
• their purpose in applying for the change is to get a more predictable work pattern.

Workers on fixed-term contracts of less than 12 months would be able to request that the term is extended so that the contract is longer than 12 months or becomes permanent.

Employers would be required to deal with applications in a reasonable manner and would only be able to reject an application on one or more specific grounds, which would include reasons such as insufficient work being available during the periods of time when the worker wishes to work or that agreeing to the request would lead to additional costs.

Eligible workers would be allowed to make a maximum of two applications during any period of 12 months. If an employer fails to comply with their obligations under the rules, the worker would be able to bring a claim in the Employment Tribunal. This could result in the employer being ordered to reconsider the application or pay compensation, which is likely to be a number of weeks’ pay which will be defined in future regulations.

The proposals would, if they become law, apply in England, Wales and Scotland.

3. Employment tribunal delays

What is the average waiting time from an employment tribunal claim being brought to a hearing? The answer was 49 weeks on average in 2021 – that is almost a year and up significantly on pre Covid-19 figures.

This includes both single and multiple claims. The information for 2022 is not currently available. Recently released statistics show that wait times have increased significantly from 31 weeks back in 2008, and are nearly 3 months longer than they were before the COVID-19 pandemic (when the average wait time was 38 weeks in 2019).

Practical points

Employment tribunal delays are bad news for claimants and respondents. Some claimants may feel under pressure to settle their claims rather than face a lengthy wait for their claim to be heard. Employers face the difficulty of defending claims relating to facts that are becoming a distant memory in witnesses’ recollections.

Steps are being taken to try and clear the backlog of claims and speed up the process, but in the meantime, employers can take their own steps to help safeguard their ability to successfully defend claims, such as taking statements from witnesses and identifying key documents early on. Employers may also wish to assess their prospects of success at an early stage and consider how best to manage the claim.

UK Parliament: Written questions, answers and statements: Conditions of Employment UIN 133625 (8 February 2023)

4. Unfair dismissal – reopening disciplinary proceedings

The Employment Appeal Tribunal (EAT) has decided that it was not unfair for an employer to reopen disciplinary proceedings and dismiss for matters that an employee had already been given a final warning for.

Dr Lyfar-Cissé was Associate Director of Transformation in an NHS Trust, with responsibility for improving race equality, and was Chair of its BME Network. The Trust disciplined her and gave a final written warning for incidents which included bullying and victimising an employee by seeking to interfere in the investigation of her sexual orientation discrimination complaint, and racial harassment and discrimination against another employee.

Meanwhile, a Care Quality Commission (CQC) inspection concluded that bullying was "rife" at the NHS Trust. It was put into special measures and another NHS Trust took over its management.  The new management felt there was a question as to whether Dr Lyfar-Cissé was a fit and proper person to provide leadership on equality issues. Following a further disciplinary hearing, at which Dr Lyfar-Cissé continued to deny wrongdoing, she was dismissed on grounds that her conduct had "fatally undermined" her ability to perform that leadership role.

The EAT said that re-opening a previously concluded disciplinary process was an unusual step which had to be justified, but the real question for the tribunal had been whether the dismissal had been unfair. The tribunal had concluded that Dr Lyfar-Cissé was dismissed because she could not continue in her role in the light of her conduct. This was a fair reason and the NHS Trust dismissing Dr Lyfar-Cissé had acted reasonably.

In deciding whether the dismissal was fair, the Tribunal took into account the findings of the CQC report, Dr Lyfar-Cissé's continuing unwillingness to accept any responsibility, and the new CEO's conclusion that "it was not objectively credible or acceptable" for Dr Lyfar-Cissé to lead on the important issue of race equality in the light of her conduct.

The EAT also agreed with the tribunal that it did not matter whether the reason for dismissal was categorised as "conduct" or "some other substantial reason". The key question was whether dismissal was fair in all the circumstances.

Practical point

This case is a helpful example of how, in some circumstances, it is possible to reopen disciplinary proceedings and fairly dismiss an employee for matters that they have already been given a final warning for. However, these cases are likely to be uncommon.

Lyfar-Cisse v Western Sussex University Hospitals NHS Foundation Trust [2022] EAT 193 (30 December 2022)

5. Unfair dismissal - without prejudice letter amounted to a dismissal

The EAT has agreed with a tribunal that a letter marked "without prejudice", which referred in error to the employee's employment terminating by mutual agreement and enclosed a proposed settlement agreement, was sufficiently clear and unambiguous to dismiss the employee.

Mr Meaker was employed by Cyxtera Technology UK Ltd (Cyxtera) in a heavy manual role. After suffering back injuries, he went on long-term sickness absence and made an unsuccessful application for income protection payments.

He was told by Cyxtera’s HR manager that they were considering terminating his employment and the possibility of a settlement agreement was discussed, but no agreement was reached. A few weeks later, Cyxtera sent Mr Meaker a letter headed “without prejudice” which: 

• said his employment would terminate by “mutual agreement” due to capability
• informed him his last day of employment would be 7 February 2020
• gave details of the pay he would receive up to that date, as well as details of the pay in lieu of holiday and notice that he would receive, and
• offered Mr Meaker an ex-gratia payment if he signed the enclosed settlement agreement.

The tribunal concluded that the letter amounted to an effective dismissal letter. Despite the incorrect reference to mutual agreement and the “without prejudice” heading, the letter gave a clear termination date, set out the payments Mr Meaker would receive due to the termination and advised that his P45 would be issued. It was clear that the termination of his employment was not dependant on him entering into the settlement agreement.

Mr Meaker’s employment was therefore terminated on 7 February and that was the date from which time started running for him to bring his employment tribunal claim. The tribunal went on to conclude that Mr Meaker’s unfair dismissal claim had been brought out of time and that time should not be extended to allow it to proceed.  Mr Meaker appealed.

The EAT said that where an employer dismisses an employee with immediate effect, without giving the period of notice required by the contract, the ‘effective date of termination’ is the date of the summary dismissal, whether or not the employer made a payment in lieu of notice. The EAT therefore upheld the Tribunal’s decision.

It noted that, where there are settlement discussions ongoing, it may be safer to separate out the open and without prejudice aspects into separate correspondence.

Practical point

The case serves as a reminder for employers of the importance of making sure that a termination letter is clear and unambiguous about the fact that the employee’s employment is being terminated and the date on which the termination takes effect.

It is also an example of how it is best to use separate documents for open and without prejudice communications to avoid confusion, but it is possible for a document to contain parts that are open and parts that are without prejudice. 

Meaker v Cyxtera Technology UK Limited