Top 5 recent workplace developments – April 2024

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

1. Disability discrimination: reasonable adjustments 

A trial period in a new role can be a reasonable adjustment.

Mr Miller was diagnosed with multiple sclerosis and was no longer able to carry out his role as a pest control technician for Rentokil. He was unsuccessful in his application for an alternative role as an administrator due to his low scores in a written test and an unsatisfactory interview. 

Mr M was successful in bringing claims for discrimination arising from disability and unfair dismissal in the tribunal. The tribunal ruled that Rentokil had failed to make a reasonable adjustment by not offering him a trial period for the administrator role. The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision. 

The tribunal considered that having heard all the evidence, it would have been reasonable to offer Mr M a trial period since there was a reasonable chance that he would have performed better than the recruitment process suggested. 

This was despite the fact that Rentokil genuinely concluded that Mr M was not qualified or suitable for the role. Whether it would have been reasonable for an employer to give an employee a particular role, on a trial basis or not, is an objective question of the tribunal to decide weighing up all the evidence. 

Offering a trial period can be a reasonable adjustment and is not a mere process or tool of investigation, such as obtaining a medical report or consulting with the employee. The trial period does not have to be guaranteed to work for it to be reasonable for the employer to offer it. 

Practical point

When a disabled employee is no longer able to carry out their role due to their disability, employers should ensure that they consider the possibility of trial periods for alternative roles in appropriate circumstances. 

Factors such as the suitability of the role and the prospects of the employee passing the trial will be relevant, but as in this case, the mere fact that the employee has failed the assessment for the role does not necessarily mean that a trial period is not a reasonable adjustment to make. If an employer decides against a trial period, it should retain evidence which explains its reasoning for its decision. 

Rentokil Initial UK Ltd v Miller 

2. Request to take Parental leave and unfair dismissal 

Protection against dismissal can apply before employee gives notice to take parental leave.

Mr Wright was employed as a logistics/supply chain manager for Hilton Foods for just over a year before he was dismissed, purportedly for redundancy. Over a period of three months prior to his dismissal Mr W had had various informal discussions with Hilton staff about taking unpaid parental leave. He had also spoken to Hilton’s managing director about it and emailed HR to arrange a discussion about taking leave. He did not however ever give formal notice to take parental leave. The Maternity and Parental Leave etc Regulations 1999 provide that in order to be entitled to take parental leave, employees need to have given notice to their employer of the period of leave they wish to take, at least 21 days before the leave is to begin. The Regulations also give employees unfair dismissal protection by making it automatically unfair if the reason, or principal reason for their dismissal is that they “took or sought to take” parental leave. 

In an application by his employer to strike out his unfair dismissal claim, Mr W argued that he had been dismissed because he had “sought to take leave”. Hilton argued that since Mr W had never given formal notice to take the leave, he was not entitled to unfair dismissal protection. 

The tribunal decided (and the EAT agreed) that by making informal enquiries about taking leave and making it clear on a number of occasions that he intended to do so, it was arguable that Mr W had “sought” to take parental leave despite his lack of written application. Giving notice is not the only way that an employee can seek to take leave. If Parliament had intended to limit the protection to employees who had given notice, wording to that effect would have been used in the Regulations. 

Practical point

Where an employee has indicated their intention to take parental leave but has not yet given formal notice, employers should be aware that protection against automatic unfair dismissal protection can arise, provided what the employee has done amounts to “seeking to take parental leave”. Similar wording is also used in other comparable legislation. The new right to take carer’s leave also gives protection where “the employer believed that the employee was likely to take carer’s leave”. 

Hilton Foods Solutions Ltd v Wright

3. Unfair dismissal for posting racist “joke”: reasonable responses test 

An employee’s dismissal for posting a racist joke on the company’s intranet was within the band of reasonable responses, and was therefore a fair dismissal. This was the case even though the employee did not know the joke was racist, had an otherwise long and unblemished record, and apologised profusely during the disciplinary process.

Mr Bialas was employed for 10 years by a large firm conducting cash processing. He Google-searched a joke which he then posted on the company intranet. After a few minutes of posting the joke, it was reported for racism and removed by the company’s IT department. He was taken through the company’s disciplinary process, during which he explained he had found the joke on the “clean section” of the website. The investigator found that the joke was racist and dismissed him because he had “run the risk in posting the post without giving it proper thought”. The investigator felt constrained by the company’s zero-tolerance policy in respect of discriminatory language; and he took account of his long service and exemplary record but decided that to give a written warning would appear that the company was not taking its EDI campaign seriously. The joke was clearly racist.

The employment tribunal found that the dismissal was unfair because it was outside the band of reasonable responses. The EAT overturned the decision, finding that the employment tribunal had substituted its own decision for that of the employer and had incorrectly applied the band of reasonable responses test. 

In its reasoning, the tribunal considered that the employer had options other than dismissal (despite its zero-tolerance approach). But the EAT said that this did not mean that dismissal was outside the band of reasonable responses. 

The tribunal reasoned that Mr B had apologised profusely and asked for retraining, thereby demonstrating insight into the impact of his actions; and that Mr B’s lack of proper thought and the context in which the joke was presented suggested a level of misunderstanding rather than malice. 

But the EAT said that it appeared that the tribunal had not analysed the thought process of the investigator when considering the apology. Rather, it seemed that the tribunal had reflected on what went though Mr B’s mind when posting the joke – in other words, it had applied its own view, rather than that of the employer as it should have done. 

The tribunal referred to Mr B’s long service with and exemplary record, but the EAT said that the zero-tolerance policy made it clear that conduct of this sort could lead to dismissal for a first offence, and since the post was visible to the entire workforce, it was not open to the tribunal to conclude this meant dismissal was outside the reasonable band of responses. 

Practical point

The band of reasonable responses test gives employers a wide discretion when considering appropriate sanctions for misconduct. In this case, the employer’s zero tolerance policy gave the employer scope for dismissing a long serving employee with an unblemished record. Employers introducing such a policy should bear in mind the potential impact it could have on employees whose conduct falls below the required standards. 

Vaultex UK Ltd v Bialas

4. Flexible working - the new rules 

Changes to the statutory flexible working regime came into force on 6 April. 

The changes are: 

1. Day one right: there is no longer a requirement to have six months’ service before making a flexible working request. All employees will be eligible to make a request from the first day of their employment. 
2. Removal of requirement to explain impact of request: there is no longer any requirement for employees to explain what effect, if any, their flexible working request might have and how any adverse effects would be addressed. 
3. Increased number of requests: employees may make up to two flexible working requests within a 12-month period.
4. Reduced response time: employers will be required to respond to flexible working requests within 2 months, a significant reduction from the current 3 month timeframe. 
5. Mandatory consultation: there is a new requirement for employers to consult with employees on their flexible working requests before rejecting them. 

ACAS has updated its Code of Practice on requests for flexible working for these changes, and published new non-statutory guidance. 

Tribunals must take the Code into account when deciding complaints by employees under the flexible working rules if it appears relevant. Employers are therefore advised to follow the Code carefully when dealing with requests. 

Practical point

There is still no right to work flexibly, but employers should consider requests carefully, particularly where there is a discrimination risk. 

Employers should update their flexible working policies to reflect these changes and may also wish to consider training for line managers or advising them of these changes.

For more information, please read our detailed update.

5. New employment rights and guidance 

A number of new employment rights have come into force and new guidance for employers has been published. 

Carer’s leave

From 6 April 2024, unpaid carers have a new right to a week of flexible unpaid leave each year to care for a dependant with a long-term care need. The government and Acas have both published guidance on the statutory right to carer's leave.

Protection from redundancy for women and new parents

From 6 April 2024, employers are required to offer suitable alternative vacancies to a wider category of workers who are at risk of redundancy. Previously only those on maternity, adoption or shared parental leave had this right, but under the new law, redundancy protection is extended as follows:

• Pregnant employees - from the date the employee tells their employer they are pregnant until their maternity leave starts, or where pregnancy ends and they are not entitled to maternity leave, until 2 weeks after the end of pregnancy
• Maternity and adoption leavers - for 18 months from the date of the expected week of childbirth (or the child’s birth if the employer is informed) or placement for adoption/date the child enters Great Britain
• Shared parental leavers - for 18 months after the child’s birth or placement (or date they enter Great Britain), except if they have not taken maternity or adoption leave in which case, they will still be protected during SPL but will need to have had six weeks’ continuous leave to qualify for protection after return from SPL. 

Separately, the Equality and Human Rights Commission has published an updated toolkit to help provide employers with clear advice on what they should do to prevent pregnancy and maternity discrimination at work.

Paternity leave

From 6 April 2024, new rules provide more flexibility around how and when statutory paternity leave can be taken. For children whose expected week of birth begins after 6 April 2024 or expected placement for adoption is on or after 6 April 2024, eligible fathers and partners will be able to:

• take the current entitlement of two weeks’ paternity leave at any time in the first year after birth or adoption, rather than in the first eight weeks, and
• take the leave in two separate one-week blocks.

Changes to the notification requirements mean that less notice is required of the dates of leave.

New guidance for employers

The government has published new guidance for employers on ‘Responsible AI in Recruitment’. The guidance covers the ethical risks of using AI in recruitment and hiring processes, and how to manage these risks.

The government has also published new guidance for line managers on recruiting, managing and developing people with a disability or health condition.

Practical point

Employers should consider updating their policies for these changes. They should also make sure they factor in the extended redundancy protections when carrying out any redundancy or restructuring exercises.