Top 5 recent workplace developments - April 2023

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

1. Increase in Tribunal compensation limits and employment rates

New compensation limits for tribunal awards and other statutory minimum payments will apply from early April 2023.

The new limits for unfair dismissal awards and redundancy pay are:

• The limit on a week’s pay, for the purposes of calculating statutory redundancy and compensation for unfair dismissal, increases to £643 (from £571)
• The maximum compensatory award for unfair dismissal increases to £105,707 (from £93,878)
• The maximum statutory redundancy payment increases to £19,290 (from £17,130) 
• The minimum basic award for certain unfair dismissals (including health and safety dismissals) increases to £7,836 (from £6,959)

These new limits will apply where the effective date of termination falls on or after 6 April 2023. 

Other statutory rate increases include:

• National minimum wage - hourly rate (for age 23+) increases to £10.42 (from £9.50) on 1 April 2023
• Statutory sick pay increases to £109.40 per week (from £99.35) on 6 April 2023
• Family leave pay (statutory maternity, adoption, paternity and shared parental pay) increases on 2 April 2023 to £172.48 per week (from £156.66) or 90% of the employee’s average earnings, whichever is lower

Practical point

In addition, Vento bands for injury to feelings awards will increase for claims presented on or after 6 April 2023. The new rates are:

• Lower band: £1,100 to £11,200 for less serious cases
• Middle band: £11,200 to £33,700 for cases that do not merit an award in the upper band
• Upper band: £33,700 to £56,200 for the most serious cases - with the most exceptional cases capable of exceeding £56,200

Rates and thresholds for employers 2023 to 2024
The Employment Rights (Increase of Limits) Order 2023
Vento bands increases for 2023

2. Disability discrimination: Neurodiversity

The Employment Appeal Tribunal (EAT) agreed with an employment tribunal’s decision that an employee’s aggressive conduct didn’t arise from his disabilities.

Mr McQueen is neurodiverse, having dyslexia and symptoms of Asperger’s Syndrome, as well as left-sided hearing loss which caused him some difficulties with his interactions in the workplace. It was accepted that these conditions amounted to a disability under the Equality Act. 

He was involved in altercations with colleagues which led to him having a “meltdown” and becoming “loud and angry”. Advice was sought from occupational health and changes were made to Mr McQueen’s way of working. He was also the subject of two disciplinary proceedings.

Subsequently, Mr McQueen brought claims including for unfavourable treatment because of something arising in consequence of a disability. The tribunal found that his behaviour resulted from him having a short temper and resenting being told what to do, rather than because of his disability.  

Practical point

This case is very fact specific, and employers should exercise caution before relying on this decision in the context of managing disabled employees with neurodiverse conditions. 

Before assessing whether an employee’s impairment or disability is a factor in their conduct at work, as happened in this case, the employer should seek occupational health advice. 

The circumstances are also a reminder that when investigating an employee for an out-of-character act of misconduct it is worth considering whether the cause may be a disability, even if undiagnosed. Most Equality Act claims are judged by what is known by the time of any subsequent tribunal claim when medical reports may have been obtained.

McQueen v General Optical Council  

3. Workplace culture: Sexual harassment 

The Equality and Human Rights Commission (EHRC) entered into a legal agreement with IKEA UK to help improve its policies and practices regarding sexual harassment. 

The EHRC intervened in February 2022 after a former IKEA employee raised a complaint about how their sexual harassment and assault allegations were dealt with by IKEA UK.

Under the terms of the agreement, reported by the EHRC in March 2023, IKEA UK has committed to reviewing the way it deals with sexual harassment and meeting its responsibilities under the Equality Act. IKEA has also agreed to:

• Communicate a zero-tolerance approach on sexual harassment to all staff
• Work with a specialist external law partner to support the organisation in reviewing its policies and processes relating to sexual harassment, and to improve its responses to complaints
• Provide training on the enhanced policies and processes, and harassment and sexual harassment to HR staff and line managers

The EHRC will monitor IKEA’s compliance with the agreement to ensure the actions are completed within the agreed timescales. It can use its legal powers to enforce the action plan. 

The agreement is likely to last until August 2025.

Practical point

In February 2023, McDonald's UK signed a similar agreement with the EHRC in response to concerns about the handling of multiple sexual harassment complaints by staff at its UK restaurants. 

Having a positive workplace culture will help drive a zero-tolerance approach to harassment, bullying and other unwanted workplace behaviours. Being able to demonstrate that any complaints will be treated incredibly seriously and investigated fully also helps to drive that culture. See our flyer for information on how Clyde & Co can offer support with dealing with harassment in the workplace.

IKEA UK signs legal agreement with EHRC
McDonald’s signs legal agreement with EHRC

4. Equality diversity and inclusion: Racial diversity

The Parker Review Committee has published an updated report on improving ethnic diversity across UK businesses. 

The Parker Review was set up in 2015 to encourage UK businesses to take on individuals from ethnic minorities to enhance opportunities for ethnic minority groups as well as the performance of UK businesses. 

The Parker Review 2023: Improving the Ethnic Diversity of UK Business includes the results of its latest survey on the ethnic diversity of companies’ boards. The report says that, as at 31 December 2022:

• 96 FTSE 100 companies met the Parker Review target, with at least one minority ethnic director on their boards, and 49 have exceeded this target by having 2 or more ethnic minority directors
• 18% of all FTSE 100 director positions are held by directors from a minority ethnic group
• 149 FTSE 250 companies have appointed at least one minority ethnic director by 2022
• FTSE 350 companies will be asked to set a percentage target by December 2023, for senior management positions that will be held by ethnic minority executives by December 2027
• 50 of the UK’s largest private companies will be asked to provide ethnic diversity data from December 2023. These companies will be set the target of having at least one ethnic minority director on the main board by December 2027. Each company must also set a target for the percentage of ethnic minority executives within its senior management team.

Practical point

The Parker Review notes that companies should seek to encourage as many of their employees as possible to self-declare their ethnicity to enable data to drive decision-making. 

5. Whistleblowing: Government review

The government has launched a review of the current whistleblowing framework.

The review of the whistleblowing framework follows an announcement in March 2021 that this would take place after data was published by whistleblowing advice service Protect which showed that one in four COVID-19 whistleblowers who contacted its advice line were dismissed.

The review will seek evidence from whistleblowers, employers, key charities and regulators on the effectiveness of the current regime in meeting its original objectives of:  providing a route for workers to make disclosures, protecting those who do so and supporting wider cultural change to recognise the benefits of whistleblowing.

The research will focus on:

• How the whistleblowing framework has facilitated disclosures
• How the whistleblowing framework has protected workers
• Whether whistleblowing information is available and accessible for workers, employers etc
• What the wider benefits and impacts of the whistleblowing framework have been on employers, prescribed persons etc
• What best practice looks like in responding to disclosures

The review will also examine evidence on the definition of ‘worker’ for whistleblowing purposes.

Practical point

The review will inform government policies on the development and improvement of the existing whistleblowing regime and is expected to conclude in autumn 2023.