Top 5 recent workplace developments – December 2024

Here is our selection of key recent employment law developments for employers, HR professionals and in-house lawyers.

1. Employment tribunals: Time limits

The government is extending the time limit for bringing employment tribunal claims.

Currently, apart from statutory redundancy and equal pay claims, employment tribunal claims must be brought within either three months of the act complained of or the date of termination (depending on the claim) - although tribunals do have a discretionary power to extend time limits in specific, limited circumstances.

The recently tabled amendments to the Employment Rights Bill, however, propose extending the time limit for bringing all employment tribunal claims to six months. There was no mention of this when the Bill was first published, although this proposal was included in Labour’s policy document ‘Make Work Pay’.

Practical point

It seems likely that extending the time limit will lead to an increase in claims being brought in the employment tribunal. This could in turn impact on the length of time it takes for tribunals to deal with claims.

It is not yet known when this change will take effect.

2. Employment reforms: Ill health and absenteeism

The government has published its Get Britain Working White Paper as part of its strategy to improve economic activity.

The proposals, which aim to achieve an 80% employment rate, include:

• A new ‘Youth Guarantee’, providing 18-21 year olds in England with access to an apprenticeship, quality training and education or help, to help them find a job
• Transforming the Apprenticeship Levy in England into a more flexible Growth and Skills Levy to expand opportunities for young people to develop skills and get into work
• Expanding mental health support
• Connect to Work, a new supported employment programme, providing voluntary employment offers to people with disabilities, health conditions or complex barriers to work
• An independent review into how employers can be better supported to recruit and retain people with disabilities and health conditions, to implement early intervention for sickness absence and to improve the rate of employees returning from sick leave

Practical point

The proposed support for employers in implementing early intervention for sickness absence and with return to work may help with reducing absenteeism and increase employee retention.

You can view our recent webinar with Simon Brittz, Counselling Psychologist from HCA Healthcare, here: How employers can manage the increasing mental health issues amongst younger workers.

3. Redundancy: Suitable alternative employment – Pregnancy and family leave

The Employment Appeal Tribunal has provided clarification on redundancy protection for pregnant employees and new parents.

Ms Hunter, one of 21 contact centre team leaders, went on maternity leave in early April 2020, after the start of the COVID-19 Pandemic. A few weeks later, Carnival notified its employees that it would be making redundancies. The team leaders were placed at risk of redundancy, with these posts being reduced to 16. As one of the five leaders with the lowest scores in the redundancy exercise, Ms Hunter was selected for redundancy.

Under the Maternity and Parental Leave Regulations (MAPLE), employers must offer any suitable vacancies to pregnant employees (from the date they tell their employer they are pregnant until their maternity leave starts) and maternity leavers and shared parental leavers (for 18 months from the expected week of childbirth or after the child’s birth respectively). Where an employer does not comply with MAPLE, the employee is entitled to be treated as automatically unfairly dismissed.

The EAT held that there were no suitable vacancies so her claim for automatic unfair dismissal failed. The pre-existing team leader roles did not constitute a suitable vacancy which should have been offered to Ms Hunter.

Practical point

MAPLE does not apply to roles in a reorganisation that are reduced in number. However, where new roles are created, these may constitute a suitable alternative vacancy and in accordance with MAPLE, should be offered to individuals selected for redundancy who are pregnant, on family leave or have recently returned from such leave.

The EAT clarified that MAPLE engages after the selection process has taken place. So where an employee qualifies for protection under MAPLE, if they are scored lower than others in a selection process, they do not take precedence over someone who would otherwise have retained their job following the selection process.

Carnival_Plc_(t/a_Carnival_UK)_v_Hunter

4. Unfair dismissal: Pre-termination negotiations

The EAT ruled that the employer’s actions during pre-termination negotiations did not amount to “improper behaviour”.

After Mr Gallagher was absent from work for a number of weeks due to illness and, having managed successfully to cover his role during this period, McKinnon’s believed they could continue without a branch manager. He was invited to a “return to work” meeting where he was offered an enhanced redundancy payment in return for signing a settlement agreement. This offer, which he was given 48 hours to accept to avoid a redundancy process, was described as “off the record” and “without prejudice”. He did not accept this offer and was subsequently dismissed for redundancy.

To support his unfair dismissal claim, Mr Gallagher sought to rely on McKinnon’s actions during the “off the record” meeting, which he argued put undue pressure on him. A tribunal found that this discussion was a pre-termination negotiation and this therefore could not be used in the tribunal.

The EAT dismissed his appeal, finding that the following actions did not put undue pressure on him:

• Telling him that a redundancy process would begin if he did not accept the offer
• Inviting him to a meeting to discuss his return to work after sick leave but instead using it to put forward the settlement proposal
• Setting a 48-hour deadline for accepting the proposal

Practical point

This is a useful reminder for employers of approaching protected conversations carefully, ensuring that it is made clear to the employee from the outset than their decision on the settlement offer will not impact any decision or action taken by the employer at a later stage. Although there are some limited circumstances in which a short period for acceptance is necessary, it is advisable to give employees a reasonable period of time to consider a settlement offer.

This case also highlights the importance of taking into account the ACAS Code of Practice on Settlement Agreements.

Mr Kevin Gallagher v McKinnon's Auto and Tyres Limited

5. Unfair dismissal: Workplace culture

An employment tribunal found that an employee was unfairly dismissed for swearing at work.

A colleague raised a formal grievance against Mr Ogden, a driver/ trainer, complaining that he had been aggressive towards her and used the F word and a disability related slur against her in front of colleagues. During the investigations by Booker Limited, he admitted using offensive language but argued that there were no workplace standards, the culture was toxic with widespread inappropriate behaviour and pranks, and that the colleague participated in office "banter". He was found to have breached the dignity at work policy and was subsequently dismissed for gross misconduct. After an unsuccessful appeal, Mr Ogden brought an unfair dismissal claim.

The tribunal ruled that he was unfairly dismissed. It found that there was a “lawless” and “toxic culture”, with no real enforcement of expected workplace norms by managers. It held that a reasonable employer would have considered that these cultural issues were relevant to the disciplinary process, such that Booker’s decision to dismiss Mr Ogden was outside the band of reasonable responses and that a written warning would have been more appropriate.

Practical point

This case illustrates the importance of a positive workplace in mitigating the risk of claims, and that such culture must be enforced by senior management. While Mr Ogden’s behaviour was clearly inappropriate, the tribunal commented that there was a failure to assess his behaviour in the context of a dysfunctional workplace where the managers “were complicit in that dysfunction”.

Ogden_v_Booker_Limited