Newsletter: October 2023

Welcome to the October edition of the AdviserPlus newsletter.

This month’s newsletter will be taking a closer look at the key legislative development around the Workers (Predictable Terms and Conditions) Act 2023.

Following this month’s Menopause Awareness Day, we will also take a look at a number of recent cases that provide valuable insight and takeaways regarding the impact of menopause surmounting to disability discrimination, and identifying the point at which a claim for failure to make reasonable adjustments commences, where the cause of action arises from an omission or failure to act.

This edition will also highlight the key upcoming increases in UK Immigration fees, signpost you to some useful updated guidance on key topics including fertility, DEI, and employment status, as well as highlight some key People Dates for your diary.

The right to request predictable terms

The Workers (Predictable Terms and Conditions) Bill received Royal Assent on 18th September 2023 and is expected to come into force in Autumn 2024.

This new legislation will give employees and workers a right to request a predictable work pattern under the Employment Rights Act 1996, subject to certain eligibility criteria. If a worker’s working pattern lacks predictability in terms of the hours they work, the times they work or the length of their contract, they will be able to make a formal request to change their working pattern to make it more predictable. Once the business is notified, the decision must be communicated to the worker within one month.

ACAS has drafted a code to support employers, temporary work agencies, hirers, workers and representatives, to understand their rights and responsibilities. The code is not legally binding but will be taken into account by courts and employment tribunals when considering cases. The consultation closes 17 January 2024.

To make a formal request the worker or agency worker needs to have a minimum of 26 weeks service (albeit it doesn’t have to be continuous) and have a lack of predictability to their work pattern (this is an automatic presumption for fixed term contracts of 12 months or less).

Workers are able to make a maximum of two applications in a 12-month period. Agency workers would have to apply to either the temporary work agency or the end hirer. The employer may reject the request on statutory grounds – The grounds for refusal include: the burden of additional costs, detrimental impact on the recruitment of staff or other aspects of the employer’s business, or there being insufficient work available.

As with the right to request flexible working, it is only a right to request rather than a right to have, therefore unlikely to present significant challenges for employers provided they follow the procedure.

UK Immigration Fees

The government has decided to partly fund public sector pay increases by raising immigration fees and charges, these increases took effect on Wednesday 4th October. It is important to be aware that visit visa fees have increased by up to 15%, fees to register or apply for British citizenship have increased by 20%, and the certificate of sponsorship assignment fee for Skilled Workers and Global Business Mobility applications have risen by 20%. These changes do not include the planned increase to the Immigration Health Surcharge (IHS), which will be introduced at a later date. The IHS is set to increase by 66% to £1,035 a year.

Full details if the new immigration fees can be accessed here.

Recent Case Law

Lynskey v Direct Line Insurance Services – Menopause Disability Discrimination

In a recent tribunal case, an individual was given a low appraisal rating and a written warning about her performance, and when she subsequently went off sick, her sick pay was withheld. In this case the tribunal found that the employer was liable for discrimination arising from disability and a failure to make reasonable adjustments as the individual was an employee suffering with menopause symptoms.

Whilst the employer had provided a variety of support (including additional training, daily management advice and support, occupational health (OH) referrals, a change in role and counselling through the employee assistance programme, the Employment Tribunal considered that more should have been done (e.g. OH referrals were left too late, the performance management process was inappropriate, and targets could have been adjusted) and that the actions taken were not a proportionate way to achieve their legitimate aims of ensuring staff were performing to deliver a quality and efficient service; less discriminatory alternatives could and should have been explored. The claimant won as part of her £65,000 compensation, an award for aggravated damages arising from the employer’s unreasonable refusal to concede disability at an earlier stage.

So, what can we learn from this finding? The case demonstrates the difficulties with managing disabled employees who are falling behind the expected performance standards – particularly in the context of menopause, where there may be a lack of awareness and understanding amongst managers about menopausal symptoms and their impact on both work and day-to-day activities. A menopause policy, training for HR and managers, and raising awareness generally through events such as ‘menopause cafes’, will all help to manage potential issues and mitigate risks of discrimination. And, importantly, will help to support and retain valued staff who are experiencing menopause symptoms.

Anderson v Thistle Marine (Peterhead) Ltd – unfair dismissal and harassment

In the recent case of Anderson v Thistle Marine (Peterhead) Ltd a tribunal has awarded an employee £37,000 in compensation for unfair dismissal and harassment after she was accused of using her menopause symptoms as an ‘excuse for everything’. The employee raised a grievance and was signed off sick at work. During this time, her working access was cut off, leading to her resignation. The tribunal held that the behaviour of the employer violated her dignity, and upheld her claims for harassment and unfair dismissal.

Rooney v Leicester City Council

This month also sees the case of Rooney v Leicester City Council go to tribunal and is a case the equality watchdog, the Equality and Human Rights Commission (EHRC) is supporting. It is following a claim by social worker Ms Rooney who felt she had no choice but to resign in October 2018. In February 2022 the ET preliminary hearing decided that Ms Rooney was disabled at all material times covered by her claims, and ruled that Ms Rooney’s disability was by virtue of her symptoms of menopause combined with symptoms of stress and anxiety. This case involves the first Employment Appeal Tribunal decision that menopause symptoms can amount to a disability for the purposes of the Equality Act, setting a legal precedent.

As a result of a series of cases involving the treatment of individuals with menopause symptoms, and this case in particular, Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission has said: ‘Menopause symptoms can significantly affect someone’s ability to work and Employers have a responsibility to support employees going through the menopause – it is in their benefit to do so, and the benefit of the wider workforce’. The EHRC will be launching new guidance for employers on supporting employees going through the menopause.

Fernandes v DWP – Disability discrimination: failure to make reasonable adjustments. 

The Employment Appeal Tribunal has recently considered the issue of time limits in cases where the cause of action arises from an omission or failure to act (e.g. a failure to make reasonable adjustments for a disabled employee), providing some helpful guidance on identifying time limits in claims for the failure to make reasonable adjustments, where the failure comes from an employer’s inaction. A discrimination claim must normally be brought within three months of the act or omission complained of, however, where a claim is focused on an omission like in the case of MS Fernandes it can be difficult to identify the date on which time begins to run. The tribunal found that Ms Fernandes presented her claim out of time and that there was no just and equitable basis on which to extend time. Following the appeal, the EAT issued guidance on time limits for bringing reasonable adjustments claims, where the employer has failed to alleviate a disadvantage by inaction rather than by taking a positive decision not to act. Therefore, the Tribunal musty identify:

  • The start of the disadvantage.
  • When it would be reasonable for the employer to have taken steps to alleviate the disadvantage.
  • Whether the employer took action that was inconsistent with the duty to make reasonable adjustments. If it did, time would start to run at that point.
  • If the employer did not take action, but instead failed to act, when it would be reasonable for the claimant to conclude that the employer is not going to comply with the duty to make reasonable adjustments. For ‘inaction’ cases, time would start to run at this point.
  • If applicable, whether there are any reasons why it would be just and equitable to extend time, where the time limit has been missed.

New Guidance

Status: ACAS has refreshed its guidance on employment status, including details on distinguishing between employed, worker and self-employed status, and what employment rights and responsibilities come with each.

Fertility: In September the Fawcett Society issued guidance for employers who are looking to create a more ‘fertile friendly’ workplace. The guide, aimed at employers, was created in partnership with Total Jobs. The key findings highlighted the benefits for employers in adopting fertility friendly policies to increase retention, improve absence management, and employee engagement. The guidance also includes recommendations that employers can consider such as upskilling and training their managers, so they feel confident and comfortable to have open discussions with their teams.

DEI: CIPD has recently published new guidance on transgender and non-binary EDI in the workplace. The guide is to help employers take a proactive and formal approach to supporting transgender and non-binary people at work, as part of a broader EDI policy to help understand the issues and challenges facing transgender and non-binary workers.

November people dates for the diary

  • 13th – 19th – November Transgender Awareness Week – a week when transgender people and their allies take action to bring attention to the community by educating the public about who transgender people are, sharing stories and experiences, and advocacy around issues of prejudice, discrimination, and violence that affect the transgender community.
  • 16th November – 16th December UK Disability History Month – an annual event creating a platform to focus on the history of disabled people’s struggle for equality and human rights. For more information on UK Disability History Month 2023 click here.
  • 21st November – Carer’s Rights Day: Raising awareness of rights and challenges of unpaid carers.
  • 25th November – White Ribbon Day: Preventing Violence against Women and promoting gender equality.
  • Movember – Doing Movember at work is a great way the workplace can champion men’s health. For more information on Movember click here.

Note: The above guidance was correct at the time of writing this article on 30/10/23. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.

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