TIPS & ADVICE Personnel

Your fortnightly guide to being a cost-effective employer

TIME OFF

The new right to carer’s leave

On 6 April 2024 the new Carer’s Leave Regulations 2024 will come into force. How much statutory carer’s leave will your employees be entitled to take in any twelvemonth period and is this a paid or unpaid right?

A new right. In December 2023 the Carer’s Leave Regulations 2024 were laid before Parliament. These Regulations, which are due to come into force on 6 April 2024, set out the framework under which your employees will be able to take statutory carer’s leave. Whilst the right to such leave will be a day-one employment right, any time off that’s taken for this reason does not have to be paid, i.e. this is an unpaid statutory right.

How much? In any twelve-month period, an employee will be able to apply to take up to one week’s unpaid carer’s leave if they have a dependant with a long-term care need and they wish to be absent from work to provide and/or arrange care for them. Unlike other types of statutory leave, carer’s leave is fully flexible which means that your employees will be able to request consecutive and non-consecutive half days or full days of work in a way that best suits their needs.

Giving notice. Where an employee wishes to take carer’s leave, they will need to give you written notice of their intention and give you the longer of either three days’ notice or twice the amount of notice of the period of carer’s leave that they’ve requested. Where an employee asserts their right to take carer’s leave, they must not be subjected to any detriment or be dismissed for that reason. Where an employee is dismissed on these grounds, it will be an automatically unfair dismissal.

Any objections? If an employee taking carers leave will unduly disrupt your business, you can give them notice of postponement. This notice must be given before the carer’s leave commences and you must explain why this postponement is necessary. Tip. In this situation, you must permit the carer’s leave to then be taken within one month of the start date of the leave dates originally requested. Only postpone carer’s leave if it is absolutely necessary from a business perspective and never do so simply because the employee’s selected dates are a bit awkward or tricky. There must be a genuine business need.

› From day one of employment, employees will be entitled to take up to one week’s carer’s leave in any twelvemonth period which may be taken as consecutive or nonconsecutive full or half days. This right is unpaid.

GROSS MISCONDUCT

Is a prank gross misconduct or not?

In a 2023 case, the employee was sacked for gross misconduct after he played a prank on a colleague. However, the tribunal ruled that this was an unfair dismissal. Why did it reach this decision?

Creepy conversation

Mr Richardson (R) began working for West Midlands Trains Ltd (W) as a train driver in 2018. In 2022, R had a conversation with a female colleague who was referred to as “Driver A” (A) by the tribunal.

During that conversation, R told A that he occasionally looked after insects, spiders and a snake which his friend kept as pets. A told R that she disliked insects and spiders.

Joking around

Following their conversation, R decided to play a joke on A by placing an exoskeleton from a tarantula in her pigeonhole. A was upset by this prank and had to ask a colleague to remove the exoskeleton as she was unable to do so.

The next time A saw R, she a called him a “fucking twat” for playing the prank on her. In reply, he suggested that he may do the same with a snake skin another time.

I’ll report you

A told R that if he went ahead and did this, she would report him. Nevertheless, the following month R placed a snake skin in A’s pigeonhole. A reported this incident to her boss and R was required to attend a disciplinary hearing.

During the disciplinary hearing, R stated that he didn’t realise A had been upset and thought she was being playful.

However, despite apologising to A, W found that he had committed gross misconduct and terminated his employment.

Tribunal claim

R then claimed unfair dismissal. In October 2023 the tribunal found that W’s disciplinary response to the prank, i.e. sacking R, was over the top as his actions didn’t amount to gross misconduct (see The next step).

So, does this ruling mean that pranks played by employees in your workplace can never be treated as gross misconduct?

Gross misconduct or not?

As this is a tribunal ruling, it isn’t binding on other cases. Equally, it doesn’t set a precedent as to how you should approach pranks and complaints made about them in your workplace.

Whilst in this case the tribunal found that the employer had overreacted to the prank and the disciplinary sanction imposed was disproportionate, in another situation, it may well be reasonable and justifiable to conclude that an employee’s prank is an act of gross misconduct.

Tip. Ultimately, it will all boil down to the nature of the prank, its effect, whether any damage or harm was caused and the intention behind it. A one-off prank which is light-hearted or taken as a joke should not be deemed gross misconduct.

Tip. On the other hand, a malicious or dangerous prank, or a series of pranks which could amount to bullying, may well meet the threshold for gross misconduct.

The next step

For the tribunal’s ruling in this case, visit https:// www.tips-and-advice.co.uk, code TAPS26DA07.

› The tribunal concluded that the employer over-reacted to the employee’s light-hearted prank and the disciplinary sanction it imposed was disproportionate. A workplace prank could amount to gross misconduct if it’s malicious or dangerous, or it’s perceived as bullying, and in these situations dismissal may well be justified.

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SICKNESS ABSENCE

Sun, sea, sand and holiday sickness

An employee has returned to work after a week’s holiday abroad. Unfortunately, they were struck down with a bug on their arrival and weren’t able to enjoy the sun, sea and sand. Must you automatically recredit their holiday?

Illness risks

One of the risks involved with travel is sudden illness. This might be due to food poisoning, a bug or sun/heat stroke. These can all have unpleasant consequences and mean that someone is confined to their hotel room, or even worse local health emergency facilities, for some or all of their holiday.

Entitled to credit?

One of your employees has returned to work after a week away and informed you that they weren’t able to enjoy any of their holiday as they were struck down with a bug shortly after their arrival. They’ve also asked you if they can have their “lost” holiday re-credited as they weren’t able to enjoy a single moment of it. What’s the legal position here?

Some sympathy

Whilst it’s difficult not to have some sympathy for the employee, they don’t have an automatic right to have their lost holiday re-credited in full simply because they’ve told you that they were taken unwell.

A right to have holiday re-credited where an employee falls sick (or is injured) during that time does exist but they need to jump through some hoops first.

The first step the employee must take - regardless of where they are in the world - is to fully comply with your sickness absence reporting requirements (see  The next step).

Employee’s obligations

Most employers require employees to personally make contact with them on their first day of sickness absence and speak to their line manager at the earliest opportunity. You can still reasonably expect an employee who is abroad on holiday to comply with this rule, although you may have to show some flexibility when it comes to time differences.

Medical evidence

In addition to complying with your sickness absence reporting requirements, you can insist that the employee provides you with medical evidence of their incapacity. Where an employee falls ill abroad, this could be in the form of a letter from a local doctor or hospital. Most resorts will be able to put the employee in contact with a medical professional.

Tip. Where an employee fails to follow your reporting requirements and no medical evidence is produced, you can refuse to reimburse the lost holiday. Assuming they comply, write to them re-crediting their holiday (see  The next step).

Tip. Regardless of the circumstances, don’t permit or accept sickness absence notifications or updates by text or e-mail. If the employee isn’t genuinely able to contact you, e.g. because they are too unwell or in hospital, someone else should contact you on their behalf.

The next step

For a holidays policy and a letter re-crediting annual leave, visit https://www.tips-and-advice.co.uk, code TAPS26DA07.

› If an employee falls ill during a holiday, they’ve no right to be automatically re-credited with any days lost due to incapacity. To qualify for this, they must fully comply with your normal sickness absence reporting requirements and produce medical evidence of their sickness absence. Only re-credit the days if they do this.

Requests for time off for medical appointments

One of your employees has requested time off during working hours to attend a medical appointment. Must you grant their request and are you entitled to ask them about the nature of the medical appointment?

Time off request

One of your employees has approached you asking for some time off to attend a medical appointment which falls right in the middle of their working day.

As this timing is inconvenient, can you ask the employee to move their medical appointment to non-working hours?

Statutory right

As far as the law is concerned, employees only have the statutory right to time off work to attend antenatal appointments. In all other circumstances, they’ve no statutory right to time off, regardless of the nature and necessity of the medical (or dental) appointment.

So, in theory, you could insist that a medical appointment which falls in the middle of the working day is rearranged.

Not so fast

However, before you do this, there are two things that you must consider. Firstly, it can be difficult to get a medical appointment at the best of times and these aren’t always available outside of normal working hours.

Secondly, if the employee has a disability or a long-term health condition (or this is a possibility), time off to attend a medical appointment could well be a reasonable adjustment under the Equality Act 2010.

Thus, a refusal to grant time off could leave you vulnerable to a tribunal claim.

Nature of the appointment

With this in mind, before you make a decision, could you ask the employee to disclose why they need this medical appointment? Again, in theory, you can ask this question and request proof of the medical appointment, but there are further issues to take into consideration.

For example, the employee might be too embarrassed or worried to disclose this information to you. Equally, they may not know why they are being asked to attend the medical appointment, e.g. it’s a referral to a specialist from their GP.

Confidentiality matters

There’s also the possibility that they want to keep the nature of the medical appointment confidential.

Whilst you should approach these issues sensitively, there’s nothing to stop you asking your employees to complete a written request whenever they require time off to attend a medical appointment (see The next step). This also helps you keep track of how much time is being taken off for this reason.

Tip. When an employee makes the written request, you can ask them to provide the general nature of the medical appointment, e.g. GP, hospital, physiotherapy, etc. You are free to set the rules regarding pay. Some employers grant their employees a set number of hours each year to attend medical and dental appointment whereas others have a take unpaid or annual leave rule.

The next step

For a medical and dental appointments request form, visit https://www.tips-and-advice.co.uk, code TAPS26DA07.

› Employees have no statutory right to take time off during working hours to attend general medical (or dental) appointments. However, as this may be impractical, all requests should be carefully considered. You may ask about the nature of the medical appointment but bear in mind that an employee may wish to keep this confidential.

It’s not binding because I didn’t read the contract!

You’ve reminded an employee about a term that’s included in their employment contract. They’re now saying it isn’t binding as they never read the contract before they signed it. Is this correct?

In detail

One of our subscribers recently found themselves having to remind an employee about one of the terms in their employment contract. Rather than accept the position, the employee said that they never read the employment contract before they signed it so the terms aren’t binding on them.

Enforceable or not?

Unfortunately, this is a common scenario as research shows that less than 1% of employees read their employment contract in detail before signing it.

The other 99% either skim read, only read parts of it or don’t read it at all.So, what’s the legal position if an employee signs an employment contract without reading it - are they bound by the terms or not?

Starting point

The starting point here is that once an employee signs an employment contract, they are bound by all of its terms and conditions. However, there are some important exceptions to this rule.

The first is that a contractual term will always be unenforceable if seeks to override one or more of the employee’s statutory rights.

Example. If a signed employment contract states that there’s no entitlement to sick pay during any period of sickness absence but the employee

actually qualifies for statutory sick pay (SSP), the employer can’t withhold sick pay in reliance on the agreed contractual term, i.e. the employee must be paid the correct rate of SSP.

Non-binding terms

A contractual term will also be unenforceable, regardless of whether the employment contract is signed, if it is:

• discriminatory in some way, e.g. it seeks to penalise an employee for taking maternity leave or some form of parental leave

• unlawful, e.g. it’s designed to avoid tax liabilities or NI contributions; or

• against public policy.

In a nutshell

Put simply, if an employee fails to read a watertight and lawful employment contract but goes ahead and signs it anyway they will be bound by its contents. They can’t later successfully claim that one or more of the terms and conditions are unenforceable.

Tip. You’re not obliged to do so but you can, if you wish, inform new hires in writing that the employment contract is a legally binding document and they should seek legal advice from a qualified advisor if they are unsure of the effect of the contents. If they subsequently decide not to, that’s their problem.

› If an employee signs a watertight and lawful employment contract without reading it, they will still be bound by its contents and can’t later argue that it’s fully or partly unenforceable. It’s not obligatory, but you may wish to advise new hires to seek legal advice on the effect of an employment contract. If they choose not to do so, that’s their problem.

DISCRIMINATION

Employee awarded £25,000 over “deadnaming”

In what’s thought to be the first case of its kind, an employee has been awarded over £25,000 in compensation after she was “deadnamed” by her employer. What is “deadnaming” and why is it unlawful?

Council sued

In October 2023 it was reported that Kingston Council (KC) had been ordered to pay over £25,000 in compensation to one of its employees after the tribunal upheld allegations of deadnaming.

The employee who brought the case against KC was referred to as “Miss AB” throughout the proceedings.

Transition plans

Towards the end of 2019, Miss AB, who worked in the transport department, advised bosses at KC that she was planning to become a trans woman. Miss AB transitioned in July 2020.

Following her transition, Miss AB claimed that she received “no support whatsoever” from KC. In addition, Miss AB alleged that she was:

• accused of throwing a “hissy fit” after she raised concerns about plans to install potentially unsafe street lighting

• instructed to have no direct contact with local councillors; and

• told that certain emails had to be passed by her manager before they could be sent.

Deadnaming allegations

Miss AB also informed the tribunal that:

• it took KC two years to change her door pass to her post-transition name which, effectively, meant that she could not personally access the building or use the photocopier during that time

• a Post-it note was put on her locker which had her deadname crossed out next to her posttransition name; and

• KC failed to update its internal systems, payroll and pension information to recognise her posttransition identity - this also outed Miss AB to others.

Went off sick

In May 2021 Miss AB raised a grievance about KC’s treatment, including the deadnaming. This complaint was ignored. She then went off sick with stress and did not return to work until the beginning of November 2021. KC never apologised to her.

Unlawful discrimination

The tribunal found in Miss AB’s favour because it is unlawful to discriminate against an employee on the grounds of gender reassignment under the Equality Act 2010 (see The next step).

Tip. Deadnaming, i.e. the act of referring to a transgender or non-binary person by their former name, which is most often their birth name, after they’ve chosen a new name is a form of genderreassignment discrimination as it invalidates a person’s identity and suggests non-acceptance. It also puts the person at risk by outing them to others and may cause psychological harm.

Tip. If a transgender or non-binary employee informs you of a new name, update your systems as soon as reasonably practicable. If they are accidentally referred to by their former name, apologise immediately. Make it clear how you will support these employees in a transgender equality policy (see The next step).

The next step

For the tribunal’s ruling in this case and a transgender equality policy, visit https://www.tips-and-advice. co.uk, code TAPS26DA07.

› Deadnaming is the act of referring to a transgender or non-binary person by their former name, which is most often their birth name, after they’ve chosen a new name. As it invalidates a person’s identity and puts them at risk by outing them to others, it is a form of gender-based discrimination which is unlawful under the Equality Act 2010.

HOMEWORKING

87% of homeworkers take care of children on the job

Apparently, 87% of homeworkers regularly look after their children while carrying out their jobs. As this could negatively impact performance, can you ban homeworkers from taking care of their children whilst working for you?

New research

In October 2023 research by Capital One UK revealed that:

• 87% of homeworkers routinely look after their children while carrying out their day job; and

• 85% have to work in the same room as their children.

Childcare problems

The research also found that as well as being a distraction childcare can negatively affect a homeworker’s performance and impact their availability and job role.

In some cases, childcare responsibilities had also been used as reasons not to undertake work. For example, one homeworker mentioned had refused to attend a client meeting as it clashed with her child’s daytime swimming lesson.

Employer impact

To reduce the potential impact on employers, it was suggested that businesses could ban their homeworkers from undertaking any nonemergency childcare duties during working hours.

Some even went as far as to say that there should be no children present wherever a homeworker carries out their job role. Are these feasible rules?

A step too far

In reality, employers can’t introduce either of these rules or make them a condition of any homeworking arrangement. That’s because employers have zero control over an employee’s private home.

However, there are some rules you can legitimately apply and you may also take formal action if an employee’s childcare responsibilities negatively affect their attendance or performance.

What’s happening?

The first rule is that an employee must disclose to you if there will be any children present during a temporary or permanent homeworking arrangement and, if there will be, what the implications will be for you.

For example, care requirements for a baby or a toddler are likely to be very different to those for a teenager. You may also insist that a homeworker informs you immediately if anything changes in terms of their childcare responsibilities, e.g. they no longer have a childminder.

Separate duties

Additionally, you can direct homeworkers to separate their work duties and childcare responsibilities as far as practicable and to keep distractions and interruptions to a minimum.

Tip. You can also ask them to demonstrate that their childcare responsibilities do not conflict with their work duties and, ideally, you should explore this with them before any homeworking arrangement is approved.

Tip. Avoid misunderstandings by setting out these rules in a clear homeworking policy (see The next step).

The next step

For a homeworking policy, visit https://www.tipsand-advice.co.uk, code TAPS26DA07.

› You can’t introduce this type of rule or state there should be no children present when a homeworker is working. However, you can insist that all childcare responsibilities and their potential impact are disclosed to you in advance and that homeworkers separate childcare from their job duties as far as practicably possible.

Changes to pensions auto-enrolment age

New law. The Pensions (Extension of Automatic Enrolment) Act 2023 gives the government the power to: (1) lower the minimum age for eligible jobholders to be automatically enrolled into a workplace pension scheme from 22 years to 18 years; and (2) reduce the minimum earning threshold at which employers must contribute to an eligible jobholder’s workplace pension from £6,240 p.a. to £1 p.a. The latter will be achieved by removing the lower earnings limit threshold from pensions autoenrolment calculations.

Implementation date? Further secondary legislation will be required to implement these changes, but the government has already indicated that its intention is for them to become effective by 2025. The Department for Work and Pensions will now undertake a consultation on the implementation process and timing and further pensions auto-enrolment guidance will be issued in due course.

› The new Pensions (Extension of Automatic Enrolment) Act 2023 gives the government the power to lower the minimum age threshold for pensions auto-enrolment for eligible jobholders from 22 to 18. This change is expected to come into force by 2025.

FIT NOTES

Updated fit note guidance for employers

More detail. The government has issued updated guidance on fit notes for employers and line managers (see The next step). The most notable changes are the addition of: an employer’s checklist (which can be found in Annex A) and a guide which explains the sections of the fit note. The updated guidance also includes six new case studies which cover a homeworking scenario, a phased return to work, an employee with lower back problems, an employee who can’t drive and implementing professional advice.

Other information. The updated guidance also explains: fit note policy changes; general rules on fit notes; your employee’s fitness for work assessment; supporting your employee to stay in or return to work; fitnote-related FAQs and links to further support and information. Those who deal with sickness absence within your business or organisation should certainly download and read a copy of this guidance.

The next step

For the updated guidance, visit https://www.tips-and-advice.co.uk, code TAPS26DA07.

› Updated guidance on fit notes for employers and line managers has been issued. As well as including six worked case studies, there’s a new employer’s checklist, a guide which explains the sections of the fit note, FAQs and links to support resources.

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