Be Aware – September 2023

Be Aware – September 2023

Legal & HR, Business & Legislation

The Employment Relations (Flexible Working) Act 2023

The Employment Relations (Flexible Working) Act 2023 has successfully passed through Parliament. As its title suggests, there are several things it changes in the current flexible working regime.

Current position

As the law stands, employees can make a request for ‘flexible working’, such as flexitime, part-time, job sharing, homeworking after being employed for 26 weeks and they are limited to making one request every 12 months. An employee isn’t required to provide a reason for their request.

Employers are required to consider the request for flexible working but not required to grant it. Requests can be rejected for a number of reasons, including :-

  • it will cost too much.
  • you cannot reorganise the work among other staff.
  • you cannot recruit more staff.
  • there will be a negative effect on quality.
  • there will be a negative effect on the business’s ability to meet customer demand.
  • there will be a negative effect on performance.
  • there’s not enough work for the employee to do when they’ve requested to work.
  • there are planned changes to the business and thinks the request will not fit with these plans.

What will change?

Under the new Act

  • employees will now be able to make 2 flexible working requests in any 12 month period.
  • any flexible working requests have to be responded to within 2 months of receipt of a request unless the employee agrees to extend this period.
  • employers are not able to refuse a request until they have ‘consulted’ with the employee; although what counts as consultation has not been defined and will likely be subject to ACAS guidance.
  • Employees will no longer have to explain what effect they think agreeing to the request would have and how any such effect might be dealt with.

As the Bill passed through Parliament, there was discussion of the right to request flexible working being a right from day 1 of employment. This is not included in the current legislation. Whilst the Government has stated an intention to create further legislation to grant the right from day 1, they have not taken any steps to do so yet.  As things stand today, the employee still has to wait 26 weeks before such a request can be made.

Discrimination: perception of harassment

Harassment occurs where :-

  • someone is subjected to unwanted conduct;
  • related to a protected characteristic;
  • that has the:-
    • purpose or effect of violating their dignity, or
    • creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

However, there are other important factors, including the perception of the person complaining of harassment, and whether it is reasonable for the conduct to have the effect complained of.

Can a Claimant be harassed if they were not aware of the act of harassment?

Greasley-Adams v Royal Mail Group Ltd

Mr Greasley-Adams worked for Royal Mail. It was accepted that he was disabled for the purposes of the Equality Act 2010. Following a dispute with some colleagues regarding his working patterns and duties, relations with two of his colleagues deteriorated and his colleagues raised grievances against him on the grounds of bullying and harassment. These grievances were upheld. However, during the investigation of the grievances, facts emerged that his colleagues had violated his dignity by gossiping and making fun of his disability and had spread rumours about him. In response, Mr Greasley-Adams submitted a grievance against his colleagues alleging that they had harassed him.

Mr Greasley-Adams subsequently issued Tribunal proceedings for, amongst other things, disability discrimination.

The Tribunal found that whilst some of the conduct he complained of was proven, these incidents did not violate his dignity before the time at which he became aware of them. When he did become aware of the unwanted conduct, it was in the context of a grievance investigation into his own alleged bullying. In these circumstances it was not reasonable for the conduct to have violated his dignity at that stage. The Tribunal rejected his claims. Mr Greasley-Adams appealed.

The appeal was dismissed.

The EAT held that the perception of the person complaining of harassment is a key and mandatory component in determining whether harassment has occurred. When Mr Greasley-Adams was unaware of the conduct, he could have had no perception of it. It was not therefore possible for him to succeed in his claim in relation to the period between the comments being made and him being made aware of the comments.

The EAT also agreed with the Tribunal’s conclusion that once Mr Greasley-Adams had become aware of the conduct during the investigation, it was not reasonable for it to have the effect of violating his dignity. It was inevitable that during a bullying investigation into his conduct things would emerge that he did not like.

In conclusion

We must be a little cautious in this case. In this case it was argued at the EAT that ‘dignity’ could be violated even if the Claimant did not know about it, because it reduced the esteem with which they were held amongst their colleagues. This argument failed.

Going forward it is now clear that the Tribunal will have a duty to ensure that when dealing with grievances, complainants or witnesses should not be discouraged from being truthful for fear of a future harassment claim.  It will be harder to bring claims based on what is revealed in investigations because the Tribunal must take into consideration whether any unwanted conduct had the prescribed effect and the circumstances of that conduct.

Disciplinary Process

Ms Charalambous worked in London as a relationship manager. In January 2019, she emailed a breakdown of all private clients, commission, turnover, assets and other information to her union representative, her lawyer, her own personal email and her brother. The Bank suspended Ms Charalambous pending a disciplinary investigation into the confidential client data breach.

Ms Charalambous’s manager held an investigation meeting with her alone, and another manager held a further two face-to-face disciplinary meetings with both Ms Charalambous and her union representative present. A full report was then sent to Ms Charalambous’s manager, who then made the decision summarily to dismiss Ms Charalambous without meeting her. Her internal appeal was rejected.

Ms Charalambous raised a number of issues at the Employment Tribunal but failed. However, she was allowed to appeal to the EAT on whether the dismissal had been procedurally fair as Ms Charalambous’s manager had not held a face to face disciplinary hearing before deciding to dismiss her.

The appeal was dismissed.

The EAT confirmed that a fair disciplinary process will normally involve an investigation carried out by one manager and then a separate and distinct disciplinary hearing carried out by an independent decision maker. That hearing should normally involve a meeting between the employee and the decision-maker before the decision is made.

However, the EAT took into account the fact that Ms Charalambous did have two formally recorded meetings where she was accompanied by her union representative and had been afforded the opportunity to set out her case, comment on the evidence and mitigating circumstances, all of which were set out in the minutes of the meetings.

The EAT confirmed that a meeting between the employee and the decision maker is desirable, good practice, and something which many employers’ disciplinary procedures will expressly require. However, what is essential is that the employee is given the chance to comment on the case and present their position.

In Conclusion

This is a useful illustration of how broadly Tribunals can interpret the concept of ‘fairness’. What is required is a reasonable process in the circumstances  However, what is reasonable can vary dramatically. We strongly advise that all members base any internal disciplinary process on the approved ACAS process and follow the process as closely as possible.

Bullying Claims in the workplace:

What constitutes bullying and what are the relevant issues to consider when investigating a potential bullying situation.

The recent high-profile investigation and report into the bullying allegations levelled at Dominic Raab has highlighted the issue of bullying conduct in the workplace. The report re-emphasised what constitutes bullying but also what information is important for employers to consider, in order to conduct a reasonable investigation into any potential bullying claim.

Importance of knowing what bullying is and a reasonable investigation

Knowing what constitutes bullying and how to conduct a reasonable investigation has the obvious practical business benefit of rooting out any potential bullying situations at an early stage to help maintain a friendly workplace environment.

From a legal perspective, being able to identify bullying conduct and then carrying out a reasonable investigation into a bullying allegation will provide a strong foundation to defend any claim arising out of the conduct.

There is no such thing as a specific ‘bullying claim’ in employment law, but employers have a legal duty of care to protect their employees from harm including bullying. However, bullying conduct has the potential to be used to bring Equality Act 2010 (“EqA 2010”) claims for harassment, unlawful discrimination, and victimisation. Bullying conduct can give rise to claims for constructive dismissal and also claims under the Protection from Harassment Act 1997.

What constitutes bullying conduct?

The Raab report applied a broad definition of ‘bullying’, which is very similar to the definition of harassment under section 26 EqA 2010, resulting from the case of R (FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 (Admin). Bullying was described as conduct which is either:

  • Offensive, intimidating, malicious or insulting behaviour; OR
  • Abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.

ACAS helpfully provides examples on their of what the above behaviour looks like in practical terms. Examples include constantly criticising someone’s work, continuously putting someone down in meetings, and placing humiliating, offensive or threatening comments or photos of a colleague on social media.

Relevant issues when investigating bullying claims in the workplace

Naturally, any allegation of bullying should not be taken lightly. Your first step should be to check your organisation’s policy on bullying, equal opportunities, grievances and/or whistleblowing. This document should prescribe a method for handling the complaint and the procedure that should be followed.

ACAS recommends that employers handle complaints of this nature informally, if possible. This will depend on what the complainant desires, what your bullying policy says, and objectively how serious the issue is. If the matter is to be handled formally with a full investigation and a grievance hearing with a written outcome and right of appeal etc, then the Raab report highlights possible factors to be taken into account:

  • The facts and context of the conduct.
  • The nature and (if relevant) seriousness of the conduct, including whether it was offensive, intimidating, malicious or insulting, or was experienced as such, or was an abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.
  • The reasons, understanding and intentions of the employee.
  • If relevant, questions of mitigation including expressions of regret or apologies.

The investigator should attempt to keep an ‘open mind’ by listening to the complainant, leaving any personal feelings to the side, and trying to not make assumptions before hearing the relevant information.

Employee notice on resignation

“An employee has resigned without working out their contractual notice.  Can I withhold any pay in lieu of holiday accrued but not taken on termination, or deduct from the payment in lieu of holiday the reasonable costs to us of the employee’s breach of contract?”

Under section 27(1) of the Employment Rights Act 1996 (ERA 1996), wages means any sums payable to an employee in connection with their employment, including (among other things) holiday pay, whether statutory or contractual.

Under ERA 1996, s13, an employer cannot make any deductions from the wages of an employee unless:

  • the deduction is required or authorised to be made by virtue of a statutory provision, e.g. the requirement to make deductions for income tax or National Insurance contributions via Pay As You Earn (PAYE)
  • the deduction is required or authorised to be made by virtue of a relevant provision of the employee’s contract, e.g. where the employer provides a loan to the employee and has a contractual right to take money out of the worker’s wages in repayment, or
  • the employee has previously signified in writing their agreement or consent to the deduction (e.g. in respect of pension contributions)

An employer may seek to hold the employee liable in damages for breach of contract, e.g. where the employee has failed or refused to perform the contract of employment by failing to work their contractual notice period.

In order to make a deduction in these circumstances, the company will need to have a clause in the contract of employment that specifically authorises the company to make a deduction from wages in this type of situation.

Consideration needs to be given to whether a contractual term allowing the employer to deduct a sum from the employee’s final pay (or requiring them to pay a sum to the employer) amounts to a liquidated damages clause (which is potentially enforceable) or an unenforceable penalty.  The essence of a liquidated damages clause is that it is a genuine, agreed pre-estimate of the loss likely to be sustained in the event of a breach of contract. Such a clause may provide for a stipulated sum to be paid.  By contrast, there is a common law rule that a court will refuse to enforce a contractual term which has the character of a ‘penalty’. A ‘penalty’, put broadly, is a term that is designed to punish a failure to abide by the contract’s terms.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services (MILS) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.