Most employers use standard contractual documentation which is issued to new recruits without much thought. A recent Court of Appeal decision, relating to a commercial contract, serves as a reminder that a lax approach to contractual wording can have big implications, and not just in a commercial context. It is just as important for contracts of employment and settlement agreements. Employers need to make sure they have covered exactly what they want to cover.
It has been confirmed that the Workers (Predictable Terms and Conditions) Act 2023 will not be brought into force this autumn, as originally expected. The Act gave workers with uncertain hours the right to request predictability about their working days and times, the number of hours worked, and the length of their contract. The Act received Royal Assent in September 2023 and ACAS had published a draft Code of Practice on handling requests made under it. This now all looks to have been shelved.
Employees have two distinct claims which they are able to bring in relation to whistleblowing: a claim for whistleblowing detriment under s47B Employment Rights Act 1996, and a claim of automatic unfair dismissal on grounds of whistleblowing. There has been some uncertainty in recent times as to whether an employee who claims that they have been dismissed on grounds of whistleblowing can bring, in addition to an automatic dismissal claim, a claim against their employer that the act of dismissal was a detriment on grounds of whistleblowing. The distinction is an important one. The remedies for each claim are different.
Under Equality Act 2010, employees have protection against discrimination on grounds of ‘religion or belief’. Whether or not a person’s views should be regarded as a ‘protected belief’ is often a contentious preliminary issue. Tribunals are guided by principles set out by the Employment Appeal Tribunal in Grainger v Nicholson, something which the EAT had to consider in a recent case involving a belief in English nationalism.
Where an employer knows (or reasonably ought to know) that an employee is disabled, the duty to make reasonable adjustments is engaged. Employers must take reasonable steps to remove any disadvantage at which an employee is placed by reason of their disability. A recent EAT case looked at whether it could be a failure to make reasonable adjustments, where an adjustment was raised at appeal stage.
‘Associative discrimination’ occurs when someone faces a disadvantage but does not hold the relevant protected characteristic (meaning either sex, race, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy or marriage) themselves. UK law already recognises direct associative discrimination and harassment. For example, in Coleman v Attridge Law, the European Court of Justice ruled that an employee could claim discrimination due to her child’s disability.
In 2007, Tesco re-organised its warehouses resulting in mass relocations. As an alternative to potential redundancy, Tesco negotiated with USDAW (the recognised trade union) that it would give any staff, who stayed on and agreed to be relocated, a ‘Retained Pay’ payment which would be paid to them each month. ‘Retained Pay’ was described in the contracts of employment as ‘permanent’. In 2021, Tesco attempted to remove Retained Pay by firing and re-hiring on new terms which excluded Retained Pay.
The landscape surrounding sexual harassment in the workplace has changed significantly following the #MeToo movement dating back to 2017. Since then, following reports published in 2021 by the Equality and Human Rights Commission (EHRC) and the Women and Equalities Select Committee (WESC), the government acknowledged that existing legal protections against harassment in the workplace left room for improvement. It launched a consultation to consider sexual harassment in the workplace including whether a mandatory duty should be imposed upon employers to ensure employees are better protected from sexual harassment.
Employers who wish to avoid the risk of employment claims from departing employees are able to enter into a settlement agreement under which employment claims are settled.
The requirement to travel for a job is usually something that is made clear at the start of employment. Each party knows where they stand. But what happens if an employer’s expectations for employee travel change?
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