Employment Edit: 14 November 2024

Employment Rights Bill – employer’s handbook

Don’t forget to check out our employer’s handbook on the Employment Rights Bill and beyond, which we have produced to help organisations get to grips with what will be a busy time ahead. In the handbook, we explain each of the key proposals (including those in the Bill and outside it) in an easy-to-read format, as well as offering our thoughts on the potential implications for employers.

Redundancy consultation

The Court of Appeal has clarified that there is no requirement for employers to carry out general workforce consultation in small-scale redundancy exercises in non-unionised workplaces in order for dismissals to be fair.

The respondent proposed to reduce the size of its recruitment team by two. The claimant scored lowest in the selection process and was placed at risk of redundancy. The respondent held three individual consultation meetings with the claimant before his role was confirmed as redundant but it did not carry out any consultation with the workforce more generally. In a judgment that surprised many commentators at the time, the EAT held that the claimant’s dismissal was unfair due to a failure to meaningfully consult at a formative stage. In particular, the EAT concluded that there was no good reason for the respondent to have failed to carry out general workforce consultation.

The Court of Appeal overturned the EAT’s findings. Whilst it noted that tribunals must assess the adequacy of consultation on a case-by-case basis, it also concluded that general workforce consultation should not be regarded as ‘the usual standard’ in smaller-scale redundancy situations in non-unionised workplaces. It noted that group meetings may be a useful way of ascertaining the views of employees, but the appropriateness of such meetings will depend on the circumstances. This judgment will be welcome clarification for employers following a period of some uncertainty after the EAT’s earlier decision.

(De Bank Haycocks v ADP RPO UK Limited)

Maternity – suitable alternative vacancies

The EAT has provided helpful guidance on when an employer’s obligation in a redundancy scenario to offer a suitable alternative vacancy to an employee on maternity leave is engaged.

The respondent proposed to reduce the number of team leader posts from 21 to 16. Following a scoring exercise, the claimant (who was on maternity leave) was one of the five team leaders who were selected for redundancy. At first instance, the tribunal held that the claimant’s dismissal was automatically unfair as the respondent had failed to offer the claimant one of the team leader roles, which the tribunal determined was a suitable alternative vacancy. On appeal, the EAT concluded that this was the wrong approach – as no new roles were created and there was simply a reduction in the number of existing roles, the remaining team leader roles were not suitable alternative vacancies. The EAT noted that, where there is a reduction in existing roles, the special protection for those on maternity leave does not override a valid selection process and it does not require the employee on maternity leave to be retained in favour of someone who scored higher in the selection process for that reduction in roles.

In April 2024, the obligation to offer suitable alternative vacancies was extended to pregnant employees and those who have returned from maternity, adoption or at least 6 weeks of shared parental leave. This case therefore has wider application and is useful clarification of when a role will be considered to be a vacancy for these purposes.

(Carnival Plc (T/A Carnival UK) v Hunter)

Duty to prevent sexual harassment

Following the introduction last month of the new duty to prevent sexual harassment of their workers, the Equality and Human Rights Commission (EHRC) has issued new guidance for employers. Sitting alongside its technical guidance and employer 8-step guide, the new resources include a template action plan and monitoring log. They also include a template checklist which was originally designed for the hospitality sector, but the EHRC explains can be adapted to suit different workplaces.

For more information on the new duty and what it means for employers, check out our briefing here.