Employment Edit: 18 April 2024

No protection against detriment for striking workers

In an important decision published yesterday, the Supreme Court has held that the statutory provision that prohibits an employer from subjecting a worker to a detriment for taking part in the activities of a trade union does not include protection where the worker is taking part in lawful strike action during their working hours. The Court found that it is not possible for it to read the statutory wording in a way to incorporate such protection as to do so would mean the Court would be legislating (which would be outside of its powers).

As it stands, a worker therefore does not have statutory protection against sanctions short of dismissal where they take part in lawful strike action during working hours. However, the Supreme Court went on to find that the failure to protect workers in this way is incompatible with Article 11 of the European Convention on Human Rights, which protects freedom of assembly and association and incorporates the right to strike. The Court concluded that the right of an employer to impose any sanction short of dismissal for taking part in lawful strike action nullifies the right to strike. It also noted that the current statutory provision ‘encourages and legitimises unfair and unreasonable conduct by employers’.

As a result, the Court issued a declaration of incompatibility stating that the statutory provision is incompatible with Article 11. It is now for parliament to decide what steps it wishes to take in light of the declaration of incompatibility, including whether to amend the legislation and, if so, how. In the meantime, employers should remain cautious of taking action against striking workers, particularly as they benefit from several other protections (including certain protections against dismissal).

(Secretary of State for Business and Trade v Mercer)

New government, Acas and EHRC guidance

Several new and updated pieces of guidance have been issued by the government, Acas and the EHRC in the last fortnight. Below is our round-up of the guidance, together with accompanying links.

The government and Acas have issued new guidance to coincide with the new statutory right to carer’s leave coming into effect on 6 April 2024. Although the guidance is not binding on employers, it aims to explain the statutory right and provide some practical pointers for employers. This includes a helpful table in the Acas guidance detailing the minimum notice that an employee is required to give before their leave is due to start.

Acas has also issued updated advice on the statutory right to make a flexible working request. The updated advice, which is in addition to the new Code of Practice on the topic, takes into account several important changes to the right which took effect on 6 April 2024. Read more about those changes here.

The Department for Work and Pensions has issued new guidance aimed at helping managers to better support disabled people in the workplace. The Disability Confident guide, which has been prepared in conjunction with the CIPD, provides tips for managers on recruiting, managing and fostering the progression of those with a disability or health condition. It includes sections on reasonable adjustments (both during the recruitment process and during employment), managing sickness absence and career progression.

The Equality and Human Rights Commission (EHRC) has updated several of its pregnancy and family-related leave toolkits to reflect the 6 April 2024 changes to paternity leave and the right to request flexible working, as well as the extension of redundancy protections which also took effect on that date. The toolkits aim to help employers understand their legal obligations, including the now extended obligation to offer suitable alternative employment (where available) to pregnant employees and certain eligible family-leave returners in a redundancy situation. Read more about this protection here.

‘Fire and rehire’ code of practice

During a parliamentary debate earlier this week, the government indicated that it intends to bring the new statutory code of practice on dismissal and re-engagement (often referred to as “fire and rehire”) into effect before parliament’s summer recess in July this year.

The code sets out detailed steps that an employer should follow when it is contemplating changes to terms and conditions and envisages it might dismiss employees if they do not agree to the proposed changes. Employers contemplating changes to terms and conditions and potential dismissal and re-engagement will need to pay close attention to the steps required under the code. This is particularly the case as tribunals will be able to apply an uplift of up to 25% of compensation in relevant cases where an employer has unreasonably failed to comply with the code.

Whistleblowing – knowledge of the disclosure

The EAT has held in a whistleblowing case that the decision-maker needs to be aware of the substance of the alleged protected disclosure, and not just that a disclosure has been made.

In an email to two HR consultants engaged by the respondent, the claimant alleged that the conduct of the respondent’s CEO amounted to bullying and harassment. After the claimant’s employment was terminated by the CEO a short while later, purportedly by reason of redundancy, he claimed automatic unfair dismissal on the grounds that he had made a protected disclosure. One of the HR consultants had informed the CEO of the claimant’s concerns about her use of WhatsApp and about the terms of a colleague’s departure, but she did not make direct reference to the claimant’s email and the CEO was not aware of the email until after he was dismissed.

The EAT held that, in order for the decision-maker to be fixed with knowledge of the disclosure and the employer therefore potentially be liable for automatic unfair dismissal, the decision-maker needs to know at least something of the substance of the disclosure that has been made – they ought to have some knowledge of what the employee is complaining or expressing concerns about. On the facts of this case, it was open to the tribunal to find that the CEO did not have sufficient information about the disclosure. It is worth noting that there is an exception in cases where the decision-maker has deliberately been kept in the dark about a disclosure, in which case a different test applies.

(Nicol v World Travel and Tourism Council and others)