Watch our recent webinar here for more information about some of these developments and the working time and Equality Act changes outlined in our November 2023 update.

Contents

• Extending redundancy protection
• Carer’s leave
• Paternity leave
• Consultation at formative stage key to fair redundancy process
• Settling future claims using a settlement agreement

Extending redundancy protection

Research shows that pregnant women and parents who have recently returned to work from family-related leave are at greater risk of redundancy than other employees. To address that situation, the government is extending the right to be offered a suitable alternative vacancy where someone is at risk of redundancy. From the beginning of April, the right will apply to those who are on maternity, adoption, or shared parental leave and to employees who:

• Notify their employer that they are pregnant, from the date of notification to the point at which they start their maternity leave;
• Return to work after maternity or adoption leave, for 18 months after the birth/ adoption; and
• Return to work after a period of shared parental leave lasting at least six continuous weeks, for 18 months after the birth/ adoption.

The slightly different rules for shared parental leave reflect the fact that employees who have taken relatively short periods of leave are less likely to be put at risk of redundancy.

Action points

• Ensure you have complete and accurate records of those returning to work, starting shared parental leave or notifying you of a pregnancy after early April, so you can identify which employees have the new right.
• Think about how to handle situations where a vacancy would be suitable for more than one employee with enhanced redundancy protection – this may be an issue in larger scale restructurings, given that more employees are likely to have protection in future.

Carer’s leave

From 6 April, all employees have a day one right to a week’s unpaid leave per year to arrange or provide care for a dependant with a long-term care need. Although the right only applies if an employee has a qualifying dependant who is disabled, has an illness or injury requiring care for more than three months or has needs related to old-age, it is self-certified – employers cannot ask for evidence that an employee is entitled to leave.

Employees can take leave flexibly, in periods of a day or half day, or could choose to take a consecutive period of leave of up to a week. The notice requirements are light-touch: a minimum of three days’ notice, or twice as much notice as the period of leave an employee’s asked for. Employers can only refuse a request if the operation of the business would be unduly disrupted, which is likely to be difficult to show if an employee has asked for a short amount of time off.

Action points

• Introduce a carer’s leave policy, or amend your existing policy if necessary, to reflect the new requirements.
• Make sure managers are aware of the new right and that there are limited grounds for refusing requests.
• Statutory leave is unpaid, but you may want to consider offering some paid carer’s leave to support staff with older or disabled dependants.

Paternity leave

Statutory paternity leave becomes more flexible for babies due after 6 April, or children placed for adoption on or after 6 April. Eligible parents will be able to take paternity leave:

• In separate periods of a week each if they wish, instead of as a single period of either one or two weeks.
• At any point before the child’s first birthday/ the first anniversary of the child’s adoption, instead of within 56 days of birth/ adoption as is currently the case.

Notice requirements become a bit more complicated as a result, but in broad terms employees must notify their employer that they intend to take leave before the birth or adoption (as they do at the moment), and then give at least 28 days’ notice of each period of leave they want to take.

Action points

• Update paternity leave policies to reflect the new requirements.
• If you already provide more than two weeks’ paternity leave, consider whether to apply the changes to any enhanced leave as well as to the statutory element.

Consultation at formative stage key to fair redundancy process

The EAT decision in De Bank Haycocks v ADP RPO UK Ltd is significant for employers running redundancy exercises. It suggests that consulting the workforce at a formative stage will be a key element of fairness, even if collective consultation obligations don’t apply.

At the start of the COVID pandemic, a global recruitment business decided to make redundancies in response to reduced demand. It scored employees using a selection matrix and then decided the number of employees who were at risk of redundancy. It held individual consultation meetings with the employees who were at risk of redundancy because of their scores. Mr De Bank Haycocks was the only employee selected for redundancy after someone else volunteered. A tribunal found that his dismissal was fair.

The EAT overturned the decision. Earlier cases emphasise the need for consultation at a point when proposals are at a formative stage and employees have a chance to avoid dismissals or minimise their impact. This consultation is critical, regardless of whether collective consultation obligations apply, and reflects good industrial relations practice.

Here individual consultation took place only after the employer had decided to make redundancies and how it would conduct the process, including the selection criteria. Employees had no opportunity to affect or change those decisions, which indicated that the process was unfair. The employment tribunal did not explain why it thought the dismissal was reasonable despite the lack of such consultation.

Action points

The employer has applied for permission to appeal, so the EAT decision may not be the last word. In the meantime:

• Employers conducting redundancy processes should consider how to discuss processes with employees at an early stage, even if it does not have collective consultation obligations or employee representatives.
• Employees should have time to consider the proposals and come up with alternatives to redundancies before employers run selection procedures and hold individual consultation meetings with employees who are at risk of redundancy.

Settling future claims using a settlement agreement

There has been uncertainty for many years about whether an employer can use a settlement agreement to compromise claims that haven’t actually arisen when the agreement is reached. In Bathgate v Technip Singapore Pte Ltd the Inner House of the Court of Session decided that it can.

Mr Bathgate was made redundant and entered into a settlement agreement, which covered age discrimination claims. Under the agreement, he received an enhanced redundancy payment and was entitled to an additional payment calculated under a collective agreement negotiated with a trade union. The employer later realised that Mr Bathgate wasn’t entitled to an additional payment because of his age. Only employees under the age of 61 were eligible. He brought a post-employment age discrimination claim but Technip argued that the settlement agreement covered it.

The Court of Session decided that settlement agreements can settle future disputes if the employee has agreed to that and the agreement specifies the type of claim the employee subsequently wants to bring. There is nothing in the relevant legislation to suggest that a settlement agreement entered into on termination of employment cannot compromise a claim that arises after the agreement is reached. In this case the waiver related to all claims, irrespective of whether the employee was aware of them at the date of the agreement, and listed age discrimination as one of the claims being settled. Mr Bathgate was not entitled to pursue his claim.

Action points

• If Mr Bathgate appeals, it is possible that the Supreme Court would accept that the case raises a matter of general public importance and agree to hear it.
• Employees are likely to become less likely to agree to waivers that purport to cover future claims unless they receive additional compensation for doing so.