Contents

• Family friendly changes
• Flexible working
• Could do better – Treasury Committee report on Sexism in the City
• In the courts – parental leave and religion and belief discrimination

Family friendly changes

Regulations came into force in March making paternity leave more flexible for parents whose child is expected to be born after 6 April 2024 or placed for adoption on or after 6 April 2024. Those parents can take paternity leave as a single period of one or two weeks, or as two separate periods of a week each. Employees must take leave within 52 weeks of the child’s birth or adoption. However, employees will still lose their right to paternity leave if they take shared parental leave before they take their paternity leave.

The right to be offered available suitable alternative employment in a redundancy situation changes on 6 April. It will apply to employees on maternity, adoption or shared parental leave as it does currently, but will also apply to:

• Employees who notify their employer that they are pregnant;
• Employees who return to work from maternity or adoption leave, for a period of 18 months from the child’s birth or adoption; and
• Employees who return to work from a period of at least six consecutive weeks of shared parental leave, for a period of 18 months from the child’s birth or adoption.

Finally, employees who have a dependant with a long term care need related to illness, disability or old age will be entitled to up to five days’ unpaid carer’s leave a year. The leave can be taken flexibly in periods of a day or half day and is subject to minimal notice requirements. Employers can refuse requests for leave if the business would be unduly disrupted.

Next steps

• Review relevant policies to reflect these changes.
• Brief managers so they can respond appropriately to requests for leave.
• Prepare a carer’s leave policy if you don’t already have one. Some employers may offer some paid leave to support employees with caring responsibilities for adult dependants.

Flexible working

If the flexible working reforms take effect on 6 April as planned, from that date employers need to remember that:

• Requests for flexible working become a day one right and employees can make two flexible working requests in any twelve month period;
• The time for considering requests reduces to two months, including any appeal, unless the employee agrees to an extension;
• They should consult before refusing a request; and
• Employees no longer need to explain the impact their request would have on the employer when making a request.

The statutory reasons for refusing a request have not changed. If an employer plans to reject a request, the revised ACAS Code of Practice on flexible working recommends giving employees “any additional information which is reasonable to help explain the decision.”

Next steps

• Review and update flexible working policies.
• Ensure managers know the time limits for deciding requests and who is responsible for arranging meetings under the flexible working procedure.
• Encourage managers dealing with requests to read the revised ACAS Code of Practice on flexible working.

Could do better – Treasury Committee report on Sexism in the City

The Treasury Select Committee published its report on sexism in the city, following its earlier 2018 inquiry. The report’s key message is that there’s been little progress in removing barriers for women in the financial services sector over the last five years.

Although the report focuses on financial services, it includes recommendations that employers across a range of sectors could consider as part of their diversity and inclusion strategy:

• Equalising parental leave offerings for men and women and encouraging men to take parental leave entitlements;
• Ensuring that staff do not lose the benefit of hybrid and remote working arrangements and that a return to office-based working does not disadvantage employees with caring responsibilities;
• Advertising vacancies as available on a flexible/ part-time basis to attract and retain a wide talent pool; and
• Putting policies in place to support women going through the menopause.

The Committee recommended additional gender pay gap reporting requirements, given the “glacial” pace at which the gender pay gap is improving. These include making businesses with 50 or more employees report, forcing employers with a gender and/ or bonus pay gap above a certain level to prepare action plans to address gaps and preventing employers from asking for a candidate’s salary history during recruitment.

Widespread sexual harassment remains a serious problem in the sector. The Committee welcomed the PRA and FCA’s proposals on non-financial misconduct but recognised that the situation will improve only if employers adopt a zero-tolerance approach to the issue. In particular, the Committee calls for a ban on the use of non-disclosure agreements in harassment cases and improved protection for employees who blow the whistle on harassment.

Next steps

• Monitor the PRA and FCA proposals on diversity and inclusion in the financial sector, particularly given the Committee’s recommendation that they drop their prescriptive approach to data reporting.
• Prepare for the introduction of the duty to prevent sexual harassment in the workplace in October 2024 by reviewing policies and training staff.
• Keep the use of non-disclosure agreements under review and recognise the potential reputational risks of using them.

In the courts – parental leave and religion and belief discrimination

There were two cases of particular interest in the EAT this month.

In the first, Hilton Food Solutions Ltd v Wright, the EAT considered whether an employee who had told his employer that he was thinking about taking unpaid parental leave but had not formally requested it had “sought” to take leave. It is automatically unfair to dismiss an employee who has sought to take leave, regardless of their length of service.

The EAT concluded that whether an employee has sought to take leave depends on the facts of each individual case. It isn’t a rule that an employee has to request leave formally before getting protection and in this case the employee had sought to take leave. For more information, read our Engage article here.

The second case, Omooba v Michael Garrett Associates Ltd (t/a Global Artists), considered whether it was religion and belief discrimination to withdraw the offer of an acting role from an actor after her views about sexual orientation (which she posted on social media in 2014 and reflected her religious beliefs) became a matter of public comment.

In 2019 a theatre offered Ms Omooba a role in The Colour Purple, playing a character who has a physical relationship with another woman. After she accepted the role and the theatre announced the play’s cast, another actor drew attention to her earlier comments and that she would be playing an LGBTQ character. A vigorous social media debate ensued. The theatre withdrew the role and her agent ceased to represent her after she made it clear that her views had not changed. She claimed that this was discrimination because of her religious beliefs.

The EAT upheld the tribunal’s decision that there was no discrimination. The theatre had not acted because of the claimant’s beliefs but because of the adverse publicity, and its impact on cast cohesion, audience reception, the producer’s reputation and the production’s overall commercial success. Her agent acted because he was concerned about the financial viability of the agency if it continued to represent her and that it would be impossible to secure roles for her in future. The tribunal had grappled with the relevant issues and was entitled to reach those conclusions, although the EAT decision recognises that cases of this type are fact-sensitive and require nuanced judgment.