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Announced in the December 2019 Queen’s Speech, the Employment Bill, otherwise known as ‘the Bill’, promised several far-reaching employment law changes. Following consultation, the Bill began a slow progression through Parliament. However, a global pandemic and governmental changes meant ‘Parliamentary time’ was insufficient to allow it to progress beyond the first stage. By the May 2022 Queen’s Speech, the Bill ceased to be mentioned.
However, some of the changes proposed in the Bill were picked up by MPs as private members’ bills and subsequently received Government backing, giving them a new lease of life. Although it’s hoped these proposed changes become law during 2023, it is unlikely they will be implemented until 2024 or even 2025. So, what changes can we expect to see implemented?
Carers leave
- If it becomes law, the Carers Leave Bill will introduce a new and flexible entitlement to one week unpaid leave a year for employees to arrange or provide care to a dependent.
- It is proposed that the right will start with the first day of employment.
- Although the right is linked to caring responsibilities, there will not be a requirement to evidence the care provided or how the leave is used.
- To be eligible, the employee must be caring for a dependent who needs care because of a disability, old age or illness or injury likely to need at least three months support.
- The Carers Leave Bill received governmental backing on 21 October 2022 after its successful second reading in the House of Commons.
Neonatal leave and pay
- The Neonatal Care Bill received governmental support in July 2022.
- If implemented, it will allow parents of babies who require hospital neonatal care to take 12 weeks’ paid leave on top of their statutory maternity or paternity leave.
- It is also proposed that the right will start from the first date of employment.
- To be eligible the employee will need to be the parent of a baby admitted to hospital up to the age of 28 days and expecting to have a continuous stay of seven days or more.
Extended redundancy protection (pregnancy and family leave)
The Employment Rights Act 1996 already gives employees on or returning from maternity leave priority over other employees regarding suitable alternative positions in a redundancy situation.
The Protection from Redundancy (Pregnancy and Family Leave) Bill, which also received Government backing in October 2022, proposes to extend this right to expectant mothers, those adopting children, or those taking shared parental leave, and span the period from when they notify their employer to 18 months from the start of their leave.
While we are still a way off from any of the above becoming law, these changes are firmly back on the political and legislative agenda.
An update on redundancy cases
We are heading towards that time of year when some Trusts and Schools are considering their staffing needs for the coming period and whether they need to consider restructuring or making redundancies. As such, it is appropriate to highlight a couple of recent cases which act as a good reminder of the need to follow a fair process and act with care, even where matters seem clear-cut.
Voluntary redundancy
The case of White v HC-One Oval Ltd demonstrates that an employee can still win an unfair dismissal claim where they have volunteered for redundancy. In this case, the employer announced proposals to make redundancies in the area Ms White worked, and she was provisionally selected. She subsequently requested voluntary redundancy, and her employment was terminated. However, she then submitted a claim for unfair dismissal, alleging her redundancy had been deliberately manufactured and she had been unfairly targeted because she was part-time and had raised a grievance in the past. The tribunal struck out the claim. However, the Employment Appeal Tribunal (EAT) said it was wrong to assume it was a fair dismissal purely because it was voluntary. It stressed the tribunal should still have considered whether there was an adequate reason for the redundancy and whether a fair process had been followed.
Selection pool of one and the importance of consultation
The case of Bradford Teaching Hospital NHS Foundation Trust v Regan demonstrates that an employee can still successfully win an unfair dismissal claim where they are the only employee in the redundancy selection pool. Ms Regan, a nurse, was employed on a series of fixed-term contracts. There was another nurse in a similar position. The employer needed to make financial savings and explained to Ms Regan that, as hers was the first contract to expire, she would be the one selected for redundancy. The remaining consultation period focused on attempts to find her alternative employment. She was unsuccessful in her unfair dismissal claim initially but appealed to the EAT. The EAT allowed the appeal and found the dismissal unfair, noting that consultation is a fundamental part of the redundancy process. For it to be meaningful, it must take place at an early stage when the employee can influence the outcome. In this case, there had been no consultation about the selection process and using a different selection criterion could have led to a different outcome. The case of Teixeira v Zaika Restaurants also referred to the risk of using a selection pool of one without effective consultation. The EAT again make it clear that consultation may have resulted in a different selection pool which could have led to a different outcome. Both these cases highlight the importance of consulting about the whole redundancy process, including the identification of the pool and process of selection.
