Employment Edit: 12 December 2024

‘Fire and rehire’ compensation

The government has passed legislation to extend the power that tribunals have to award an uplift of compensation where an employer has unreasonably failed to comply with the Code of Practice on dismissal and re-engagement.

Since the Code came into force on 18 July 2024, tribunals have had the power to increase awards for certain employment tribunal claims (including unfair dismissal) by up to 25% where an employer unreasonably fails to comply with the Code. However, these uplift powers do not currently apply to protective awards made for failure to collectively inform and consult (such awards being up to 90 days’ uncapped pay per affected employee). The government has now addressed this point by passing an Order last week to add claims for a protective award to the relevant claims that can be the subject of an uplift. With effect from 20 January 2025, tribunals will therefore be able to order an uplift to the protective award in relevant cases where the employer has unreasonably failed to comply with the Code.

‘Fire and rehire’ (or dismissal and re-engagement) remains a hot topic and one which is subject to change. In particular, the Employment Rights Bill contains provisions which would, if implemented, significantly change the legal protections in place for employees in dismissal and re-engagement cases.

Irretrievable breakdown in the employment relationship

The EAT has provided helpful clarification of the factors that are relevant in a claim for unfair dismissal due to an irretrievable breakdown of the employment relationship.

The claimant, who has dyslexia, was interviewed for proposed new roles as part of a restructure but she was unsuccessful. She raised a grievance alleging that she should have been given the questions 24 hours ahead of her interview. The outcomes of the grievance and grievance appeal were largely favourable to her (including an offer of a new interview), but she rejected both outcomes and wrote several emails to the appeal manager and the chairman of the organisation. After a meeting to discuss whether her continued employment was tenable, she was dismissed on notice for some other substantial reason as the decision maker determined that the employment relationship had irretrievably broken down.

After losing her unfair dismissal claim in tribunal, the claimant appealed to the EAT arguing that the employer had failed to give sufficient consideration to her length of service and alternatives to dismissal. The EAT held that, as the employer had reasonable grounds for concluding that the relationship had irretrievably broken down, her length of service was not relevant to the decision to dismiss her. The decision maker had considered alternatives but the EAT concluded that dismissal was the only option once trust and confidence had irretrievably broken down.

(Alexis v Westminster Drug Project)

Paternity and shared parental leave review

Last week, the Women and Equalities Committee (WEC) launched a call for evidence seeking views on statutory paternity leave and statutory shared parental leave (SPL). This call for evidence forms part of the WEC’s work ahead of the government’s proposed review of the parental leave system, which was referenced in the Next Steps to Make Work Pay document published alongside the Employment Rights Bill.

The WEC invites submissions on a range of topics, including the extent to which SPL gives parents choice and flexibility in how they share parenting responsibilities in the first year, why take-up of SPL has been low and whether there are potentially more effective alternatives to the current ‘maternal transfer’ model of SPL. The call for evidence closes on 31 January 2025.

Harassment – comments about an employee’s accent

The EAT has found that comments about a person’s accent which are not motivated by race could nevertheless be ‘related to’ race for the purposes of a harassment claim.

As part of a wide-ranging employment tribunal claim, the claimant raised a complaint of harassment regarding comments made about her accent. At first instance, the tribunal rejected the claimant’s harassment complaint because the references to her accent were in no way motivated by the claimant’s race. Instead, the tribunal noted that the comments were to do with the claimant’s intelligibility or comprehensibility. On appeal, the EAT disagreed with the tribunal’s analysis – the tribunal had incorrectly imposed a mental element on the harassment claim so that it was in effect assessing whether the treatment was ‘because of’ race. The EAT clarified that there is no such mental element required and that there ‘may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser’.

The EAT noted that an accent may be an important part of a person’s national or ethnic identity and therefore comments about their accent could be ‘related to’ the protected characteristic of race. Whilst finding that criticism of an accent could violate dignity, the EAT also noted that not all mentions of a person’s accent would amount to harassment. Consideration would need to be given in each case to whether the comment was unwanted, related to race and satisfied the other elements of the harassment test (such as whether the comment had the purpose or effect of violating dignity). The harassment claim was remitted to the tribunal to be redetermined.

(Carozzi v University of Hertfordshire)

Tougher enforcement action for sponsors

The Home Office has announced new measures to tackle non-compliance with the Immigration Rules. In this blog post, Hannah Malone considers these new measures and what they mean for sponsors. Hannah also considers the latest Home Office statistics on revoked and suspended sponsor licences.