HR briefing - March 2023

09 March 2023

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package, and now with a podcast too.

This month’s podcast: managing sickness absence

Navigating fit notes, disability discrimination law, medical records, occupational health, statutory sick pay and income protection insurance can be a challenge for even the most experienced advisors. In our podcast this month, Constance Shaw and Matthew Ramsey discuss some of the challenges in this complicated area of employment law.

Termination dates

The employment relationship is often best characterised as founded in contract but overlaid with legislation. Employers and employees can negotiate and agree the salary for example, but cannot agree something that would contravene the minimum wage legislation. Sometimes the intersection of legislation and contract is not so clear cut. If an employer serves notice to terminate an employee’s employment and they stop work, but do so in breach of contract so that the contract survives, what is the employee’s statutory date of termination?  It is important to remember that the date of termination (called the “effective date of termination” in the Employment Rights Act, or EDT for short) matters because it marks the start of the three-month window in which an unfair dismissal claim, or early conciliation, must be started. 

A recent case looked at this point and the decision is clear: the two concepts (termination of contract and effective date of termination) are separate. Termination of contract occurs in accordance with the relevant terms of the contract in question. The effective date of termination is simply the date on which termination takes effect. Where notice is properly given, the two usually align, as in this case the EDT becomes the date on which the notice expires, which should also be the contractual end date.

The case illustrates the importance of getting the dates right. A letter confirming termination (but with other errors, and a settlement offer included) was sent on 5 February and received on 7 February. A payment in lieu of notice and accrued holiday was then made on 14 February. The Claimant assumed his EDT was 14 February and started counting his Tribunal time limit from that date but his calculated timings were incorrect. Even though the 5 February letter included errors, it was sufficiently clear that the Claimant’s employment was being terminated unilaterally. When the Claimant received the letter, that was therefore his EDT. His mistake meant his claim was out of time and could not proceed. It is therefore critical that any claimants or respondents facing Tribunal deadlines ensure dates are counted carefully and plenty of time is allowed to do so.

Unpredictable working patterns

One of the issues identified in the 2017 Taylor Review was one-sided flexibility, where a worker is required to be available on short notice, but has no guarantee that any work will actually be provided. The Review noted that this unpredictable fluctuation in work levels means some workers would find it hard to budget effectively and might be reluctant to assert their legal rights. The Government has now announced that it will lend its support to a Private Members’ Bill on this subject – the Workers (Predictable Terms and Conditions) Bill currently before Parliament. The draft legislation gives workers with unpredictable patterns a right to request a more predictable working arrangement, much in the same way as the existing right to request flexible working. The legislation does not define what “unpredictable” means, save that all fixed-term contracts for less than 12 months are “unpredictable”. This drafting (unless amended during its progress through Parliament) risks leaving employers (a) unsure which workers might be affected and eligible to submit a request; and (b) faced with a series of requests from those on fixed-term arrangements, for example maternity cover roles. We will return to this legislation in a future briefing once it is in final form.

Gender pay gap reporting

The Government has updated its guidance for employers affected by the gender pay gap reporting regime. The new guidance is intended to be clearer and easier to digest for businesses with a reporting obligation. As a reminder, all firms with 250 or more employees are within the reporting regime and are obliged to upload an annual report showing a range of comparative pay and bonus data. 

Employees with Pre-Settled Status may have their visa expiry date automatically extended

Just before Christmas 2022, the High Court ruled against the Home Office on the legality of the two step EU Settlement Scheme application process.

In that ruling, the High Court said that requiring EEA and Swiss nationals who have Pre-Settled Status to make a second application to the EU Settlement Scheme for Settled Status, or else risk becoming an overstayer, was unlawful.

In response at the time, the Home Office declared that it would appeal the ruling meaning that a conclusion would not be reached for months.

However, in a surprise move, the Home Office has announced that it will not lodge an appeal and will instead incorporate the ruling into law.

This is welcome news for employers who have employees holding Pre-Settled Status as it may mean that they will no longer be time limited in their stay in the UK.