Employment law update: May 2024

Reasonable adjustments and trial periods

Did you know that when a disability puts an employee at the substantial disadvantage of not being able to continue in their current role and the employee is at risk of impending dismissal, an employer can and should consider providing that employee with a trial period in a new role? The employee had MS and could not continue as a pest control technician even when modifications and adjustments had been made. There was then a discussion about moving him into a different role and he applied for a junior support role as an administrator. This was turned down after written tests and interview and then he was dismissed on the basis of capability. This was a mistake. The reasonable adjustment duty on employers means taking ‘such steps as it is reasonable to have to take to avoid the disadvantage’. This does not mean a guarantee that the step will work! The only issue is whether or not it is reasonable for the step to be taken. A trial period in the support role was a reasonable step to take.

Rentokil Initial UK Ltd v Miller

Whistleblowing and knowledge

We are all familiar with the need for a link between your knowledge of a disability and requirement to make adjustments. What about your state of mind in cases of whistleblowing? Allegations were made by an employee in an email to HR that the conduct of the employer’s CEO amounted to bullying and harassment. HR informed the CEO about content of the email in a short WhatsApp message but the CEO did not read the email and was not apprised of the detail. The employee was subsequently dismissed by the CEO on the grounds of redundancy. The employee said that this was a sham and that the dismissal was automatically unfair because he had made a protected disclosure (blown the whistle) about the CEO. The Employment Appeal Tribunal concluded that to succeed the employee would need to be able to show that the CEO knew something of the substance of the disclosure that had been made. In this instance the CEO did not have sufficient information.

Nicol v. World Travel

Fire and re-hire – the new code is coming

The eagerly awaited new statutory practice on dismissal and re-engagement will take effect on 18th July 2024. The code will tell you what steps you must take when you wish to change terms and conditions of employment. Remember that dismissal and re-engagement is a last resort and failure to comply will come at a cost! Read the Code here. 

Fit notes – express yourself?

Do they work for you? Do they always refer to stress at work? What additional material do you need to know and read? The government’s open call for evidence has been launched. It closes on 8th July 2024. Make your views count.

Tips and fair distribution

New legislation, the Employment (Allocation of Tips) Act 2023 will make it unlawful for businesses to withhold qualifying tips, gratuity and service charges from workers. The main provisions of the Act will come into force on 1st October 2024. A statutory Code of Practice has been issued promoting fairness and transparency in the distribution of qualifying tips. Read the Code here.

Email employment@goughs.co.uk to arrange a meeting to discuss any imminent changes you need to be making to protect yourself and your business.

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our Partner & Head of Employment Rebecca Dennis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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