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Recent developments in employment law

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Staying on top of all relevant case law and consultations pertaining to the field of HR can be difficult. Here David Ashmore and Alison Heaton provide a rundown of the most recent developments.

Appeals against redundancy dismissals

Employers undergoing a redundancy exercise will often contemplate whether to permit an appeal against any resulting dismissal.

Redundancy is expressly excluded from the Acas Code of Practice on disciplinary and grievance (which provides for appeals in other contexts) and there is no right to an appeal granted in other guidance or legislation. 

It can make sense not to offer an appeal in a redundancy process because of the uncertainty it creates and the knock-on consequences for other employees – if the appeal is successful then it follows that another employee who thought they were 'safe' may be losing their job instead (and that employee may themselves then appeal). 

However, as the Court of Appeal reminds us in Gwynedd Council vs Barratt, the absence of an appeal is one of a number of different factors that should be considered when assessing the overall reasonableness of a dismissal for redundancy.

So while an appeal is not a pre-requisite for a redundancy dismissal to be fair, the absence of one may render it unfair and this case is an indication that increasingly best practice from an HR perspective is to offer the right of appeal in a redundancy situation unless there are exceptional circumstances.


Changes in employment law:

Hybrid working: five key employment law considerations for employers

Everything you need to know about redundancy and the end of furlough

Employment law changes: what to look out for


 

Dismissal decision-makers

The independence of decision-makers in disciplinary and dismissal proceedings is an important part of ensuring a fair process, although matters can get complicated where an innocent decision-maker has been duped by information received as part of the process. 

The Supreme Court decided last year that a dismissal would be unfair in circumstances where the decision-maker had acted in good faith when accepting background information provided, unaware that this was invented for the purposes of manipulating a termination of employment. 

Fortunately, and reassuringly for employers, the recent Employment Appeal Tribunal decision of Kong vs Gulf International Bank limits the principles of that Supreme Court case to the rarest of circumstances where there is active and demonstrable manipulation.

In Kong, a complaint about the employee’s behaviour (which ultimately led to dismissal) was incorrect, but on the facts there was no evidence that the complainant was motivated to engineer a dismissal.

Despite this judgment, employers should remain mindful that appointing an independent and innocent decision-maker will not necessarily absolve them of liability where apparent facts or circumstances have been overplayed or invented; investigations should consider this possibility and that information being provided has been manipulated.

 

Flexible working 

It was hard to avoid the media reports of the female estate agent who was awarded £185,000 in compensation for indirect sex discrimination after her flexible working request (to change her hours of work for childcare purposes) was turned down. 

Although not altering or clarifying the law on flexible working, the widespread media reporting and public reaction to this case highlights both the strength of feeling about flexible working laws (both for and against it) and the reputational and financial consequences that can arise where requests are not handled reasonably. 

The law on flexible working is currently subject to a consultation, with proposals to encourage more flexibility and a shift in focus to supporting requests. These proposals include the right to request flexibility being from day one of employment (instead of after six months), a requirement to consider alternatives, changes to the prescribed reasons for turning requests down, and temporary arrangements. Employers have until 1 December 2021 to submit their views.

 

David Ashmore and Alison Heaton are employment lawyers at Reed Smith