Employment Law and Cases Update

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17 July, 2023

Alice McKenna

New Legislation

In May 2023, three Private Members' Bills received Royal Assent; all of which expand the rights and protections currently available for parents and carers. In short these are as follows, but see our article here (Private Members' Bills - new legislation to be aware of in 2023 27 Jun 2023 - Article from Forbes Solicitors) for further information.

The Neonatal Care (Leave and Pay Act) 2023 - this will give eligible employed parents the right to up to 12 weeks of paid leave where a baby up to the age of 28 days is admitted to hospital and the baby has been in hospital for 7 days or more.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 - under the current law, employers are obliged to offer an employee on maternity, adoption, or shared parental leave a suitable vacancy where one exists during a redundancy exercise. This will extend the obligation to include pregnant women and new parents who are returning to work after leave.

The Carer's Leave Act 2023 - this will create a new statutory entitlement to 5 days' unpaid carers leave each year, for employees who have dependents with a long-term need.

Greasley-Adams v Royal Mail Group Limited [2023] EAT 86

Here, the Claimant brought a claim for harassment on the basis that derogatory and unwanted comments had been made about him that violated his dignity, related to his disability. The Claimant was not present when these comments were made and only found out about them during an investigation into an allegation that he had been bullying other employees.

The EAT held that for a harassment claim to be successful, the Claimant must have been aware of the unwanted conduct at the time it happened. They also concluded that understanding the Claimant's perception of the conduct is critical when deciding if there has been unwanted conduct that had violated their dignity. It follows that only unwanted conduct of which a Claimant is aware can be taken into account for a harassment claim.

Pilkington UK Ltd v Jones [2023] EAT 90

In 2018, the Claimant developed a condition in his shoulder from which there was no prospect of recovery. He was initially put on light duties but was subsequently signed off on long-term sick leave. Occupational Health indicated that the condition would permanently prevent him from undertaking manual work, though he would be able to undertake a non-manual role once the pain was brought under control.

In March 2019, the employer was notified that the Claimant was seen wearing work boots, and to the employer this suggested he was working elsewhere (whilst on sickness absence). The employer engaged surveillance agents who filmed the Claimant. As a result of the footage which showed the Claimant undertaking activity, the employer dealt with the matter under their disciplinary procedure. This led to the Claimant being dismissed for gross misconduct as it was felt that there was reasonable belief that he had undertaken physical activity during sickness absence.

The Claimant brought a claim under section 15 Equality Act 2010 ('s.15), alleging that his employer had treated him unfavourably because of something arising in consequence of his disability.

The tribunal found that the 'something arising' under s.15 was the employer believing that the Claimant engaged in physical activity whilst sick, and the dismissal (which was unfavourable treatment) was a consequence of that belief.

The company appealed, and the EAT dismissed the appeal. The EAT confirmed that there are two aspects of causation under s.15: (1) something arising from the disability, and (2) consequential unfavourable treatment. The first aspect requires an objective analysis, with a subjective analysis required for the second aspect. On the facts, the EAT confirmed that the belief that the Claimant had been engaging in physical activity whilst off sick was 'something arising' from the Claimant's disability.

For more information contact Alice McKenna in our Housing & Regeneration department via email or phone on 01254 222373. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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