UK Employment Law Coffee Break: Age webinar, statutory family leave and the Platform Workers Directive

Join our webinar: Maximising your workforce's potential and considering age without limits

Wednesday 20 March, 09:30-10:15 GMT

Research shows that half of people aged over 50 in England experienced age discrimination in the last year, and at least a third of people hold ageist beliefs. Join Osborne Clarke Employment Partners, Julian Hemming and Danielle Kingdon, who will discuss what employers need to consider when supporting employees who are considering redefining themselves at work or are looking to retire, and how to avoid the pitfalls of age discrimination.

As well as providing a summary of the current law on retirement, we will also touch on how to create an open and supportive culture to help employees to reignite their working lives or to prepare for retirement.

We will be joined by John Kiernan, from the Centre for Ageing Better, to talk about a recently launched nationwide campaign to tackle ageism. "Age Without Limits" is the country’s first public-facing campaign to change the way we all think about ageing.

Register now >

EAT provides helpful reminder on rights of those seeking to take periods of statutory family leave

The Employment Appeal Tribunal has handed down a helpful reminder for employers of the careful consideration required where an individual seeks to exercise a right to take some form of statutory leave.

The claim centred around whether the employee had "sought" to take statutory parental leave and could therefore claim automatic unfair dismissal. Essentially, the tribunal needed to determine whether an employee could only successfully claim that he had suffered a detriment or been automatically unfairly dismissed for seeking to take a period of statutory parental leave in circumstances where he had complied with the formal statutory notification requirements for making such a request.

Here, the claimant had not submitted a formal written request to take statutory parental leave, although "informal discussions" had taken place with various personnel at his employer, including his line manager and HR. He had subsequently received an email from HR, informing him that if he wished to apply he needed to write a request to his manager setting out the relevant dates (giving the correct period of notice). Following this, two further conversations took place at the instigation of the claimant to ask about parental leave; one of these was with his manager, at which he alleged the manager's response was "negative". 

The employer subsequently dismissed the claimant purportedly by reason of redundancy. The claimant brought a claim for automatic unfair dismissal on the basis that reason for his dismissal was that he had sought to take a period of statutory parental leave. The claimant had less than two years' service so was unable to bring an ordinary unfair dismissal claim. 

The EAT agreed with the tribunal that an application to strike out the claim by the employer, on the basis that it had no reasonable prospect of success, should be rejected. This was not only based on the statutory construction of the applicable provisions but also existing case law, which was authority for "the unsurprising proposition that a wide and purposive approach should be adopted" when interpreting the applicable statutory provisions. The task of considering the facts and determining whether the reason or principal reason found for the dismissal is such that it is connected with the fact that the employee took or sought to take paternity leave is a factfinding task, which "must, as on any causation issue, be approached in a pragmatic commonsense fashion on the facts of the individual case". 

If the employer's analysis was adopted (that is, that a formal statutory notification was required), that would lead "to a number of consequences that would be incompatible with a purposive approach", not least that an employee could unambiguously inform their employer of a decision to take parent leave, ask how to do so but subsequently be dismissed before making their formal notification. 

What does this mean for employers? 

The case is a useful reminder of the specific statutory protection for employees who have sought to take parental leave against suffering a detriment or being dismissed for that reason. It will be a matter for the Employment Tribunal as to whether, on the facts, it is satisfied that what the employee has done amounts to seeking to take parental leave. 

It will be important that line managers respond sensitively and carefully to any requests around leave entitlements to ensure that they do not unwittingly find themselves at the end of allegations that they have prevented the individual from seeking to exercise the applicable statutory right. 

While ultimately it will be a question for the Employment Tribunal on the facts as to whether or not an individual has sought to exercise their right to take the relevant leave and the consequences of this, the time and costs involved in managing any subsequent dispute could be significant. As well as the risk of an automatic unfair dismissal claim or detriment claim, the facts of a particular case may also give rise to a successful discrimination claim; here the claimant was seeking to take parental leave to assist him in caring for his children, one of whom was disabled. 

This April sees a new right statutory right to carer's leave being introduced, as well as amendments to the current statutory right to request flexible working and the statutory right to paternity leave. Employers should anticipate more questions from employees seeking to understand their leave entitlements and ensure that the statutory rules are reflected as a minimum in their policies and procedures. 

It is becoming increasingly important for managers to understand the range of leave entitlements which an employee may seek to exercise – together with exploring other options which may be appropriate in the circumstances, such as a temporary change in working arrangements – to enable them to respond appropriately to a request. Please speak to your usual Osborne Clarke contact to discuss any support in updating your policies to reflect this April's developments and training to support your HR team and managers in this respect.

EU agrees watered down Platform Workers Directive

EU ministers finally agreed, on 11 March, a provisional deal for the Platform Workers Directive (PWD). Importantly, it includes a presumption of employment status in certain circumstances, such that where those circumstances apply, it will be for the "employer" or platform to prove that the worker is not an employee.

But it does not introduce an EU-wide "test" for determining the circumstances when employment status will apply, with the original proposal for an "if you pass three of these five tests you are an employee" mechanism having been dropped as a result of opposition from a blocking minority of four EU countries. In other words, it will be down to each country to decide what control features will constitute the circumstances which give rise to the presumption of employment, and each country will be free to decide what classes as "control" or "direction" for these purposes. Read more in our Insight.

It remains to be seen if any new government in the UK will adopt similar measures, including the presumption of employment status and reversal of the burden of proof so that it is against the "employer". This may form part of the shadow deputy prime minister, Angela Rayner's, drive against "bogus" self-employment contracts and "exploitative" zero hours arrangements in the first 100 days of a new Labour government (if the Labour Party were to win the election). The next 12 to 18 months seem likely to involve significant changes to the UK staffing and platform worker landscape. As well as working out the impact of Labour Party plans on contract and gig workers, the announcements in last week's Spring Budget and related developments add other things to the mix. Read more here.