Our weekly top five for employers: 28 January 2019

1. Consultation on enhanced protection for pregnant women and new parents

The government has published a consultation on proposals to protect pregnant women and new parentsreturning to work after having children from 'unfairly losing their jobs'. This follows its commitment to strengthen the position of women in relation to pregnancy, maternity and redundancy and its response to the Taylor Review that it would be reviewing the relevant legislation. The consultation looks at:

• Extending the statutory redundancy protection for those on maternity leave (whereby an employer must offer them a suitable alternative vacancy where one is available on redundancy) to pregnant women and new mothers who have recently returned to work benefit from the same protection. Following earlier recommendations from the Women and Equalities Select Committee (WESC), the consultation proposes the protection is extended by six months after the new mother returns to work.
• Whether a similar protection should be afforded to other groups (such as those returning from other forms of long term childcare leave – principally adoption leave and shared parental leave).
• The steps the government is taking to increase employees' awareness of their rights and employers' awareness of their obligations and how they might be improved to tackle pregnancy and maternity discrimination more effectively.

The consultation also touches on the existing approach to enforcing employment and equalities legislation in the context of recommendations from WESC and the Taylor Review and confirms that the government is committed to exploring evidence for changing employment tribunal time limits for claims relating to discrimination, harassment and victimisation, including on grounds of pregnancy and maternity. The potential extension of ET time limits forms part of the Law Commission consultation on employment law hearing structures which closes on 31 January.

In announcing the new consultation, the government is keen to stress that this move goes further than current EU requirements on maternity entitlements and parental leave, demonstrating the UK's 'commitment to workers' rights and meeting the challenges of the changing world of work' and that 'through the modern Industrial Strategy and the largest upgrade in workers' rights in a generation, the government is building an economy that ensures everyone can progress at work. That's why we are looking at ways to further protect new parents by giving them time to re-establish themselves in the workplace and show the value they bring to their employers'.

2. Brexit and immigration

The government has announced that it is waiving the fee for Settlement Scheme applications when it fully opens on 30 March 2019. The current application fee is £65 for those aged 16 and over. Individuals who have already paid a fee under the test phase of the scheme, or will do so prior to 30 March 2019, will be reimbursed. The government's aim is to ensure that there is no financial barrier for EU citizens and their family members to stay in the UK.

The move coincides with the opening of the public test phase of the scheme (which up until now has been restricted to specified groups of individuals). EU nationals or non-EU family members of EU nationals can now register to enter the public test (although citizens of Iceland, Liechtenstein, Norway and Switzerland will not be able to apply until the Scheme fully opens on 30 March 2019).

Our latest guidance note is here. For more information and for assistance in understanding your options, please do contact our specialist immigration team who will be happy to assist you.

3. Itemised payslips

On 6 April, new rules come into force requiring all employers to:

• provide payslips to all workers; and
• show hours on payslips where pay varies by the amount of time worked.

The Department for Business, Energy and Industrial Strategy has now issued guidance (which is not legally binding) and which is intended to help an understanding of the new legislation. The guidance sets out a number of case studies on how the new rules work and clarifies some of the more 'tricky' areas such as where a worker's pay varies due to unpaid leave or statutory sick pay. The guidance also confirms that where a worker believes that they have not received a payslip or that the payslip they have received lacks the required information they may bring an Employment Tribunal claim and seeking a declaration as well as repayment of un-notified deductions made in the 13 weeks preceding the claim date (even where the employer was entitled to make the deductions). This is separate to the existing statutory claim of unlawful deduction of wages.

See here for our What's on the Horizon calendar, setting out other developments in employment law in the coming months.

4. When does an employer have knowledge of a 'disability' for the purposes of making reasonable adjustments

The Equality Act requires employers to make reasonable adjustments for 'disabled' employees. However, the duty is only triggered when an employer has actual knowledge or could reasonably be expected to know of the employee's disability i.e. he or she has a physical or mental impairment, that is of sufficient long standing or likely to last 12 months at least and which has sufficiently interfered with the individual's day to day activities.

Here, Ms L was off sick from 29 February 2012 due to reactive depression and alleged bullying at work. She raised grievances which were not satisfactorily resolved. She met with the Chief Executive at her employer on 18 July and told her that she was suffering from PTSD caused by childhood experiences which could be triggered by difficult situations. She was assessed by occupational health who in a report dated 21 November 2012, concluded that her symptoms of reactive depression probably began in September 2011 and that she had a good prognosis for full recovery if any outstanding issues relating to her grievance were resolved. Her employer conducted a fresh investigation which rejected her grievance in January 2013 and Ms L brought a claim of unlawful disability discrimination, including a failure to make reasonable adjustments relating to the handling of her grievance.

Her employer argued that at the time her grievances were initially dealt with, it did not know and could not reasonably be expected to know that she was disabled. It was not therefore under any obligation to make reasonable adjustments prior to the occupational health report in November 2012. The Employment Appeal Tribunal rejected this finding that the employer ought reasonably to have known that Ms L was disabled by July 2012 and indeed, had actual knowledge of her disability by 18 July 2012. It was therefore reasonable for it to have made some of the adjustments claimed.

The decision acts as reminder that an employer may have constructive knowledge of a disability earlier than it appreciates, and despite the fact that no occupational health referral has at that stage been sought. Here, Ms L had been off work with depression for four months, her grievance was ongoing and no resolution was imminent. Had she been referred to occupational health earlier, the likely conclusion of that referral was readily apparent.

Lamb v The Garrard Academy (EAT)

5. Allegation of defamation can amount to breach of legal obligation for whistleblowing purposes

In an interesting decision, the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal (ET)'s decision that the claimant had not made a protected disclosure for the purposes of the whistleblowing legislation, but in doing so has confirmed that a protected disclosure can include tortious acts, such as an allegation of defamation.

Mr I, an interpreter at a private hospital, met with a senior manager to request an investigation into rumours circulating among patients and their families that he was responsible for breaches of patient confidentiality. He sent an email that day stating that he need to 'clear his name'. HR investigated his complaint but it was rejected. He was later dismissed and brought ET proceedings claiming, amongst other things, detriment for having made a protected disclosure under the whistleblowing legislation. The ET rejected his claim on all aspects of the test for determining if a protected disclosure had been made. Mr I appealed.

The EAT disagreed with the ET, finding that a complaint that false rumours have been spread can be a disclosure of information that tends to show breach of a legal obligation for whistleblowing purposes. Breach of a legal obligation can include tortious duties, such as defamation and those statutory duties contained in the Defamation Act 2013. Mr I's allegation was that he was being defamed and it was irrelevant that he did not use the precise legal terminology in his complaint. However, the EAT agreed with the ET that Mr I's disclosures were not made in the public interest but rather with a view to him clearing his name and re-establishing his reputation. The EAT referred to the Court of Appeal decision in Chesterton confirming that in applying the public interest test an ET had to ask itself whether the worker believed that the disclosure they were making was in the public interest and whether if so, the belief was reasonable. Parliament had deliberately decided not to define 'in the public interest', leaving it to tribunals to consider and apply as a matter of educated impression.

Ibrahim v HCA International (EAT)