Head of Employment Tom Evans uses the latest summer employment newsletter to cover the key topics impacting employment law and HR professionals.
Can you use agency workers to replace striking workers?
The High Court held in R (on the application of ASLEF and others) v Secretary of State for Business and Trade that new legislation permitting employers to replace striking workers with agency workers is unlawful.
In reaction to the strike action that began in summer 2022, Kwasi Kwarteng, the then Secretary of State for Business Energy and Industrial Strategy, introduced the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (Regulations) which revoked legislation prohibiting agency workers being used to replace those on strike that had been in force since 1976. The Secretary of State introduced the Regulations without public consultation.
13 trade unions challenged the introduction of the Regulations on the following grounds:
- The Secretary of State failed to comply with his statutory duty to consult the public before making the Regulations. This duty arises pursuant to s12(2) Employment Agencies Act 1973.
- The Secretary of State breached his duty to prevent unlawful interference with the rights of trade unions and their members under Article 11 of the European Convention of Human Rights.
The Court upheld the first ground, finding that the Secretary of State had breached his statutory duty under the 1973 Act. The Court did not express a view on the second ground.
This decision has quashed the Regulations and revert the legal position to that under the 1973 Act, i.e. that it is unlawful for employers to introduce agency workers to carry out the duties of workers taking part in strike action. This will make the threat of strikes more a powerful tool for trade unions and perhaps incentivise employers to resolve disputes.
What types of Alternative Dispute Resolution (ADR) are available in Employment Tribunals?
Alternative Dispute Resolution allows parties to resolve claims without the need for a final hearing.
New Presidential Guidance has been issued by the Employment Tribunals, introducing a fourth form of ADR available to parties during the course of a Tribunal claim, the dispute resolution appointment.
The dispute resolution appointment is the first, and currently only, non-consensual form of ADR available in the Tribunal, meaning that a judge can list an appointment without the agreement of the parties. At an appointment, a judge will provide the parties with an impartial evaluation of their prospects, possible outcomes and the remedies available. Appointments will only be ordered after witness evidence has been exchanged and in more complex cases (usually those listed for a final hearing of 6 days or more). The judge’s comments are intended to help the parties to negotiate settlement, however if the matter does proceed to a final hearing, a different judge will hear the case.
The three other forms of ADR available are:
- ACAS – parties are encouraged to use the conciliation services provided by ACAS at all stages in the litigation. ACAS is a free and independent service which facilitates settlement.
- Judicial mediation – mediation is focused on more complex cases (usually listed for a final hearing of 3 days or more) and also aims to facilitate settlement. Judges will not generally express any thoughts on a parties’ prospects. Mediations are ideally held early in the litigation, before the parties have incurred significant costs.
- Judicial assessment – similar to the dispute resolution appointment in that judges will express a view on the parties’ prospects and the possible outcomes, however it will usually take place after a case management hearing where the judge has elected not to make an order for strike-out or a deposit, with the agreement of the parties. Judicial assessment is intended to assist the parties in evaluating the merits of their case and either narrow the issues or reach settlement.
Parties involved in Tribunal proceedings should carefully consider engaging in one or more forms of ADR with a view of saving costs either by narrowing the issues for the Tribunal to consider or reaching a settlement which will bring the proceedings to an end.
Can a dismissal be fair where a manager conducting a disciplinary process does not meet with the employee before dismissing them for gross misconduct?
In Charalambous v National Bank of Greece, the Employment Appeals Tribunal (EAT) held that the Claimant’s dismissal was fair despite the manager with conduct of the disciplinary process not meeting with them prior to dismissal. This decision upheld the judgment of the Tribunal. The EAT distinguished this case on the facts from the longstanding precedent set by Budgen & Co v Thomas that a dismissal is prima facie unfair if the dismissing manager did not meet with the employee before taking the decision to dismiss.
In this case, the Claimant was dismissed for gross misconduct relating to data breach, after having attended separate disciplinary meetings with two managers. The manager that ultimately took the decision to dismiss was not the same manager that conducted the final disciplinary meeting and did so after considering notes made by the other manager. This led to the Claimant appealing the Tribunal’s decision relying on the precedent set by Budgen.
The EAT noted that the procedure was ‘less than ideal’ but found that it is necessary to consider the disciplinary process as a whole. The EAT rejected the appeal and held that the dismissal was fair as the Claimant had been given the opportunity to present their case during the disciplinary process.
The key takeaway from this case is the importance of having a fair and thorough disciplinary procedure to negate the risk of unfair dismissal claims. We would always advise employers to ensure as far as possible that the person who decides to dismiss meets with the employee subject to the proceedings prior to dismissal.
What is the law surrounding flexible working requests?
The Government is keen to encourage flexible working. The Employment Relations (Flexible Working) Act 2023 has passed through the House of Lords and is now awaiting Royal Assent. Once enacted, the Act will change the current legal framework as follows:
- permit employees to make two flexible working requests each year, as opposed to one currently;
- require employers to consider requests within two months;
- employers must consult with the employee before declining a request (though it is notable that there is no guidance on what this process should look like); and
- employees are not required to explain what they believe the effect of the request may be.
Under the new Act, employees are still required to have been employed for 26 weeks in order to be eligible to make a flexible working request. No right to appeal has been introduced by the legislation, though the ACAS code recommends allowing employees to appeal decisions.
Employers would ensure that their flexible working policies are updated to reflect the new legal framework. We will keep you updated on when the new Act will be in force.
What is workplace bullying?
Currently, there is no definition of bullying at work, however a private members’ bill has been presented to MPs, which proposes to introduce a statutory definition and allow claims of workplace bullying to be heard in the Employment Tribunal. The Bullying and Respect at Work Bill would also introduce a minimum standard for respect in the workplace, a formal reporting and investigatory procedure for allegations of bullying and enable for the Equality and Human Rights Commission to investigate claims.
Bullying at work can lead to stress and time away from work, which in turn has a negative impact on employers and the economy. It is reported that workplace bullying costs UK business around £18bn each year.
The bill is still in its early stages but we will keep you updated with any developments.
Want to learn more? You can read our previous employment newsletter or visit our employment law page to learn more about our services. For advice on Employment or HR matters contact Tom Evans direct at firstname.lastname@example.org