Employment Case Law Update August 2023

Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

Harassment

Greasley-Adams v Royal Mail Group Ltd

The employee had Asperger’s Syndrome. Several of his colleagues made complaints against him, alleging that he had bullied them. The investigation into this mistreatment uncovered evidence that Greasley-Adams’ condition had been the subject of offensive remarks from coworkers.

He then filed a harassment claim but was unsuccessful. As he was unaware of the comments when they were made, he was unable to claim that they constituted intrusive conduct.

The Employment Appeal Tribunal noted that difficult issues are often raised in investigations, but employees should not be stopped from giving evidence that might be upsetting.

A worker cannot be harassed if he or she is unaware of the conduct. In this instance, the employee did not become aware of the conduct in question until a significant amount of time had passed, which then influenced the employee’s perception of the conduct in question.

This case does not mean, however, that employers should avoid dealing with issues such as bullying simply because the conduct is taking place behind the apparent target’s back.

Employer takeaways

The Employment Appeal Tribunal also noted that difficult issues are commonly raised in investigations, but employees should not be prevented from giving evidence that might be considered upsetting.

If potentially distressing information is uncovered during an investigation, the employer should explain this to the affected employee with care. The possibility that an employee might be offended should not prevent employers from investigating sensitive matters.

Trade unions

R (on the application of ASLEF and Ors) v Secretary of State for Business and Trade (‘ASLEF’)

On 21 July 2022, the government amended the law to permit companies to hire temporary workers to replace striking employees. A number of trade unions challenged the legality of this amendment.

Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the ‘Conduct Regulations’) outlawed the practice of providing temporary employees to cover the work of those participating in official industrial action; therefore, its repeal would severely diminish the effectiveness of strike action.

Due to this, ASLEF and thirteen other trade unions challenged the repeal.

The High Court considered whether the Government’s repeal of Regulation 7 was lawful, and held that it was not.

The right to strike is a fundamental aspect of employment rights in the UK, but it remains a qualified right that must be balanced with broader societal interests.

The decision of the High Court means that from 10th August 2023 employers will no longer be able to use agency workers to cover striking employees.

The government has indicated that it does not intend to appeal the decision, and therefore businesses must not engage agency workers to cover striking employees from this date.

Flexible working Bill

The Employment Relations (Flexible Working) Act 2023 is set to change how employers handle flexible working requests.

The changes are as follows:

• Employees will now be able to make two requests in a 12-month period instead of just one.
• Employees will no longer be required to set out in writing how they think that their request for flexibility will work.
• Employers will now only have two months to make their decision instead of three.
• The employer is required to consult with the employee, unless the decision is an immediate acceptance.

Importantly, employees are still required to have at least 26 weeks’ continuous service before making a flexible working request, for the time being at least. However, the government has said that it will be introducing secondary legislation to make the right to request flexible working a right from day one of employment.

The Bill had been working its way through the parliamentary stages and has now completed the final reading and received Royal Assent. Although it is now law, no formal implementation date has yet been given.

Employer takeaways

In preparation for the new law taking effect, employers are advised to review their flexible working policies, procedures and training.

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, we can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

Last updated: 30 August 2023