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Employment and Business Immigration Newsletter– December Edition – ebl miller rosenfalck

December 18, 2023

Welcome to the Winter Edition of the Employment and Business Immigration Law Newsletter. 

This edition is edited by Helen Murphie, Partner in the Employment Team and Head of the Immigration Team.

We would first like to congratulate Sara Kennedy who has been promoted to Partner in the Employment Team. Sara, who is a key member of the Danish desk at ebl miller rosenfalck, is a hugely knowledgeable and experienced employment law solicitor. She has been providing legal advice to Nordic and UK employers and employees for more than 16 years.

Our employment team has been busy cementing its international ties over recent months. We have received a number of new instructions from German, US and French companies, and European and international individuals planning to live and work in the UK. 

Edzard Clifton Dey, Partner in the Employment team, and myself recently returned from visiting our ebl partner companies in Germany: Frankfurt, Dusseldorf and Wuppertal, where we also met clients. Philip Henson, head of the Employment team, has also recently visited Dallas, US, on business.

Earlier in the year, our partners attended an AI and Legal Practice seminar in Cyprus and our firm also visited Brussels for the annual ebl conference with counterpart lawyers from France, Germany and Belgium. 

Philip has been working tirelessly as ever behind the scenes in the legal arena. In October 2023, he was appointed as the President of the Westminster and Holborn Law Society.  With his President’s hat on, he recently attended the ‘Rentrée du Barreau de Paris’, the Opening of the Legal Year of the Paris Bar.  The society is twinned with the Paris Bar which represents some 30,000 French lawyers.

Round up of important cases

Three-month delay was not fatal in a constructive unfair dismissal case

A delay of three months before an employee took the decision to resign from her job was not fatal in a claim of constructive unfair dismissal in Brooks v Leisure Employment Services Ltd [2023] EAT 137. 

One of the key requirements in a constructive dismissal claim is that an employee must resign in response to a fundamental breach of contract and must not wait too long to resign. There is no mandatory time limit to resign after the breach however if the delay is too long, the risk is that a court will find that the employee affirmed the breach – or in layman’s terms – waived it by continuing to work.

Facts

Ms Brooks, a Butlins holiday camp sales representative, was removed, without explanation, from a WhatsApp group dedicated to a newly set up home working team in March 2020 during the Covid Pandemic.  She was going to be part of that team.  After Ms Brooks raised concerns about her pay, she was suddenly removed from the group and was not permitted to work from home.  Ms Brooks raised a formal grievance about the situation and during the grievance process, she stated that she reserved all of her rights. 

The key issues for the tribunal were:

  1. Whether the employer behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between Ms Brooks, the claimant, and the respondent;
  2. Whether the employer had reasonable and proper cause for doing so.
  3. Did the claimant resign because of the breach?  Was the breach so serious that the claimant was entitled to treat the contract as being at an end?
  4. Did the claimant delay before resigning and affirm the contract?
  5. If there was a constructive dismissal, was it otherwise fair within the meaning of s. 98 (4) of the Act?

Whilst the Employment Tribunal (ET) agreed that her removal without explanation from the WhatsApp group (in the context of the decision to remove her from the home working team) amounted to a breach of the implied duty of trust and confidence, it found Ms Brooks had not resigned in response to the breach, a requirement for constructive unfair dismissal. The ET found she had “affirmed” the breach by continuing to work and accepting her salary for three months before she resigned.

Ms Brooks appealed to the Employment Appeal Tribunal (EAT). The EAT found that the lower court had failed to take into account important considerations in relation to “affirmation” and delay, and sent the case back for reconsideration. In particular, mere delay was not in itself confirmation or affirmation of the breach although it might support it:

1) Ms Brook’s grievance had not been completed by the date of her resignation;

2) She had also clearly stated that she reserved her rights during the grievance process.  An employee who makes it clear that they are going to continue to work for a limited period but reserves their rights to resign or where they wish to resolve matters through an employer’s grievance process, may still be able to resign in response to a fundamental breach of contract.

Comment

Many employees delay resigning from their job because they are unclear on what to do and about the law, wish to resolve matters which may include going through the grievance process, or because they are concerned about losing their income particularly if they have not found another job.  The clear danger is that an ET may decide that by staying at work and delaying the decision to resign, the employee will have affirmed the fundamental breach and will therefore lose their claim for constructive unfair dismissal. 

The above case is a reminder that delay of resignation is not always fatal to a constructive dismissal case particularly where an individual has submitted a grievance which is ongoing and may take a number of months to conclude.  An employer should take note of employees who make it clear they are working under protest or who reserve their rights to resign or bring a claim.

It is another reminder to employers that prompt resolution of a grievance is always preferable.  It may not only help the parties resolve the issue in question, but it may assist an employer ‘s defence where the delay of resignation and affirmation are important considerations.

Heat of the moment resignations

When is a resignation really intended or made in the heat of the moment and should not be relied on?   The EAT ruled in Omar v Epping Forest Citizen’s Advice 2023 EAT 132 that the question can only be answered after considering all the evidence about the language used, the context, and how a reasonable bystander would objectively view the resignation.  Interestingly the employee’s intention at the time is not determinative of the issue. 

Facts

Mr Omar had resigned in the heat of the moment on a couple of occasions which were overlooked before he decided to resign a third time in a dispute. His last resignation was acknowledged by the organisation after his manager decided she could no longer work with him.  Four days later Mr Omar retracted his resignation and said he had resigned in the heat of the moment. The organisation refused to accept the retraction and he left after serving his notice.  He brought a claim of unfair dismissal which was unsuccessful in the ET.  The ET concluded that his words demonstrated his intention to resign, he was an experienced and mature employee, and there was no immediate retraction of his resignation. 

The EAT disagreed with the reasoning and sent the case back to the ET for a fresh hearing.  It set out the relevant legal principles in cases involving a resignation.  Importantly the actual words written or said at the time were crucial as were the circumstances. Circumstances that might lead to a conclusion that objectively, the individual did not really intend to resign might include when the individual, was angry and behaved out of character, overhasty, emotional, stressed or depressed, under extreme pressure, or had a mental impairment.

Comment

The starting point is that unequivocal words of resignation cannot be unilaterally retracted unless an employer consents.  An employee’s change of heart does not invalidate a genuine resignation. However, the circumstances in which an employee resigns is paramount to how their words will be objectively understood from the perspective of an employer.  A retraction and the length of time that has elapsed between the resignation and retraction are also relevant considerations.  Where there is a live dispute, or altercation, outside issues affecting the employee, or where the employee’s behaviour is out of character, an employer should exercise caution and it may be prudent to provide the employee with some time to reconsider their resignation. 

What’s New ….

The ET has issued new Presidential Guidance which has highlighted a new form of Alternative Dispute Resolution to assist parties to come to out of court settlements.  The aim of the guidance is to encourage parties to settle claims by agreement and minimise financial, emotional and reputational risks and harm.  The guidance which can be found here: PG-ADR-July-2023-final1.pdf (judiciary.uk) explains various ways which may lead to settlement.

The ET Rules

Employment Tribunals are obliged to encourage the parties to settle their disputes.  There are four ways to do this – via ACAS Conciliation, judicial or other mediation, judicial assessment and a dispute resolution appointment.  Except for ACAS, the other ways are forms of preliminary hearings.

Dispute Resolution Appointment

Following a successful pilot of the Dispute Resolution Appointment scheme in the Midlands, each Employment Tribunal region will now be able to direct the parties to take part in a Dispute Resolution Appointment.  This takes the form of a non-consensual, confidential and evaluative process which is reserved for complex cases listed for six days or more.  As it is non-consensual, the Tribunal may arrange such an appointment even if the parties do not want one.  As with any hearing, the parties are required to attend a Dispute Resolution Appointment and a failure to attend such a hearing without good reason may amount to unreasonable behaviour for the purposes of considering costs.  The appointment will be held after witness statements have been exchanged which will be read together with a bundle of key documents by the Judge conducting the appointment. They may provide their views on the strength and weaknesses of cases and realistic awards. Whilst parties may not settle at the appointment itself, it may well provide clarity about the issues and merits of claims, and lead to settlement.

One thing follows another …but did it cause it?

As the Latin saying goes: post hoc ergo propter hoc – just because one thing follows another, it does not mean the latter was caused by the former. The EAT case of Alcedo Orange Limited v Mrs G Ferridge-Gunn, concerned a woman who was dismissed after she announced her pregnancy. 

The Employment Tribunal (ET) had to answer these questions:

1)         Why was the Claimant dismissed?

2)         Did the Claimant’s pregnancy have a material influence on the decision maker or decision makers?

3)         Who was or were the decision makers?

Upholding the appeal by the employer against pregnancy discrimination, the EAT said the ET had failed to determine who was the decision maker and whether the decision maker or makers took the decision to dismiss because of the Claimant’s pregnancy.

Facts

The Claimant started work with the Respondent on 27 January 2020. The Claimant was advised of some performance concerns by Mr Boardman, the Managing Director, and Ms Caunt on 14 February.  After she was told of some concerns, she notified Ms Caunt she was pregnant five days later.  At a second KPI meeting held on 21 February 2020, it was recorded that there had been a degree of improvement, although Mr Boardman and his team had some issues with the Claimant’s attitude to her job.  Mr Boardman was told of the Claimant’s pregnancy so knew that she was pregnant when she was dismissed. 

The Claimant was absent from work with morning sickness on 24 and 25 February 2020. During her absence, Ms Caunt found that certain documents had not been uploaded to the Respondent’s systems.  She told Mr Boardman that the Claimant had misled him in saying that she had made progress at their previous meeting.

When the Claimant returned to work after her absence, Ms Caunt used words such as: ”is it a virus”, ”is it contagious”, ”how much time off are you going to need for this?”, ”sorry to be unsympathetic, but I’ve never been pregnant before” and ”stop faffing and go home”.  The Claimant said this was background but did not specifically allege that Mr Boardman’s decision was motivated by Ms Caunt’s discrimination nor that she was a second decision maker.

The Claimant was asked to attend a meeting on 27 February 2020 with Mr Boardman and Ms Caunt.  She was dismissed and told that it was “not working out” and her performance was “below par”.  Mr Boardman’s evidence was that the reason for the Claimant’s dismissal was her poor performance, her poor attitude and the attitude she showed towards her colleagues, who found her rude, and that he had been misled on 21 February 2020.  The employer denied pregnancy discrimination and unfair dismissal.

The ET drew inferences from comments made by Ms Caunt.  It found that Ms Caunt had effectively told Mr Boardman to dismiss the Claimant.

The ET considered that the Claimant’s pregnancy was a material reason for her unfavourable treatment in dismissing her and upheld her claim of pregnancy discrimination, but it was not the main and principal reason for her dismissal and therefore the claim for automatic unfair dismissal was not upheld.

The employer appealed stating that the ET had failed to consider the key case of Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 and the importance of determining the decision maker(s) and whether the individual who made the decision/act complained of had been motivated by the Claimant’s pregnancy.  A decision maker who had no such motivation could not be tainted and labelled discriminatory by someone else’s alleged discrimination.

His Honour Judge James Tayler reminded the Court of the ratio of Reynolds: “Where the case is not one of inherently discriminatory treatment or of joint decision making by more than one person acting with discriminatory motivation, only a participant in the decision acting with discriminatory motivation is liable; an innocent agent acting without discriminatory motivation is not.  Thus, where the innocent agent acts on ‘tainted information’ (per Underhill LJ at paragraph 34), i.e. ‘information supplied, or views expressed, by another employee whose motivation is, or is said to have been, discriminatory’, the discrimination is the supplying of the tainted information, not the acting upon it by its innocent recipient.”

He said that the ET had not assessed whether this was a decision by a sole decision maker or a decision by a sole decision maker influenced by others, or whether it was a joint decision made by Ms Caunt and Mr Boardman.  The issue should have been considered and the case of Reynolds should have been brought to the attention of the ET. The case was remitted back to the ET to consider the claim again.

Comment

It is not uncommon for Claimants to be unsure about the identity of the decision maker in a dismissal situation, namely whether other people were involved, or significantly influenced the decision maker.  Where there is a litigant in person, it is for the ET to ensure that the parties are on an equal footing as far as practicable.  If an assertion is made by a Claimant which gives rise to a claim which has not been correctly labelled, the Tribunal should consider whether to give the Claimant an opportunity to amend their claim.  In this case, it was evident that the Claimant considered that Mr Boardman had been significantly influenced by Ms CauntIf the ET was to find it was a joint decision, it would be sufficient for Ms Caunt to have been significantly influenced by the Claimant’s pregnancy to uphold pregnancy discrimination.

The case highlights the need for careful drafting where it appears that a decision maker might have been influenced by another person. It is important that the claims and legal issues are identified properly, and important cases are referred to so as to avoid appeals and late applications to amend.

New law on protecting pregnant women from redundancy

he Protection from Redundancy (Pregnancy and Family Leave) Act 2023 came into force in July and is expected to take effect from April 2024.

The new law will give those who are pregnant or have recently returned from maternity or parental leave priority in relation to any vacancies in a redundancy situation. Currently, women on maternity leave, and individuals on shared parental leave or adoption leave have special protection when a redundancy situation arises during their leave. They have the right to be offered a suitable alternative vacancy, if one is available, in priority over other staff who may be affected by a redundancy situation.

The Act extends protection to:

  • A pregnant employee who is in “a protected period of pregnancy”;
  • Maternity returners;
  • Adoption leave returners; and
  • Shared parental leave returners.
  • A woman who has suffered a miscarriage.

Whilst new regulations will govern the operation of the law, the length of protection is expected to be six months for those individuals who have returned to work from maternity and adoption leave.  The “protected period” of pregnancy is likely to commence once an employee informs her employer of her pregnancy.

The protected period can also begin after the end of the pregnancy to cover miscarriages that have taken place before an employer was even aware of the pregnancy.

Employees taking paternity leave are not offered any redundancy protection because of the relatively short duration of paternity leave.  The aim of the law is to protect pregnant women and those individuals who have been out of the workplace for long periods of time due to giving birth and looking after a newborn or adopted child.

Comment

The Employment Tribunals are very familiar with employers conducting a redundancy situation when a woman returns from maternity leave citing that their job is no longer required or that they have found “another more efficient way of doing their job.”  The new law will mean employers will have to give careful thought about a redundancy situation and the priority status of women on maternity leave, those who have returned from it and those who have returned from Shared Parental Leave. Men may well get priority in some redundancy situations.  As can sometimes be the case under the current law, a high performer (female or male) may well be dismissed in favour of a low performing individual returning from maternity leave or Shared Parental Leave.

New and expectant mothers will be able to considerably extend their period of redundancy protection which could be as long as two years where they inform their employer about their pregnancy at 12 weeks, take a year of maternity leave, and are then protected for six months afterwards).

The regulations will detail how the law will work in practice and set out the potential claims of individuals who are victim to the unlawful actions of employers. 

New provisions for Flexible Working in the UK in April 2024

The right to request flexible working from an individual’s first day at work is to come into effect on 6 April 2024.  

The Flexible Working Amendment Regulations (2023) will give millions of workers greater choice about how they wish to work including where and when.

The Act removes the requirement that an employee must have 26 weeks service to make a formal request under the regulations for flexible working. It will require employers to consider and discuss any requests made by an employee – who will have the right to make two statutory requests a year.  Employers will still be able to refuse a request for prescribed reasons including business and operating needs of the business.

Flexible working may cover an individual’s working hours or pattern including part-time, term-time, flexi-time, compressed hours, or adjusting start and finish times. It can also include flexibility over their work location: home or a satellite office shortening their commute.

Research shows that companies that embrace flexible working are able to attract more talent, improve staff motivation and reduce staff turnover – boosting their business’s productivity and competitiveness.

Workers will benefit from the following new protections once in force:

  • New requirements for employers to consult with the employee before rejecting their flexible working request.
  • Permission to make two statutory requests in any 12-month period (rather than the current one request).
  • Reduced waiting times for decisions to be made (within which an employer administers the statutory request) from three months to two months.
  • The removal of existing requirements that the employee must explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with.

Workers will be given the right to request flexible working from day one of a new job, which is said to bring an estimated 2.2 million more employees into the scope. 

ACAS will be updating its statutory Code of Practice following a consultation, which was launched on 12 July. The aim of the Code is to provide employers, employees and representatives with a clear explanation of the law on the statutory right to request flexible working, alongside good practice advice on handling requests in a reasonable manner.

Working Families and the Taskforce have also developed new guidance for employers, outlining the business case for flexible working and offering step-by-step instructions for designing and advertising flexible roles that work for businesses.

Many businesses have adopted hybrid working following the Covid Pandemic when millions were forced to work remotely. Employers were forced to change work patterns with the result that offices were left virtually empty. Since the end of the pandemic, employers have gradually returned to office working although many have embraced hybrid working, giving staff the option of working from home at least two days a week. 

Skilled Worker salary increased to £38,700

The minimum salary for a Skilled Worker visa will rise in Spring 2024 by almost 50% from the current level of £26,200 to £38,700 under the government’s five point plan to curb rising immigration. The action plan which includes restrictions on family immigration is to reduce the figure of 745,000 people who came to the UK to live, work or study in 2022. The salary rise is in addition to the increase to the immigration health surcharge to £1,035 for an adult from January 2024.

Shortage Occupation List rebrand

The rule allowing workers on the shortage occupation list to be hired at 20% below the going rate will end. The Migration Advisory Committee will review which occupations should remain on the list of shortage occupations. The government will replace the shortage occupation list with a new Immigration Salary List, which will retain a general threshold discount (with the level to be confirmed).  

The government has also asked the Migration Advisory Committee to review the Graduate visa.

Spouse Visa

The minimum income requirement to bring a dependent partner or child to the UK on a family visa will be almost doubled from £18,600 to £38,700.

Automatic Extension of Pre-Settled Status for EU Citizens

In September 2023, the pre-settled status of holders who have not yet obtained settled status has been automatically extended by 2 years upon its expiry. The aim is to ensure that no current pre-settled status holders will lose their immigration status because they have not made a settled status application to the EUSS. They will also retain their pre-settled status beyond its current expiry date where they have made a settled status application to the EUSS and are awaiting its outcome. The automatic extension of pre settled status will be reflected in their digital status and they will be notified once it has been applied.

Pre-settled status holders who have been living in the UK for at least 5 years should apply for settled status which is the easiest way to demonstrate the right to live in the UK indefinitely. The Home Office also plans to take steps during 2024 to start to automatically switch as many eligible pre-settled status holders as possible to settled status upon the expiry of their five-year term in the UK.  Automated checks of pre-settled status holders against Government-held information would check for example their ongoing continuous residence in the UK.

Protection for thousands of children of EU parents in a British Citizenship blunder

The UK Government has introduced a new law to protect the British nationality status of thousands of children born in the UK following a legal blunder. The British Nationality (Regularisation of Past Practice) Act 2023 came into force on 29 June 2023.  It inserts a new section 50B into the British Nationality Act 1981 which retrospectively confirms the British nationality status of all children born in the UK between 1 January 1983 and 1 October 2000 to an EU citizen parent who was exercising free movement in the UK at the time of their child’s birth.

Increase in Immigration Fees

Application fees for visas have risen sharply to increase the income generated through immigration and nationality fees to meet the cost of the UK’s immigration and borders system.

Most work and visit visa application fees have increased by 15%. There is a 20% increase to fees on routes to settlement, further leave applications and applications for British citizenship and a 35% increase to students applying from overseas.

Civil Fines go up!

From January 2024 for a first breach of the UK rules on illegal working, an employer will face a civil penalty of up to £45,000 for each illegal worker – a rise from £15,000.  For repeat offences, the fine increases to £60,000 from £20,000.  Fines are applied strictly, irrespective of an employer’s intention or their knowledge of the illegal working.

Illegal working may lead to business’ corporate liability and the individual liability of company directors who may be fined and prosecuted and jailed under criminal law.

For further information and advice please do not hesitate to contact a member of the Team.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, December 2023

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