by Emma | Jun 27, 2023 | Newsletter
The claimant had attended a meeting with his manager in September 2020 to discuss his possible retirement at the end of the year and the financial package that he might then receive.
During this discussion it was acknowledged that he had accrued a considerable amount of holiday entitlement that had not been paid. A payment of £68,199.60 was proposed as representing 168 days holiday in total.
The figures for holiday pay and other items were subsequently included in a draft settlement agreement that was produced some two months later. There followed negotiations about the figures but no agreement was reached.
The claimant was subsequently dismissed and he issued a claim for unlawful deductions in respect of the holiday pay. In the claim form, he recounted the meeting that had taken place and the fact the offer had been made to pay him more than £68k.
The employer objected to this information being in the evidence on the grounds that it was a without prejudice offer.
It was held that the evidence of the offer could be produced and relied upon in the proceedings as at the time of the discussion between parties there had been no dispute. The EAT considered that when the conversation took place litigation was not contemplated.
In this regard the fact the parties were making proposals to each other was relevant, but it did not conclusively establish that without prejudice privilege applied. Such proposals may be made in discussions, and yet the parties would not at the time have been contemplating litigation.
A dispute only arose once the settlement agreement had been produced and there was disagreement about the figures. Before that point the parties were not in dispute and the without prejudice rule relating to the evidence could not apply.
The decision highlights that evidence of a party making an offer in a meeting may be used against them if at the time it was made there was no litigation in prospect.
by Emma | Jun 15, 2023 | Newsletter
In a recent case the claimant said “I’m done” and walked out of the building. She later submitted a sick note. Her employer treated her statement as a resignation. She brought a claim of unfair dismissal.
The tribunal held that she had not resigned and found in her favour. They looked at the context in which Mrs Cope had said “I’m done” (a tense meeting), her anxious state and the fact that her actions after saying these words (in submitting a sick note) were not consistent with having resigned.
Be careful when believing an employee has resigned because it could well be regarded as being ‘in the heat of the moment’
If you have concerns that the employee’s possible resignation was made in a temper or in the heat of the moment, then the law says you should give the employee a cooling-off period in which to consider their decision before accepting it. This need only be a few days maximum.
If the resignation is clear and unambiguous and has not been prompted by an emotive or highly-charged situation then you are able to accept it immediately. Once you have accepted it the resignation will stand unless you agree to its retraction.
For further information, please give me a call.
by Emma | Jun 5, 2023 | Newsletter
This new act, will allow for the extension of existing redundancy protections while on maternity, adoption or shared parental leave to also cover pregnancy and a period of time after a new parent has returned to work.
By extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will also benefit from the redundancy protection.
Watch this space for implementation dates and further information.
by Emma | Jun 5, 2023 | Newsletter
This new piece of legislation will be implemented in due course- watch this space for a date.
What does this mean?
This will allow eligible employed parents whose new-born baby is admitted to neonatal care to take up to 12 weeks of paid leave in addition to entitlements such as maternity and paternity leave.
The entitlement will be available to parents whose babies are born prematurely or who are sick and require specialist care after birth.
Neonatal care leave will apply from the first day of employment to parents of babies who are admitted into hospital up to the age of 28 days and who have a continuous stay in hospital of 7 full days or more. Parents will have a right to neonatal care leave of at least one week and up to a maximum of 12 weeks regardless of length of service and those with at least 26 weeks’ continuous service will have a right to receive neonatal care pay at a prescribed statutory rate. Parents taking neonatal care leave will have the same employment protections as those associated with other forms of family related leave, including protection from dismissal or detriment as a result of having taken leave.
You will need to update your family friendly policies to reflect this new act when it is implemented. Contact me for any queries.
by Emma | Jun 5, 2023 | Newsletter
The Carer’s Leave Act 2023
The Act will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care and will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for. Employees will also be protected from dismissal or any detriment as a result of having taken time off.
The new entitlement to statutory carer’s leave will rely on the carer’s relationship with the person being cared for, which should broadly follow the definition of dependant used in the legislation concerning right to time off for dependants – a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder) or a person who reasonably relies on the employee for care. It will also depend on the person being cared for having a long-term care need. This will be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010, or issues related to old age. There will be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.
Those taking carer’s leave will be protected from detriment, and dismissals for reasons connected with exercising the right to carer’s leave will be automatically unfair.
The legislation has no date of implementation as yet, so watch this space!
