Reed Smith Newsletters

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law.

April 2024 brings with it a number of significant employment law changes. In this month’s update we detail the new financial limits, changes to redundancy protection, and new rights on maternity and family leave, working time and carer’s leave.

Case law updates

Disability discrimination - reasonable adjustments: The Employment Appeal Tribunal (EAT) has been considering the extent to which the duty to make reasonable adjustments includes offering an employee a trial period in a new role as an alternative to dismissal. In this case the claimant was no longer able to fulfil his field-based role due to his multiple sclerosis and applied for an administrative role in the same company, but when the recruiting manager concluded that he did not have the appropriate skills or experience for the new role, he was not offered the role or a trial period. He was subsequently dismissed for ill health. The claimant succeeded with claims for unfair dismissal, discrimination arising from dismissal and a failure to make reasonable adjustments in the Employment Tribunal (ET). The EAT dismissed the employer’s appeal. On the reasonable adjustments point, it concluded that a trial period is capable of being a reasonable adjustment and there is no requirement that this is only offered where there is some likelihood of the trial being successful. In the EAT’s view, wherever there is a substantial disadvantage (which is likely where there is an impending dismissal) adjustments to avert dismissal should be considered, and whether offering a trail period is reasonable will depend on the circumstances of each case. Employers faced with similar scenarios should carefully consider whether to offer a trial period and be prepared to justify why one is not offered where the role is one a disabled employee could carry out, even if they do not have existing skills or experience. (Rentokil Initial UK Ltd v Miller)

Discrimination - religion and belief: In a case that was widely reported in the media, the EAT has upheld a decision that an actor cast in an iconic lesbian role was not discriminated against when her contract was terminated after a historic Facebook post about her belief that homosexuality was a sin resurfaced. Whilst the EAT was satisfied that her beliefs were protected, the discrimination claim failed because the reason for her contract being terminated was the adverse publicity caused by her social media posts and the impact this would have on the commercial success of the play. Her breach of contract claim also failed as she suffered no loss - she was paid her full fee, but also later admitted that having read the script she would not have agreed to play the role anyway. (Omooba v Michael Garret Associates)

Discrimination - time limits: There are strict time-limits for bringing claims in the ET, although in discrimination claims the ET has jurisdiction to hear complaints that occurred outside the time-limit if it is part of a series of conduct extending over a period. The EAT has been considering the circumstances in which events are deemed linked for time limit purposes. In this case, the claimant’s job was ceasing to exist due to a restructure and she was offered another role, at a lower grade, which she rejected. She went off sick and was ultimately dismissed on ill health grounds. She had also raised a grievance alleging age and disability discrimination. She brought various claims in the ET - only her dismissal was within the usual three-month time limit, but the ET allowed all her claims to proceed on the basis there has been conduct extending over a period of time. The EAT concluded that the ET had approached the issue of time-limits wrongly. For an extension based on a continuing conduct to apply, it was not sufficient for the grievance to be related to a protected characteristic. The conduct being relied on as continuing conduct must itself be discriminatory. As the failure to deal with the grievance properly and pre-determine the outcome was not discriminatory, it was not a valid basis for extending the time limit. The EAT also considered whether alleged discriminatory conduct extending over a period needed to relate to the same protected characteristic or the same type of conduct, concluding that it did not. Whilst it may be more difficult to establish, conduct relating to different protected characteristics and/or a mixture of say harassment and direct discrimination, could be capable of being linked for time limit purposes. (Worcestershire Health and Care NHS Trust v Allen)