Employment Law Round Up November 2024

Click the links below to read more about the changes in employment law from November:

• • Footballer wins £11 million claim for unlawful deduction from wages
  • Half of neurodivergent adults don’t disclose neurodiversity when applying for work
  • EHRC publishes materials to help employers comply with the new duty to prevent sexual harassment
  • Improper behaviour during pre-termination negotiation
  • Fair redundancy process – De Bank Haycocks v ADP RPO UK Lt

   

  Footballer wins £11 million claim for unlawful deduction from wages

  Although the case of Mendy v Manchester City Football Club Ltd involves a footballer and a very large compensation award of damages, its principles could be relevant to businesses of any type or size. The footballer Benjamin Mendy substantially succeeded in an employment tribunal claim against Manchester City who stopped paying him for the almost two-year period that he was facing serious criminal charges. During that time, he spent two periods in custody due to breaches of his bail conditions, and when not in prison, he was unable to play due to bail conditions and an FA ban. He was later cleared of all criminal charges.

  It was accepted that there was no express term entitling the club to deduct pay in Mendy’s contract of employment and the judge found that Mr Mendy was “ready and willing” to work during his non-custody periods; his inability to work were due to impediments which were unavoidable or involuntary, and as there was no express contractual authorisation for his employer, Manchester City, to withhold pay in those circumstances, Mr Mendy was entitled to be paid. The club was entitled to withhold pay for those periods where he was in prison, because he had at least some culpability for his incarceration. In other words, whilst he was ready and willing to work, his inability to work when remanded for breaching bail conditions was not ‘unavoidable’.Mr Mendy’s claim therefore succeeded for approximately 17 months of the 22-month period in question, so he is expected to be awarded £8.5 million of his £11m claim.

  Half of neurodivergent adults don’t disclose neurodiversity when applying for work

  Research by Zurick UK has revealed that around half of neurodivergent adults fail to disclose their neurodiversity when applying for work, and 63% believe that employers view neurodiversity as a “red flag”. Almost a third of respondents had experienced their application for a role not being taken further once they disclosed their condition and one in six (16%) had a job offer withdrawn.
  Over half of those polled believed that recruitment processes aimed to weed out neurodivergent candidates, instead of assessing their abilities. The barriers of most concern were overly complicated question structures, long and elaborate application requirements, vague job descriptions and difficulty with timed tasks. Group assessments and pre-prepared presentation tasks were also considered to be barriers.

  Only 17% of employers proactively offered reasonable adjustments at the interview stage without being asked. Those surveyed reported the most useful adjustments were explaining instructions and expectations clearly in advance, removing group interviews and assessments, only asking for essential job requirements and qualifications, and avoiding the use of ambiguous, literal or subjective language in job descriptions.

  Business leaders who care about improving equality, diversity and inclusion should consider reviewing their recruitment processes with a view to proactively removing obstacles for neurodivergent candidates. This will also reduce the risk of Equality Act claims of discrimination and particularly a failure to make reasonable adjustments.

   

  EHRC publishes materials to help employers comply with the new duty to prevent sexual harassment

  In November 2024 the EHRC published a checklist, action plan and monitoring logs to assist businesses in compliance with the new duty to prevent sexual harassment that was introduced a month earlier.

  The checklist covers:
  • Communication with staff
  • Changing the work environment to make it as safe as possible
  • Putting in place policies and procedures to make sure the employer knows when sexual harassment happens and how it is dealt with.

  The action plan can be used to record any actions to be taken to make the checklist part of a business’s working practices, such as updating policies and raising awareness.

  The monitoring log should, the EHRC suggests, be completed after each shift to help monitor how the checklist is being used and log any changes that may be needed.
  
  These latest materials follow the EHRC’s updated technical guidance on sexual harassment and harassment at work which includes an eight-step guide for employers.

  Improper behaviour during pre-termination negotiation

  The case of Gallagher v McKinnon’s Auto and Tyres Ltd [2024] considered what behaviour amounts to “improper” during protected discussions under section 111A(4) of the Employment Rights Act 1996.
  Mr Gallagher was made redundant and referred during the legal proceedings to the fact that before his dismissal, he was offered an enhanced redundancy package. An employment tribunal found that this discussion was a pre-termination negotiation under section 111A of the Employment Rights Act and that it should be excluded from the legal proceedings as inadmissible. Mr Gallagher argued that the employer had put undue pressure on him to accept an offer contrary to paragraph 18(e) of the ACAS Code of Practice on Settlement Agreements and that therefore the protected conversation had become admissible.

  He claimed that the undue pressure was:
  • Telling him that a redundancy process would begin if he did not accept the offer
  • Inviting him to a meeting to discuss his return to work after sickness but instead using it to put forward the settlement proposal
  • Setting a 48-hour deadline for acceptance

  On the first point, the EAT said this was not the same as telling him that he was going to be dismissed if he did not accept, since a redundant employee may not always be dismissed.

  On the second, the EAT stated that whilst this may have been unfair, unfairness was not the same as ‘impropriety’ and that the ET had rightly considered other factors, such as how the meeting was conducted.

  On the final point, the relevant ACAS code refers to a ten-day period for considering a written offer. The offer open for acceptance within 48 hours was verbal and if accepted, a written offer would have been provided later.

  The EAT did not interfere with the original decision that there had been no undue pressure and dismissed the appeal.

  Fair redundancy process – De Bank Haycocks v ADP RPO UK Ltd

  Mr De Bank Haycocks was one of 16 people who were made redundant by ADP PRO UK Ltd in 2020. ADP had conducted their selection scoring process prior to the consultation process starting, and did not provide the claimant with his own scores until after the consultation had ended (at his appeal against dismissal stage). Mr De Bank Haycocks later made a claim for unfair dismissal.

  At an employment tribunal, the dismissal was found to be fair because Mr De Bank Haycocks had been given the opportunity to challenge his scores when he appealed against his dismissal and could not demonstrate that they should have been higher.

  The tribunal looked at the redundancy procedure as a whole, including the appeal, and found that whilst ADP had clearly departed from good practice in both the failure to consult with Mr De Bank Haycocks over his scores and the timing of the scoring exercise, it had been saved only by its conscientious investigation into the scores during the appeal process.