Top Fortnightly Facts - 28 November 2022

In a week when the NHS is spreading Christmas gloom by announcing two days of planned strikes before Christmas, on 15 and 20 December 2022, more positive news came this week from NHS England, with its announcement of new national guidance to help support staff going through the menopause.

The guidance is intended to help boost awareness of the issues faced by women, and provide assistance to managers to support staff and encourage open discussions about the issues faced.  It also introduces more practical measures, such as the option for flexible working patterns and other reasonable adjustments to help manage menopausal symptoms.

So what?

It is estimated that in the UK, 23% of all women in employment are of menopausal age (45-54). So, more women than ever will experience the menopause during their working lives. A recent ACAS survey found that one in three employers do not feel well equipped to support women going through the menopause. Whilst menopause is not currently a protected characteristic, failing to support menopausal staff or treating them detrimentally, can potentially give rise to claims of constructive or unfair dismissal as well as discrimination claims based on age, sex or disability.

The guidance has been designed to be transferable to other workplaces, so it is hoped that other organisations and women beyond the NHS can also benefit from the practical measures contained in the guidance, to help support and retain staff. This should also help as a nudge to employers to develop their own menopause policy and related training.

The recent Employment Appeal Tribunal case of Mogane v Bradford Teaching Hospitals NHS Foundation Trust is a useful reminder of the importance of genuine and meaningful consultation, before any redundancy decisions are taken. It also provides useful guidance on the caution employers should exercise when using limited selection criteria and pools of one.  

Mrs Mogane was a nurse who had worked on a series of one year fixed-term contracts since 2016.  Her colleague, at the same level, also worked under a similar series of fixed-term contracts, but Mrs Mogane’s contract was up for renewal first.  The Trust therefore decided to put Mrs Mogane at risk of redundancy – effectively putting her in a pool of one, using the sole criterion of the date on which her fixed-term contract ended.  There were no consultation meetings with Mrs Mogane about the proposed selection criterion or the selection pool. She was invited to a meeting to discuss the financial difficulties facing the Trust and the possibility of alternative employment was considered, but as there were no alternatives, she was then advised of her redundancy, on the basis that her contract was due to expire first. 

The EAT ruled that Mrs Mogane’s redundancy dismissal was unfair, where the employer used a single selection criteria that inevitably led to a pool of one, without consulting about this beforehand. 

So what?

In order for redundancy consultation to be genuine and meaningful, it must take place at an early stage, when the employee might still be able to influence the outcome. By the time the consultation process started with Mrs Mogane, the decision had effectively already been taken to make her redundant, as she was the only person at risk in her pool of one.  

Employers should, therefore, always be mindful of the need to consult employees on the proposed selection criteria, before it is applied. This is particularly important to avoid potentially arbitrary results, such as where the choice of selection criteria results in a pool of one or if the criteria being used may be controversial.  

On the question of pools, Tribunals are generally reluctant to interfere with an employer’s decision as to the appropriate redundancy selection pool.  So, provided there is good reason for this, employers can still consider a single employee for redundancy. However, an employer should still carefully consider the proposed pool before a decision is made and must be able to justify its decision on the chosen pool, as reasonable in all of the circumstances, if challenged. Again, challenges can be minimised where proper consultation takes place before deciding on the pool, and prior consultation on the pool is particularly important, where there is more than one employee doing the same role. 

From 5 December 2022, the ban on exclusivity clauses in employment contracts will be extended to also prohibit such clauses within the contracts of low-paid workers. Currently, workers on zero-hours contracts cannot be prevented from working elsewhere - any such exclusivity term in their contracts is unenforceable. It is also unlawful to subject a worker to a detriment or dismiss them for breaching an exclusivity clause. From 5 December 2022, these protections will also be extended to cover not only workers on zero-hours contracts, but also those whose weekly wages are lower than the current ‘lower earnings limit’ (currently £123 per week). So, those on short hours will also now be protected and have greater flexibility to work elsewhere.

There has been much concern about the government’s Retained EU Law (Revocation and Reform) Bill (or the more catchy ‘Brexit Freedoms Bill’) and its potential impact on a vast range of EU-derived employment legislation, which may disappear under the so-called ‘sunset clause’, if it is not deliberately saved or replaced. However, in what may be seen as a blow to the Government’s own agenda, the Bill has been rated as ‘not fit for purpose’ by the Government’s own watchdog, the Regulatory Policy Committee. It suggests the Government has not properly addressed the impact of 'sun-setting' these laws on those who will be affected by them, including small businesses. Perhaps the Working Time Regulations will be saved after all!

On 17 November 2022, the Chancellor, Jeremy Hunt, delivered the long-awaited Autumn Statement, announcing wide-ranging tax increases aimed at reducing the 'fiscal black-hole'. Key measures included:

• 45% additional rate of income tax will be paid on earnings over £125,140 (instead of £150k); and
• Freezing the income tax personal allowance (£12,571), higher rate tax thresholds (£50,271) and NIC thresholds until April 2028.

 The new NMW rates that will apply from 1 April 2023 were also announced, as follows:

• Age 23 or over (NLW rate): £10.42
• Age 21 to 22: £10.18
• Age 18 to 20: £7.49
• Age 16 to 17: £5.28
• Apprentice rate: £5.28
• Accommodation offset amount: £9.10