Happy new year to all our readers. We hope you had an enjoyable Christmas break. 2024 is going to keep employment lawyers and HR practitioners on our toes, as we are expecting plenty of new employment law to come into force. In this alert we have included an at a glance table setting out what is expected when, and what preparatory steps employers should consider taking.
We also look at several EAT cases including one on reasonable adjustments, another on whether bringing new whistleblowing claims relying on earlier protected disclosures subject to a COT3 was an abuse of process and a case which shows that considering affirmation in constructive dismissal cases is complex and can be a multifactorial exercise.
1. What to expect in 2024
Here's our at a glance table of what is expected when, and what preparatory steps employers should consider taking.
2. Attending court can count as a normal day-to-day activity when determining if someone is a disabled person under the Equality Act 2010
This case looked at what normal day-to-day activities mean within the context of disability discrimination. In this case, the claimant's disability discrimination complaints were dismissed by the employment tribunal because it found that she was not a disabled person as there was no substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. This was overturned on appeal.
3. Compensation not capped at amount of contractually agreed termination payment and the disciplinary provisions of the Acas code can apply to whistleblowing dismissal
In this case, the EAT held that an employee's compensation for whistleblowing detriment and automatic unfair dismissal cannot be capped at an amount specified in the termination provisions of a contract of employment, even for a very senior employee. The EAT also held that the disciplinary provisions of the Acas Code on Disciplinary and Grievance Procedures can apply to a whistleblowing dismissal. A failure to follow that Code can lead to a substantial uplift on an already large award for a whistleblowing dismissal.
4. Whistleblowing: Doctor could not bring new whistleblowing detriment claims relying on protected disclosures settled under an earlier COT3
The EAT has held that a doctor who had agreed not to reactivate or litigate issues or complaints in earlier settled proceedings was prevented from bringing new whistleblowing detriment claims which relied on the original protected disclosures. Attempting to do so was an abuse of process.
5. Constructive unfair dismissal: Tribunal mistaken in dismissing teachers unfair constructive dismissal claim on the basis he had affirmed the contract
In this case the EAT confirmed that the passage of time between a last straw and an employee's resignation is not determinative of whether a contract of employment has been affirmed, meaning the employee cannot have been constructively dismissed. The correct question is what conduct during the relevant period might or might not amount to an express or implied communication of affirmation.
6. Data Protection: More ICO draft guidance out for consultation
On 12 December 2023, the Information Commissioner’s Office (“ICO”) announced that it is producing an online resource relating to employment practices and data protection.
7. Government publishes guidance on the public sector equality duty
On 18 December 2023, the government published new non-statutory guidance on the public sector equality duty ("PSED") in section 149 of the Equality Act 2010.
