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Pregnancy Loss, Whistleblowing, Holiday Pay for Part-Year Workers & Menopause and the Workplace: Employment Law Matters: Edition 1

Welcome to the first in our new series of quarterly updates on key issues in employment law. Every three months, we will send you a selection of the most important developments for employers in case law and legislation, including practical takeaways for employers as well as things to look forward to in the coming months.
CM Murray LLP are leading specialist employment law advisers to multi-national companies and senior executives. If you have any topics you would like us to cover in our regular updates, please do get in touch.

Pregnancy Loss Review

The Government has recently announced a very welcome review into the law on pregnancy loss having identified gaps in the support offered to those who suffer a pregnancy loss before 24 weeks’ gestation.
In February 2022, during a House of Commons debate, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, Paul Scully, affirmed the position that there is no specific statutory right in the United Kingdom for pay or leave for employees who have experienced a loss of pregnancy before 24 weeks. The position under the Parental Bereavement (Leave and Pay) Act 2018 is that for an employee to be entitled to statutory bereavement leave or pay the loss of pregnancy must have occurred after 24 weeks’ gestation. This does not necessarily mean there is no protection currently afforded for earlier pregnancy loss as employees can claim their entitlement to the standard statutory sick pay if incapacitated from work due to the loss of pregnancy. 
The Pregnancy Loss Review will be considering whether the law should be changed in the United Kingdom to allow registration of pregnancy losses that take place before 24 weeks which could have implications for the Parental Bereavement (Leave and Pay) Act 2018. The purpose of this review is to improve care and support for women and families who experience a pre-24 weeks loss of pregnancy and consider whether primary legislation is required to make that change.

Case Law Updates

Whistleblowing – Kong v Golf

The Court of Appeal has confirmed that the conduct of a whistleblower in making a protected disclosure is separable from the fact of making that disclosure.

Ms Kong raised a number of concerns in the course of her employment and complained to the Head of Legal about various issues. Whilst these complaints were held to be protected disclosures under UK whistleblowing legislation, the Head of Legal considered that Kong had questioned her integrity and complained about this. Kong was subsequently dismissed by separate decision makers (to whom she had not made any protected disclosures), because of her conduct in making the disclosures, specifically because she had called into question the professional competence and legal awareness of the Head of Legal.

Kong won her claim of “ordinary” unfair dismissal, but her claim for automatic unfair dismissal was refused on the grounds that she was dismissed not because of her protected disclosures, but because of her conduct in raising those concerns and in questioning her colleague’s professional and legal competence. It was held that her conduct was properly separable from the disclosures themselves.

Key takeaway points:

  • Whistleblowers do not have blanket protection against dismissal. If they act unreasonably, an employer may be able to take appropriate action.
  • Employers should be extremely careful not to view this decision as giving them carte blanche to dismiss a whistleblower just because they have ruffled someone’s feathers. The Courts will continue to pay close attention to an employer’s reasons for dismissal to ensure that the real reason is not, in fact, the protected disclosure itself.

Holiday pay for part-year workers – Harper Trust v Brazel

In Harper Trust v Brazel, the Supreme Court upheld the Court of Appeal’s decision that part-year workers should not have their paid holiday reduced pro rata. In short, it confirmed that the entitlement to 5.6 weeks’ holiday applies to full- and part-year workers in full, without pro-rating.

The now revoked ACAS guidance provided a method by which the amount of paid holiday due for those working atypical hours could be calculated, namely by multiplying the earnings of the worker by 12.07 per cent (that being the proportion that 5.6 weeks bears to the working year of 46.4 weeks). The Supreme Court and the Court of Appeal agreed that this was the wrong approach to take.

For those with no normal working hours, entitlement to holiday is 5.6 weeks per year and their holiday pay should be calculated by reference to average earnings over 52 weeks, not by reference to the hours worked.

Key takeaway points:

  • This decision will have wide-reaching implications for any organisations who engage zero-hours, term-time only or part-year employees. This will not apply to genuine independent contractors, however.
  • The decision highlights the importance of seeking advice when dealing with complex employment law issues; whilst there is a great deal of guidance available online, it is not always up to date or in keeping with legislation.
  • Employers will need to review and (if necessary) amend their contracts of employment and payroll processes for calculating holiday pay for permanent employees/workers with irregular hours of employment.

Menopause and the Workplace 

On 28 July 2022, the Women and Equalities Committee published a report, which outlined a number of recommendations aimed at tackling issues pertaining to menopause including a plea for the Government to include menopause as a protected characteristic and enact section 14 of the Equality Act (combined discrimination).

While it may be some time before the Government decides to legislate on menopause, if at all, employers can take voluntary actions to address the issues identified in the report such as stigma and lack of awareness. Employers can introduce menopause-friendly policies in order to create a supportive environment for employees experiencing the menopause.  Such policies might include allowing for additional paid leave for people who experience menopause symptoms, and that such leave will not trigger performance review.  Employers can consider taking practical steps such as ensuring that menopausal employees have easy access to fans or fresh air (if required), toilets, and drinking water. According to the report, it is also crucial to create a supportive workplace environment where menopausal employees feel able to discuss the issues they face and seek the support required. To this end, employers may wish to appoint a Menopause Ambassador who will be responsible for supporting menopausal employees (in a discreet and sensitive manner) and educating others.

Voluntary menopausal measures are undoubtedly beneficial, as they may help to reduce instances of discrimination associated with menopause (i.e. age/sex/disability) and improve talent retention and acquisition rates by offering additional benefits to menopausal employees.  Hence, employers should consider what menopausal perks they can offer to help their workforce to eliminate the unnecessary challenges associated with menopause.

If you would like to discuss any of the topics covered in this update in more detail, please contact Partners Merrill April or David Fisher, both of whom specialise in employment and partnership law issues for multinational employers, senior executives, partnerships, LLPs, partners and LLP members.