Contents

• Paternity leave
• Pulling a sickie
• Protection against detriment for trade union activities
• You wait ages for a bus…

Paternity leave

Family-related rights were extended significantly at the start of April, with new rights to carer’s leave, the expanded right to request flexible working, more flexible paternity leave and extra protection against redundancy for pregnant employees and new parents.

Further developments are on the horizon, with the Paternity Leave (Bereavement) Bill currently before Parliament. At the moment, employees are only eligible for paternity leave if they have 26 weeks’ continuous employment by the end of the 15^th week before the child is due, or the week they were notified that they had been matched for adoption. The Bill removes the qualifying service requirement for parents if a child’s mother or primary adopter dies, meaning that employees in that situation will be able to take a period of paternity leave even if they do not have the necessarily service with their employer. They will also be able to take paternity leave after a period of shared parental leave, which is normally not permitted.

Next steps

• The Bill will hopefully not apply to large numbers of employees but will allow some employees to benefit from paternity leave which they would not otherwise have been able to take.
• Rules on statutory paternity pay remain unchanged, so employees still have to meet service and earnings conditions to qualify for paid paternity leave.
• Employers should monitor progress of the Bill, which is due for its report stage in the House of Commons on 26 April, and amend their paternity leave policies if the Bill becomes law.

Pulling a sickie

The government is obviously concerned about levels of sickness absence in the UK. Average sickness rates post-pandemic are higher than the pre-pandemic rates and, according to the government, long term sickness is the main cause of economic inactivity in the working age population.

The government is considering reforming the current fit note process to try to reduce sickness absence levels and ensure that employees get support to stay in work wherever possible. Although the current process allows healthcare professionals to say that an employee may be fit to work subject to conditions, over 90% of fit notes issued between October 2022 and September 2023 simply said that an employee was unfit to work. The government is suggesting the introduction of work and health advisers who will conduct “robust and in-depth” work and health conversations and provide advice and guidance on how individuals might be able to remain in or return to work with employer support.

The call for evidence on fit notes aims to support the proposed reforms. It asks, among other things, for employers’ views on how effective the current system is, what could be improved, and what additional information would be helpful to support employees’ return to work from absence.

Next steps

• The call for evidence can be found here.
• Responses can be submitted until 8 July 2024.
• The government intends to consult on specific policy proposals later this year.

Protection against detriment for trade union activities

In Secretary of State for Business and Trade v Mercer the UK Supreme Court had to decide whether employees are protected against detriment short of dismissal because they have taken part in lawful strike action. The case involved an employee’s claim that she was suspended to prevent her from taking part in industrial action and proceeded on assumed facts.

The Court found that as a matter of domestic law the employee’s claim failed. Section 146 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) protects workers from being subjected to a detriment to prevent or deter them from taking part in trade union activities “at an appropriate time”. This means outside normal working hours, or within working hours with the employer’s consent. In most cases, industrial action takes place in normal working hours and without the employer’s consent. Giving the claimant protection would also undermine the carefully constructed unfair dismissal regime relating to industrial action dismissals.

However, the UK’s failure to provide any protection against sanctions short of dismissal for taking lawful industrial action was inconsistent with its obligations to secure the right to freedom of association under the ECHR and the UK Supreme Court made a declaration to that effect. The UK Supreme Court agreed with the Court of Appeal that it could not interpret s146 in a way that would be compatible with the ECHR. Parliament would need to make policy decisions about how to provide the necessary protection; that was not a matter for judges.

Next steps

• There are no immediate implications for employers. A declaration of incompatibility does not affect the validity, operation or enforcement of the law in question and the government does not have to take action in response to a declaration.
• In practice, Parliament may decide to amend the legislation to make it compatible with the requirements of the ECHR so unionised employers should monitor developments.
• It remains to be seen whether amending TULRCA would be a political priority for the government, or if parliamentary time would be available before the forthcoming general election.

You wait ages for a bus…

And then two come along at once. Just like EAT decisions on international jurisdiction, it appears.

There were two cases this month discussing whether a company based overseas can be sued in the employment tribunal. The first, TwistDX Ltd v Armes, involved a whistleblowing claim by a UK employee against his employer and its US parent. The respondent applied for the claim against the US parent to be struck out, arguing that the employment tribunal did not have international jurisdiction to hear it.

The parties agreed that the rules of the Recast Brussels Regulation governed the jurisdictional question, because the claim related to events that occurred before the end of the Brexit transitional period. Under Brussels, an employer can be sued in the courts of the place where the employee habitually worked, or in the place where it had a branch, agency or other establishment.

TwistDX Ltd argued that its US parent was not the claimant’s employer, and that the UK company was not a branch, agency or establishment of the US parent, so the Recast Brussels Regulation test was not met. The employment tribunal found that although the US parent was not the claimant’s employer as a matter of UK law, it was reasonably arguable that it would be regarded as the claimant’s employer in the wider sense that applies for the purposes of the Recast Brussels Regulation. Alternatively, it might be regarded as a branch, agency or other establishment. It therefore refused to strike the claims out, because the respondent had failed to establish that they had no reasonable prospect of success. The EAT upheld that decision.

The respondent was slightly more successful in Stena Drilling PTE Ltd v Smith. The claimant worked for a number of companies within the Stena group of companies and at the point of dismissal was employed to work offshore by a company registered in Singapore. A UK company based in Aberdeen provided HR support and payroll services to companies within the Stena group and was involved in his initial recruitment.

The question for the tribunal was whether it had jurisdiction to hear the employee’s unfair dismissal and discrimination claims. The employer argued that the starting point was to ask whether the tribunal had international jurisdiction under the Civil Jurisdiction and Judgments Act (CJJA), the legislation replacing the Recast Brussels Regulation for post-Brexit claims. Under the CJJA, an employer can be sued in the place where the employee habitually works, or in the place where the business which engaged the employee is or was situated. In this case the employee did not habitually work in the UK.

The EAT accepted that the only route for establishing territorial jurisdiction was under the CJJA. The tribunal relied on the fact that the employee would be able to establish that he had a right to claim unfair dismissal under the Employment Rights Act to determine that it had jurisdiction to hear the case, but that muddled the concept of international jurisdiction with that of the territorial reach of a particular statute. That was an error of law. The case had to be remitted to the tribunal to decide whether the UK company was “the business which engaged the employee”, given its involvement in his recruitment. If it was, the tribunal would have international jurisdiction.

Next steps

• Courts and tribunals are still grappling with questions of international jurisdiction, particularly post-Brexit.
• The fact that an employee can bring a claim under UK legislation does not necessarily mean that the tribunal has power to hear it, if the employer is not based in the UK.
• If an employment related claim is brought against an overseas company, it would be prudent to take advice to decide the best grounds on which to defend the claim, including arguments about international and potentially territorial jurisdiction (depending on the employee’s place of work).