
Trump Administration Executive Order (EO) Tracker
As the Employment Rights Bill made its way to the House of Lords with significant government amendments, Parliament approved the neonatal care leave regulations. The government issued a consultation paper on ethnicity and disability pay gap reporting.
Meanwhile, the Court of Appeal had comments on whether an employee’s lack of “insight” into misconduct made a dismissal reasonable. On the facts of the case, it didn’t.
The Employment Rights Bill completed its House of Commons stages and is now in the Lords. It’s been heavily amended since the government introduced it, reflecting the outcome of consultations. The key changes include:
Parliament has approved the regulations governing neonatal care leave and the right will come into force for parents of babies born on or after 6 April as planned. In broad terms, employees will qualify for a week of neonatal care leave for every complete week a baby spends in neonatal care, up to a maximum of 12 weeks. The neonatal care must begin within 28 days of birth. Neonatal care leave is a day one right, but neonatal care pay is subject to service and minimum pay requirements.
The government is preparing an Equality (Race and Disability) Bill to extend existing gender pay gap reporting obligations to ethnicity and disability pay gaps. Before publishing the Bill, the government is consulting on the detail, including:
Hewston v OFSTED was a straightforward unfair dismissal claim. Mr Hewston was a school inspector who was dismissed for touching a child on the head and shoulder during an inspection. There was no suggestion that there was any improper motivation behind his actions, which were described by the Court of Appeal as “a friendly act of sympathy and assistance” after a wet child entered the school having been caught in heavy rain.
The EAT, upheld by the Court of Appeal, found that the dismissal was unfair because Mr Hewston had not been told or warned that he might be dismissed for a single incident of touching that did not raise a safeguarding concern. It would not have been obvious to him that his conduct could lead to dismissal in the absence of a “no touch” policy or guidance.
That’s legally uncontroversial. The more interesting aspect relates to OFSTED’s view that Mr Hewston’s lack of insight into his behaviour – he had not accepted that he had done anything wrong – made the dismissal fair, even if the underlying misconduct did not merit dismissal.
The Court of Appeal said that normally an employee’s failure to show proper contrition or insight will not make it reasonable to increase the sanction. Disciplinary proceedings are not “conducive to calm self-reflection” and an employee may be reluctant to say they will not act in the same way in future if that implies guilt. Although there may be cases where a lack of insight poses a real risk that the employee will commit more serious misconduct in the future, this was clearly not the position here.
Authored by Ed Bowyer, Stefan Martin, and Jo Broadbent.