Substance over Style

As an employer, are you aware of what you’re promising employees? And more than that, are you willing to stick to it?  

In a recent case catching headlines, an Employment Tribunal ordered that Goldman Sachs had to pay an employee £1.45 million as a result of sex discrimination and unfair dismissal after firing him whilst on parental leave.  

But what actually happened?  

Goldman Sachs enjoyed the position of being a market leader in its paid parental leave offering, offering up to 26 weeks paid. The Claimant in this case took six months parental leave, but was made redundant from his role as vice president in the compliance department upon his return. But in 2024, the Tribunal found that he had been subjected to sex discrimination and unfair dismissal – punished because he had actually used the parental leave his employer offered.  

In the more recent compensation judgement, where the Tribunal made the staggering award of millions, the Tribunal found that both the dismissal and the litigation and publicity surrounding it had hindered the Claimant’s chance of finding reemployment, which factored into the size of the award.  

The Tribunal focussed on how the employee was treated in reality when he took the leave, rather than whether Goldman Sachs were offering compliant leave or promised to accommodate family needs.  

For employers across the country, the main takeaway from this case is clear: when you offer a benefit to your employees, even if it is to stand out in the field against other employers, your offerings need to be genuine, both in practice and culture. If you offer any benefits above and beyond the statutory minimum, such as 26 weeks paid parental leave rather than the 2 weeks of paternity leave granted by statute, there should not be an implicit (or, in some cases, explicit) pressure on employees not to take advantage of them, culturally or under threat of dismissal. Where employers get into difficulty is when what they say they offer does not actually match how decisions are made and how employees are treated when they actually use the offerings.   

Having generous policies is not enough, especially if these generous policies are only on paper. The Tribunal considers the reality of the working environment and how the employees actually experience it. If you say you are a family friendly workplace and offer support and parental leave, for instance, you must be prepared for your employees to take these promises and aims at face value.  

In a world in which employees are prioritising work-life balance and workplace benefits more and more, often prioritising benefits and balance over a higher rate of pay, it is really important to make sure that these devices are not just a way to attract talent.  

Recent research from Group Risk Development (GRiD) supports this point more generally. Its survey of 500 HR decision-makers found that 38% of employers leave staff to initiate the uptake of benefits themselves. Benefits quickly lose value if employees are left to navigate them alone, or if the working environment does not actively support people to use what is being offered. There is a difference between offering a benefit and making it something the workplace is designed to support; if you use benefits to attract talent, you ought to both be prepared to encourage employees to take it, and for them to do so without detriment. 

In an environment where employers are increasingly looking to bring their workforce back into the office, understanding what you have agreed to, as well the potential status and changeability of the promise made or contract signed is vital. Jobs may be advertised as hybrid, flexible, or during the recruitment process, promises may be made. In many cases, employers may still be able to change those arrangements, especially where the contract and policy make clear the discretionary nature of the flexible working, or that hybrid working is discretionary. But where a working pattern has been promised in an offer letter, written into employment contracts, consistently operated over time or granted as part of a reasonable adjustment or in response to a flexible working request, employers ought to pause before treating it as something that can be withdrawn automatically, especially on return from parental leave. 

 There is no general right to work from home or to any hybrid working accommodations or adjustments automatically in the UK. This is unlike in Australia’s state Victoria, where legislation is about to come into force to allow eligible employees to have the right to work from home for two days a week. But in the UK, employers still need to handle flexible and hybrid working requests carefully when there has been a contractual promise, consistent practice or where there is need for reasonable adjustments. The tribunal have proven themselves to be capable and willing to look past what employers say on the tin and get into the reality of the workplace.  

This is not only about headline benefits; the same issue arises where managers receive clear information about what an employee needs and the business fails to act on it. Another recent case involving HMRC and a manager resulted in the manager being found joint and severally liable alongside HMRC for failing to make reasonable adjustments despite occupational health recommendations. The recommendations were available, the employer knew or ought to have known what support was needed, and sought occupational health guidance. Yet, led by the manager, they avoided implementing the necessary adjustments.  

Again, the tribunal looked at the reality of what happened and how the workplace adapted to accommodate the recommendations. Once an employer has medical or occupational health advice, the question is not whether the employer obtained a report, but rather what they did with it.  

A policy, report or recommendations do not, in isolation, protect an employer. Instead, managers must understand them and act in line with policies and recommendations. Make sure the relevant decisions are consistent.  

What can employers do in light of this? 

• Review your policies and contracts to understand what you’re actually offering (and prepare for people to take them).  
• Look at how often these benefits are actually taken advantage of, and discuss with employees and managers their experience of them.  
• Ensure redundancy, promotion and performance processes do not disadvantage those who use their rights and benefits.  
• Avoid making promises of benefits – in marketing, job interviews or otherwise – unless you’re capable of honouring them internally both in theory and practice.  
• Avoid advertising benefits but treating office attendance as the real route to progression.  

Whether job adverts and contracts refer to hybrid working, enhanced parental leave, flexible hours or generous wellbeing support and accommodations, as an employer you should be clear about whether these are contractual entitlements, discretionary benefits, or cultural aspirations. Ambiguity, in practice or on paper, creates risks. 

The bottom line is – do not treat enhanced benefits as a branding exercise, something to set you apart from the competition in the recruitment processes. If a benefit is offered, employees should be able to use it without fear of it harming their career prospects. Audit what you offer and how it operates in practice, for the benefit of everyone involved. That includes decisions around redundancy selection, performance assessment, promotion opportunities and allocation of work.