News & Views

Employment Law Case Update – February 2023

Employment,
27th February 2023

Employment Law

This month’s review covers a range of issues. We look at sex discrimination involving a lack of a private toilet for a female employee, how an employee who worked term time should have had her holiday pay calculated to take account of the national minimum wage, a potential revision of couriers’ holiday pay following the Pimlico Plumbers case, how not to deal with a flexible working request, and an appeal to reconsider a dismissal related to the pandemic.

Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
Indirect Discrimination: Rejection of flexible working request is application of PCP
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working

Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination

In Earl Shilton Town Council v Miller [2023] EAT 5, the EAT has rejected Earl Shilton Town Council’s case that it did not treat ex-clerk Karen Miller worse than men in its shared toilet arrangement. The council launched its appeal after the employment tribunal ruled in 2020 it failed to provide appropriate toilet facilities to ex-clerk Karen Miller for almost two years between 2016 and 2018. The tribunal concluded that Ms Miller had been treated less favourably because she ran the risk of seeing men using the urinal. The council argued in its appeal that Ms Miller was not treated less favourably than men because they were just as much at risk of being seen at the urinal as she was of seeing them. The Judge Tayler rejected its case, concluding that Ms Miller’s sex discrimination claim did not fall apart just because a man could also make a similar complaint. It was enough to establish that Ms Miller had a worse experience than a man would seeing another man at the urinal, he said.

‘Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals’, Judge Tayler said. ‘While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourably.’

The judgment details how the council, which was based in a Methodist Church that it shared with a playschool, only had access to a female toilet that was in the school’s half of the building. Female staff would have to check with playschool workers that no children were using the toilet first because of child safety concerns, according to the judgment. The toilets were not always immediately accessible as a result. The council offered her the use of the men’s toilet, which has a single cubicle and a multi-person urinal. But there was no lock on the external door, creating the risk that a woman might walk in on a man using the urinal or leave the cubicle to find a man using it. The council also contended in its appeal that the sharing arrangements could not be discriminatory because they were caused by child safety concerns.

Judge Taylor ruled that the arrangements were not good enough, citing the lack of a sanitary bin and suggesting that installing a lock on the toilet door may have made it compliant.

‘The facilities were inadequate for the claimant because she is a woman’, he said. ‘Accordingly, the safeguarding issue could only go to motive and could not prevent direct discrimination being established.’

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Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year

In Lloyd v Elmhurst School Limited [2002] EAT 169, the claimant was employed by the respondent, a private school, as a teaching assistant. She initially worked two days a week and then this was increased to three days a week (21 hours per week). She was paid monthly in equal instalments. The claimant’s contract did not set out hours of work. However, it stated that during term time she would work as directed by the Head Teacher and be entitled to the usual school holidays as holidays with pay. The respondent calculated the claimant’s salary based on 40 weeks of the year. The claimant brought a claim in the employment tribunal for unlawful deduction from wages based on an underpayment of the National Minimum Wage (NMW). She argued that her hours over the year should be calculated as 52 weeks x 21 hours, and not 40 weeks x 21 hours. If her method of calculation was accepted as correct there was an underpayment of the NMW.

A salaried worker is entitled to receive the NMW for their ‘basic hours’ which, by virtue of regulations 3, 21(3), 22(5) of the NMW Regulations 2015 (NMWR 2015), are determined by the terms of their contract of employment, even if those basic hours are greater than the hours actually worked. On the facts of this case, even though the claimant only worked term-time as a teaching assistant, she was entitled to the NMW for 52 weeks of the year rather than just her working weeks plus statutory holiday, because her contract provided that ‘… she was entitled to the usual school holidays as holiday with pay’, according to the EAT.

The employment tribunal dismissed the claimant’s claim. It found that the claimant worked term-time only; when the claimant accepted her job it was on her and the school’s understanding that she would work term time only; the contract did not explicitly set this out but this was consistent with clause 3(b) of the contract; the wording of clause 4 of the contract did not mean that these hours were deemed to be working hours for the purposes of the NMW legislation; the wording ‘the usual school holidays as holidays with pay’ did not mean that the 12 weeks of school holiday should be paid at the same rate as when the claimant was working/on statutory leave and included in her basic hours worked calculation for NMW purposes.

The claimant appealed to the EAT. In relation to the construction of ‘basic hours’ in NMWR 2015, it was not in dispute that the claimant was a permanent employee, who was employed throughout the school year and who was engaged in ‘salaried hours work’ for the purpose of NMWR 2015, nor that the claimant met the four conditions in regulation 21, including the second condition in regulation 21(3) that she was entitled to be paid in respect of a number of hours in a year and that those hours necessarily could be ascertained from her contract.

The principal point of dispute on statutory interpretation was which non-working hours of absence or holiday count towards basic hours. The claimant argued that, while it depends on the individual contract, basic hours include all the hours which are paid as contractual holiday. While the respondent argued that the only periods of absence which count towards basic hours are those which are absences from days when the worker would otherwise be working.

The EAT allowed the appeal. It agreed with the claimant on the issue of statutory interpretation and held that the code, Act and regulations were a poor guide to what hours are to be treated as basic hours, and the ascertainment of the claimant’s ‘basic hours’ depended on the meaning of her contract: the statutory question was not answered by looking at the hours which she in fact worked. Her annual basic hours, as ascertained from her contract, would then fall to be divided by 12 to give the hours of salaried work for each one-month pay reference period. It held that as a matter of general principle, some periods of fully paid absence count towards the ‘basic hours’ of salaried hours work, e.g. if the worker’s contract said they were entitled to a salary of £400 a week for a 40-hour week and to seven weeks’ holiday at full pay their annual basic hours would be based on a multiplier of 52 weeks.

In relation to the individual grounds of appeal, the EAT held that the tribunal erred in examining the hours the claimant in fact worked, to which it added her statutory entitlement to paid annual leave; failing to ascertain the number of hours in the year for which the claimant was entitled to salary in accordance with her contract, as to which the meaning of clause 4 of her contract was of central importance; examining whether the claimant was engaged in ‘working activity’ outside term-time, rather than asking whether those periods of contractual holiday could form part of her basic hours; inconsistently including statutory leave but excluding contractual leave; and relying regulation 27 (whether a worker is ‘available at or near a place of work’ for the purpose of doing work) and not to regulation 21(3), and, in doing, so wrongly focused on when the claimant was in fact engaged in working or working activity.

The EAT remitted the matter to a freshly constituted employment tribunal for the determination, in light of its judgment, of all the issues relevant to the claimant’s claim of unlawful deduction from wages.

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Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers

In Alston and 44 Ors v The Doctors Laboratory Ltd and Ors [2023] EAT 13 a group of couriers have successfully applied to the EAT to set aside by consent an employment tribunal decision on an application of time limits in holiday pay claims under the Working Time Regulations 1998 (WTR 1998) which had ruled that they could carry over paid holidays between years only if they had not already taken unpaid leave, after arguing that a Court of Appeal decision voided the employment tribunal judgment on this point.

Forty-five claimants, 38 of them represented by trade union Independent Workers of Great Britain (IWGB), argued before the EAT that the Court of Appeal’s decision in Smith v Pimlico Plumbers Ltd in February 2022 removed restrictions on how much paid leave they are due. The Honourable Mrs Justice Eady, current President of the EAT, agreed, saying that an employment tribunal’s 2020 decision in the couriers’ case ‘cannot stand and must be set aside’. The couriers ‘were and remain entitled to carry over any untaken paid annual leave’ until their contracts end or the employer, The Doctors Laboratory Ltd, allows them to take the paid holidays they have accrued, Mrs Justice Eady ruled.

It is one of the first cases to rely on the Pimlico Plumbers precedent, which allows people who were wrongly denied paid holiday to claim up to 5.6 weeks’ worth of pay—the equivalent of statutory annual leave—for each year of their employment. For people who have been misclassified as self-employed rather than workers, the precedent removed a previous two-year limit to compensation claims—now, they can stretch back as far as 1996.

The Doctors Laboratory, the UK’s largest independent clinical lab, did not give its couriers paid holiday until 2018, when it conceded they were entitled to up to four weeks a year as ‘limb (b) workers’, a legal category of worker under section 230(3) of the Employment Rights Act 1996.

The company argued before the employment tribunal in 2020 that unpaid leave the couriers had taken before 2018 should be subtracted from their holiday entitlement going forward.

The tribunal agreed the couriers’ right to carry over leave year-on-year ‘exists subject to qualification’.

Employment Judge Elliott ruled that unpaid leave was ‘capable of amounting to annual leave’ because it fulfils the health and safety objective of the European Working Time Directive, which is the root of UK working time law. But the couriers’ counsel argued before the EAT that Pimlico Plumbers allows workers to accumulate paid holiday if they have taken unpaid leave for reasons beyond their control.

The couriers and The Doctors Laboratory remain at odds over whether the couriers count as workers. If so, they could be entitled to the full 5.6 weeks’ statutory annual leave. Judge Eady remitted the matter to the employment tribunal for further directions.

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Indirect Discrimination: Rejection of flexible working request is application of PCP

In Glover v (1) Lacoste UK Ltd (2) Harmon [2023] EAT 4 the EAT dealt with the question of when a provision, criterion or practice (PCP) can be said to have been ‘applied’ to an employee, for the purposes of a claim of indirect discrimination under section 19 of Equality Act 2010. The EAT held that once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the PCP (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application.

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COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working

The EAT has agreed to hear arguments from a salesman fired after asking to work from home or be granted a leave of absence during the COVID-19 lockdown, that the employment tribunal failed to consider his belief that these were reasonable steps to avoid infection. The EAT granted Francesco Accattatis permission to challenge a decision in favour of his former employer Fortuna Group, which sells protective medical equipment like face masks and gloves. The company said Accattatis had failed to ‘support and fully comply with company policies’, which included working from its office in Enfield, North London, when it fired him in April 2020, approximately a month into the first national coronavirus lockdown. But Accattatis argued a 2021 employment tribunal ruling only considered the company’s belief that it was not possible for him to work from home or be placed on furlough. ‘To focus exclusively on the respondent’s view of the situation was an error’, his counsel, told the EAT. ‘I don’t see that the respondent’s view of whether something is feasible, or whether it was feasible, was a relevant matter’.

Under the Employment Rights Act 1996 (ERA 1996), it is unlawful to fire an employee for refusing to return to a workplace because they believed there was a ‘serious and imminent danger’ they couldn’t reasonably avoid. Whether the steps the employee took were appropriate to avoid that danger must be judged ‘by reference to all the circumstances, including, in particular, his knowledge and the facilities and advice available to him at the time’.

The employment tribunal ruled Accattatis’ requests were not appropriate steps because the company ‘reasonably and justifiably concluded’ that he could not work from home or claim furlough.

But Judge James Tayler agreed at a hearing on 9 February 2023 that it is arguable the tribunal misinterpreted the law and allowed the appeal to proceed. Accattatis will also be able to argue that the reason Fortuna gave for his dismissal was not properly distinguished from managers’ low opinion of him.

He had asked his bosses several times about working from home, which he felt was possible. Fortuna and the tribunal disagreed that Accattatis was needed in the office to manage deliveries of equipment and use specialist software, the 2021 judgment noted. He sent several emails throughout April 2020 while on sick leave for a suspected case of Covid-19 urging managers to place him on furlough. ‘I can assure you I already received confirmation from several sources that [the] coronavirus job retention scheme is easily accessible, by any company still actively trading during this time of emergency, without any downside to it’, one email reads. His counsel said this demonstrated Accattatis’ belief that furlough was possible and that urging Fortuna to reconsider was an appropriate step. ‘It’s the manner of the demands, that they were impertinent, that was the reason for the dismissal’, he said.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

News & Views

Employment Law General Update – January 2023

Employment,
24th January 2023

Employment Law

As we welcome in the fresh new year, there is a need to focus on helping employees with health issues as the NHS struggles more than ever. We highlight three areas where employers can make a real difference. Other challenges this year come from union strikes, and the government looks to balance the rights of strikers with continuing to provide minimum levels of service in specified public services in a new bill before the Commons, along with an update on the Neonatal Care Bill which covers parental leave. With people working more flexibly consultations have started on proposals to pro-rata holiday entitlement for part-year and irregular hours workers.

Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
Parental Leave: House of Commons publishes update on Neonatal Care Bill
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers

Employee Health: Three wellbeing challenges employers will need to tackle in 2023

Website, People Management, published an article on 20 January 2023 by Imogen Cardwell (Clinical Operations Director at PAM OH) promoting a proactive approach from employers to address health challenges facing employees including soaring cancer rates, increasing work-related illness and NHS delays. You can read the full article [here] but below is a summarised version.

She reports that with an NHS backlog of more than 7.2 million, it will impact more than a million employees, with 15 per cent of employees affected being forced to go on long-term sick leave, and 40 per cent of cancer patients are having to wait more than the 62-day target for life-saving cancer treatment . At the same time, two-fifths of employees believe work has made them sick, primarily due to work-related stress and musculoskeletal (MSK) issues. All of which means the NHS backlog, rising cancer cases and increasing work-related illness are the three major wellbeing challenges employers will need to address in 2023.

Challenge 1: Supporting employees with cancer

Employers will need to do more to support terminally ill employees to stay in work, so long as it is safe to do so. This is both a legal duty, under the Equality Act 2010, but also a moral duty. Integral to this is supporting employees by making the reasonable adjustments needed to allow them to remain in work, such as allowing flexible working or changing working hours for a period to account for someone’s needs.

Managers should be encouraged to talk to employees about what they think would help them and an occupational health clinician can also advise on appropriate adjustments that would work for the individual and business, both now and as the employee goes through important milestones and treatments.

Challenge 2: Ongoing NHS delays

Before the pandemic, employees would typically get signed off work by their GP until after they had been treated and had some post-surgery rehabilitation, which might have been around 6 weeks. With wait times of up to a year, this might not be acceptable going forward. Be aware of the risk of financial hardship, and long-term absence which has been shown to lead to lack of confidence, isolation and an increased risk of future worklessness.

Again, reasonable adjustments to help keep people in work will be critical going forward. Workplace wellbeing initiatives or occupational health advisors might also be able to support the individual with linked conditions, for example, losing weight to reduce joint pain and need for an operation.

Challenge 3: Soaring work-related illness

Days lost to work-related ill health cost billions per year, primarily work-related stress, depression or anxiety and MSK issues. What drives these issues? Employers should review their health data, including referrals to occupational health and health screening insights. As well as conduct ‘employee listening’ with surveys designed to uncover the root causes of work-related stress. This can often be addressed with workshops and manager training based on the HSE’s Management Standards for reducing stress, which look at everything from workload to working relationships.

In the case of soaring MSK issues, workplace risk assessments can be used to identify where employees are setting themselves up for future injury. While body mapping workshops, where employees place stickers on body maps to reveal where they have injuries or niggles, can also be used. These encourage employees to share tips and advice with one another on how they’re using the same equipment, or doing the same job, in a way that prevents injury. As it’s often the smallest behavioural changes that make the biggest difference.

A free guide to Health at Work is available from PAM Wellbeing here.

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Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill

The House of Commons (HoC) Library has published a research briefing on the Strikes (Minimum Service Levels) Bill, which was introduced to the House of Commons and given its first reading on 10 January 2023. The Bill enables regulations to be made by the Secretary of State at the Department for Business, Energy & Industrial Strategy (after consultation) setting minimum levels of service in specified public services so that those services do not completely shut down when there are strikes. For these purposes a strike does not include an overtime ban or a call-out ban. The Bill would grant the Secretary of State the power to set ‘minimum service regulations’ that could set minimum service levels for workers during strikes in the following sectors:

• health services

• fire and rescue services

• education services

• transport services

• decommissioning of nuclear installations and management of radioactive waste and spent fuel

• border security.

The Bill grants employers the power to give a ‘work notice’ to a trade union about any strike that affects a service subject to the Bill. The notice would have to specify which workers the employer to continue work in order to ensure service levels required by the minimum service regulations. Where a union fails to ‘take reasonable steps’ to ensure compliance with the work notice it loses protection from liability. Furthermore, the Bill removes automatic protection from unfair dismissal for any employee who strikes contrary to a valid work notice.

The second reading of the Bill was due to take place on 16 January 2023.

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Parental Leave: House of Commons publishes update on Neonatal Care Bill

The House of Commons (HoC) has published a briefing paper on the Neonatal Care (Leave and Pay) Bill 2022–23, which was introduced by Stuart C McDonald MP as a Private Member’s Bill on 15 June 2022.

The Bill would introduce neonatal care leave and statutory neonatal care pay. As these are both new rights, they require the Minister to pass regulations to bring them into force. Parents whose children spend at least one week in neonatal care would qualify for the day one right to neonatal leave. The duration of the leave and when it must be taken would be set by regulations. It would be a minimum of one week and the period in which it could be availed of would last a minimum of 67 weeks starting from the date of the child’s birth. Employees with at least 26 weeks continuous service can avail of neonatal care pay during periods of neonatal leave. While limit and duration of pay would be set by regulations the minimum limit that could be claimed would be a minimum of 12 weeks.

There have been calls since 2014 for such a bill to be introduced. Following a consultation, the Government committed to introduce neonatal care and pay in March 2020. This was reiterated by the then Labour Markets Minister Paul Scully when he was responding to a parliamentary question on 25 May 2022. All MP’s who spoke during the second reading of the Bill were in favour of it passing. Similarly, all contributions at committee stage were in favour of the Bill and all amendments were accepted. However, concerns over the length of time the government were taking to implement the Bill were also raised.

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Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers

The Department for Business, Energy & Industrial Strategy (BEIS) is conducting a consultation on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. The consultation follows the recent Supreme Court judgment in Harpur Trust v Brazel [2022] IRLR 67.

As part of the consultation, BEIS proposes to introduce a holiday entitlement reference period for part-year and irregular hours workers. BEIS wants to ensure that holiday pay and entitlement is directly proportionate to the time part-year and irregular hours staff are working. The consultation also aims to understand how entitlement is currently calculated for agency workers and how the consultation proposal could be implemented.

The consultation may be of interest and impact employers, workers, business representative groups, unions, and those representing the interests of groups in the labour market.

Responses to the consultation can be completed online here. Responses can also be emailed to: holidayentitlementconsultation@beis.gov.uk. The consultation closes on 9 March 2023.

Further information regarding the Calculating holiday entitlement for part-year and irregular hours workers Consultation can be accessed here. The Proposal to simplify Holiday Pay and Entitlement Consultation Impact Assessment can be accessed here.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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News & Views

Employment Law Case Update – January 2023

Employment,
24th January 2023

Employment Law

We start off the new year with a Court of Appeal decision on whether a worker who declined to go back to work for fear of COVID-19 was unfairly dismissed or not, the first of its kind at this level. We also take a look at two discrimination cases, a Court of Justice of the European Union case about requirements on employers to provide ‘special corrective appliances’ (such as glasses), and a claim for misuse of private information concerning the reasonable expectation of privacy in private WhatsApp messages.

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
Discrimination: Narrow test for marital status discrimination confirmed
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
Data Protection: Misuse of private information and abuse of process

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals

In Rodgers v Leeds Laser Cutting [2022] EWCA Civ 1659, the claimant worked for the respondent as a laser operative in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working. Following the first national ‘lockdown’ on 23 March 2020, the respondent told employees that the business would remain open, asked staff to work as normally as possible and stated ‘we are putting measures in place to allow us to work as normal’. Recommendations were made by an external risk assessment covering most of the things which were already in place before it was undertaken. The claimant left work as usual on 27 March 2020, having not made any complaint about his conditions at work. He obtained a self-isolation note until 3 April 2020 due to having a cough. On 29 March 2020, the claimant told his line manager he had to self-isolate because one child was high risk with sicklecell and a 7 month old baby. His manager agreed. Unfortunately, during this period he drove a friend who had broken his leg to hospital and at some point worked in a pub during the lockdown. On 24 April 2020 he found out he’d been dismissed and was sent his P45.

The claimant made a claim for unfair dismissal on the grounds of health and safety. Under the Employment Rights Act 1996 (ERA 1996), s.100(1)(d), any dismissal of an employee will be automatically unfair, if the reason (or, if more than one, the principal reason) for the dismissal is that, in circumstances of danger which the worker/employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee:

left or proposed to leave, or
(while the danger persisted) refused to return to

their place of work or any dangerous part of their place of work. ‘Dangers’ in this context are not limited to dangers arising out of the workplace itself, but also cover dangers caused by the behaviour of fellow employees.

The questions that the employment tribunal has to decide in a case under ERA 1996, s.100(1)(d) are:

Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
Was that belief reasonable? If so:
Could they reasonably have averted that danger? If not:
Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
Was that the reason (or principal reason) for the dismissal?

The tribunal rejected the claim for a number of reasons, including that his evidence was inconsistent, his beliefs of serious imminent danger were not supported by his actions (driving his friend to hospital and working in a pub) and not related to his workplace but to the world at large, he had made no complaint about his specific working conditions, and the measures put in place by the employer (if followed) would make the business as safe as possible from infection.

The claimant appealed, arguing that the tribunal had erred in law by concluding that because his belief was one of a serious and imminent danger at large (i.e. in the whole community), his belief that his workplace presented a serious and imminent danger was not objectively reasonable. The Court of Appeal, like the EAT before it, dismissed the appeal because the claimant’s case failed on its own facts. While the coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, this was not the situation in this particular claimant’s case in respect of his workplace.

The Court of Appeal has confirmed that, on the particular facts of this case, where the employee refused to return to work during the coronavirus (COVID-19) pandemic in circumstances where the employer had put in place social distancing in the workplace and other measures like handwashing and face masks, the employment tribunal did not err in law in concluding that the claimant had not reasonably believed that there were circumstances of danger which were serious and imminent, or which could not be reasonably averted, and as result the dismissal was not automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996).

Guidance was given on the interpretation of ERA 1996, s 100(1)(d) including that:

it is sufficient that the employee had a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. They do not also have to prove that objectively such circumstances of danger did in fact exist;
the subsection does not apply where the perceived danger arose on the employee’s journey to work. The perceived danger must arise at the workplace. However it does not follow that the danger need be present only at the workplace;
while the paradigm case under ERA 1996, s 100 (1)(d) is where a danger arises by reason of some problem with the premises or equipment, there is nothing about the risk of employees infecting each other with a disease that takes it outside the scope of the subsection: the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.

While the outcome of this case ultimately turned on its own particular facts, the judgment is nonetheless of interest because it is the first appeal to reach the Court of Appeal on the application of ERA 1996, s 100(1) to dismissals related to the coronavirus (COVID-19) pandemic.

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Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles

In Davies v EE Ltd [2022] EAT 191, the EAT considered what amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim relating to an alleged failure to make reasonable adjustments.

The employee, who was employed full-time, relied on two PCPs, which she contended had left her at a substantial disadvantage: (i) a requirement for employees to complete a full-time working pattern of 40 hours per week, with each shift approximately 9½ hours in length, and (ii) a requirement for employees to complete the shifts without agreeing any reduction in hours. The employment tribunal held that because the respondent employed some employees on a part-time basis and had allowed the claimant a phased return to work, neither PCP had been made out on the facts.

The EAT held that the tribunal had erred in law in concluding that the fact that the employer had other staff who worked part-time had meant that a PCP of requiring the employee to work her contracted hours of 40 per week had not been applied to her. Also, the fact that a temporary adjustment had been made during the employee’s phased return to work did not mean that the PCP had ceased to exist.

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Discrimination: Narrow test for marital status discrimination confirmed

In Ellis v Bacon [2022] EAT 188, the EAT considered a matter of two married director/shareholders whose messy divorce impacted the divorcing wife’s income from the company. Another director, Mr Ellis, sided with the husband, Mr Bacon, in relation to the marital dispute and was compliant with him in removing the Mrs Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The employment tribunal held that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as a wife to Mr Bacon. Mr Ellis appealed.

The EAT held that in a claim of direct discrimination because of the protected characteristic of marriage, the employment tribunal must consider whether it was the claimant’s marital status which was the cause of the less favourable treatment and not the fact that they were married to a particular person. Further, an appropriate hypothetical comparator is someone in a close relationship but not married, and the tribunal must consider whether such a person would have been treated differently.

A person directly discriminates against another person where they treat them less favourably than they treat or would treat others, and they do so because of a protected characteristic. Marriage and civil partnership are protected characteristics. A person has the protected characteristic of marriage if the person is married (which includes a person who is married to a person of the same sex); of civil partnership if the person is a civil partner. Note that people who are not married, or not civil partners, do not have this protected characteristic.

Cases on discrimination because of marriage are very rare. This judgment confirms that the test is to be narrowly construed, with the causative reason for the less favourable treatment being the marital status and not:

the identity of the spouse, or
the closeness of the relationship.

As a result, there seems very limited scope for claimants to bring successful claims in the context of modern society and the legal concept of protection on grounds of marital status looks increasingly like an outdated concept.

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Health & Safety at Work: Display screen equipment and the provision of spectacles by employers

In TJ v Inspectoratul General pentru Imigrări, C-392/21, the Court of Justice of the European Union held that Article 9 of Council Directive 90/270/EEC, on the minimum safety and health requirements for work with display screen equipment, which is implemented in the UK by regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992, must be interpreted as follows:

there is no requirement for a causal link between display screen work and potential visual difficulties;
‘special corrective appliances’ include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment;
those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes, i.e. they may be used at other times too; and
the employer’s obligation to provide the workers concerned with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.

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Data Protection: Misuse of private information and abuse of process

In FKJ v RVT [2023] EWHC 3 (KB), which concerned a claim for misuse of private information, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ’s private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were ‘of the most intimate kind’. FKJ brought a claim for misuse of private information.

While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants’ grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT’s conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court.

RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.

The court gave short shrift to the defendants’ applications, reaching the ‘clear conclusion that they are without merit’. Parts of the applications were ‘not worthy of serious consideration’ and appeared to be ‘an attempt to stifle a claim that the defendants would prefer not to contest on its merits’. Both the strike out and summary judgment applications were dismissed.

[Written by Charlotte Clayson, partner at Trowers & Hamlins LLP, for Lexis+.]

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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Information required by the regulator in relation to employment law services provided for bringing or defending claims for unfair or wrongful dismissal

Employment,
19th January 2023

Employment Law

The purpose of this Information Note

This note provides only the pricing and service information that our regulator requires us to post to our website in relation to specific employment law services. It is not intended to and does not provide comprehensive information about the employment law services we provide generally – Dixcart Legal provides employment law advice in a commercial context, guiding international and UK clients through the employment law aspects of commercial transactions and disputes in tribunal and the civil courts – Please contact your usual contact at Dixcart Legal for more information about our employment law services or email us at hello@dixcartuk.com

Who will carry out the work
How long will it take?
The work we do for you
Key Stages
Our Pricing
- To defend a claim
- To bring a claim
- Pricing Information
Additional costs – Attendance at an Employment Tribunal Hearing
Additional costs – third parties (including information relating to disbursements)
Additional costs – Excluded items
Funding of costs – Employment dispute cover

Who will carry out the work where you wish to bring or defend a claim for unfair or wrongful dismissal

Anne-Marie Pavitt and Sophie Banks carry out the employment work at Dixcart Legal. Anne-Marie Pavitt is Managing Director. Sophie Banks is supervised by Anne-Marie. Details of their experience and qualifications can be found in their profiles.

We also have 2 paralegals who will assist in the employment work where appropriate. Our paralegals are not legally qualified but they have between 5 and 20 years’ experience in the legal profession. Our paralegals always work under the direct supervision of a solicitor.

How long will it take?

The time that it takes from taking initial instructions to the final resolution of the matter depends largely on the stage at which the case is resolved. If it is decided to try to settle the case early and a settlement is reached during pre-claim conciliation, the claim may be resolved in 6 to 8 weeks (or less).

If the claim proceeds to a final hearing and we are not able to successfully resolve it before then, then it is very much dependant on the availability of the applicable Employment Tribunal. It could take one year or more.

These are just estimates and we will of course be able to give you a more accurate timescale once we have more information and as the matter progresses.

The work we will do for you

We have set out below the key stages of a claim. These stages apply to defending a claim and equally apply to bringing a claim save as otherwise indicated by the wording appearing in italics in brackets.

Key stages

Entering into pre-claim conciliation where this is mandatory to explore whether a settlement can be reached
Reviewing and advising on claim from other party (Reviewing and advising on response from other party)
Preparing response (considering response)
Exploring settlement and negotiating settlement throughout the process
Considering a schedule of loss (Preparing a schedule of loss)
Preparing for (and attending) a Preliminary Hearing
Attending a Preliminary Hearing
Exchanging documents with the other party and agreeing a bundle of documents
Taking witness statements, drafting statements and agreeing their content with witnesses
Preparing bundle of documents
Reviewing and advising on the other party’s witness statements
Agreeing a list of issues, a chronology and/or cast list
Preparation for the full final hearing, including instructions to Counsel

Our pricing

We carry out the work on an hourly rate basis and in the following two paragraphs we identify a typical range of our legal costs, exclusive of VAT for defending (first paragraph) and for bringing (second paragraph) a claim. These costs are based on Sophie Bank’s hourly rate (£300 per hour, excluding VAT). All of the paragraphs thereafter provide important information that apply equally to both the defending and the bringing of a claim

We are legally required to charge VAT (currently 20%) on all our legal costs. However, if you live outside the UK, then we are not required to charge you VAT on our legal costs.

To defend a claim for unfair or wrongful dismissal in the Employment Tribunal

A typical legal costs range for settling a matter at pre-conciliation stage (this is negotiation prior to an Employment Tribunal application being made) on the basis that this is dealt with by way of a settlement agreement is on average £3,300, excluding VAT. This equates to an average time of up to 11 hours. Our legal costs for taking a matter to a full final hearing in the Employment Tribunal ranges from £23,100 to £37,500 (excluding VAT and disbursements such as barristers fees (see further below)). These fees include the preparation of the matter for the hearing but does not include attendance at the hearing itself (see further below). The fees equate to an average time of between 77 and 125 hours. The lower range costs are based on there being only three witness statement prepared. The higher range costs are based on there being up to six witness statements prepared.

To bring a claim for unfair or wrongful dismissal in the Employment Tribunal

A typical legal costs range for settling a matter at pre-conciliation stage (this is negotiation prior to an Employment Tribunal application being made) on the basis that this is dealt with by way of a settlement agreement is on average £2,700, excluding VAT. This equates to an average time of up to 9 hours. Our legal costs for taking a matter to a full final hearing in the Employment Tribunal ranges from £19,500 to £32,100 (excluding VAT and disbursements such as barristers fees (see further below)). These fees include the preparation of the matter for the hearing but does not include attendance at the hearing itself (see further below). The fees equate to an average time of between 65 and 107 hours. The lower range costs are based on there being only one witness statement prepared. The higher range costs are based on there being up to three witness statements prepared.

Pricing information applicable to both the defending and bringing of a claim:

The exact number of hours it will take to defend or bring an employee claim for unfair or wrongful dismissal in the Employment Tribunal depends on the circumstances leading to the claim and the nature of the defence; whether bringing or defending a claim, in order to assess likely legal costs, we will need to consider the amount of supporting evidence we need to obtain and consider and the levels of correspondence and the complexity of the claim and the case in defence of it. Please note the legal costs range we provide in this information note is based on the facts set out in this costs information. All cases are likely to vary and of course, we can give you a more accurate estimate once we have more information about your specific case.

Providing us with all the information and documents we request at the start of the matter in a clear and methodical order will tend to keep our legal costs lower. Factors which usually push our legal costs higher (and may well be above the range of costs indicated) can include (but please note that this is not an exhaustive list):

Additional costs – Attendance at an Employment Tribunal Hearing

There will be an additional charge for attending an Employment Tribunal hearing of £1,995 per day (excluding VAT) based on 7 hours per day in attendance at the Employment Tribunal. In most instances we would recommend that a barrister be instructed to attend the Employment Tribunal and advocate on your behalf. Before instructing a barrister we would obtain a fee estimate for attendance. For simple cases we would expect that the barrister instructed would attend the hearing without a solicitor in order to limit costs. For medium and high complexity cases a solicitor will also be required to attend at the rate of £1,995 per day. (This is an additional fee to the charges indicated above).

Counsel’s (the barrister instructed to attend the Employment Tribunal) fees are likely to be between £750 to £2,000 per day (depending on experience of the barrister) (excluding VAT) for attending an Employment Tribunal hearing (including preparation).

Additional costs – third parties (including information relating to disbursements)

Disbursements are costs related to your matter that are payable to third parties, such as counsels fees (see above) and fees for medical reports (if required) (see below).

We handle the payment of the disbursements on your behalf to ensure a smoother process. Before incurring third party fees we will obtain an estimate and notify you of the same. We may require you to put us in funds for the amount before incurring the fee.

The Employment Tribunal does not charge fees for defending or bringing a claim.

Fees for medical reports will vary depending on the type of condition and the detail required in the report but typically we would expect a range of between £500 and £1,200 (excluding VAT).

If we need to incur travel costs (such as second class train fares) and/or couriers fees you would be charged for these at cost.

If we pay a disbursement then the third party will usually have to charge us VAT (currently 20%). In most circumstances we pass that VAT charge onto you.

Additional costs – Excluded items

In certain circumstances wrongful dismissal claims may/should be brought in the civil courts rather than the Employment Tribunal. Claims brought or defended in the civil courts are subject to different procedural rules. The fee structure set out above does not apply to wrongful dismissal claims in the civil courts.

The following items are not included in the above legal costs range and will attract additional costs:

defending claims that are brought by litigants in person
where it is necessary to make or defend any interim applications on your behalf (meaning any applications to the Employment Tribunal made by either party prior to the final hearing)
if it is necessary to amend your response to the claim following any application by the claimant to amend their claim (or to amend your claim)
making or defending a costs application
where we need to prepare more than 6 witness statements when defending a claim (and more than 3 when bringing a claim)
bringing or defending any appeals

Funding of costs – Employment dispute cover

We always recommend that before incurring legal costs you check to see if you have employment dispute cover included with any insurance policies you may hold.

For individuals this cover can sometimes be included in any additional packages that your bank may provide, normally for an additional monthly fee.

If you have such cover we do strongly recommend that you speak with the insurance provider to see if you have a valid claim for legal expenses under your insurance.

Version: 5

Effective Date: 01 January 2023

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Employment Law General Update – December 2022

Employment,
12th December 2022

Employment Law

This month’s law update brings you a variety of ways to improve the workplace to make life better for employees and move the workforce forward. We have proposals on the reform of flexible working, a report advising the UK Financial Services sector on how to support and improve the under-representation of ethnic minorities in its sector, advice on supporting the health of male staff, and a report on inclusion of socio-economic diversity in the financial and professional services. And the changes don’t stop there – new company car rates apply from 1 December and various employment benefit rates are to be increased from next April.

Flexible Working: BEIS publishes consultation response on proposal to reform flexible working regulations
Equality: Race to Equality in UK Financial Services report by Reboot
Health at Work: Mental and physical health support for male staff beyond Movember
Inclusion: Socio-Economic Diversity taskforce publishes class barrier report
Employment Benefits: Rates of SMP, SSP, Maternity Allowance etc to be increased in April 2023
Company Cars: Advisory fuel rates from 1 December 2022

Flexible Working: BEIS publishes consultation response on proposal to reform flexible working regulations

The Department for Business, Energy and Industrial Strategy (BEIS) has published the government response to the consultation on its reform to make flexible working the default which was launched in September 2021. Following the changes to working during the coronavirus (COVID-19) pandemic, the consultation included a set of proposals which were built around the principle that working arrangements were best decided through a constructive, open-minded discussion between employer and employee. The government response confirms its intention to introduce several different measures in relation to flexible working. A total of 1611 responses were received for this consultation, of which 83% were from individuals.

Measures to be implemented by the government include:

removing the 26-week qualifying period before employees can request flexible working, making it a day-one right;
adding a new requirement for employers to consult with their employee when intending to decline the request for flexible working;
allowing employees to make two flexible working requests in any 12-month period, rather than only one as currently allowed;
reducing the time limit for an employer to respond to a flexible working request from three to two months; and
removing the requirement for employees to detail the effects of their flexible working request on the employer and to include ways on how it might be dealt with.

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Equality: Race to Equality in UK Financial Services report by Reboot

Reboot, a campaigning group of senior financial services industry professionals, has published its 2022 report on addressing the under-representation of ethnic minorities in the UK financial services sector. The report shows that 68% of ethnic minority employees have experienced discrimination and a shocking 82% have experienced unwelcome comments or conduct at their organisation based on their background in the last 12 months. The report provides financial services businesses with a three-point plan for the support of ethnic minority employees and to form a diverse workspace:

1. Leaders take charge

To remove barriers to progress, leaders have to set the tone and not outsource diversity and inclusion. By championing the cause from the top and supporting ethnic minority role models within the business, it will help to empower workforces and create an environment where employees feel comfortable to talk about race, just like we have observed with gender diversity.

2. Challenge negative office cultures

Poor attitudes in the workplace are still hindering progression. Racism has no place in the modern workplace, and it is telling that ethnicity-related jokes are still heard in offices across the industry. These behaviours need to be challenged and extinguished if we are to create a safe working environment for those of every background.

3. Close the gap and be transparent

The majority of all respondents believe ethnicity pay gap reporting should be mandatory. More transparency on ethnicity data reporting will therefore mean companies will have to become more accountable – and this will help build a sustainable roadmap. Furthermore, organisations that can show that they are fair will be more attractive to employees, customers, and investors.

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Health at Work: Mental and physical health support for male staff beyond Movember

People Management has published an article by Dr Bernard Yew about how employers need to take care of their male employees because research shows they are falling behind, despite a whole month highlighting specifically male health issues – Movember is all about raising money and awareness for the prostate cancer charity. According to the article:

Male employees are still twice as likely as female employees to feel that their employer doesn’t care about their wellbeing.
16 per cent of men feel work provides little or no wellbeing support, compared to just 8 per cent of women.
One in two also say that working for their employer has undermined their health or caused them to become sick (despite two-thirds of male employees believing their employer has responsibility for their health and wellbeing).

One of the causes given is that gendered stereotypes persist, with men sometimes seen to be less in need of emotional support at work, despite two-fifths (40 per cent) of men saying emotional worries are their biggest wellbeing concern. Financial worries are the second biggest wellbeing worry after emotional health, with two-fifths of men saying their ability to manage finances is one of their biggest wellbeing challenges. This is closely followed by concerns about their weight, risk of developing cancer and not getting enough sleep. Given that the Samaritans claim that ‘Middle-aged men are more likely to die by suicide than any other age group’ it should give employers cause for reflection.

Critical to transforming this is encouraging managers to make a habit of conducting ‘check-in chats’ with men, as well as women, to ask them how they are, instead of just talking about goals and targets. Although these conversations can feel a little awkward at first, 28 per cent of men say a supportive manager is important for helping them to stay healthy. Men are also much more likely to utilise support services at their managers’ suggestion, than if left to initiate asking for support themselves, the article continues.

Given the long hours spent in work means employers have a vital role to play when it comes to supporting men to reduce health risks. Dr Yew suggests strategies such as:

Enabling employees to access healthy food during the day, with education on how to batch cook and quickly reheat healthy food.
Encouraging employees to go out during their lunch break to stay active.
Offering simple finger-prick blood tests to help men identify risk factors, such as diabetes and high cholesterol, which can increase the risk of cancer and heart disease.
Enabling men to access healthcare easily (47 per cent of men find it difficult to access their doctor or GP, while 56 per cent have been personally affected by delays accessing NHS support, add to that the general reluctance of men to see support and brush concerns aside).
Using occupational health services, ranging from virtual GP and physiotherapy services to onsite clinicians.

To read the article in full, click here.

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Inclusion: Socio-Economic Diversity taskforce publishes class barrier report

The Socio-Economic Diversity taskforce has published a Five Point Pathway aimed at tackling the lack of socio-economic diversity at senior levels in the financial and professional services sectors. The Pathway, which is the culmination of two years’ work, consists of recommendations from the employers, sector bodies, regulators, and government on how to break the class barrier and create a more welcoming environment for a more diverse pool of talent.

The five points (or steps) on the pathway are leadership, assess, take action, set goals, and publish and involve different processes depending on which set of institutions an organisation belongs to. For employers:

1. Leadership

The starting point step is appoint creating clear accountability and responsibility for socio-economic diversity within an organisation. The Taskforce recommends appointing a senior champion as well as a system of reporting on ongoing strategy and progress in increasing socio-economic diversity at senior levels. Employers should aim to incentivise senior leaders and managers to meet targets.

2. Assess

Step two revolves around the collection of data to understand the current socio-economic make-up of the workforce. The taskforce recommends collecting data from the entire workforce on an annual basis and analysing this against different levels of seniority. Transparency is also important in this step as showing employees how the data is used and handled is more likely to build trust in the process.

3. Take action

Step three of the pathway is about taking positive action to increase inclusion and support the progression of those from non-professional backgrounds into leadership positions. The taskforce recommends the development of role models and ‘champion networks’ within an organisation as well as analysing recruitment and promotion processes to ensure they do not involve barriers to progression.

4. Set goals

Step four involves setting targets once data has been collected to incentivise actions which increase an organisation’s socio-economic diversity. The taskforce recommends setting targets for employee self-disclosure and taking a holistic view of data collected alongside other characteristics such as gender and ethnicity.

5. Publish

The final step is about public accountability. The taskforce recommends that employers publish their data on socio-economic gaps publicly and share any progress made towards closing the gaps with employees, investors and clients.

Co-Chair of the Socio-Economic Diversity Taskforce and Chair of Progress Together, Alderman Vincent Keaveny, commented “Socio-economic diversity is key to all sectors. It is vital that firms take action to create a more equitable pathway to the top for people from all backgrounds. I am excited to continue this great work as Chair of Progress Together so we maximise the potential of talented people and boost productivity.” The full report can be read here.

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Employment Benefits: Rates of SMP, SSP, Maternity Allowance etc to be increased in April 2023

According to a Statement to Parliament by Mel Stride, the Secretary of State for Work and Pensions, and proposals set out in a Department for Work and Pensions policy paper, in April 2023, State Pension and benefit rates will increase in line with the Consumer Prices Index (CPI) for the year to September 2022. This means that they will increase by 10.1% from 10 April 2023. Accordingly, the following employment benefits will apply from that time:

the rates for Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay, Statutory Parental Bereavement Pay and Maternity Allowance will all increase from £156.66 to £172.48 per week, and
the rate for Statutory Sick Pay will increase from £99.35 to £109.40 per week.

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Company Cars: Advisory fuel rates from 1 December 2022

HM Revenue and Customs (HMRC) has published revised advisory fuel rates for company cars which apply from 1 December 2022. The full information can be read here.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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Employment Law Case Update – December 2022

Employment,
12th December 2022

Employment Law

This month the focus is on the details. The EAT considered the circumstances of a disabled employee’s redundancy selection interview, an employee’s claim for damages for asbestosis was increased as a result of the employer not accepting his Part 36 offer, and we delve into the Pensions Ombudsman’s error of law in not considering whether a man who took early ill-health retirement might have otherwise been able to redeploy as a reasonable adjustment and therefore could have suffered financial loss by retiring early.

Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage
Personal Injury: The importance of considering Part 36 offers when considering damages claims
Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment
Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text

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Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage

In Hilaire v Luton Borough Council [2022] EAT 166, the EAT ruled on the employee’s appeal against the employment tribunal’s decision, rejecting his claims which alleged that his selection for redundancy, without the employer having given adequate consideration to his disability, had amounted to a failure to make reasonable adjustments. The employee, who suffered from depression and arthritis, had been required to attend an interview in a redundancy situation and he had informed the employer that he had been too ill to attend. The employer relied on the fact that the employee had been granted two extensions to the deadline for submission of an application for a role in the new structure, and that he had had been offered an alternative date for his interview. The tribunal concluded that the employer had applied a ‘provision, criterion or practice’ (PCP) of requiring the employee to attend an interview, and that he had not been placed at a substantial disadvantage by that PCP.

The EAT held that the tribunal had erred in its approach to the first aspect of ‘disadvantage’ by engaging in a binary decision concerning whether the employee could have taken part in the interview or not. The relevant matters in considering disadvantage under s.20 of the Equality Act 2010 (the Act) were the effects of the disability which made it more difficult for the disabled employee to meet an expectation of the employer (the PCP). The EAT held that, where the tribunal had found that the employee had had problems with memory and concentration and with social interaction, such problems would, at the least, have hindered effective participation in the interview. Accordingly, the tribunal should then have considered whether the limitation on the ability to participate had been more than minor or trivial.

The EAT further ruled that the second aspect of disadvantage was causation, and that there was evidence supporting the tribunal’s conclusion that the employee would not have taken part in the interview for reasons unconnected with his disability. Therefore, the EAT held that his disability had not prevented him from complying with a PCP and that, on that basis alone, the appeal could not succeed. precover from the effects which would have hindered his participation in an interview, could be considered an adjustment within t7he meaning of the Act, but that, given the significant impairment in the present case, from which recovery would have been protracted, the short delay to the date of the interview which the employer had applied could not be considered an adjustment. However, the EAT ruled that, on the evidence, the tribunal had been entitled to consider that the surrounding circumstances and the impact on other employees had meant that no step, including ‘slotting in’, would have been a reasonable step for the employer to have taken. Accordingly, the appeal was also dismissed on that basis.

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Personal Injury: The importance of considering Part 36 offers when considering damages claims

In Brown v G & K Manson Ltd [2022] EWHC 3004 (KB), the King’s Bench Division assessed damages in a claim brought against the claimant’s former employer, in circumstances where the claimant had developed asbestosis following his exposure to asbestos during his employment. Judgment on liability had been entered in earlier proceedings. Among other things, the court accepted the main elements of the submissions made on the claimant’s behalf, subject to a recalculation of the hourly rate for gratuitous care and assistance. The court accepted that the debilitating breathlessness which the claimant had begun to suffer from early 2019 from asbestosis had resulted in his wife undertaking an additional daily hour of assistance, and it took into account, among other things, the claimant’s extra energy costs as a result of the energy price cap increases, bearing in mind that his forced sedentary lifestyle required his domestic heating to be on for longer, so as to keep him warm. The court held that the appropriate total award of damages was £91,438.54, including interest.

However, the court was informed that the claimant had put forward a Part 36 offer of £72,500 in full and final settlement (meaning under Part 36 of the Civil Procedure Rules, whereby one party seeks to settle the claim for a fixed, whole amount, which if not accepted, can have consequences as to the award and costs). Accordingly, the EAT ruled that the consequences of CPR Pt 36.17(4)(d) came into effect, such that the claimant was entitled to an additional amount of £9,143.85, representing 10% of the amount the court had awarded, including interest. The court also awarded interest under Pt 36.17(4)(a).

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Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment

In Andrew v Royal Devon and Exeter NHS Foundation Trust [2022] EWHC 2992 (Ch), the Chancery Division allowed in part Mr Andrew’s appeal from a decision of the Pensions Ombudsman which had determined that Mr Andrew’s claim for financial loss had failed on reliance. Mr Andrew was employed by the respondent trust as a specialist orthotic technician. He was a member of two pension schemes (the 1995/2008 scheme and the 2015 scheme). Having developed significant health problems, in August 2017 Mr Andrew had applied for both Tier 1 and Tier 2 ill-health retirement (IHR). It was approved on 28 December 2017 on the basis of Tier 1, but not Tier 2. Mr Andrew’s employment terminated on 18 February 2018. When he was sent the final calculation of his pension entitlement, however, on 29 March 2018, his entitlement under the 1995/2008 scheme and the annual pension did not coincide with the estimate given to him in August 2017.

Mr Andrew complained to the Ombudsman. The Ombudsman had decided that he was given the correct figures. The court held, among other things, that on the basis of the evidence available to the Ombudsman, it had concluded that but for the inaccurate IHR estimate Mr Andrew would have retired at the same time and, as such, had suffered no financial loss. There was an evidential basis for that conclusion in so far as it related to Mr Andrew’s role. In particular, while Mr Andrew might have chosen to remain on sick pay the evidence did not point inexorably towards that conclusion. In addition, the court held that there was no error in the Ombudsman deciding to proceed on the basis of the evidence before him rather than holding an oral hearing.

As to the possibility that Mr Andrew would have sought and been granted redeployment as a reasonable adjustment, the court held that the Ombudsman had not considered and rejected that possibility; rather, the Ombudsman had only considered the fact that it was still open for Mr Andrew to apply for another role. The fact that it could be a reasonable adjustment to redeploy an employee without there being a need for them to go through a competitive recruitment process had been confirmed in Archibald v Fife Council [2004] ICR 954. Failing to consider that possibility amounted to an error of law on the part of the Ombudsman and the case was remitted on that basis.

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Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text

In Richardson v Extreme Roofing Ltd [2022] EAT 173, the EAT held that an appeal from an employment tribunal judgment to the EAT must attach a copy of the actual signed judgment and written reasons not just text which has been copied and pasted from that judgment and reasons. If an appellant is unable to attach a copy of the written reasons or ET1 claim form or ET3 response to the appeal and instead supplies a written explanation as to why they are not included then that explanation must be genuine and set out why the appellant is unable to produce the necessary documentation.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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Employment Law General Update – November 2022

Employment,
28th November 2022

Employment Law

This month’s news seems to be full of inequality as we report on the gender pay gap, perceptions and experiences of racism at work, menopause, striking transport workers, bias in recruitment, carer’s leave and new protection from redundancy measures for those on pregnancy-related leave.

Gender Pay Gap: ONS 2022 gender pay gap data published
Race Discrimination: 2021 survey considers perceptions and experiences of racism at work
ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause
Trade Unions: New Transport Strikes Bill introduced to House of Commons
Technology: Research suggests using AI to reduce bias in recruitment is counter-productive
Leave: Government backs Carer’s Leave Bill
Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill

Gender Pay Gap: ONS 2022 gender pay gap data published

The Office for National Statistics (ONS) releases annual statistics on differences in pay between women and men by age, region, full-time and part-time work, and occupation as compiled from its Annual Survey of Hours and Earnings. The ONS analysis of the gender pay gap is calculated as the difference between average hourly earnings (excluding overtime) of men and women as a proportion of men’s average hourly earnings (excluding overtime) across all jobs in the UK. It does not measure the difference in pay between men and women doing the same job and is different from compulsory gender pay gap reporting.

The ONS encourages focus on long-term trends rather than year-on-year trends. It notes that the data for 2020 and 2021 was subject to uncertainty and should be treated with caution. This is due to earnings estimates being affected by changes in workforce composition and the furlough scheme during the COVID-19 pandemic, as well as disruption to data collection and lower response rates.

Over the past decade, the gender pay gap has fallen by approximately a quarter among full-time employees. In April 2022, the gender pay gap for full-time employees was 8.3%. While this is higher than the 2021 gap of 7.7%, it continues a downward trend since April 2019 when the gap was 9.0%.

In 2022, the occupation group for managers, directors and senior officials has seen the largest fall in its gender pay gap figure (10.6%) since the pre-pandemic April 2019 figure (16.3%). This reflects signs of more women holding higher-paid managerial roles. In terms of geography, the gender pay gap is higher in all English regions than in Scotland and Northern Ireland.

Other trends seen in 2021 remain:

The gender pay gap is much higher for full-time employees aged over 40 years (10.9%) than those aged below 40 years (3.2%).
Higher earners experience a much larger difference in hourly pay between the sexes than lower-paid employees.

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Race Discrimination: 2021 survey considers perceptions and experiences of racism at work

Following a survey of 1,193 UK employees (507 White, 419 Asian, 267 Black), Pearn Kandola, a business psychology consultancy, has published a new report, Racism at Work in the UK 2021. The survey replicated the approach previously taken by Pearn Kandola in 2018 (see Racism at Work Survey Result, 2018), asking participants about their perceptions and experiences of racism at work and actions their employers have taken to combat racism.

Of the employees surveyed, 74.8% considered racism to be a problem in the workplace. Of the 52.2% who had witnessed racism at work, 29.8% confronted the perpetrator, 22.4% reported the incident to a manager or HR department while 28.3% took no action.

Racism at work was experienced by 34% of the respondents. Black respondents were 15.1 times more likely than White respondents, and 1.9 times more likely than Asian respondents, to experience workplace racism. Asian respondents were 8.1 times more likely to experience racism at workplace than White respondents. These results suggested that the likelihood of Black and Asian employees experiencing racism at work had generally increased between 2018 and 2021. For White respondents it had decreased.

Almost half of employees worked for organisations that had taken action to promote greater racial equality at work (49.7%). Most frequently this involved anti-racism training and general awareness raising. Internal policies and procedures were changed both to make them more inclusive and to make it easier to report racism to senior colleagues.

The report recommendations include recognition that experiences differ both between and within racial groups, and for employees to be trained to become active bystanders who know how to challenge racism.

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ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause

ACAS has reported on the outcome of a survey in which it commissioned YouGov to ask British businesses how well equipped they felt their workplaces were to support women going through the menopause. Responses indicated that while 46% felt either very or fairly well equipped, 33% considered that they were either not that well equipped or not equipped at all, and 21% of respondents did not know. With regard to confidence in managers having the necessary skills to support staff, 46% felt either very or fairly confident, 37% were either not very or not at all confident and 17% did not know.

ACAS advises that employers:

Develop a menopause policy that explains how the menopause can affect people differently and what support is available.
Provide awareness training for managers on the menopause and how to deal with it sensitively and fairly.
Consider making practical changes at work to help staff manage their symptoms, such as the availability of cold drinking water and temperature control.

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Trade Unions: New Transport Strikes Bill introduced to House of Commons

On 20 October 2022, the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The Bill is intended to balance the right to strike with ensuring people can commute to work and make vital journeys to access education and healthcare during strikes. It will enable employers to ensure minimum service levels in specified transport services during strikes by requiring sufficient employees to work.

The Bill sets out the legal framework through which minimum service levels will be achieved using minimum service specifications, which include minimum service agreements, minimum service determinations and minimum service regulations. Employers and trade unions may negotiate and reach agreement on minimum service levels by entering into a minimum service agreement. Where the parties have failed to reach an agreement after three months, the matter will be referred to the Central Arbitration Committee (CAC) which will make a minimum service determination. The Bill provides that the Secretary of State may set minimum services levels through minimum service regulations which will apply where an agreement has not been entered into and a determination has not been made.

When a union gives an employer notice of a strike which relates to a specified transport service, and the employer and union are bound by a minimum service specification as regards the employer’s provision of that service, the employer may give a work notice to the union. That notice will identify the people required to work during the strike in order to ensure that minimum levels of service are provided and specify the work they will be required to carry out during the strike. Where an employer has given a work notice and the union fails to take reasonable steps to ensure that those identified in the notice do not take part in the strike, the union will not be protected from an action in tort by the employer.

The Transport Strikes (Minimum Service Levels) Act 2022, which will extend to England, Scotland and Wales, will come into force at the end of the period of two months beginning with the day on which it is passed.

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Technology: Research suggests using AI to reduce bias in recruitment is counter-productive

Cambridge University researchers have suggested that using Artificial Intelligence (AI) to reduce bias in recruitment is counter-productive in their report Does AI Debias Recruitment? Race, Gender, and AI’s “Eradication of Difference”.

The research considered the suggestion that using AI in recruitment can objectively assess candidates by removing gender and race from their systems and, in doing so, make recruitment fairer and help organisations to achieve their DEI goals and establish meritocratic cultures. The researchers built their own simplified AI recruitment tool, to rate candidates’ photographs for the “big five” personality traits: agreeableness, extroversion, openness, conscientiousness and neuroticism. However, they found the software’s predictions were affected by changes in people’s facial expressions, lighting and backgrounds, as well as their choice of clothing.

Recommendations made as a result of the research include developers shifting from trying to correct individual instances of bias to considering the broader inequalities that shape recruitment processes. Those, such as HR professionals, tasked with using technology must understand the limitations of AI and need suppliers to explain where AI is being used in their systems and how it is being used to evaluate candidates. The research also suggested that there remains an insufficient contribution from AI ethicists, regulators and policymakers in the scrutiny of AI-powered HR tools.

The Chartered Institute of Personnel and Development’s Resourcing and talent planning report (September 2022) found that only 8% of employers used AI to interpret job requirements and scan databases or the open web for relevant candidates and that 5% of employers used AI to either screen candidates (shortlisting based on a job description) or select them (through analysis of interview responses to match hiring criteria or using chatbots for first-stage interviews).

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Leave: Government backs Carer’s Leave Bill

On 21 October 2022, the government announced that it was backing the Carer’s Leave Bill, a Private Members’ Bill sponsored by Wendy Chamberlain MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.

The Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for which, it is hoped, should ensure a smooth process. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment as a result of having taken time off.

Between 16 March and 3 August 2020, the government consulted on its proposal to give employees who are also unpaid carers a week of unpaid leave each year to provide care. On 23 September 2021, the government response to the consultation confirmed that it would introduce a statutory right of up to one week of unpaid carer’s leave when Parliamentary time allowed.

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Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill

On 21 October 2022, the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, a Private Members’ Bill sponsored by Dan Jarvis MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.

Currently, the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer.

The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. While the detail will be provided by the regulations, the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.

On 25 January 2019, BEIS published a consultation on extending this protection to apply from the date an employee notifies the employer in writing of her pregnancy, to six months after her return from maternity leave. The consultation also asked whether this protection should be extended to similar types of leave such as adoption leave and shared parental leave. On 22 July 2019, the government published its response to the BEIS consultation suggesting that it would bring forward legislation when Parliamentary time permitted.

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Employment Law Case Update – November 2022

Employment,
28th November 2022

Employment Law

This month’s news highlights cover a variety of issues including consultations in redundancy, settlement agreements reaching too far, a substantial compensation award against Royal Mail, facts versus intentions in relation to employment status and a look at what’s next for Mercer v Alternative Future Group when the Supreme Court is asked to look at the legislative gap in protection for striking workers.

Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
Settlement Agreements: Unknown future claims cannot be settled in advance
Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
Employment Status: The parties’ intentions do not determine employment status
Unions: Supreme Court to hear bid to protect striking workers

Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust and Another [2022] EAT 139, the EAT allowed the appellant’s appeal against the decision of the employment tribunal in relation to a claim of unfair dismissal by reason of redundancy. The EAT held, among other things, that the tribunal had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation was a fundamental aspect of a fair procedure. That aspect applied equally, with appropriate adaptation, to redundancy situations where there was no collective representation.

In order that consultation was ‘genuine and meaningful’ a fair procedure required that consultation took place at a stage when an employee or employee representative could still, potentially, influence the outcome. In circumstances where the choice of criteria adopted to select for redundancy had the practical result that the selection was made by that decision itself, consultation had to take place prior to that decision being made. It was not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decided the pool of employees and which employee was to be dismissed.

The implied term of trust and confidence required that employers would not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one could be fair in appropriate circumstances, it should not be considered, without prior consultation, where there was more than one employee.

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Settlement Agreements: Unknown future claims cannot be settled in advance

In Bathgate v Technip UK Ltd [2022] EAT 155, Scottish EAT has held that s.147 of the Equality Act 2010 does not allow a qualifying settlement agreement to settle future claims unknown to the parties at the time of entering into the agreement. The judge considered that the existing case law was not to contrary effect. While the decision concerns the interpretation of s.147(3)(b) of the Equality Act 2010, it applies to settlement agreements made under other statutes where there is a corresponding provision (for example, s.203(3)(b) of the Employment Rights Act 1996 (ERA 1996)).

S.147(3)(b) requires the agreement to identify “the particular complaint“. This is not satisfied by a long list of claims defined by reference to their legal character or section number. Parliamentary intention was that settlement should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties, and the purpose of the statutory provision is to protect employees when agreeing to relinquish the right to bring proceedings. The statutory words suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed, and the precision of those words is not apt to describe a potential future complaint.

The EAT also considered the territorial scope of the Equality Act 2010 as it applies to seafarers. It held that an employee does not cease to be a seafarer, within the meaning of s.81 of the Equality Act 2010, by working onshore for the last six months of employment, having worked for nearly 20 years on ships. S.108 of the Equality Act 2010, which deals with post-employment claims, is dependent on the employee’s rights during employment. Where an employee is excluded from the territorial scope of the Equality Act 2010 by s.81 during employment, they are also excluded post-employment.

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Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail

Following a remedies hearing, an employment tribunal has awarded substantial compensation for unfair dismissal and detriment in Jhuti v Royal Mail Group ET/2200982/2015 (3 October 2022), a whistleblowing case that had previously been subject to an appeal in the Supreme Court.

The tribunal found that the claimant had suffered a “lengthy and intense period of bullying” over five months prior to taking sick leave and being dismissed. This treatment had “destroyed the claimant’s life“, leaving her with PTSD and recurrent episodes of severe depression, and leading to the breakdown of her relationship with her teenage daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.

As well as financial compensation for total career loss to age 67, the tribunal awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings and £12,500 aggravated damages to reflect the respondent’s oppressive conduct at the remedies hearing. It also made a 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

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Employment Status: The parties’ intentions do not determine employment status

In Richards v Waterfield Homes Ltd and another [2022] EAT 148, an employment tribunal erred in finding that, in a working relationship which had numerous indicators of employment status and only one in favour of self-employment, that the latter should be determinative of the issue. Self-employment (implicit in the use of the CIS scheme (a construction workers tax scheme) to pay the claimant, “under which registrants know they will be treated as self-employed”) was only one of the factors to be considered.

Looking at the findings as a whole, and consistent with case law, the only proper conclusion open to the employment tribunal was that the claimant was indeed an employee. The case was remitted to the employment tribunal for a remedy hearing on that basis.

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Unions: Supreme Court to hear bid to protect striking workers

The Supreme Court will hear arguments from UNISON, the UK’s largest union, that a recent Court of Appeal decision unfairly allows employers to punish striking workers, as historic numbers take industrial action. UNISON will support Fiona Mercer, a former trade union representative, in her appeal at the Supreme Court against Business Secretary, Grant Shapps. His predecessor, Kwasi Kwarteng, had intervened in March 2022 to reverse Mercer’s win against her employer, Alternative Futures Group (AFG), a health and social care charity.

The EAT in Mercer v Alternative Future Group [2021] IRLR 620, ruled that AFG had violated the European Convention on Human Rights when it suspended Mercer in a dispute over plans to cut allowances for sleep-in staff. But the government successfully argued to the Court of Appeal, in Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening) [2022] EWCA Civ 379, that keystone labour legislation (the Trade Union and Labour Relations Consolidation Act 1992) does not protect striking workers from detrimental treatment.

Workers cannot be fired for taking part in industrial action, but that protection expires after 12 weeks—and there is a ‘legislative gap’ in what other protection is available to employees taking industrial action, the Court of Appeal said. That gap means ‘unscrupulous employers’ can make life difficult for workers who exercise their right to strike, UNISON said as it revealed that it had won permission to appeal to the Supreme Court. No date has been set for the hearing, although UNISON said it expects it in the second half of 2023.

The union is expected to argue that the UK is obliged by international labour law and precedents from the European Court of Human Rights to protect workers from detriment short of dismissal. The government is likely to counter that those standards exceed what is required under domestic legislation.

UNISON’s general secretary, Christina McAnea, said the appeal is “a chance to fix a glaring legal loophole“. “Employees only strike as a last resort and shouldn’t face punishment for protesting about their employer’s behaviour“, McAnea continued. “Hundreds of thousands of workers are thinking about industrial action as they struggle to cope with low pay in the face of soaring prices. Everyone must be able to exercise their rights without fearing they’ll be treated unfairly for standing up for themselves at work“.

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Employment Law General Update – October 2022

Employment,
27th October 2022

Employment Law

This month our update covers a new online service to help employers support disabled employees, the CIPD has found gaps in support for employees experiencing pregnancy or baby loss, there’s new draft guidance from the ICO, an update on the future of the four-day week, frustration over the scrapping of the plans to abolish the changes to off-payroll working rules, new guidance on the Professional Qualifications Act 2022, and research into allyships for underrepresented groups.

Disability: New online service to help employers support disabled employees
Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss
Data Protection: ICO consults on monitoring at work draft guidance
Working Practices: One third of employers expect a four-day week to be a reality within ten years
IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules
Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022
Discrimination: Research finds intent to be an ally often does not translate into action

Disability: New online service to help employers support disabled employees

On 17 October 2022, the government announced a £6.4 million investment to help employers support employees with disabilities and health conditions. Part of this investment will fund a new online service that will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or out of work. The service will be free and can be accessed by any employer although it is aimed at smaller businesses who may not have in-house HR support or access to occupational health services. It is hoped this service will help small businesses develop more inclusive workforces.

An early test version of the Support with Employee Health and Disability service is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.

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Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss

A report published by the CIPD has identified gaps in workplace support for employees experiencing pregnancy or baby loss. Only a quarter of employees surveyed received paid compassionate or other special leave in this situation and a fifth of employees received no support at all from their employer. After compassionate leave, the types of support that employees identified as being most helpful were understanding from managers and colleagues that it is a difficult time, paid time off to attend appointments and the option to work from home when needed.

The CIPD has confirmed that it will publish guidance to provide practical advice for employers to improve workplace support for employees experiencing pregnancy and baby loss based on the following five principles:

Raise awareness, in a thoughtful and sensitive way, about the need for pregnancy or baby loss to be recognised as part of workplace wellbeing.
Create an open, inclusive and supportive culture to break down stigma and let employees know they will be supported.
Develop an organisational framework to support employees. This should include implementing specific policies, which the report identified only just over a third of employers have in place.
Manage absence and leave with compassion and flexibility.
Equip line managers to support people with empathy and understanding so that they feel comfortable and capable to have sensitive conversations with team members.

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Data Protection: ICO consults on monitoring at work draft guidance

On 12 October, the Information Commissioner’s Office (ICO) opened a consultation on draft employment practices and published its draft guidance on monitoring at work. The guidance is open for consultation until 11 January 2023. The ICO is publishing its draft guidance on employment practices in stages with this being the first. It has also published an impact scoping document and plans to publish additional practical tools such as checklists.

The draft guidance covers key topics such as lawful basis for monitoring, transparency, fairness and accountability. It also provides guidance on DPIAs, security and retention as well as specialist topics such as covert monitoring, use of biometric data, call monitoring, dashcams and device activity.

This follows on from the ICO’s call for views in 2021. The ICO has published a summary of the responses to its call for views.

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Working Practices: One third of employers expect a four-day week to be a reality within ten years

On 7 October 2022, the CIPD published a new report, The four-day week: Employer perspectives, which sets out employer perspectives on moving to a four-day week. The report is based on a survey which shows that 34% of respondent organisations consider that a four-day week for most workers is attainable within the next decade. One in ten respondents reported having already reduced working hours without cutting pay in the past five years (47% of those respondents confirmed the reductions were part of the COVID-19 furlough scheme). Many of the 2,000 employers surveyed felt that increased efficiency would be needed for a four-day week with no reduction in pay to be sustainable, either through organisations working smarter (66%) or the increased use of technology (68%).

The CIPD notes that the report is published amid rising interest in the concept of the four-day working week. A major trial in the UK, launched earlier this year, involves around 3,330 workers across 70 companies reducing their working week to four days with no loss of pay.

Despite the rising interest in adopting a four-day week, the report found that progress remains slow with just 1% of employers that have not already done so planning to reduce hours without lowering pay in the next three years. For organisations that have reduced working hours, the main drivers are improving employee wellbeing, helping with recruitment and retention, or a reduction in demand for products or services (36%, 30% and 32% of respondents respectively). The main challenges facing these organisations are that reduced hours do not suit everyone (32%), workers cannot achieve the same volume of work or output as before (30%), or a task requires someone to be present (26%).

A separate report, The four-day week: Scottish employer perspectives, has also been published.

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IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules

People Management reported on 18 October 2022 that business groups are frustrated by new Chancellor, Jeremy Hunt, has taken a u-turn from Kwasi Kwarteng’s mini-budget where he had proposed repealing the IR35 off-payroll tax rules for contractors.

We reported in our September Employment Law General Update that the mini-budget had planned to repeal the 2017 and 2021 reforms from 6 April 2023. It wasn’t going to abolish IR35 but would have taken us back to the rules in place from 2000 (the Intermediaries Legislation), where the onus was on the worker to correctly assess their status and pay the correct amount of tax. However, our new Chancellor has backtracked on this meaning the situation remains the same that the end client remains responsible (and liable) for determining the IR35 status of contractors. The liability and responsibility is on the fee-paying party (often the recruiter) in the supply chain applying to public sector bodies, and medium and large private sector businesses. Small companies are exempt.

Industry experts are frustrated that the promised simplification of the tax rules is not being delivered and that many businesses had already started to undertake the vital work of how their systems would need to change by April 2023. Paul Farrer, founder and chairman of global recruitment agency Aspire, said that in turbulent times like this freelancers and contractors were needed for businesses to navigate peaks and troughs in demand. However, he called the recent IR35 news a “a backward step” – not just for workers, “but for the recruitment industry and businesses that rely heavily on the flexibility and skills of the independent workforce”. Other business leaders complain that this system is complex and poorly enforced, and badly needs proper reform. To read the whole article, see People Management.

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Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022

The Professional Qualifications Act 2022 (PQA 2022) received Royal Assent on 28 April 2022, revoking the EU rules relating to the recognition of professional qualifications in the UK.

Among other things, the PQA 2022 introduced a new framework for the recognition of UK professional qualifications between different parts of the UK and overseas. Under this framework, UK regulators have a duty to publish information about the requirements for individuals to enter and remain in their professions (section 8, PQA 2022). In addition, UK regulators must, on request, share information with regulators from other parts of the UK (section 9, PQA 2022) and overseas regulators (section 10, PQA 2022). These obligations apply from 28 October 2022.

On 4 October 2022, BEIS published the following documents to assist UK regulators to comply with these new obligations:

Guidance on the obligation to publish qualification requirements under section 8 of the PQA 2022, setting out what information must be published, when the obligation applies and when published information should be updated.
Two separate guidance documents explaining the information-sharing obligations under, respectively, section 9 and section 10 of the PQA 2022. These documents set out when the legal requirements under the relevant section apply and what information must be shared. They also each contain a worked example of what a UK regulator should do when it receives a valid request for information.

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Discrimination: Research finds intent to be an ally often does not translate into action

One of the first studies into allyship in the UK workplace (published by Wates on 27 September 2022) has found that intent to support colleagues from underrepresented groups has not translated into action. The study of over 5,000 employees found that 67% of UK employees consider themselves an “ally“. However, only 36% have spoken up against discrimination or exclusion of a colleague from a minority background when they have seen it at work. Around two-fifths of respondents said that they had spent time educating themselves about the experience of minorities, although this figure was lower for senior executives.

The same research found that 40% of employees have experienced microaggressions related to identity. The figure rises to nearly 60% for LGBT employees and to 64% for respondents from Black Caribbean backgrounds. Microaggressions experienced by respondents include a name being mispronounced because it is “too hard” (60% of Black African respondents and 59% of Black Caribbean respondents) and a colleague being told that they “don’t even ‘look’ gay” (42% of men from the LGBT community). Respondents from minorities were more likely to report witnessing microaggressions or discrimination. Microaggressions or discrimination related to sexual orientation was reported by almost half of lesbian, gay and bisexual respondents compared to 25% overall. Microaggressions or discrimination related to race or ethnicity were reported by 35% of respondents, rising to 62% of Black Caribbean respondents and 47% of Pakistani respondents.

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Employment Law Case Update – October 2022

Employment,
27th October 2022

Employment Law

A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.

Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
TUPE: Can the benefit of share incentive plans transfer under TUPE?
Trade Unions: Appearance of bias in disciplinary action
Workers: Bolt drivers pursue worker benefits claim

Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.

The EAT noted that, as established in Williams v Compair Maxam [1982] ICR 156 and Polkey v AE Dayton Services Ltd [1987] IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.

Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.

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TUPE: Can the benefit of share incentive plans transfer under TUPE?

In Ponticelli UK Ltd v Gallagher [2022] EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.

At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.

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Trade Unions: Appearance of bias in disciplinary action

In Simpson v Unite the Union [2022] EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.

The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.

The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.

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Workers: Bolt drivers pursue worker benefits claim

According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.

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Employment Law General Update – September 2022

Employment,
26th September 2022

Employment Law

A change in prime minister has brought about some immediate changes to laws affecting employment law, such as the Bill on which laws will be retained from the EU, repeal of the off-payroll rules (IR35) and the dropping of the Bill of Rights Bill, which was set to replace the Human Rights Act. Sadly, two reports recently demonstrate that racism and gender discrimination persist at work, while FTSE 100 company chief executives are getting a massive pay rise. Meanwhile, ACAS has published new guidance on staff suspensions.

Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons
IR35: Off-Payroll Rules to be repealed by April 2023
Human Rights: Bill of Rights Bill 2022-23 dropped by government
Equality: New TUC report highlights prevalence of racism at work
Discrimination: New report highlights persistence of gender discrimination in the workplace
Pay: Chief executives of FTSE 100 companies see average pay jump of 39%
ACAS: New guidance on staff suspensions published by ACAS

Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons, and written ministerial statements were made summarising the Bill’s provisions. A full legal update on the Bill will follow. The written statements explain that the Bill includes provisions to:

Sunset retained EU law. Retained EU law in EU-derived secondary legislation and retained direct EU legislation will expire on 31 December 2023 unless otherwise preserved. Special features of EU law will be removed from retained EU law that remains in force after that date (assimilated law), ending the principle of the supremacy of EU law, general principles of EU law and directly effective EU rights on 31 December 2023. EU interpretive features will no longer apply to assimilated law. (The sunset date can be extended until 2026 for specified pieces of legislation.)
Reverse the priority currently given to retained direct EU legislation over domestic UK legislation passed before the end of the transition period when they are incompatible, with a power to amend the new order of priority to retain specific legislative effects where necessary in specific circumstances.
Give domestic courts greater discretion to depart from retained EU case law, and provide new court procedures for UK and devolved law officers to refer or intervene in cases involving retained EU case law.
Downgrade the status of retained direct principal EU legislation for amendment purposes so that it no longer has parity with Acts of Parliament.
Give the government powers to make secondary legislation so that retained EU law or assimilated law can be amended, repealed and replaced more easily, and enable the government (via Parliament) to clarify, consolidate and restate legislation to preserve its current effect.

The government’s news story added that all required legislation relating to tax and retained EU law will be made via the Finance Bill or subordinate tax legislation, and the government will introduce a bespoke legislative approach for retained EU law concerning VAT, excise, and customs duty in a future Finance Bill.

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IR35: Off-Payroll Rules to be repealed by 6 April 2023

In his autumn statement on 23 September, Chancellor Kwasi Kwarteng announced that the UK government will scrap the 2017 and 2021 reforms to the IR35 off-payroll working rules in the next Finance Act, aimed to be enacted on 6 April 2023. Addressing the House of Commons he said, “reforms to off payroll working have added unnecessary complexity and cost for many businesses.” This has come as a bit of a shock to many industry experts who have commented that it’s unheard of for a Chancellor to repeal primary tax legislation without consultation. It is just the reforms which are being axed, and not the IR35 system itself, which will likely be celebrated by independent contractors who have found the measures to have wrought havoc to their business and added unnecessary levels of additional work for both the contractors and the businesses that engage them.

IR35 reform in the public sector was introduced in 2017 meaning that public sector bodies become responsible for determining the IR35 status of contractors – the responsibility shifted from the contractor to the end client, rather than the contractor taking the responsibility. In addition, the reforms meant the liability also shifted from the contractor to the fee-paying party (often the recruiter) in the supply chain. IR35 reform in the private sector in 2021 mirrored this but applied only to medium and large businesses. Small companies remained exempt.

The repeal of the 2017 and 2021 reforms from 6 April 2023 doesn’t abolish IR35 but takes us back to the rules in place from 2000 (the Intermediaries Legislation). This puts the onus back on the worker to correctly assess their status and pay the correct amount of tax. It should be noted that for services provided before 6 April 2023, the current rules will still apply, even where the payment is made on or after 6 April 2023.

However, contractors may need to hold off rejoicing just for now. Some Tory Ministers are already claiming they may rebel against the next Finance Act if the pound falls below the dollar. Dave Chaplin, CEO of IR35 Shield, says: “When you read the financial impact of the repeal in the Government’s Growth Plan document, you’ll see that there are six billion pounds worth of reasons why all rejoicing would be premature, and why all parties in the supply chain should not be complacent as we approach April 2023, nor beyond.”

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Human Rights: Bill of Rights Bill 2022-23 dropped by government

On 7 September 2022, it was reported in the press that the Bill of Rights Bill 2022-23 had been dropped by the new government headed by Liz Truss and would not progress to its second reading, which had been scheduled to take place on 12 September 2022. The Bill would have repealed the Human Rights Act 1998 and reframed the UK’s legal relationship with the ECHR, to which the UK would have remained a signatory. Press reports suggest that the government is looking at different legislative options for reform.

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Equality: New TUC report highlights prevalence of racism at work

The TUC has published a report ‘Still Rigged: Racism in the UK Labour Market 2022‘, based on extensive polling, which shows that racism and racial inequality continue to be experienced in the workplace. In addition to racism impacting the types of work ethnic minority workers are employed to do, two in five people reported having experienced racism at work in the past five years. The most common types of racial harassment are racist jokes and banter (27%), being made to feel uncomfortable through use of stereotypes and appearance-based comments (26%), being bullied or harassed (21%), and racist remarks directed at the respondent or in their presence (21%). Most instances were perpetrated by fellow employees and 15% were made by a customer, client or patient. For one in six respondents, the racism was perpetrated by a manager.

Only 19% of people who experienced racist incidents reported the last incident to their employer. Nearly half of people who did not report instances of racist abuse (44%) said that they did not believe the issue would be taken seriously. Even when incidents were reported to an employer, action was taken to prevent future harassment in only 29% of instances.

The TUC has recommended that the government, employers, enforcement bodies and trade unions work together to deliver a “collective, pre-emptive response“. Specifically, the TUC suggests that the “floor of working rights” be improved for everyone, that employers have a duty to embed race equality practices in their workplaces and that there are swift and effective penalties when workers experience racism.

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Discrimination: New report highlights persistence of gender discrimination in the workplace

Randstad has published a new report ‘Randstad: Gender equality in the workplace 2022 (September 2022)‘ on gender equality in the workplace. To inform the report, 6000 workers in the construction, education, healthcare and technology sectors were surveyed. The survey sought insight into the status quo of UK workplaces, the persistence of gender discrimination, how employers in these sectors support their employees and what areas workers would like to see their employers focus on in the coming year. Among the findings are statistics which show that:

Inappropriate behaviour or comments from male colleagues had been witnessed or encountered by 72% of women surveyed.
Only 18% of women surveyed had never experienced gender discrimination.
7% of women reported having been passed over for promotion due to perceived gender discrimination.
Just under 10% said they had been offered a less important role because of their gender.
Employers are not doing enough to support female employees during the menopause, according to 73% of the women surveyed.

The report also highlights findings that are specific to each sector. Recommendations are made in three areas; ensuring the recruitment process is inclusive, fostering an inclusive workplace culture and weaving inclusion into the employee lifecycle.

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Pay: Chief executives of FTSE 100 companies see average pay jump of 39%

Research by the High Pay Centre and Trades Union Congress (TUC) shows that the median average pay for CEOs of FTSE 100 companies increased by 39%, from £2.5 million in 2020 to £3.41 million in 2021. During the pandemic, many CEOs took a voluntary pay cut when employees were placed on furlough, but CEO pay has now surpassed the 2019 median of £3.25 million. A similar pay increase was found in the average wages of FTSE 250 CEOs (38%). The average bonus received by CEOs also jumped from £828,000 in 2020 to £1.4 million in 2021.

Previous research by the thinktank suggested that the pay ratios of FTSE 350 companies between CEOs and median employees would increase to new highs after the pandemic. The report shows that CEOs receive 109 times the average pay of British workers, a higher gap than in 2019 when CEOs received 107 times the average pay of British workers.

Frances O’Grady, the general secretary of the TUC, highlighted that the CEO pay jump comes at a time where workers are experiencing “the biggest real wage falls in 20 years.” Workers’ building dissatisfaction at significantly below inflation pay rises in the context of the current cost of living crisis is being increasingly manifested in industrial action. Strikes across multiple industries have already taken place, with further walk-outs due in the coming months.

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ACAS: New guidance on staff suspensions published by ACAS

ACAS has published new guidance to advise employers on how to consider and handle staff suspensions at work, specifically during investigations. The guidance covers deciding whether to suspend someone, the process for suspending someone, supporting an employee’s mental health during suspension and pay and holiday during suspension.

ACAS recommends that because of the risk of breaching the employment contract and the stress that can be caused, a suspension should only be used when it is a reasonable way of dealing with the situation (such as while an investigation is carried out and there is a need to protect evidence, witnesses, the business, other staff or the person being investigated) and there are no appropriate alternatives. Employers should consider each situation carefully before deciding whether to suspend someone.

Suggested alternatives to suspension include:

Changing shifts, site or working from home.
Working with different customers or away from customers.
Stopping working with certain systems, tools or on specific tasks.

A suspension may also be appropriate in order to protect an employee’s health and safety (such as in medical or pregnancy circumstances).

Employers should support a suspended worker by explaining the reason for the suspension, making it clear that it does not mean that it has been decided they have done anything wrong, maintaining pay and benefits, keeping the suspension as short as possible, keeping it confidential wherever possible, and staying in regular contact throughout. The worker should be informed of their suspension in person if possible. It is good practice to allow them to be accompanied at any suspension meeting and for the suspension to be confirmed in writing.

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Employment Law Case Update – September 2022

Employment,
26th September 2022

Employment Law

Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
Equality Act: Supporting a football club is not a protected philosophical belief
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
Fraud: A confiscation order should strip the profit from fraudulently obtained employment

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes

Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.

Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.

On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.

A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.

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COVID-19: Two and a half weeks is not long enough for long COVID to become a disability

In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.

Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.

Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.

An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:

At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.

Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.

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COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory

In Cowie and others v Scottish Fire and Rescue Service [2022] EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.

Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.

The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.

The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.

The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.

The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:

To show group disadvantage in the section 19 claims.
To justify an award of compensation for injury to feelings in the section 15 claims.

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Equality Act: Supporting a football club is not a protected philosophical belief

At a preliminary hearing in McClung v Doosan Babcock Ltd and others [2022] UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).

Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.

The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:

The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.

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Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations

In Piepenbrock v London School of Economics and Political Science [2022] EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.

HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.

The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.

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Fraud: A confiscation order should strip the profit from fraudulently obtained employment

In R v Andrewes [2022] UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.

In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.

Appeal allowed, and confiscation order restored, albeit for different reasons:

It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.

This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.

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Employment Law General Update – July 2022

Employment,
27th July 2022

Employment Law

This month’s news covers health at work with the consideration of the introduction of a maximum limit to workplace temperatures and guidance on the new fit notes. We also have an analysis of recent gender pay gap reporting, a report on the low rates of sustainable disability initiatives at FTSE 100 companies, draft regulations for banning exclusivity clauses in contracts and new ACAS guidance about workplace discrimination.

Health at Work: MPs call for maximum limit to workplace temperatures
Health at Work: DWP publishes fit note guidance for healthcare professionals
Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap
Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives
Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers
ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Health at Work: MPs call for maximum limit to workplace temperatures

An early d ay motion (EDM) which calls on the government to introduce legislation to ensure employers maintain reasonable temperatures in the workplace has been signed by 38 MPs. The EDM calls for legislation to enforce a maximum temperature of 30 degrees Celsius, or 27 degrees Celsius for workers doing strenuous work and to require employers to introduce effective control measures, such as installing ventilation or moving staff away from windows and heat sources. The issue of maximum workplace temperatures, which arises from time to time, was previously raised as an EDM in 2013.

The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to ensure that temperatures in all workplaces inside buildings are reasonable. While an Approved Code of Practice sets a limit on minimum workplace temperatures of 16 degrees (or 13 degrees if the work involves severe physical effort), there is no limit on the maximum temperature. See what the Health and Safety Executive says about the law here.

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Health at Work: DWP publishes fit note guidance for healthcare professionals

On 1 July 2022, the Department for Work and Pensions (DWP) published Getting the most out of the fit note: guidance for healthcare professionals. The publication follows the expansion of the category of people who can sign fit notes for the purposes of SSP and social security claims and the earlier removal of the requirement for fit notes to be signed in ink. There will be a transitional period during which both the 2017 and 2022 versions of the fit note will be legally valid while relevant IT systems are updated and stocks of paper fit notes in hospitals are replaced.

The guidance has been issued alongside the publication of non-statutory guidance on who can issue fit notes and a training package on e-learning for healthcare. The resources are intended to be used together to support eligible healthcare professionals in ensuring they have the expertise and knowledge to certify and issue fit notes. The guidance reiterates that an assessment is about whether a patient is fit for work in general and not job-specific. It also recognises that incomplete fit notes can make it difficult for employers to support a patient and cause delays to a patient’s return to work.

Information is provided on the factors that should be considered when assessing fitness for work, as well as information on how to discuss a patient’s beliefs about health and work if they are reluctant to return to work. In addition, there is information on how the free text section of the note should be completed, including the importance of giving practical advice to employers. In this section, it is noted that the only reference to a patient’s current job should be in the context of possible workplace adaptations or if the job may be affecting their health. Towards the end of the guidance, there are several case studies and an FAQ section. The FAQ section highlights that a medical professional’s advice is not binding on an employer, and it is for an employer to determine whether to accept the advice.

The guidance for employers and line managers and employees has also been updated to reflect the expanded category of people who can sign fit notes.

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Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap

PwC analysis of gender pay gap data has found that of the companies that disclosed their data this year 43% reported an increase in their average gender pay gap (up from 41% the year before). A decrease was reported by 53% of companies and no change was reported by the remaining 4%. 1,826 more companies reported their gender pay gap details this year.

The analysis shows that only small changes, of no more than plus or minus 5%, have been made to most companies’ pay gaps. This suggests that “significant change may take a long time” as organisations “continue to struggle with making impactful changes to the gap“.

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Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives

A recent study by Agility in Mind has found that only 37% of FTSE 100 companies have sustainable disability initiatives in place and just 4% have neurodiversity initiatives. This is despite 99% of FTSE 100 companies having inclusive mission statements. Of the 250 business leaders who were polled as part of the research, 16% described their neurodiversity initiatives as “highly effective” compared to 26% of those who described their race or gender equality initiatives in the same way.

Separately, a TUC-commissioned survey of approximately 1,000 HR managers across different workplaces has found that 21% of workplaces do not have specific support policies for LGBT staff and only 25% have a policy setting out support for trans and non-binary staff.

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Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers

Draft regulations have been laid before Parliament which will prohibit exclusivity clauses in the employment contracts of workers whose earnings are on, or less than, the lower earnings limit (currently £123 a week). The draft regulations follow a government consultation on extending to other low earners the ban on exclusivity clauses which was introduced in 2015 to zero-hours workers’ contracts.

The draft regulations largely mirror the rights of zero-hours workers set out in section 27A of the Employment Rights Act 1996 and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations (SI 2015/2021). They will make unenforceable any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent. Where they breach an exclusivity clause in their contract, employees will be protected from unfair dismissal and workers will be protected from detriment. The new unfair dismissal protection will have no qualifying period. Where an employment tribunal finds that a worker has suffered a detriment, it may make a declaration and award compensation it considers just and equitable up to an amount equal to the unfair dismissal basic and compensatory award.

The draft regulations will come into force 28 days after the day on which they are made and apply to England, Scotland and Wales.

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ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Following the repeal of the statutory questionnaire procedure in 2014, ACAS published non-statutory guidance, Asking and responding to questions of discrimination in the workplace to assist employees and employers in asking and responding to discrimination questions. That guidance was subsequently withdrawn.

ACAS has now published new information on its website on asking and answering questions about discrimination at work. The guidance sets out suggested steps for an employee who believes that they may have been discriminated against in the workplace, guidance on the information they should provide in writing to their employer and the types of questions they could ask their employer in order to help establish whether discrimination has taken place. The guidance also explains how employers should consider and respond to employees’ questions concerning workplace discrimination, and what might or might not amount to unlawful discrimination. An example statement and questions concerning potential discrimination to an employer and an example employer’s response are also provided.

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Employment Law Case Update – July 2022

Employment,
27th July 2022

Employment Law

This month we look at the saga of the ‘fire and rehire’ issue affecting Tesco employees and how whistleblowers can be fairly dismissed depending on their conduct. We also have two interesting cases about how direct discrimination can be viewed – the doctor who refused to address transgender people by their chosen pronouns who had not been discriminated against versus the feminist who expressed beliefs which could not be objected to (as core beliefs) even though they were capable of causing offence, and was discriminated against.

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201, the Court of Appeal has overturned the High Court’s injunction restraining Tesco from dismissing and re-engaging a group of warehouse operatives to remove a contractual pay enhancement known as “Retained Pay“. This had been incorporated through collective bargaining with the trade union USDAW as a retention incentive during a reorganisation. The collective agreement stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.

The High Court had found that there was an implied term not to use termination and re-engagement as a means of removing Retained Pay. However, the Court of Appeal held that such an implied term was not justified. Neither could the employees rely on promissory estoppel since there had been no unequivocal promises related to termination. Furthermore, it was not “unconscionable” to remove a benefit that the employees had already received for over a decade and that far exceeded any redundancy payment to which they would have been entitled had they not accepted the Retained Pay.

In any event, even if there had been a breach, the court held that the injunction was not justified. The court was not aware of any previous cases in which a final injunction had been granted to prevent a private sector employer from dismissing an employee for an indefinite period. Moreover, the terms of the injunction had not been sufficiently clear.

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Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures

In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal has upheld the EAT’s decision that an employment tribunal directed itself properly on the issue of the separability of the protected disclosures made by an employee and the reason in the minds of the decision-makers for her dismissal. The tribunal had properly considered and applied the guidance on the issue set out in authorities such as Martin v Devonshire Solicitors UKEAT/0086/10 and NHS Manchester v Fecitt and others [2012] IRLR 64. Despite the fact that the tribunal had found that the employee’s conduct when making the protected disclosures had been broadly reasonable and she had not, as alleged, questioned her colleague’s professional integrity, her dismissal was not automatically unfair because the decision-makers believed that she had acted unreasonably. The reason for dismissal in the minds of the decision-makers could be properly separable from the fact of the protected disclosures being made. The court rejected the submissions of Protect as intervenor that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct.

This decision makes it clear that even where a worker’s conduct is not objectively unreasonable when they make a protected disclosure, their employer may escape liability when it treats them detrimentally or dismisses them because it subjectively believes that the manner in which they made the disclosures was unreasonable. However, the court stressed that particularly close scrutiny of an employer’s reasons for treating them detrimentally would be needed in such a case to ensure that the real reason for adverse treatment was not the protected disclosure itself.

It is understood that the employee is considering an appeal to the Supreme Court.

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Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun

In Mackereth v DWP [2022] EAT 99, the EAT has held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns. He relied on his particular beliefs in the supremacy of Genesis 1:27 that a person cannot change their sex/gender at will, his lack of belief in what he described as “transgenderism” and his conscientious objection to “transgenderism“. However, Eady P, sitting with lay members, found that the tribunal had erred in several respects when applying the criteria from Grainger Plc v Nicholson UKEAT/0219/09 to determine whether these beliefs were capable of protection under section 4 of the Equality Act 2010. In particular, the tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. This threshold must be set at a low level so as to allow for the protection not just of beliefs acceptable to the majority, but also of minority beliefs that might cause offence (approving Forstater v CGD Europe UKEAT/0105/20).

The tribunal had been entitled to find in the alternative that the direct discrimination and harassment claims were not made out. It was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way.

The tribunal had also been entitled to reject the indirect discrimination claim. In holding that the PCPs were necessary and proportionate, it carefully considered the lack of practical alternatives to face-to-face contact with service users. In noting that Dr Mackereth had not identified any further alternatives, over and above those considered and discounted by his employer, this did not amount to the imposition of the burden of proof on him.

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Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

In Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. This follows an earlier EAT judgment in which her gender critical beliefs had been held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a “part-time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery, which argued that gender self-ID put women and girls at greater risk.

The respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held them, that had been the reason for non-renewal. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual’s qualified right to manifest their belief under Article 9 of the European Convention on Human Rights. In this case, the claimant’s tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it was capable of causing offence). In some cases the claimant had been provocative or mocking but this was the “common currency of debate” and was not objectively offensive or unreasonable.

The claimant had also been victimised when her profile was taken off the respondent’s website after she talked to The Sunday Times about her discrimination case. However, her claims of indirect discrimination and harassment were dismissed.

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Employment Law General Update – June 2022

Employment,
28th June 2022

Employment Law

This month the news focus is on the future of working practices and health. The government is being prompted to get on with setting up the new single labour enforcement body, some companies are trialling a four-day working week and BEIS has issued a call for evidence on the future of the UK labour market after COVID. Meanwhile, COVID-19 is hanging around with long-COVID, the menopause is increasingly being cited in tribunal cases and new regulations allow more healthcare professionals to sign “fit notes”.

Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body
Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”
COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19
Working Practices: Seventy companies begin trial of four-day working week
Menopause: Menopause-related employment tribunal claims nearly double over the past year
Future of Work: BEIS Committee launches call for evidence on future of UK labour market

Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body

On 9 June 2022, the Equality and Human Rights Commission (EHRC) published an inquiry which assessed the treatment and experiences of lower-paid ethnic minority workers in health and social care, particularly during the COVID-19 pandemic. One of the key findings was low awareness of employment rights. The EHRC recognised the positive role the proposed new single labour market enforcement body, which would have powers and resources to help increase awareness of and access to rights for vulnerable workers, could play in improving the treatment and experiences of such workers. However, it noted the uncertainty created by the lack of a legislative timetable for the introduction of the new body. To address this, the EHRC has recommended that the Department for Business, Energy and Industrial Strategy (BEIS) set out a legislative timetable for the introduction of the new single labour market enforcement body and ensure it is sufficiently resourced to meaningfully monitor and enforce compliance with employment rights. The EHRC also recommended that BEIS legislate to ensure that access to information on workers’ rights, including where to go if they want to raise a concern, is detailed in the statement of particulars provided under section 1 of the Employment Rights Act 1996.

The government committed to setting up a single labour market enforcement body in June 2021, when its consultation response on the proposed new body confirmed that three of the current enforcement bodies, the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, and HMRC’s National Minimum Wage Team, would be consolidated into a single agency. In April 2022, a call for evidence was issued on the labour market enforcement strategy for 2023 to 2024, which will shape the remit of the combined agency, and was open for responses until 31 May 2022. The strategy is due to be delivered to government in autumn 2022. The formation of the new agency requires primary legislation, which is awaited.

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Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No 2) Regulations 2022 (SI 2022/630) have been laid before Parliament. These regulations amend existing legislation on statements of fitness for work, or “fit notes”, to expand the category of people who can sign them for the purposes of SSP and social security claims. From 1 July 2022, the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604) will be amended to allow registered nurses, occupational therapists, pharmacists and physiotherapists to sign these statements. The regulations also insert a definition of “healthcare professional” which includes doctors and the four new professions. It is hoped that this change will make it easier for patients to see GPs by reducing their workloads.

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COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19

The Office of National Statistics (ONS) has found that, as of 1 May 2022, 2 million people living in private households in the UK were experiencing self-reported long COVID-19 symptoms, considered to be symptoms that continue for more than four weeks. For 1.4 million people (71% of those with self-reported long COVID-19), symptoms adversely affected their day-to-day activities. 398,000 (20%) reported that their ability to go about their day-to-day activities had been “limited a lot”. The most common symptom reported to be part of individuals’ experience of long COVID-19 continued to be fatigue. This symptom was reported by 55% of people with self-reported long COVID-19, followed by shortness of breath (32%), a cough and muscle ache (23% each).

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Working Practices: Seventy companies begin trial of four-day working week

On 6 June 2022, around 3,330 workers at 70 companies began a trial of a four-day working week, as reported by Personneltoday.com. The trial, thought to be the largest of its type in the world, is expected to last for six months and is led by campaigning group 4 Day Week Global. It will be monitored by academics from Oxford and Cambridge Universities, as well as Boston College, who will consider the impact on employees, companies and the environment. Employers taking part have agreed that workers will receive 100% of their pay for 80% of their time, in return for workers committing to 100% productivity.

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Menopause: Menopause-related employment tribunal claims nearly double over the past year

Peoplemanagement.co.uk has reported on an analysis of court records by Menopause Experts Group has found that 23 cases cited the menopause in 2021, which is a 44% increase from the 16 cases that cited the menopause in 2020. Of these 23 cases, 16 included claims for disability discrimination, 14 included claims for unfair dismissal and 10 included claims for sex discrimination. In addition, mentions of the word “menopause” increased by 75% in tribunal documents.

This research adds to other recent findings about the impact of the menopause on employees’ experiences at work. Menopause Experts Group has suggested that employers should offer their workforce training about symptoms, signs and side-effects of the menopause and that the House of Commons Women and Equalities Committee should advocate for a requirement that all employers have a menopause policy or code of conduct.

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Future of Work: BEIS Committee launches call for evidence on future of UK labour market

On 27 May 2022, the Business, Energy and Industrial Strategy (BEIS) Committee published ‘Post-pandemic economic growth: UK labour markets’ in which it launched a call for evidence into the UK labour market, in particular whether the UK has enough workers with the right skills in the right places to do the jobs required for the economy, taking into account an ageing population, migration changes and the impact of technology. The Committee also wishes to understand whether current employment law is fit for purpose or requires reform.

Responses to the call for evidence are invited by 8 July 2022, which you can view and comment on here. Submissions are invited to questions under five headings: the state of play in the UK labour market post-Brexit and the impact of the COVID-19 pandemic on recruitment, skills shortages and the growth of the labour market; Artificial Intelligence (AI) and technology in the workplace; workers’ rights and protections; employment status and modern working practices five years on from the Taylor Review; and the impact of an ageing population on the labour market.

The Committee has indicated that it will welcome submissions which address the challenges currently facing both UK employers and workers, and which identify potential solutions and actions required by the government, businesses and employers to effectively support the UK labour market, while boosting productivity, equipping a skilled labour force and protecting workers’ rights. Since it will not be able to consider every aspect of the economy in depth, the Committee would particularly welcome data-rich case studies which might exemplify national trends.

The call for evidence follows the recent announcement that Matt Warman MP would be leading a review on the Future of Work.

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Employment Law Case Update – June 2022

Employment,
28th June 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including insights on dismissal cases, using without prejudice letters and when injunctive relief may be sought to enforce a non-compete clause. We also have an interesting case on ethical veganism v legality of actions.

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief
Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee
Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship
Dismissal: ACAS code applied to discriminatory sham redundancy dismissal
Injunctive Relief: Interim enforcement of non-compete clauses
Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief

In Free Miles v The Royal Veterinary College ET/2206733/2020, an employment tribunal has found that a belief in ethical veganism encompassing an obligation to break the law to relieve animal suffering did not amount to a philosophical belief under section 10 of the Equality Act 2010 (EqA 2010).

Ms Free Miles was a veterinary nurse employed by the Royal Veterinary College (RVC). In February 2019, she was arrested by police in connection with alleged burglaries by the Animal Liberation Front. The police found a sick turkey at her flat which she said she had rescued. Following her arrest, Ms Free Miles was summarily dismissed by RVC for reasons including that RVC believed she was connected with an animal rights group that endorsed law breaking and that she had participated in activities including trespass and theft.

Ms Free Miles brought an employment tribunal claim against RVC for, among other things, direct and indirect philosophical belief discrimination. She relied on her belief in ethical veganism, arguing that this belief included a moral obligation to take positive action to reduce animal suffering, including trespass on property and removal of animals. By the time of the tribunal hearing, Ms Free Miles had been charged by the police with criminal offences relating to animal rights activities.

The tribunal stated that, had Ms Free Miles’ belief in ethical veganism been limited to the belief that humans should not eat, wear, use for sport, experiment on or profit from animals, it would have had no reservation in concluding that it amounted to a philosophical belief under section 10 of the EqA 2010. It also said that it might have reached the same conclusion had the moral obligation to take positive action to reduce or prevent animal suffering been limited to lawful action.

However, Ms Free Miles’ belief included trespassing on private property and acting in contravention of the law. The tribunal concluded that a belief to take actions that are unlawful and to interfere with the property rights of others could not be worthy of respect in a democratic society, so did not satisfy the fifth element of the test in Grainger Plc v Nicholson [2010] 2 All ER 253. Laws were made by democratically elected representatives and had to be obeyed by all citizens. It was not open to individuals to decide which laws to obey and disobey. Ms Free Miles’ discrimination claims therefore failed.

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Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee

In Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84, the EAT has held that any payments made by an employer to an employee in respect of an unfair dismissal claim must be deducted from the total compensation sum before the statutory cap is applied.

Mrs Dafiaghor-Olomu won an unfair dismissal claim against Community Integrated Care (CIC). She sought re-engagement and compensation. The tribunal refused re-engagement but awarded £46,153.55 in compensation which CIC paid in full. At a second remedies hearing following a successful appeal, the tribunal increased the compensatory award to £128,961.59. The EAT was required to determine whether the statutory cap should be applied after the earlier payment made by CIC was deducted from the sum of £128,961.59 (leaving an outstanding payment of £74,200, being the amount of the statutory cap in place at the relevant time) or whether the statutory cap should be applied to the total award before the earlier payment was deducted (leaving an outstanding payment of £28,046.45). CIC argued for the latter approach, stating that the former would mean it got no credit for the earlier payment and would be penalised for complying with the tribunal’s original order.

The EAT considered the wording of section 124(5) of the Employment Rights Act 1996. It felt that this showed that Parliament’s intention was for the tribunal to calculate the total compensation due to the employee and then subtract from it any earlier payments made by the employer before applying the cap. However, in reaching this conclusion, the EAT expressed considerable sympathy with CIC. In paying the original compensatory award, CIC had complied with what it perceived to be its duty. Had it foreseen the possibility that the tribunal would increase the award at the second remedies hearing, it would probably have declined to make any payment until the compensatory order was final. Instead, it ended up owing £74,200 plus £46,153.55 instead of just £74,200.

Additionally, the EAT upheld the employment tribunal’s decision not to reconsider its refusal to award re-engagement after the second remedies hearing on the basis that such an order was impracticable because of Mrs Dafiaghor-Olomu’s attitude towards which jobs were suitable for her. It also dismissed a cross appeal in which CIC argued that the employment tribunal had not been entitled to increase the compensatory award at the second remedies hearing.

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Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship

In Singh v Metroline West Ltd [2022] EAT 80 the EAT has held that, in a constructive dismissal claim, a fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

Mr Singh was invited to a disciplinary hearing by Metroline West Ltd. The next day, Mr Singh was signed off sick by his doctor. While absent, he was examined by occupational health who did not suggest his sickness was not genuine. However, Metroline believed that Mr Singh was trying to avoid the disciplinary hearing. It therefore paid him statutory sick pay only, instead of company sick pay. Mr Singh brought a claim for constructive dismissal, alleging, among other things, that the failure to pay him company sick pay was a fundamental breach of contract.

The employment tribunal found that Metroline had contractual power to suspend Mr Singh without pay if it thought his absence was not genuine, but this power had not been exercised. Separately, Mr Singh’s contract allowed company sick pay to be withheld where, after investigation, absence was found not to be genuine. There was no investigation in this case and no other relevant contractual grounds on which company sick pay could be withheld. There was therefore a breach of contract. However, the tribunal found the breach was not fundamental. By withholding pay, Metroline had not indicated an intention not to be bound by the employment relationship; rather, its aim in withholding pay was to encourage Mr Singh’s participation in a disciplinary process integral to that relationship.

However, the EAT upheld Mr Singh’s appeal on this issue. It was an error of law for the tribunal to adopt the approach that, for the breach of contract to be fundamental, there must have been an intention by the employer not to be bound by the contract in a manner that meant that it no longer wished to continue with the employment relationship. What is required is that the employer demonstrates an intention to no longer comply with the terms of the contract that is so serious that it goes to the root of the contract. In this case, there was a deliberate decision to withhold pay to which Mr Singh was entitled, resulting in a significant reduction in earnings, in circumstances where there were other contractual provisions which would have allowed Metroline to deal with suspicions about his absence. This was a fundamental breach.

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Dismissal: ACAS code applied to discriminatory sham redundancy dismissal

In Rentplus UK Ltd v Coulson [2022] EAT 81 the EAT has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) applied to a discriminatory dismissal purportedly by reason of redundancy. The tribunal had not erred in awarding the maximum 25% uplift available for failure to follow the ACAS Code.

The employer’s ground of appeal that the ACAS Code could not apply where their reason for dismissal was redundancy and the reason found by the tribunal was sex discrimination failed. This was because the tribunal had rejected redundancy as the reason for the dismissal and the upholding of the sex discrimination claim did not mean that it was the only reason for the dismissal. The EAT considered it was implicit in the tribunal’s reasoning that the claimant was in a “disciplinary situation” to which the ACAS Code applied, this being that she was dismissed due to dissatisfaction with her personally and/or her performance, which was tainted by sex discrimination, and a fair capability or disciplinary procedure should therefore have applied.

It was clear that the tribunal had concluded the dismissal process was a sham and there had been a total failure to comply with the ACAS Code. The breach was referred to as “egregious” and so was beyond unreasonable. While, generally, a tribunal should identify the employer’s failings for which an uplift is being made by reference to the relevant part of the ACAS Code which the employer is said to be in breach of, in this case the tribunal had concluded that the employer had acted in bad faith such that there was a total failure to apply any of the protections provided for by the ACAS Code. In these circumstances, there was no error of law in the award of an uplift of 25%.

The EAT provided guidance in the form of questions that tribunals considering an ACAS uplift should apply:

Is the claim one which raises a matter to which the ACAS Code applies?
Has there been a failure to comply with the ACAS Code in relation to that matter?
Was the failure to comply with the ACAS Code unreasonable?
Is it just and equitable to award an uplift because of the failure to comply with the ACAS Code and, if so, by what percentage, up to 25%?

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Injunctive Relief: Interim enforcement of non-compete clauses

In Planon Ltd v Gilligan [2022] EWCA Civ 642 the Court of Appeal has dismissed an appeal from the High Court’s refusal to grant an interim injunction to enforce a non-compete clause.

The High Court had held that the delay between the initial exchanges of correspondence between the parties and the application being heard was not the sort of delay that would disqualify the employer from interim injunctive relief. However, the employer’s prospects of success at trial in enforcing the non-compete clause were not that good, the critical point being the non-compete clause was likely to prevent the employee from being able to work in his field for 12 months. Damages would not, or might not, be an adequate remedy for either the employer or employee in this case.

While the Court of Appeal dismissed the employer’s appeal, its reasoning differed from that of the High Court. It held that the High Court had not taken the correct approach when considering whether the non-compete clause was reasonable. However, in view of the delay by the time the matter came before it, the court did not consider it appropriate to express a preliminary view about the enforceability of the clause.

The court considered the effect of delay in the case. There was a divergence of opinion between Elisabeth Laing LJ and Bean LJ, with Nugee LJ expressing no view, on the effect of the delay between the facts becoming known to the employer and the High Court hearing. Elisabeth Laing LJ considered that the judge had reached a decision open to him on the facts while Bean LJ considered that the judge would have been entitled to refuse an injunction on the ground of delay. The court noted that there was no rule of law to the effect that damages would be an adequate remedy for the employee (if it was found that at trial that a restrictive covenant is unenforceable). Bean LJ suggested that, except in cases of very wealthy defendants, or where a claimant employer is offering paid garden leave for the whole period of the restraint, it was unrealistic to argue that damages would be an adequate remedy.

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Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

In Swiss Re Corporate Solutions Ltd v Sommer [2022] EAT 78 the EAT has held that an employment judge erred when holding that a without prejudice letter could be admitted into evidence under the “unambiguous impropriety” exception to the without prejudice rule in proceedings brought by an employee against her former employer. The without prejudice rule prevents statements made (whether in writing or orally) in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions against the interest of the party that made them.

The letter referred to the employee’s actions in having copied three emails to her personal email address when sending them to her employer in pursuit of a grievance. The emails had contained personal data and matters confidential to the employer and its clients. Before offering to settle her complaints by way of termination of her employment and payment of compensation, the letter alleged that the employee’s actions breached the confidentiality obligations in her employment contract, were a criminal offence under the Data Protection Act 2018 and meant that she had acted, or might have acted, without integrity in breach of Financial Conduct Authority (FCA) rules. This could result in summary dismissal, criminal convictions, fines and FCA findings which could make it difficult for her to work again in the regulated sector.

In holding that the unambiguous impropriety exception applied, the employment judge found that there had been no basis at all for the employer’s assertion that the employee’s actions amounted to serious misconduct and that the severity of what she had done had been grossly exaggerated in order to put pressure on her to accept the termination of her employment.

The EAT held that the employment judge had erred in finding there was no basis at all for the allegations of serious misconduct. It considered that the high threshold for unambiguous impropriety could be met in circumstances in which a party made exaggerated allegations although it was unaware of any decided case on this point. However, exaggeration would not usually pass the threshold without findings as to the guilty party’s state of mind. The employment judge did not make such findings, and the EAT doubted that this could have validly been done at a preliminary hearing without oral evidence. The only possible outcome in this case was that the without prejudice letter was inadmissible in evidence.

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Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination

Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year

Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers

Indirect Discrimination: Rejection of flexible working request is application of PCP

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