News & Views

Employment Law General Update – February 2024

Employment,
26th February 2024

Employment Law

Welcome to our February employment law updates covering issues such as: the EHRC’s guidance on menopause in the workplace under the Equality Act, the National Minimum Wage sees latest amendments, over 500 companies are named and shamed for wage non-compliance. Discussions around ‘fire and rehire’ practices intensify, and updates on Skilled Worker and Family Immigration are announced, including changes limiting careworkers’ dependents and ending the Ukraine Family Scheme. Stay informed as we navigate these key developments.

Equality Act: EHRC issues menopause in the workplace guidance for employers
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
Pay: 500+ companies named and shamed for not paying National Minimum Wage
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
Immigration: Dates announced on Skilled Worker and Family Immigration
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

Equality Act: EHRC issues menopause in the workplace guidance for employers

The Equality and Human Rights Commission (EHRC) has issued new guidance on menopause in the workplace, setting out employer’s legal obligations under the Equality Act 2010. The new guidance aims to clarify these obligations and provide practical tips for employers on making reasonable adjustments and fostering positive conversations about the menopause. If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they may be considered a disability. Under the Equality Act 2010, an employer will be under a legal obligation to make reasonable adjustments and to not discriminate against the worker. Additionally, workers experiencing menopause symptoms may be protected from less favourable treatment related to their symptoms on the grounds of age and sex.

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Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024

The draft National Minimum Wage (Amendment) (No 2) Regulations 2024, which are due to come into force on 1 April 2024:

abolish the rate of the national minimum wage for workers who are aged 21 or over (but are not yet aged 23 years) so that workers aged 21 or over will now qualify for the national living wage, rather than a lower national minimum wage rate;
increase the rate of the national living wage for workers who are aged 21 or over from £10.42 to £11.44 per hour;
increase the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £7.49 to £8.60 per hour;
increase the rate of the national minimum wage for workers who are under the age of 18 from £5.28 to £6.40 per hour;
increase the apprenticeship rate for workers within SI 2015/621, reg 5(1)(a), (b), from £5.28 to £6.40 per hour;
increase the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £9.10 to £9.99 for each day that accommodation is provided.

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Pay: 500+ companies named and shamed for not paying National Minimum Wage

The Department for Business and Trade (DBT) has named more than 500 companies for not paying national minimum wage to over 172,000 employees. Defaulting employers have been ordered to repay these workers almost £16m to backfill these breaches. This is the 20th list to be published by the government since the introduction of the naming scheme in 2013 under which it publicly ‘names and shames’ employers who fail to pay the minimum wage. The ‘naming and shaming’ scheme was paused from July 2018 until it recommenced in February 2020 in a revised form.

Employers named include major high street brands, including Estee Lauder, Easyjet, Greggs, Wickes and River Island. One employer, Staffline Recruitment Ltd, failed to pay £5,125,270.93 to 36,767 workers.

The businesses named have since paid back what they owe to their staff and have also faced financial penalties of up to 200% of their underpayment. The investigations by His Majesty’s Revenue and Customs (HMRC) concluded between 2015 and 2023.

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Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement

The Department for Business and Trade has published a response to the consultation on a draft statutory code of practice on dismissal and re-engagement. The consultation lasted from 24 January 2023 to 18 April 2023 and considered the action to be taken by employers when considering whether to dismiss and re-engage employees. As a result of the consultation, the government has made a number of changes to the draft code.

Changes to the code include:

a change to the sequencing of the code to ensure the sections on information sharing and consultation appear earlier;
the separate lists of information for employers to share located at paragraphs 25 and 33 have been combined;
the requirement for employers to conduct a full re-assessment of plans after information sharing and consultation;
changing the obligation to phase in changes to ‘best practice’;
a reduction in the length of the code and amendments to make it clearer and less technical;
a greater requirement on employers contacting ACAS prior to dismissal and re-engagement.

The full response can be found here.

The explanatory memorandum can be found here.

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Immigration: Dates announced on Skilled Worker and Family Immigration

The Minister of State for Legal Migration and the Border, Tom Pursglove MP, has made a Statement to the House of Commons giving more details of the timeline for various aspects of the five-point legal migration plan relating to the Skilled Worker and family migration routes. In terms of new announcements, he confirmed that there will be two sets of Statements of Changes in Immigration Rules, issued on 19 February 2024 and 14 March 2024, and the dates that the changes will come into force for these purposes.

The 19th February 2024 Immigration Rules will come into force on 11 March 2024 and will:

remove the right for care workers and senior care workers to bring dependants

ensure that care providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission (CQC)

The 14 March 2024 Immigration Rules will:

raise the Skilled Worker general salary threshold from £26,000 to £38,000 (with some exceptions) from 4 April 2024, and remove the 20% going rate discount for occupations on the Shortage Occupation List (being renamed the Immigration Salary List), as well as temporarily add any occupations as recommended by the Migration Advisory Committee to the new Immigration Salary List
raise the minimum income threshold from 11 April 2024 from £18,600 to £29,000 (in due course it will be raised to £34,300 and then £38,700).

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Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

The Home Office has issued a new Statement of Changes in Immigration Rules HC 556, along with an Explanatory Memorandum (EM). The Statement makes anticipated changes as regards the dependants of careworkers and senior careworkers in the Skilled Worker/Health and Care visa route, and also makes a number of surprise and immediate changes to the Ukraine Schemes, including ending the Ukraine Family Scheme from 3pm on the 19^th February 2024.

Skilled Worker/Health and care visa route

The Statement implements the first part of the Home Secretary’s ‘Five-point plan for Legal Migration’, which seeks to reduce net migration, and removes the possibility for dependent partners and children to apply in the Skilled Worker/Health and Care visa route where the main applicant is applying in, or has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6148 (Senior care worker). The change will not apply for dependants where the main applicant already has leave in Skilled Worker in either SOC code, or applied for entry clearance or leave in the route on or before 11 March 2024 (and also will not apply where such a main applicant subsequently applies to extend or change employer in either SOC code, or applies for settlement). It will also not apply for children born in the UK.

In addition, sponsors of persons initially applying in either SOC code on or after 11 March 2024 will be required to have Care Quality Commission (CQC) registration and to be currently carrying out a regulated activity. Similar transitional provisions apply as above for further applications by persons who were granted leave under the Rules on or before 10 March 2024 as regards working for a sponsor which does not meet the new requirements.

These changes are effected via amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024. The EM states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’. It goes on to say that ‘in the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.’

Ukraine Schemes

Closure of the Ukraine Family Scheme

The Statement announces the closure of the Ukraine Family Scheme from 3pm on 19 February 2024. The Ukraine Family Scheme allowed British nationals and those with a qualifying immigration status to sponsor family members. This included immediate and extended family members, as well as the immediate family members of extended family members (e.g. a British national could sponsor a cousin and their children).

Going forwards many people who could have applied under the Ukraine Family Scheme will have to apply under the Homes for Ukraine Sponsorship Scheme instead. This requires an offer of six months accommodation, assessed as suitable by the local authority.

Persons impacted by this change may need advice on alternative immigration options, such as making a human rights claim to join family in the UK.

Reduction in period of leave to 18 months

Ukraine Scheme visa-holders have been receiving three years leave. From 3pm on 19 February 2024 a positive grant of leave will only result in 18 months leave to remain, rather than three years leave. This affects persons who applied before the change in the law and have not yet received a decision on their case.

A limited exception is for unaccompanied minors, who will still receive three years leave, so long as they made their initial hosting application before 3pm on 19 February 2024, even if the local authority check takes place later. Unaccompanied minors who apply after that date will still only receive 18 months leave.

Extension scheme to close on 16 May 2024 except for some children born in the UK

The Ukraine Extension Scheme allows Ukrainians with a time-limited visa in the UK to switch into the Ukraine Scheme, recognising that Ukrainians cannot be expected to return to Ukraine. The deadline to apply has been changed, but it appears that there are currently no plans to increase the 16 May 2024 deadline for the Scheme. This will mean that Ukrainians on other visas, including visit, student, seasonal worker and family visas, will no longer be able to switch into the Ukraine Extension Scheme from that date.

The Statement creates an exception to the closure of the Ukraine Extension Scheme for children born in the UK to a parent who has leave under the Ukraine Scheme. This will come into force on 11 March 2024. The children will receive leave in line with their parent (or if both parents are here, in line with whichever parent’s leave expires last). Such children have been using this scheme informally already, but it is helpful to see a provision in the Rules. Unfortunately, the new provision is silent on what children born outside the UK to a parent with a Ukraine Scheme visa should do.

Additional grounds for refusal

Part 9 of the Immigration Rules sets out general grounds for refusal of immigration applications on character grounds. Only some of those criteria have so far applies to Ukraine Scheme applications and mainly those focused on criminality. The Statement provides that from 3pm on 19 February 2024 additional grounds for refusal will apply, including previous breaches of immigration laws, failures to provide information when required and other general grounds for refusing entry clearance or cancelling permission on arrival. Anecdotally, there have been some cases of arrivals from Ukraine who do not have the right documentation and so this may be a response to that. This does however indicate a tightening up of visa controls for Ukrainians.

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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 Case Update – January 2024

Anne-Marie Pavitt,
26th January 2024

Employment Law

We welcome you back into the land of employment law cases with a few of cases from the back end of 2023. Learn how the ACAS Code plays a crucial role in handling whistleblowing cases, and its implications for compensation uplifts and the limitations of contractual terms. We take a look at how future discrimination claims can be waived when done correctly in a settlement agreement, and evaluate how timings should be considered when looking at constructive dismissal cases, particularly where the claimant has a long employment history and there have been efforts at negotiation.

Whistleblowing: Using the ACAS Code for grievances and compensation uplifts, and whether contractual terms can limit losses
Equality Act: Unknown future claims can be waived in a settlement agreement if sufficiently particularised
Constructive Dismissal: Was resignation too slow to have been ‘the last straw’?

Whistleblowing: Using the ACAS Code for grievances and compensation uplifts, and whether contractual terms can limit losses

In SPI Spirits (UK) Ltd & Anor v Zabelin [2023] EAT 147, the claimant was the Group Chief Investment Officer for the first respondent company (SPI Spirits). He agreed a 30% pay cut from April to June 2020 because of the effects of the coronavirus (COVID-19) pandemic on the business. When the first respondent said that the pay cut was being extended to at least 1 September 2020 the claimant raised, in an email of 4 June 2020 and at a meeting on 5 June 2020, various issues including alleging that the pandemic was being used as an excuse to cut pay and that employees were being intimidated. On 8 June 2020 the claimant had a telephone discussion with the second respondent (Shefler), the majority shareholder in the group, who suggested that the claimant should resign if he didn’t agree to proposed changes to bonuses. When the claimant queried why he should resign the second respondent dismissed him. The claimant brought claims including of automatic unfair dismissal and detriment on the grounds of having made whistleblowing protected disclosures (including regarding (a) the claimant’s pay; (b) the claimant’s 2020 bonus; (c) staff welfare; and (d) coronavirus pretence).

The outcome of the case was that the EAT confirmed that a grievance must be in writing for the ACAS Code on Disciplinary and Grievance Procedures to apply but, once that has occurred, if new grievances arise they do not each have to be put in writing for the Code to be engaged, unless there is a ‘material change’ in the nature or scope of the complaint or redress sought such that fairness requires it. In addition, the uplift to compensation for an employer’s failure to follow the ACAS Code also applies to awards made against individuals if the relevant individual was responsible for the failure. Finally, contractual terms limiting loss will not be upheld if they produce an outcome which would have the same effect as disapplying or limiting a statutory provision, according to the EAT.

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Equality Act: Unknown future claims can be waived in a settlement agreement if sufficiently particularised

In Bathgate v Technip Singapore PTE [2023] CSIH 48 the Inner House of the Court of Session held that the various protections for the employee built into section 147 of the Equality Act 2010 do not exclude the settlement of future claims so long as the types of claim are clearly identified and the objective meaning of the words used encompassed settlement of the relevant claim. Section 147 of the Equality Act 2010 allows claims for discrimination to be settled using a settlement agreement provided that the settlement agreement relates to the ‘particular complaint’. Accordingly, a settlement agreement can relate to a future complaint if there is sufficient description of it in the claims waived.

There has been significant uncertainty for some time about whether or not future claims an employee might acquire against their employer but which have not yet arisen could, with the correct wording, be effectively waived as part of a settlement agreement. This decision by the Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal) comes unequivocally to the conclusion that future claims can be waived in a settlement agreement so long as they are sufficiently identified in accordance with the requirements in Hinton v University of East London [2005] EWA Civ 532.

Whilst employers would be wise to consider including future claims in settlement agreements, those representing individuals may try to exclude future claims. However, it should be noted that the decision in this case may not necessarily be followed in England. While decisions from the Inner House of the Court of Session are often considered by employment tribunals and the Employment Appeal Tribunal (EAT) in England, they are not strictly binding, so caution should be exercised.

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Constructive Dismissal: Was resignation too slow to have been ‘the last straw’?

In Leaney v Loughborough University [2023] EAT 155, the claimant had been a university lecturer and warden of a halls of residence with over 40 years’ service at the University. A student had made a complaint against him in 2018, which he disputed and had led to disciplinary action and in turn a grievance being raised by the claimant. He subsequently resigned as warden in December 2019, and asked several times for a grievance appeal to be held. They told him several times to draw a line under the matter but the claimant persisted. On 29 June 2020, he was told that the university could not look at the issue any further. There followed a period of negotiation between solicitors but due to be back at work that autumn, the claimant was so anxious he was signed off sick by his GP on 10 September 2020, and then resigned with notice on 28 September 2020, thereafter claiming constructive unfair dismissal, alleging a cumulative breach of the implied duty of trust and confidence.

The claimant claimed the notification he had received on 29 June 2020 was the ‘last straw’. The tribunal held that he had affirmed the contract of employment during the three months between 29 June, and his resignation on 28 September 2020 because he should have tendered his resignation prior to this.

The EAT disagreed with the tribunal’s approach and remitted the issue of affirmation for reconsideration, holding:

that the tribunal’s focus should not necessarily be on how much time has passed when considering whether affirmation has taken place, but should take into account all the surrounding facts and circumstances should be weighed.
where there has been a period of delay then length of service should be taken into account in deciding whether the contract has been affirmed but it is fact sensitive. It is understandable that an employee with long service may take longer to consider their position (without necessarily having affirmed) before removing themselves from a secure job, but the surrounding context is vital and should be applied on an case-by-case basis.
a period of negotiation before resignation is relevant. Negotiations could be an employee’s attempt to give the employer the opportunity to ‘put things right’ before resigning and therefore such a delay may not necessarily amount to affirmation of the contract.

His claim was dismissed on the basis that, between the date of the last matter that could potentially be relied upon as a last straw, and the date of resignation, he had affirmed the contract. Having regard to the facts found, and the matters relied upon by the claimant as relevant to the question of whether there had been affirmation, the tribunal erred in its approach to affirmation. The EAT found the tribunal had focused incorrectly on things that did not happen (the Claimant did not delay his resignation because of student exams and did not state that he was working under protest), which, if they had happened, might have pointed away from affirmation. Instead, they should have honed in on what conduct there had been which might have amounted to affirmation. The EAT therefore remitted the matter to the same tribunal for fresh consideration of that issue, in light of the facts found, and, as necessary, the further issues to which the complaint gave rise.

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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 – January 2024

Anne-Marie Pavitt,
26th January 2024

Employment Law

Welcome back to another year of invaluable insights and updates in the dynamic world of employment law. This month, discover the upcoming changes and trends that will shape employment law in the early months of 2024, stay compliant with the most recent holiday pay regulations by accessing the latest government guidance, and learn about ACAS’s updated Code of Practice for handling flexible work requests and adapt to the evolving landscape.

As ever, stay informed and up-to-date with Dixcart Legal.

What’s in store for Employment law in early 2024?
Holiday Pay: Government publishes new guidance
Flexible Working: ACAS publishes a revised Code of Practice on requests for flexible working

What’s in store for Employment law in early 2024?

There are four pieces of legislation that came into effect on 1 January 2024.

First, the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 amends the Working Time Regulations in relation to paid holiday for irregular hours workers and part-year workers from 1 April 2024, plus in relation to the calculation of normal pay, the carrying forward of paid holiday and record-keeping requirements. These regulations also expand the information and consultation obligations on small businesses under TUPE for transfers on or after the 1 July 2024.

The second piece of legislation was the Equality Act 2010 (Amendment) Regulations 2023. They make various changes to the Equality Act 2010 to reproduce certain interpretive effects of retained EU law which would otherwise cease to apply in the UK after the end of 2023. They include amending the definition of disability to take into account a person’s ability to participate in working life on an equal basis with others, providing an express right to claim indirect discrimination by association and preserving the single source test for equal pay comparisons.

The third and fourth pieces of legislation are the Retained EU Law (Revocation and Reform) Act 2023 (Commencement No. 1) Regulations 2023 and the Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023. They make fundamental changes including abolishing the principle of supremacy of, and general principles of, EU law, as well as replacing references to ‘retained EU law’ with the term ‘assimilated law’ in UK legislation (including the Equality Act 2010).

A significant change which came into force on 6 January 2024 (under section 1 of the National Insurance Contributions (Reduction in Rates) Act 2023) was the reduction from 12% to 10% in the employee primary Class 1 National Insurance Contributions rate, as announced in the government’s recent Autumn Statement.

From 22 January 2024 the maximum civil penalty for the illegal employment of an adult who is subject to immigration control will triple, from £20,000 to £60,000 for each offence pursuant to the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023.

Looking forward to April 2024, there will be two sets of regulations affecting the national minimum wage coming into force on 1 April 2024. The first, the National Minimum Wage (Amendment) Regulations 2024, will increase the minimum rates for workers, including the new rate of the national living wage of £11.44 an hour for the first time to all those aged 21 and over. The second set of regulations, the National Minimum Wage (Amendment) (No. 2) Regulations 2023, will remove the exemption for live-in domestic workers so that nannies and au pairs will have to be paid the national minimum wage.

Then, on 6 April 2024, the right to request flexible working will become a day one right (under the Flexible Working (Amendment) Regulations 2023) and the rate for Statutory Sick Pay will increase to £116.75 per week (under the Social Security Benefits Up-rating Order 2024). In addition, on that date, two family-friendly pieces of legislation will come into force:

the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 will extend existing protections if an employee is on maternity, adoption or shared parental leave when a redundancy arises, so that those protections also apply during pregnancy, and for a period of time after the relevant leave has ended; and
the Carer’s Leave Regulations 2023 will allow employees to take up to one week of unpaid leave per year to provide, or arrange, care for a dependant with a long-term care need.

Also in April 2024, the rate of Statutory Maternity Pay (and other family related statutory payments) will increase to £184.03 per week (also under the Social Security Benefits Up-rating Order 2024).

Finally in this round-up, on 9 May 2024, two sets of regulations relating to trade unions will come into force (the Trade Union Act 2016 (Commencement No. 6) Regulations 2023 and the Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations 2023). These will have the combined effect of restricting when relevant public sector employers can make deductions from their workers’ wages in respect of trade union subscriptions.

As if that was not enough, other legislation to look out for that is not Employment law-related but relevant for all companies is the Economic Crime and Corporate Transparency Act 2023 in relation to the failure to prevent fraud. Companies House has published a blog post on 22 January 2024 detailing the initial changes which will apply from 4 March 2024: Get ready for changes to UK company law – Companies House (blog.gov.uk)

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Holiday Pay: Government publishes new guidance on pay and entitlement

The government has published new guidance on the holiday pay and entitlement reforms from 1 January 2024. The guidance covers the meaning of an irregular hours worker and a part-year worker, holiday entitlement for these workers, carry-over of leave and holiday pay calculations.

The government has now published guidance to accompany the changes made to the Working Time Regulations 1998, SI 1998/1833, by the Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023, SI 2023/1426, with effect from 1 January 2024.

The guidance is arguably of more limited impact than anticipated because:

it expressly states that:

‘It does not provide definitive answers to all individual queries. It is not intended to be relied upon in any specific context or as a substitute for seeking advice (legal or otherwise) on a specific circumstance, as each case may be different.’

in relation to some grey areas, the guidance just restates the legislation and does not provide any examples of what factually would meet the requirements set out (e.g. in relation to what an employer must do to give a worker a reasonable opportunity to take their leave and encourage them to do so);
it does not expressly address the issue of whether or not annual bonuses should be included in holiday pay calculations.

The guidance does, however, include illustrative examples of who would, and would not, fall within the definitions of an irregular hours worker and a part-year worker. In relation to the latter category, the guidance states that a worker with an annualised (flat) salary over 12 months would not qualify as a part-year worker even though there are periods of one week or more when they are not working as there are no weeks in which they are not receiving pay.

What does the guidance cover?

The guidance covers:

the definitions of an irregular hour worker and a part-year worker
holiday entitlement for these workers
carry-over of leave, and
holiday pay calculations.

Some particular points worth highlighting are set out below.

Irregular hours and part-year workers

The guidance gives examples as to who would fall within or outside these definitions.

The examples demonstrate that a truly zero hours (casual) worker would count as an irregular hours worker whereas a worker on a rotating (but fixed) two-week shift pattern, for which the number of hours alternates, would not.

The guidance explains that part-year workers with fixed hours, for example, teaching assistants who only work during term-time, and who are paid only when working, would count as part-year workers. However, workers with an annualised (flat) salary over 12 months (e.g. most teachers) would not count as a part-year worker as there are no weeks where such a worker is not receiving pay.

Holiday pay rates and order of leave

The guidance explains that in respect of full-year workers who are legally entitled to 5.6 weeks of paid statutory holiday entitlement per year:

the first four weeks of this entitlement must be paid at a worker’s ‘normal’ rate of pay
the remaining 1.6 weeks’ entitlement can be paid at ‘basic’ rate of pay.

The guidance notes that:

‘The regulations do not state which entitlement should be used first. Many employers choose not to distinguish between the 2 pots of leave, and to pay the entire 5.6 weeks at the ‘normal’ rate of pay. If an employer wishes to pay different holiday rates for different periods of leave, then they should consider explaining this clearly and consistently to the worker, for example in the worker’s contract or staff handbook.’

Annual bonuses

The guidance does not expressly deal with the question of whether annual bonuses should be included when calculating holiday pay. However, the principles set out in the guidance may assist in how this issue is to be determined. For example, the guidance states that:

‘Holiday pay is based on the legal principle that a worker should not suffer financially for taking holiday. The amount of pay that a worker receives for the holiday they take depends on the number of hours they work and how they are paid for those hours. Pay received by a worker while they are on holiday should reflect what they would have earned if they had been at work and working.’

This would support the exclusion of an annual bonus when calculating holiday pay in circumstances where the annual bonus (and its amount) is paid irrespective of the number of weeks of annual leave taken, as to do otherwise would result in the worker being paid more for the period of holiday than their normal pay.

The position is not so straightforward, however, where bonuses are linked to performance which is related to time worked, as in that scenario a worker taking their full entitlement to annual leave may get a reduced bonus compared to a worker who took no annual leave.

It may be that employers will choose to make it clear in their bonus policies or schemes that workers are encouraged to use their full entitlement to annual leave and will not be penalised in terms of bonus for doing so, in an effort to clearly put themselves into the former rather than the latter category, and exclude annual bonuses from holiday pay calculations.

Starting to use rolled-up holiday pay

For irregular hours and part-year workers, for holiday years starting on or after 1 April 2024, employers can choose to use rolled-up holiday pay.

In terms of practicalities, the guidance states that:

‘If employers intend to start using rolled-up holiday pay, they should check their workers’ contract in case this amounts to a variation of contract. Employers should tell their workers if they intend to start using rolled-up holiday pay and for this payment to be clearly marked as a separate item on each payslip. The holiday pay should be paid at the same time as the worker is paid for the work done in each pay period. Employers of agency workers must include this information in the agency worker’s Key Information Document.’

The guidance also notes that if the employer chooses to use rolled-up holiday pay then the entire amount of leave for irregular hours and part-year workers will be paid at the ‘normal’ rate of pay.

The Government guidance can be found here: Holiday pay and entitlement reforms from 1 January 2024

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Flexible Working: ACAS publishes a revised Code of Practice on requests for flexible working

The Advisory, Conciliation and Arbitration Service (ACAS) has published its revised Code of Practice on requests for flexible working. The revised Code of Practice will come into effect in April 2024. Until then the current Code of Practice will continue to apply. The Draft Code of Practice was originally published as part of an ACAS consultation in July 2023. The consultation closed on 6 September 2023.

Following the consultation, ACAS has made a number of changes to what is now the revised Code of Practice. These are:

providing that guidance on consulting with an employee about a flexible working request recommends that where the original request cannot be fully met, employers discuss with the employee any potential modifications
ensuring that formal meetings following the acceptance of a flexible working request are no longer required
providing an extended list of categories of companions allowed to accompany an employee to a request meeting. However, the Code of Practice makes clear that there is not statutory right of accompaniment
recommending that all organisations (not just larger ones) ensure a different manager deals with an appeal over a flexible working request.

All other areas proposed in the initial draft Code of Practice will remain.

The ACAS consultation can be found here.

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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 Case Update – December 2023

Employment,
15th December 2023

Employment Law

As the year draws to a close we delve into some technical cases – an update on the case that just keeps on giving (Deliveroo), a look at how “heat of the moment” resignations play out and when they might be considered to have in fact been an unfair or wrongful dismissal, and how a tribunal got it wrong in not calling out a respondent’s alleged dishonesty.

Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
Termination: No ‘special circumstances exception’ when assessing resignation or dismissal
Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity

Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship

On 21 November 2023, the Supreme Court handed down its judgment in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43. The issues at stake were, did the Central Arbitration Committee’s refusal to accept the Union’s application to be recognised by Deliveroo for collective bargaining interfere with the rights of Deliveroo riders to form and join a trade union under Article 11 of the European Convention on Human Rights? If so, was this interference justified? Should the courts below have construed section 296(1)(b) of the 1992 Act so as to give effect to Article 11?

This appeal concerns collective bargaining rights in respect of Deliveroo riders. The appellant, the Independent Workers Union of Great Britain (“the Union”) is an independent trade union whose members include Deliveroo riders. The second respondent, Roofoods Ltd (“Deliveroo”) operates the Deliveroo food and drinks delivery service.

On 28 November 2016, the Union submitted an application to the first respondent, the Central Arbitration Committee (“the CAC”), that the Union should be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders in the Camden zone. Applications are considered by the CAC in accordance with Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The CAC refused to accept the Union’s application on the basis that the riders were not “workers” within the meaning of the 1992 Act. This was because Deliveroo did not require them to provide delivery services personally, but permitted the use of substitutes, i.e. they did not provide “personal service”.

Both the High Court and the Court of Appeal dismissed the Union’s claim for judicial review of the CAC’s decision. The Union then appealed to the Supreme Court.

In a unanimous decision delivered by Lord Lloyd-Jones and Lady Rose in a joint judgment, the Supreme Court agreed with the previous decisions of the lower courts that the Deliveroo riders in question did not have an employment relationship with Deliveroo for the purposes of article 11 of the European Convention on Human Rights (ECHR) (i.e. the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions), and therefore the provisions of that article did not apply to them.

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Termination: No ‘special circumstances exception’ when assessing resignation or dismissal

In Omar v Epping Forest District Citizens Advice [2023] EAT 132 the EAT had to consider the position of a claimant who had resigned ‘in the heat of the moment’ and then sought to retract the resignation. The claimant had contended that he should not be treated as having resigned as the situation fell within the so-called ‘special circumstances exception’ recognised in Sothern v Frank Charlesly [1981] IRLR 278. He argued that he had been unfairly and wrongfully dismissed. The employment tribunal disagreed and found that the claimant had resigned.

The EAT held, among other things, that the employment tribunal had erred in law by failing to make adequate findings of fact and failed to direct itself properly in accordance with the applicable legal principles set out in Sothern v Frank Charlesly. The EAT summarised the case law on the issue, including, among other things, that:

there is no such thing as the ‘special circumstances exception’; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context;
words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation (i.e. the reasonably bystander test);
the subjective uncommunicated intention of the speaking party is not relevant, but the subjective understanding of the recipient is relevant but not determinative in assisting the tribunal form a judgment as to what the reasonable bystander would have thought.

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Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity

In Stuart Harris Associates Ltd v Gobudhun [2023] EAT 145 the EAT dismissed the respondent employer’s appeal against the decision of the employment tribunal that held that: first, the claimant employee had been constructively dismissed; and second, the respondent had been either dishonest or incompetent when they engaged in the expenses practice that had led to the claimant’s resignation.

The respondent contended that the employment tribunal had erred in law since: (i) it had prejudged the case; (ii) descended into the arena by conducting their own extensive research into the law and practice of filing tax returns; and (iii) determined that the respondent’s principal, had been either ‘dishonest’ or ‘incompetent’ when it had not been put to him in terms that his conduct was dishonest or incompetent.

The EAT held, among other things, that: (i) the failure to put to the respondent that he had acted dishonestly amounted to a serious procedural irregularity which meant that the finding of dishonesty had to be set aside; and (ii) there had been no prejudgment of the case and the employment tribunal’s conduct regarding the hearing had not been unfair.

Consequently, given that the employment tribunal’s conclusions as to unfair constructive dismissal could stand irrespective of the finding as to dishonesty, the decision overall remained and was not set aside.

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 – December 2023

Employment,
15th December 2023

Employment Law

This month we have a plethora of publications and information for you. There are changes to National Living Wage, benefit and pension rates all due in April 2024. Two reports have been published recently looking at pay gaps for those with disabilities and people with different ethnicities, unsurprisingly the news is not positive. Some helpful guidance from the Home Office for employers to ensure they avoid the new raised penalties for employing illegal workers, and the government’s response to the occupational health consultation has been published. Lastly, the CIPD has produced an interesting report on menstruation at work, which is well worth a read to understand how this affects a large proportion of the workforce and what can be done to support women at work.

Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
Wage Updates: New benefit and pension rates published for 2024-25
Pay Disparity: TUC publishes latest data on disability pay gap
Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
Immigration: Home Office publishes updated Code of Practice on illegal working penalties
Health at Work: Government publishes response to occupational health consultation
Health at Work: CIPD report on menstruation and support at work

Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024

The government has accepted the Low Pay Commission (LPC) recommendations on National Minimum Wage (NMW) and National Living Wage (NLW) rates to apply from 1 April 2024. The LPC notes that this is the largest ever increase to the minimum wage in cash terms. The National Living Wage will apply to all workers aged 21 and over from 1 April 2024 (previously applying only to those aged 23 and over). The new rates are as follows:

• 21 and over rate: £11.44 per hour
• 18–20 year old rate: £8.60 per hour
• 16–17 year old rate: £6.40 per hour
• Apprentice rate: £6.40 per hour
• Accommodation offset: £9.99 per week

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Wage Updates: New benefit and pension rates published for 2024-25

The government has published proposed new benefit and pension rates for 2024 to 2025 including in respect of Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Statutory Shared Parental Pay (SSPP), Statutory Parental Bereavement Pay (SPBP), Maternity Allowance (MA) and Statutory Sick Pay (SSP). The rates of these benefits are normally increased in April each year in line with the Consumer Prices Index (CPI). The Written Statement to Parliament by the Secretary of State for Work and Pensions, Mel Stride, states that these rates will rise by 6.7% in line with CPI for the year to September 2023 and the new rates for the tax year 2024–2025 will come into effect on 8 April 2024. The DWP policy paper reveals that:

the standard rate for Statutory Maternity Pay (SMP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the standard rate for Statutory Adoption Pay (SAP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Paternity Pay and Statutory Shared Parental Pay (SPP and SSPP) will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Parental Bereavement Pay will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Maternity Allowance (MA) will increase from £172.48 to £184.03 per week (or be set at 90% of the individual’s weekly earnings if that amount is lower);
the rate of Statutory Sick Pay (SSP) will increase from £109.40 to £116.75 per week;
the amount of the weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP (but remain entitled to Maternity Allowance) will remain at £123.

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Pay Disparity: TUC publishes latest data on disability pay gap

The Trades Union Congress (TUC) has published new analysis of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers. That makes for a pay difference of £3,460 a year for someone working a 35-hour week – and means that disabled people effectively work for free for the last 47 days of the year. Disabled women face an even bigger pay penalty of 30% (£3.73 an hour, £130.55 a week, or £6,780 a year) less than disabled men – effectively double discrimination. The research also shows that the disability pay gap persists for workers for most of their careers. At age 25 the pay gap is £1.73 an hour hitting a high of £3.18 an hour, or £111.30 a week, for disabled workers aged 40 to 44.

The analysis looked at pay data from across the country and found disability pay gaps in every region and nation of the UK. The highest pay gaps are in Wales (21.6% or £2.53 an hour), followed by the South East (19.8% or £2.78 an hour) and the East of England (17.7% or £2.30 an hour).

The research found that disability pay gaps also vary by industry. The biggest pay gap is in financial and industrial services, where the pay gap stands at a huge 33.2% (£5.60 an hour).

Not only are disabled workers paid less than non-disabled workers, they are also more likely to be excluded from the job market. Disabled workers are twice as likely as non-disabled workers to be unemployed (6.7% compared to 3.3%). And the analysis shows disabled BME workers face a much tougher labour market – one in 10 (10.4%) BME disabled workers are unemployed compared to nearly one in 40 (2.6%) white non-disabled workers.

The analysis shows that disabled workers are more likely than non-disabled workers to be on zero-hours contracts (4.5% to 3.4%). And disabled BME women are nearly three times as likely as non-disabled white men (6.0% to 2.2%) to be on these insecure contracts.

The TUC says zero-hours contracts hand the employer total control over workers’ hours and earning power, meaning workers never know how much they will earn each week, and their income is subject to the whims of managers. The union body argues that this makes it hard for workers to plan their lives, look after their children and get to medical appointments. And it makes it harder for workers to challenge unacceptable behaviour by bosses because of concerns about whether they will be penalised by not being allocated hours in future.

The report goes on to discuss how Labour’s New Deal for Working People would affect workers’ rights.

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Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK

The Office for National Statistics (ONS) has published a new report on ethnicity pay gaps in the UK for 2022 which reveals, in particular, that Black, African, Caribbean or Black British employees continue to earn less median gross hourly pay than White employees, which has been consistent since 2012.

The main points from the report are that in the UK in 2022:

Black, African, Caribbean or Black British employees earned less (£13.53) median gross hourly pay than White employees (£14.35)
between 2012 and 2022, Black, African, Caribbean or Black British employees were the only ethnicity group to be consistently earning less than White employees
country of birth had an impact on how much employees earned: UK-born Black, African, Caribbean or Black British employees earned more (£15.18), while non-UK-born Black British employees earned less (£12.95) when compared with UK-born White employees (£14.26), a pay gap of negative 6.5% and 9.2% respectively
after holding personal and work characteristics constant, to provide an adjusted pay gap based on a like-for-like comparison, UK-born White employees earn more on average than most ethnic minority employees
when adjusting for pay-determining characteristics (e.g. occupation or where the job is), the pay gap narrowed and in some instances reversed, for example:
- UK-born Asian or Asian British employees earned on average 11.9% more than UK-born White employees, but after adjustment it was estimated that they earned 1.9% less
- UK-born Black, African, Caribbean or Black British employees, move from earning 6.5% more to earning 5.6% less compared with White employees

Other findings included that:

in relation to Mixed or Multiple ethnic groups, White and Black Caribbean employees (a Mixed ethnic group) had the lowest median gross hourly earnings (£11.75) in 2022, compared with White British employees (£14.42). This was a pay gap of 18.5%, the opposite of what was seen for the overall Mixed or Multiple ethnic employees
Asian or Asian British employees in 2022 earned more than White employees, with a pay gap of negative 3.3%. However, based on the more detailed ethnicity classification of Asian or Asian British employees in England and Wales, Chinese and Indian employees had higher earnings compared with White British employees, while Bangladeshi and Pakistani employees earned less compared with White British employees
a breakdown of White employees showed that the highest earnings were reported by White Irish employees (£20.20 median gross hourly pay), which represents a pay gap of negative 40.1% relative to White British employees. This suggests that White Irish employees are in higher-paid occupations
the main factors that explain most differences between the groups were: occupation, highest qualification level, geography, age and sex

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Immigration: Home Office publishes updated Code of Practice on illegal working penalties

The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time. There will be a sixty thousand pound (£60,000) (up from twenty thousand pounds (£20,000)) maximum penalty applied to any employer found to have been employing a person who is disqualified from working by reason of their immigration status in the UK.

The advise is that employers have a key role to play in preventing illegal working in the UK. They do this by carrying out right to work checks on people before employing them, to make sure they are allowed to do the work in question. If you are in any doubt, please contact us so that we can help you avoid a penalty.

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Health at Work: Government publishes response to occupational health consultation

The Department for Work and Pensions has published its response to the consultation it held on increasing employer use of Occupational Health Services entitled ‘Occupational Health: Working Better’. The government has evaluated the responses to the consultation and opted to introduce a voluntary minimum framework for quality occupational health provision and explore new voluntary workplace health and disability standards, examining options for a new small- and medium-sized enterprise group purchasing framework, and learning from the existing Workforce Expansion scheme to develop a long-term strategic occupational workforce approach.

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Health at Work: CIPD report on menstruation and support at work

The Chartered Institute of Personnel and Development (CIPD) has published the findings from its survey of over 2,000 women, aged 18–60. The report, CIPD: Menstruation and support at work looks at the prevalence and type of menstruation symptoms, their impact on work, menstrual health conditions and the impact these have on the ability of employees to stay in and progress at work. It highlights the difference workplace support can make and the types of adjustments that are seen to be most helpful when managing symptoms at work.

This detailed report provides an eye-opening (and at times quite shocking) insight into the extent to which women experience symptoms from menstruation (i.e. periods) and from menstrual health conditions, and the impact these have on them at work.

The report is helpful to both employers and employees in demonstrating the scale of the problem and the need for an open and supportive workplace—this may form part of the employer’s work on employee wellbeing or ESG issues.

Managers need to be educated and trained about menstruation and menstrual health and the employer should encourage a culture where women feel comfortable discussing their symptoms and the impact these have on them. This would benefit everyone because it would reduce misunderstandings about absences, reduce the risk of discrimination and, in time, hopefully help to reduce gender pay gaps.

In the report the CIPD explains that:

‘Employers offering appropriate support in the workplace can help people feel included, offer dignity and reduce embarrassment. It can increase employee attendance, but also legitimise absence where this is needed. It can increase employee performance, engagement, retention and employer branding.

Employers can improve employee experience by creating environments and work cultures that are menstruation friendly, and providing support for menstrual health conditions that are underpinned by the principles of compassion, empathy and inclusivity.’

The introduction to the report explains that:

the survey included over 2,000 women, aged 18-60, who currently menstruate, or have previously menstruated, while in employment;
‘menstruation’ refers to the monthly period in which bleeding occurs;
‘menstrual health’ has a broader meaning and recognises that while menstruation is a natural bodily function, some people experience physical and/or mental health symptoms and challenges linked to menstruation. These range from painful, heavy and/or irregular periods and premenstrual syndrome (PMS) through to formally diagnosed chronic health conditions such as endometriosis, adenomyosis, polycystic ovary syndrome (PCOS) and premenstrual dysphoric disorder (PMDD). Some of these conditions can have significant impacts on daily life and can also affect fertility;
while the report predominantly references women in relation to menstruation and menstrual health, the CIPD recognises that there is also an impact on some transgender and non-binary individuals who will require support and flexibility relevant to their needs.

What were the key findings?

Prevalence of symptoms

The responses to the survey showed that:

57% of those responding currently menstruate each month and 92% say they have previously menstruated each month while in employment;
79% of respondents have experienced menstruation symptoms, with the most common being abdominal cramps (60%), feeling irritable (52%), fatigue (49%), bloating (49%) and low mood (47%), but there are a wide range of symptoms;
those aged 18–34 were more likely to experience a high proportion of the symptoms;
15% have a menstrual condition such as endometriosis, PCOS, PMDD or fibroids.

Impact at work

In relation to how these symptoms impacted on people at work, the report states that:

69% of those who have experienced symptoms from menstruation report that they have had a negative impact at work, rising to 81% for people with a diagnosed menstrual condition;
the kinds of effects people have experienced are many and varied, but the main ones are feeling more tired (79%), working when they haven’t felt well enough to do so (61%) and feeling less able to concentrate (63%);
53% had been unable to go to work at some point because of menstruation symptoms and for 4% this was the case every month;
49% never tell their manager that their absence is related to their menstrual cycle;
20% always tell their manager that their absence is related to their menstrual cycle;
employees are less likely to tell their manager if their manager is male;
reasons given for not telling their manager the real reason included that they felt the problem would be trivialised (45%), feeling embarrassed (43%), that they prefer to keep the matter private (42%), that there’s too much stigma/ taboo (35%), that the employer/ manager wouldn’t be understanding (24%), having a male manager (24%) and worried the manager would think that performance would be affected (19%);
people are more likely to feel supported by colleagues than by their employer or manager (41%, compared with 21% and 26%, respectively);
12% of employees report that their organisation provides support for menstruation and menstrual health and 67% said there is no support available;
the most common support available is free period products (18%), paid sick leave (15%) and paid time off for medical appointments (12%);
the types of support that respondents said would be most helpful included free period products (53%), planned flexible working (44%), more breaks when needed (41%), paid time off for medical appointments (39%), paid sick leave (32%), access to a rest room (e.g. lounge area) (31%), adjustments to work tasks (28%), a better equipped bathroom (e.g. with a shower) (27%), clothing change (25%), and free hot water bottles (23%).

The wider impact of menstruation at work

The findings of the report include that:

6% of respondents say that menstrual symptoms have impacted them in a way which has led to formal action at work;
7% feel they have been discriminated against at work because of menstrual symptoms (those with a male manager (8%) are more likely to say this than those who have a female manager (4%));
a lack of support has promoted 8% to leave or consider leaving their jobs;
12% say that their menstrual symptoms have had a negative impact on their career progression;
workplace support makes a difference with those who work in organisations without support more likely to say that their symptoms had a negative impact on their career progression (14% compared with 5% who work for organisations with support).

Recommendations and good practice

The CIPD makes the following recommendations for supporting menstrual health in the workplace:

build an open and inclusive culture where menstruation is normalised thorough supportive discussions and open dialogue;
create awareness and tackle stigma;
develop a support framework;
train and support people managers.

For full details of how these can be implemented, see pages 13–14 of the report.

In addition to the recommendations above, organisations can offer specific support for employees experiencing menstrual health conditions, e.g.:

embedding good people management practices;
creating the climate for successful sharing of information;
ensuring employees have easy access to information and support;
managing absence and performance management with compassion and flexibility;
providing access to, and training in, work adjustments.

For further information on ways to implement these in the context of menstrual wellbeing and health, see pages 14–15 of the report.

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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 2023

Employment,
22nd November 2023

Employment Law

This month’s employment law updates cover various critical issues. The Work and Pensions Committee seeks input on statutory sick pay, while the Government has published its response to the EU employment law consultations. The Home Office updates illegal working penalty guidelines, and we have Government guidance on the handling labour unions before strikes. The TUC’s data on the disability pay gap underscores the importance of inclusivity, and a WoRC report examines systemic factors in the exploitation of migrant workers. Stay informed for compliance in this evolving employment landscape.

Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
Retained EU Employment Law: Government response to consultation and new draft regulations available
Immigration: Home Office publishes updated code of practice on illegal working penalties
Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
Disability: TUC publishes latest data on disability pay gap
Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation

Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay

The Work and Pensions Committee has issued a call for evidence on statutory sick pay (SSP), requesting the public views and ability to submit evidence until Friday, 8 December 2023. The Work and Pensions Select Committee calls for this inquiry to assess the existing ‘effectiveness of SSP in supporting claimants and if SSP should be reformed to better enable a recipient’s recovery and return to work’.

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Retained EU Employment Law: Government response to consultation and new draft regulations available

Retained EU Employment Law consultation response

The government has officially released its response to the ‘Retained EU Employment Law’ consultation, addressing proposed reforms within the Working Time Regulations 1998 (WTR) related to annual leave, holiday pay calculations, and record-keeping requirements. Additionally, it responded to the consultation concerning the annual leave entitlement calculation for part-year and irregular hours workers in light of the Supreme Court’s Harpur Trust v Brazel 2022 ICR 1380 decision.

The government has proposed the introduction of a ‘rolled-up’ holiday pay system for irregular hours and part-year workers and allow for an annual leave accrual method of 12.07% of hours worked for these groups. This means that instead of receiving a separate payment when taking annual leave, certain workers, specifically those with irregular hours or part-year employment (which may include agency workers), will get an extra amount added to their regular pay.

However, the government has decided not to proceed with the idea of creating a single annual leave entitlement that combines the ‘basic’ and ‘additional’ annual leave entitlements into a single 5.6-week entitlement (i.e. four weeks required by EU law and the 1.6 weeks mandated by the Working Time Regulations). Instead, they want to maintain two separate “pots” of annual leave with two different pay rates. This means that workers will still receive four weeks of leave at their normal pay rate and 1.6 weeks at a basic pay rate.

Additionally, the government plans to pass laws to make it clearer what should be included in the calculation of normal remuneration for holiday pay. They are also considering more significant changes to how holiday pay rates are determined.

In response to the Harpur Trust ruling, the initial proposal suggested using a 52-week reference period to calculate annual leave entitlement. However, many people raised concerns about the extra work this would create and the challenges it posed for workers whose hours changed from year to year or for those in their first year of employment.

To keep things simpler, the government has opted for a different approach. They will use an accrual method to figure out annual leave entitlement, where workers get 12.07% of the hours they’ve worked in a specific pay period. This method was commonly used before the Harpur Trust decision and better reflects the hours a worker has actually worked in the current year. For other workers in their first year of employment, things will remain the same. They will continue to accrue annual leave by receiving 1/12th of their statutory entitlement on the first day of each month and adjusting it accordingly.

The response also mentions that the government will maintain certain EU case laws to protect workers’ rights regarding carrying over unused annual leave when they can’t take it due to maternity, family-related leave, or being sick. They will also introduce a way for irregular hours and part-year workers to accrue annual leave when they’ve had periods of maternity, family-related leave, or sickness.

Additionally, the government will proceed with changes to record-keeping requirements in the Working Time Regulations (WTR). This change clarifies that businesses do not have to keep daily records of how many hours each worker works. This clarification aims to address concerns that a previous ruling by the European Court of Justice might have required employers to track the exact daily hours worked by each employee, rather than maintaining adequate and proportionate records based on the workplace and working patterns.

Regarding TUPE (Transfer of Undertakings), the government will move forward with its proposal to simplify consultation obligations during a transfer. Small businesses (with fewer than 50 employees) will be allowed to directly consult with employees if there are no existing employee representatives, avoiding the need to organize elections for new representatives. Additionally, businesses of any size can directly consult with employees (if there are no existing representatives) when a transfer involves fewer than ten employees.Top of Form

Draft Regulations

The Department of Business and Trade has published the draft Equality Act 2010 (Amendment) Regulations 2023. The draft SI restates some protections in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability which would otherwise be lost from 1 January 2024 under the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023).

These draft regulations are proposed to reproduce in domestic law certain interpretive effects of retained EU law which, under REUL(RR)A 2023, will cease to apply to the UK statute book after the end of 2023. This will mean that, in the areas covered by this instrument, the law will continue to have the same effect after the end of 2023 as it did before. They are due to come into force on 1 January 2024.

The draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 will amend the Working Time Regulations 1998 (in relation to record-keeping, paid holiday for irregular hours workers and part-year workers, normal pay, and the carrying forward of paid holiday) and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (in relation to information and consultation obligations on small businesses for transfers on or after 1 July 2024) and revoke the European Cooperative Society (Involvement of Employees) Regulations 2006. They are due to come into force on 1 January 2024.

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Immigration: Home Office publishes updated code of practice on illegal working penalties

The draft code has been amended further to the issue of draft Statutory Instruments (SIs) which will raise the starting point for penalties to £45,000 for a breach (if there are no previous breaches in the last three years) and £60,000 for repeated breaches. The draft codes will come into force at the same time as the related SIs, which are: (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023 and the Immigration (Restrictions on Employment and Residential Accommodation) (Codes of Practice) (Amendment) Order 2023. These are each stated to come into force on 22 January 2024, or, if later, on the twenty-first day after the day on which it is made. However, the code assumes 22 January 2024 as a commencement date.

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Trade Unions: Government publishes guidance on issuing work notices ahead of strike action

The Department of Business and Trade has published guidance for employers, trade unions and workers on issuing work notices ahead of strike action. Work notices, which were introduced under the Strikes (Minimum Service Levels) Act 2023, allow employers to require a workforce to meet minimum service levels for an upcoming strike period where the trade union has given notice to the employer of the strike and the employer provides a service covered by minimum service level regulations.

The new guidance is designed to be read alongside the government’s range of guidance on industrial action which can be found here.

The guidance covers:

the purpose of a work notice and the steps for preparing it;
considerations when preparing a work notice;
considerations upon deciding to issue a work notice;
consulting with trade unions;
guidance on producing a work notice;
guidance on notifying workers of a notice;
duties on workers and trade unions following issue of a work notice;
data protection issues.

The full guidance can be found here.

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Disability: TUC publishes latest data on disability pay gap

The Trade Union Congress (TUC) has published new analysis [TUC slams “zero progr<a id=”back”></a>ess” on disability pay gap in last decade | TUC] of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers.

The key findings of the analysis include:

the pay gap is only marginally lower than it was when the TUC launched disability Pay Gap Day in 2016/17;
disabled women face the biggest pay penalty with non-disabled men earning an average of 30% more;
the industry with the biggest pay gap is financial and industrial services which currently stands at 33.2%;
disabled workers are twice as likely to be unemployed than non-disabled workers;
one in 10 BME disabled workers are unemployed compared to nearly one in 40 white non-disabled workers;
disabled workers are more likely to be on zero-hours contracts than non-disabled workers.

The TUC has called for action from the government to put an end to discrimination against disabled workers in the labour market and has backed Labour’s New Deal for Working People.

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Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation

The charity Work Rights Centre (WoRC) has published a report which looks at what lies behind increasing reports of migrant worker exploitation in the UK, particularly in certain sectors such as health and care. Drawing on 40 case studies, interviews with caseworkers, and policy analysis, the report identifies the post-Brexit work sponsorship system and piecemeal/weak labour enforcement as two key systemic drivers. It makes a number of recommendations, including reforms to the work sponsorship system (replacing employer sponsorship entirely, or alternatively a range of reforms to the sponsorship system to facilitate protection of sponsored migrants against exploitation), increasing protections for all workers (including establishing a Single Enforcement Body for all labour rights, giving protection against unfair dismissal from the first day of employment and instituting secure reporting of exploitative practices), and implementing a migrant worker welfare strategy (including the creation of an independent Migrant Commissioner role).

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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 Case Update – November 2023

Employment,
22nd November 2023

Employment Law

This month’s case law shines a light on a less-common area of worker status – where a partnership is providing a service to a company and how to ensure no employee relationship is found, and provides a useful insight into using comparators for discrimination claims.

Worker Status: Individual providing services through genuine partnership cannot be an employee
Constructive Unfair Dismissal: Incorrect use of hypothetical comparators
Race Discrimination: Differentiating comparators

Worker Status: Individual providing services through genuine partnership cannot be an employee

In Anglian Windows Ltd t/a Anglian Home Improvements v Webb [2023] EAT 138 the EAT held that if there is an agreement between a genuine partnership and an employer for the partnership to provide certain services, then, providing that the arrangement is not a sham, there cannot also be an employment relationship between the individual partner providing those services and the employer, and, accordingly that partner cannot bring a claim of unfair dismissal against the employer (because they do not have the necessary status of being an employee).

This judgment concerns the unusual situation of a partnership entering into an agreement with a company for one of its partners to perform a sales role and then that individual partner trying to claim that they are an employee of that company in order to claim unfair dismissal.

The claimant and his wife had a partnership trading as Webb Consultants. The claimant was appointed as Area Sales Leader for the respondent but provided services (and was paid) through Webb Consultants. The contract provided that the claimant would not be an employee and would ‘at all times remain either a self-employed sole trader, a limited company or a partnership’. The claimant was dismissed and claimed unfair dismissal. The respondent applied to strike out the claim on the basis that it did not have reasonable prospects of success because the claimant was not an employee.

The employment tribunal refused to strike out the claim on the basis that the fact of these arrangements (which involved a genuine partnership and were not suggested to be a sham) did not preclude the possibility of the claimant being able to establish employee status. In reaching this conclusion, the tribunal sought to distinguish the EAT’s decision in Firthglow Ltd v Descombes and anor UKEAT/0916/03. The respondent appealed.

The EAT disagreed with the tribunal’s finding. The EAT held that the tribunal had erred in seeking to draw a distinction between this case and Descombes, where it had been held that, where the relevant work was being undertaken under an agreement with a partnership, that precluded the possibility of one of the individual partners being able to claim he was an employee. The tribunal ought to have followed Descombes. Although it was open to the EAT not to follow a previous decision at this level, none of the circumstances that might warrant adopting this course of action. Moreover, the agreed facts, confirmed by the tribunal’s own findings, meant that the possibility of the existence of a contract of employment between the claimant and the respondent was precluded in the circumstances of this case. That being so, the claimant’s claim of unfair dismissal could have no reasonable prospect of success and the tribunal ought to have allowed the respondent’s strike out application. Therefore the appeal was allowed, the tribunal’s judgment set aside and a finding substituted that the claimant’s claim must be dismissed as having no reasonable prospect of success.

Although employers might, as a result of this judgment, be tempted to engage people to work for them through a partnership (as a means of avoiding them gaining rights as employees) the fact that the courts and tribunals will look behind any such arrangement to determine whether it is a sham, and not reflecting the true agreement between the parties, should discourage them from doing so in practice.

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Constructive Unfair Dismissal: Incorrect use of hypothetical comparators

In The No. 8 Partnership v Simmons [2023] EAT 140 the claimant pursued claims of constructive unfair dismissal and of direct associative disability discrimination, relating to the respondent’s refusal to grant her time off for her dependent father under section 57A Employment Rights Act 1996. In considering the claim of direct discrimination, the Employment Tribunal constructed hypothetical comparators without first giving the parties the opportunity to give evidence or make submissions on the hypothetical circumstances envisaged. The tribunal also found that the reason for the refusal of section 57A leave was the respondent’s unwarranted misinterpretation of the section and that one of the decision-makers was dismissive of the care that aged parents required. Having found that the respondent had thus discriminated against the claimant, the tribunal concluded that this meant that it had breached the implied term of trust and confidence, which had also been breached by the respondent’s failure to personally communicate with the claimant before reaching any decision. The respondent appealed.

The EAT allowed the appeal. By failing to afford the parties the opportunity to address its hypothetical comparisons (in evidence or submissions), the tribunal had adopted an unfair procedure. The comparators thus constructed were also flawed as they failed to provide a like-for-like comparison for the purposes of section 23 Equality Act 2010 and, in the case of the second case, relied on a comparison with an individual sharing the same protected characteristic as the claimant. Moreover, given its finding as to the respondent’s reason for refusing section 57A leave, it was perverse of the tribunal to conclude that this was because of the claimant’s father’s disability. That conclusion was also perverse given the tribunal’s further finding that one of the respondent’s partners would have treated any carer of an aged parent (regardless of disability) in the same way.

Having allowed the appeal against the finding of discrimination, this also undermined the tribunal’s reasoning on constructive unfair dismissal. The alternative basis for that conclusion was, however, also flawed as the tribunal had failed to apply the correct test when determining whether there had been a breach of the implied term of trust and confidence and had failed to provide an adequate explanation of it finding that a breach arose from a failure of personal communication.

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Race Discrimination: Differentiating comparators

In the direct race discrimination case of Virgin Active Ltd v Hughes [2023] EAT 130, the question before the EAT was whether it was correct for the employment tribunal to consider a colleague who had made a comment about her own race as a valid comparator for a claimant who had made a comment about a colleague’s race.

The claimant in this case was a gym manager who had been dismissed. He had won several claims at the tribunal, including unfair dismissal, automatic and ‘ordinary’ unfair dismissal, and race discrimination concerning the handling of his disciplinary process and a grievance. The respondent appealed on various grounds and succeeded in overturning the findings related to race discrimination.

The tribunal had considered three of the claimant’s colleagues as comparators, even though their situations appeared significantly different from the claimant’s. The tribunal argued that the differences in treatment of these comparators shifted the burden of proof and upheld the complaint.

However, the EAT disagreed with the tribunal’s approach. It pointed out that the tribunal had not adequately assessed whether the claimant’s comparators were indeed suitable comparators, given their differing circumstances. A tribunal should carefully evaluate any material differences between a claimant and a valid comparator. The more significant the differences in their circumstances, the less likely the disparate treatment indicates discrimination. To illustrate this, the EAT provided an example: if two individuals of different races both undergo a job interview and one succeeds while the other does not, this alone wouldn’t be enough to shift the burden of proof. However, if both candidates scored equally in an assessment but were treated differently, that might indeed warrant shifting the burden of proof.

Additionally, the judgment highlighted that delay, on its own, is not sufficient grounds for an appeal. (The judgment had been delayed due to the Employment Tribunal Judge’s serious ill-health.)

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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 Back to Basics – Employing People in England & Wales

Anne-Marie Pavitt,
14th November 2023

Employment Law

We set out below a handy reminder of the issues, obligations and requirements that you need to consider when employing individuals in England for the first time.

Check your business is ready to take on employees

Make sure that your workplace is safe and accessible for employees. All employers have a duty to provide a safe working environment. The Health and Safety Executive website provides a wealth of guidance to assist you in this area Health and safety basics for your business (hse.gov.uk)

Register as an employer and set up PAYE

You will need to register as an employer with HM Revenue and Customs (HMRC) before your employee’s first payday. Do bear in mind that it can take up to 15 working days to get your employer PAYE reference number. You may choose to engage a payroll providers who can do this on your behalf. Payroll providers can also offer additional support such as providing payslips and calculating holiday entitlements so you should consider if you want or need these extra services or would rather deal with these inhouse.

Obtain Employers’ Liability insurance

All employers must have Employers’ Liability (EL) insurance cover for at least £5 million (from an authorised insurer) as soon as staff are employed. EL insurance will help an employer pay compensation if an employee is injured or becomes ill because of the work they do for you.

Check your employer’s pension obligations

All eligible job holders are entitled to a workplace pension scheme so you need to be aware of your automatic enrolment duties as an employer. Your legal duties begin on the day your first member of staff starts work, and even if you think you will not need to put your staff into a pension scheme, you will still have certain duties you must comply with. A qualified pensions adviser can advise you on complying with such duties. More information can be obtained from The Pensions Regulator Workplace pensions law – auto enrolment | The Pensions Regulator

Recruitment

You may need to advertise the role and interview candidates or instruct a recruitment agency to assist you with this process. You must ensure you avoid any kind of discrimination during the recruitment process and make sure your application and interview process is accessible for employees with disabilities. Consider whether any offer of employment will be conditional upon e.g. reference checks or proof of certain qualifications.

Checking a job applicant’s right to work

You must check that a job applicant is allowed to work for you in the UK before you employ them. Checking a job applicant’s right to work – GOV.UK (www.gov.uk)

If the potential employee says they have the right to work in the UK you must verify this by either checking their right to work online (if they have given you their share code), checking certain specific original documents or using an identity service provider that offers Identity Document Validation Technology (IDVT). You could face a civil penalty if you employ an illegal worker and have not carried out a correct right to work check.

If the employee does not have the right to work in the UK they may still be able to work in the UK on a short or long-term basis with a work visa, and specialist Immigration Law advice should be obtained on this issue if applicable. We can provide such immigration advice.

Check if you need to undertake a Disclosure and Barring Service (DBS) check

You may wish to know whether a prospective employee has a criminal record and this can done for any employee via a basic DBS check. However, taking into consideration data protection rules, you should first consider whether a basic DBS check is really necessary for the type of role the individual performs and should certainly not have a blanket policy where DBS checks are used for all candidates. Enhanced “standard disclosure” checks are obligatory in certain roles which involve a high degree of trust and security, such as those who work with vulnerable adults or children. You are required to carry out an enhanced check on a candidate if the relevant role is listed in what is known as the “Exceptions Order” and also the Police Act 1997 (Criminal Records) regulations.

Decide how much you will pay the employee and how you will run your payroll

The rate of pay or salary will of course depend on factors such as the role the employee will be undertaking, their level of experience and/or knowledge and the typical salary expected in your industry. You must ensure the proposed pay complies with National Minimum Wage requirements which can vary depending on the employees age and the type of work they will be carrying out for you. You could either use payroll software to run your own payroll or instruct a payroll provider to do it for you. Specialist tax advisers can provide advice on National Minimum Wage, Income tax and National Insurance issues.

Prepare a Contract of Employment

Employees are legally entitled to a written statement setting out certain prescribed particulars of employment on or before their first day of employment. Some of the prescribed particulars must be included in a single document and the rest can be given in instalments, not later than two months after the beginning of the employment. Employers often put most or all of the required information into a single document, being the contract of employment. This contract is essential to give details of all the terms and conditions that will apply to the employment. Careful thought should be given to whether any additional terms should also be included, such as, requirement to undertake a probationary period, whether you will pay enhanced company sick pay and whether you want the right to place employees on garden leave, or pay them in lieu of notice at the end of employment. Such additional protections are not automatically included in a standard statement of employment. If you want these useful additional protections do get in touch and we can talk through your requirements and prepare a bespoke employment contract for your new recruits.

Prepare Employee Policies

Large employers often include a wide variety of employee policies in an Employee Handbook whereas those with fewer staff may prefer to prepare standalone policies covering the basic legal requirements. At minimum an employer should provide employees with access to:

a grievance procedure and a disciplinary procedure;
a health and safety policy which sets out your general approach to health and safety (this must be a written policy for those with five or more employees).
an employee privacy notice – employers are required to provide employees with specific information about the processing of their personal data to comply with data protection legislation.

Tell HMRC about your new employee

Before you pay your new starter you must register your employee with HMRC using a Full Payment Submission.

If you’re looking to recruit for the first time why don’t you give our Employment team a call?

Dixcart Legal Limited – November 2023

Dixcart UK has an experienced team of specialist accountants, lawyers, tax and immigration advisers who can advise on all aspects of employing people in the UK. Please get in touch for further details on hello@dixcart.com

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Employment Law Case Update – October 2023

Anne-Marie Pavitt,
24th October 2023

Employment Law

An interesting look at how not to exclude staff on maternity leave, how to properly handle transgender workers, calculating holiday pay where employees are subject to compulsory overtime and the use of contract clauses to retain employees where discretionary bonus payments are payable which do not amount to restraint of trade.

Sex Discrimination: Erosion of reputation as “an effective and useful member of staff” due to pregnancy is discriminatory
Sex Discrimination: ‘Deadnaming’ transgender worker amounts to less favourable treatment
Holiday Pay: Landmark case confirms a gap of three months or a correct payment does not necessarily break a series of deductions
Contract: Bonus clause conditional on staying in employment not restraint of trade

Sex Discrimination: Erosion of reputation as “an effective and useful member of staff” due to pregnancy is discriminatory

In Smith v Greatwell Homes (3316461/2021) a tribunal had to consider the employer’s actions and treatment of Ms Smith, following her declaration to her boss that she was pregnant. This case was reported in People Management on 13 October 2023:

Ms Smith began working at Greatwell Homes in March 2019 as a business improvement analyst within the business improvement team, where she was apparently a valuable and ambitious member of staff. The tribunal noted she was a “credible and consistent witness”. Within her team there were three members of staff: herself, a business improvement manager and a head of business intelligence. However, the person occupying the post of business improvement manager – the person who was meant to be Ms Smith’s line manager – had been absent from August 2019 due to long-term ill health. She never returned to work and resigned in early 2020. Consequently, Ms Smith was required to take on a “significant proportion” of the responsibilities that should have been her line manager’s.

The firm’s head of property services and compliance, Miss Herzig, viewed Ms Smith as a valuable member of the team and encouraged her to apply for a more senior post with line management responsibilities should one become available. In April 2020, Ms Smith informed Miss Herzig that she was pregnant. The tribunal found the news was not effectively communicated to human resources by Miss Herzig, and Ms Smith was required to confirm with HR that she was expecting a baby on two further occasions. “We find that this was symptomatic of the respondent’s attitude towards the claimant and/or to the fact she was pregnant,” it said.

Ms Smith’s first claim arose during the same month. All staff were given a free day off by the company as a thank you for their efforts during the Covid pandemic. The day off was a Friday, however, when Ms Smith mentioned that she did not work Fridays, the firm refused to allow her to take a different day off. In September 2020, she went on maternity leave. Other than a few emails from HR about pension matters and some personal messages from Miss Herzig, Ms Smith did not hear from her employer during her maternity leave.

Then in April 2021, Ms Smith received a text message from Miss Herzig in which she was informed that someone had been appointed as her new manager and the firm had also hired a Governance and Assurance Manager, which was only published internally on the company intranet. These were both roles, the tribunal ruled, that would have been opportunities for Ms Smith to progress within the company. The claimant was not happy about the text and what she perceived to be a lack of communication from the respondent during her maternity leave, which went against the company’s maternity policy – which stated that employees on maternity leave must be informed of job vacancies. She commenced a grievance which was heard by Mr Wilesmith, but it was not upheld.

In August 2021, the respondent began to send job adverts to Ms Smith. This included a re-advertisement of the Governance and Assurance Manager’s post, as the current person occupying the role was on a 12-month contract and it would end in April 2022. The claimant resigned by letter dated 31 August. By a letter of the same day, the respondent accepted her resignation.

The tribunal held that Ms Smith was treated less favourably by the respondent on the grounds that she was on maternity leave, and commented that neither Miss Herzig nor Mr Wilesmith were impressive witnesses. It noted: “Neither demonstrated sufficient knowledge, skills or empathy in the way they dealt with the claimant throughout this process. It was the tribunal’s view that both were ill-equipped to deal with equality and diversity issues. It is incumbent on an employer to make sure that appropriately skilled and experienced staff deal with equality and diversity issues. The respondent had singularly failed in this regard.”

Regarding the free day off, the tribunal said the firm’s decision to not allow her to reschedule a day off was “unfavourable towards part-time workers, and therefore indirectly discriminatory towards female members of staff, as well as deeply unsympathetic in relation to the claimant herself”. It also ruled that Ms Smith “clearly [had] less favourable treatment” because she was on maternity leave as she was “barred from the opportunity” of participating in any recruitment process, or the chance to compete with other applicants to progress her career.

Employment judge Wood said: “In our view, it is clear that Miss Herzig’s view of [Smith] as an effective and useful member of staff had been eroded by the knowledge that she had become pregnant and was on maternity leave. It may have been, in part, a subconscious attitude. Nonetheless, we are clear that it was the reason, or a significant part of the reason, for the unfavourable treatment.” It also said the firm’s decision to send Smith job ads in August 2021 for vacancies that were expected to become available in April the following year were just “window dressing” to disguise the treatment that had gone before. Greatwell Homes was consequently ordered to pay Ms Smith £50,000.

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Sex Discrimination: ‘Deadnaming’ transgender worker amounts to less favourable treatment

In AB v Royal Borough of Kingston upon Thames (ET/2303616/2021) the tribunal ruled that the Borough of Kingston Council had committed several acts of direct discrimination against its employee, Miss AB, because of her status as a transgender woman her while she was undergoing a gender transition by using her previous name. The Employment Tribunal upheld 10 of her claims and awarded her nearly £25,000 in damages.

The majority of the claims that succeeded were instances in which she was ‘deadnamed’—the term for referring to a trans person by the name, and therefore gender, that they used before they transitioned. The council used Miss AB’s deadname on her office door pass, her pension records, the staff directory, the internal complaints system and her parking pass, according to the judgment. All of these instances amounted to ‘less favourable treatment’ and were ‘because of the claimant’s protected characteristic’, the tribunal found. The tribunal also sided with Miss AB when she argued that management’s decision to remove some of her job responsibilities was an act of direct discrimination. ‘We conclude that [Miss AB’s manager] in taking this action was not simply acting unreasonably, but that the claimant’s protected characteristic was part of the reason for this treatment’, the tribunal ruled. ‘The claim therefore succeeds’.

The panel also found that management’s response to a complaint from Miss AB was direct discrimination because they failed to take the complaint seriously. It found that management ‘did not treat the claimant’s allegation with respect’ and demonstrated ‘a dismissive attitude towards the issue’. ‘We have to conclude that some part of his reaction was because of the claimant’s protected characteristic’, the panel ruled. Similarly, the tribunal held that a manager fell foul of discrimination law when he failed to properly escalate Miss AB’s complaint. ‘Again, we have to conclude that some part of his reaction and his lack of action was because of the claimant’s protected characteristic’, the panel said.

However, many of Miss AB’s claims failed because she filed them too late and did not give the judge a sufficient reason for her delay. Miss AB argued that her employer’s decision to cut off her direct contact with internal councillors was a discrete, rather than ongoing, act. However, the tribunal found that although the decision had ongoing consequences, it was a discrete act and it fell outside the tribunal’s time limits. The panel also found that a reprimand one of the managers gave Miss AB also took place too long before she filed her claim, but added that the claim would have failed in any event because the reprimand was a reasonable management response to her failing to obey an instruction.

The tribunal disagreed with Miss AB’s argument that the council’s failure to implement a health and safety risk assessment for gender transition was discrimination. There was no obligation to undertake such a risk assessment, the judgment said. The panel also found that the council did fail to have appropriate Equalities Act policies in place but said this ‘was not because of the claimant’s protected characteristic but because of HR failures on a wider scale’.

The tribunal awarded Miss AB £21,000 as compensation for injury to feelings plus £4,423 in interest.

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Holiday Pay: Landmark case confirms a gap of three months or a correct payment does not necessarily break a series of deductions

In Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2023] UKSC 33 it was held that police officers and civilian staff in Northern Ireland are entitled to claim for underpayments of holiday pay going back many years following their employer’s failure to include overtime in its holiday pay calculations.

The Claimants were police officers and civilian staff working for the police in Northern Ireland. The case arose because they had historically only received basic pay for annual leave but the parties had agreed there had been an underpayment because the holiday pay should have included periods of compulsory overtime. The claimants brought claims for underpayment of holiday pay, and the question before the court was how far did this underpayment go back? The relevant Northern Irish legislation (mirroring the Employment Rights Act 1996) provided that a claim could only be made in respect of a payment made in the three months before the claim was brought. However, if the deduction was part of a series, the deductions could be linked together provided that the claim was brought within three months of the last of the series of deductions.

Previously, the EAT in Bear Scotland v Fulton had previously concluded that deductions could only be linked in a series if there was a gap of three months or less between each deduction but here the Supreme Court has now held that where a series of deductions are all based on an employer failing to properly meets its obligations to pay holiday correctly and, but for the mandatory cut off after 3 months which was set out in Bear Scotland, they would otherwise constitute a series, employees should be able to link each deduction. To hold otherwise would produce unfair consequences.

The Supreme Court held that:

(1) the EU principle of equivalence requires the police officers to be allowed the more advantageous series extension found in the Employment Rights (Northern Ireland) Order 1996 even though they are not workers for the purposes of that legislation,

(2) the series extension is therefore read into the relevant part of the Working Time Regulations (Northern Ireland) 2016 to achieve this, and

(3) what constitutes a series of deductions is a question of fact which does not require a contiguous sequence and is not necessarily brought to an end by a gap of three months or a correct payment if that correct payment was calculated when the claimants were at work.

It further found that, (1) there is no legal requirement that leave derived from different sources must be taken in a particular order, (2) it is inappropriate to apply a general principle of using calendar days in the reference period when calculating a worker’s normal pay, and (3) the appropriate reference period when calculating normal pay in any case is a question of fact.

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Contract: Bonus clause conditional on staying in employment not restraint of trade

In Steel v Spencer Road LLP (trading as Omerta Steel) [2023] EWHC 2492 (Ch) the Chancery Division dismissed the appellant’s appeal from a decision which had dismissed his application to set aside a statutory demand served by the respondent. The appellant was a former employee of the respondent. Under the terms of his employment contract, his remuneration was by way of a basic annual salary plus a discretionary bonus scheme. The bonus was conditional on the appellant remaining in the employment of the respondent for three months from the date of payment of any bonus, and not having given or been given notice to terminate his appointment during that period.

In January 2022, the appellant was paid a bonus which was an amount considerably larger than his basic salary at the time. Later, he gave notice of termination of his employment in February. The respondent had requested repayment of the bonus under the clawback provisions in the employment contract. The appellant refused to do so and had argued that the bonus clawback provisions were unenforceable on the grounds that they were in restraint of trade and/or penalty clauses. The court held, among other things, that there was no doubt that an employee bonus or commission scheme which was conditional on the employee remaining in employment for a specified period of time operated as a disincentive to that employee resigning. That had not, however, turned such a provision into a restraint of trade.

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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 – October 2023

Anne-Marie Pavitt,
24th October 2023

Employment Law

Lots of useful guidance available this month: from the DWP about using fit notes; requirements for employers with regard to right to work checks; and understanding the UK GDPR and DPA legislation to protect your employees’ data.

Health at Work: DWP updates guidance on fit notes
Right to Work Checks: Employers are no longer required to verify a digital CoA with the ECS
Data Protection: UK government approves the UK-US data bridge
Data Protection: An employer’s guide to understanding UK GDPR and DPA 2018

Health at Work: DWP updates guidance on fit notes

The Department for Work and Pensions (DWP) has updated three pieces of guidance on fit notes, for patients and employees, employers and line managers, and healthcare professionals respectively. This guidance is to explain actions required if you are given a fit note by an employee. It gives advice on what different sections of the fit note mean and how you can use it most effectively to support the health and wellbeing of employees in your organisation. You can view the guidance for employers and line managers here. There is also a checklist and set of case studies to accompany it.

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Right to Work Checks: Employers are no longer required to verify a digital CoA with the ECS

The Home Office has updated its guidance for employers carrying out right to work checks on or after 17 October 2023. It removes the requirement for employers to verify a digital Certificate of Application (CoA) with the Home Office Employer Checking Service (ECS) for outstanding EU Settlement Scheme (EUSS) applications made on or after 1 July 2021. The online right to work checking service will also not direct employers to verify a digital CoA with the ECS. This requirement has also been removed from the right to rent guidance for landlords.

Data Protection: UK government approves the UK-US data bridge

From 12 October 2023, UK businesses will be able to export personal data to US entities who are certified under the UK Extension to the EU-US Data Privacy Framework (DPF), without the need to conduct a Transfer Risk Assessment, and without needing to enter into the relevant standard contractual clauses or to implement supplementary measures. While this only covers some US organisations in certain circumstances, it is nonetheless a welcome development. You can read more about this from the Information Commissioner here.

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Data Protection: An employer’s guide to understanding UK GDPR and DPA 2018

The ICO has recently updated its guidance to understanding GDPR and DPA and explains the importance of an employer’s compliance with Retained Regulation (EU) 2016/679 (UK GDPR) and the DPA 2018, particularly in the context of processing a worker’s health information. As a worker’s health data is considered particularly sensitive and is therefore provided a special level of protection under UK GDPR, the Guidance emphasises that there are specific rules an employer is obliged to follow when dealing with such data. The Guidance considers:

how an employer can use a worker’s health data fairly (in essence, providing valid justifications for gathering and using health information, ensuring transparency in the process when communicating the necessary privacy information to workers and documenting all decisions made throughout the process); and
how an employer can lawfully process a worker’s health data. In lawfully processing a worker’s health data, the Guidance specifies that a ‘lawful basis’ under Article 6 of Retained Regulation (EU) 2016/679, the UK GDPR, must be identified. It further details the additional, stricter requirements needed to process special category data under Article 9 of Retained Regulation (EU) 2016/679, the UK GDPR (which encompasses health information).

To assist employers in navigating the legal sphere surrounding the management of health data, the guidance helpfully identifies the six lawful bases for handling personal data and provides common examples for when these bases might be applicable. The six lawful bases identified are contract, legal obligations, legitimate interests, vital interests, public task and consent. However, as mentioned above, the employer must also adhere to the requirements under Article 9 and identify a special category condition for processing health data.

The guidance outlines the 10 conditions which an employer might wish to rely upon and any additional conditions required to satisfy Article 9. The typical workplace scenarios identified revolve around the lawful and good practice procedures an employer should apply when it comes to sharing a worker’s health data, administering sickness absence documentation and managing information concerning a worker’s impairment or disability. The Guidance is helpful in that it directly answers key questions an employer may have in the context of health data, such as ‘How do we handle sickness and injury records?’ and ‘What if we use medical examinations and drugs and alcohol testing?’. The Guidance clearly outlines the relevant legal requirements and provides good practice advice for each of these common questions.

To assist employers further in ensuring compliance with data protection rules in the context of a worker’s health data, the ICO has also provided several checklists which can be easily accessed by employers whenever they are required to process such information. The checklists can be found here and relate to circumstances involving genetic testing, occupational health schemes, health monitoring, sickness and injury records, and sharing a worker’s health information.

This article has been developed from an original article published by Dentons UK employment hub which can be viewed here.

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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 – September 2023

Employment,
21st September 2023

Employment Law

We bring you an update of some key pieces of information affecting employment law, and potentially employers, published over the last two months to help keep you up to date.

Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023

Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill

Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023

Workers’ Rights: TUC launches AI taskforce to help fill legislative gap

Data Protection: ICO seeks views on first phase of draft biometric data guidance

HMRC Update: August Employer Bulletin

Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023

The Home Office has published the number of approved employer sponsors, according to visa route, as listed on the Home Office’s register of licensed sponsors on the specified date. As at 13 September 2023, Skilled Worker sponsors account for the majority of employers (80.70%). 10.75% of sponsors have a Global Business Mobility: Senior or Specialist Worker licence, and the remaining 13 work routes account for the remaining (8.55%).

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Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill

Peers in the House of Lords on 11 September 2023 sought to strike a compromise with the Commons over controversial provisions in economic crime legislation by curtailing a new corporate criminal offence while also limiting the size of companies caught in its net. Peers dropped plans by unanimous consent to expand corporate criminal liability in the Economic Crime and Corporate Transparency Bill to include a new offence making it a crime for companies that fail to prevent money laundering. But members of Parliament’s upper chamber also voted 211-185 in favour of exempting only the very smallest of companies from a government offence holding companies criminally liable for failing to prevent fraud.

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Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023

The Trades Union Congress (TUC) has announced that it is reporting the government to the International Labour Organization (ILO) over the Strikes (Minimum Service Levels) Act 2023. The TUC has stated that the legislation falls far below international legal standards and there are concerns that the legislation could be in breach of the UK-EU trade agreement. The ILO has already warned the government that existing and prospective legislation should be in line with ILO standards.

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Workers’ Rights: TUC launches AI taskforce to help fill legislative gap

The Trades Union Congress (TUC) has announced the launch of a new AI taskforce as part of its ‘urgent’ call for new legislation safeguarding workers’ rights. The taskforce has been launched following warnings that the UK is ‘way behind the curve’ on AI regulation, with many EU and other countries already drafting legislation specific to AI in the workplace. The taskforce will consist of leading specialists in law, technology, politics, HR and the voluntary sector with the primary purpose of filling any current legislative gaps in UK employment law around AI regulation at work. The taskforce will aim to publish an expert-drafted AI and Employment Bill in the early part of 2024.

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Data Protection: ICO seeks views on first phase of draft biometric data guidance

The Information Commissioner’s Office (ICO) has published the first phase of draft biometric and data guidance, which explains how data protection law applies when biometric data is used in biometric recognition systems. The consultation on the first phase will close on 20 October 2023, with the second phase opening for a call of evidence in 2024.

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HMRC Update: August Employer Bulletin

HMRC has published its bi-monthly magazine providing the latest information on payroll-related topics for employers and agents.

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 – September 2023

Employment,
21st September 2023

Employment Law

This month we bring you a plethora of interesting cases centring around dismissal in all its forms – be they agreed, part of a restructure or initiated for a reason. The questions will always be: is that reason fair and/or have you followed the correct procedure? Have a look at our case run down here.

TUPE: Employment decision on when a TUPE transfer takes place

Redundancy: Employees in restructure did not unreasonably refuse suitable employment

Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

Vicarious Liability: School not liable for acts of work experience student

Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

TUPE: Employment decision on when a TUPE transfer takes place

In Rajput v Commerzbank and Société Générale [2023] EAT 116 the EAT held that (i) in a ‘series of transactions’ cases, the transfer does not necessarily take place at the end of the series, and (ii) when determining the date of the transfer, a tribunal can have regard to matters which occur outside the UK. Regulation 3(1)(a), which provides that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to undertakings which are ‘situated immediately before the transfer in the UK’, does not mean that a tribunal must focus solely on events which take place within the UK-businesses which are situated in the UK.

Sarah Clarke, barrister at 3PB, who represented the claimant in this appeal, writes in a case analysis for Lexis Nexis that, on the face of it, the EAT’s finding that a transfer can take place at any point within the ‘series of transactions’ could cause uncertainty and increase the amount of litigation in this area. However, she goes on to say that she considers that, in the vast majority of cases, a transfer will take place at the end of the series. The question to be determined is when responsibility for the carrying on of the business transfers to the transferee and it is difficult to envisage many situations in which responsibility would transfer over prior to the end of the transactions. Indeed, as a matter of logic, if a transfer is ‘effected’ by a series of transactions, it cannot be until the last of those transactions that the transfer is complete, as otherwise the later transactions could not have ‘effected’ the transfer. However, this argument was rejected by the EAT and, in her view, there is scope for further judicial consideration of this.

In relation to the location of the business, this case makes it clear that, when determining when a transfer takes place, a tribunal’s focus ought not to be solely on those matters which occur in the UK. The relevance of geography to TUPE is simply that the business must be situated in the UK immediately before the transfer takes place. However, this does not preclude the business operating from other locations outside the UK. Thus, when dealing with this issue, parties must ensure that they provide evidence to the tribunal which clearly explains all matters relevant to the transfer, regardless as to where in the world those events took place.

The claimant was employed by Commerzbank (CB) from 2012 as a senior compliance officer. She was dismissed in March 2020 and brought various claims, including automatic unfair dismissal (on the basis that the sole or principal reason for her dismissal was the TUPE transfer) and victimisation (following a previous successful discrimination claim she had brought against CB). She had worked within the Equity Markets and Commodities Division (EMC) of the business, which was sold to Société Générale (SG), following a business purchase agreement which was signed in November 2018.

The EMC business was divided into three divisions, namely Flow Trading, Asset Management (AM) and Exotics, Vanilla and Funds (EVF), and was spread across several countries, including the UK, Luxembourg and Germany. The claimant worked across all three divisions.

For the purpose of the business sale, each division was (i) allocated its own purchase price, and (ii) divided into sub-batches, which transferred over a period of time. The EVF division transferred over in six batches from March to October 2019, with AM transferring over from May to November 2019. The last part of the EMC business to transfer over was Flow. It was based mainly in Germany, with only a small presence in London consisting of five employees. Most of Flow had transferred over by March 2020, with the remainder transferring in May 2020.

The employment tribunal found that the transfer took place on 1 October 2019 on the basis that 95% of the UK operation had transferred over by then. The judge thus ignored the last division which transferred over, as this was based predominantly in Germany.

The EAT, Mr Justice Kerr sitting alone, concluded that:

‘…there is no presumption or rule that a transfer effected by a series of transactions occurs at the end of the series. Completion may be artificially delayed. The last transaction in the series may be a minor detail, putting the last piece of the jigsaw in place long after the transferee has started running the business to the exclusion of the transferor.’

However, he agreed that the judge had erred in excluding from his consideration the Flow part of the business. The question to be determined was when responsibility for the carrying on of the business was transferred to the transferee (CELTEC v Astley). It was an agreed fact that Flow formed ‘part of the organised grouping of resources’ which comprised the EMC business. There was no reason why an ‘organised grouping of resources’ (in the words of TUPE 2006, SI 2006/246, reg 3(2)) could not be located across several countries at once. A business or part of a business can be ‘situated’ in the UK without its entire operation being located in the UK. He concluded that ‘there is nothing in the TUPE Regulations that required the tribunal to confine its consideration to the part of the organised grouping of resources based in this country.’

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Redundancy: Employees in restructure did not unreasonably refuse suitable employment

In Mid and South Essex NHS Foundation Trust v Stevenson [2023] EAT 115 the EAT had to consider whether the respondent had been entitled to refuse to make redundancy payments to the claimants where the employment tribunal had held that the alternative roles offered to them were ‘suitable’ but that their rejection of them was not unreasonable due to their personal perceptions of those roles.

The EAT held that there was no error in the employment tribunal’s approach:

— the relevant statutory test is whether the claimants ‘unreasonably’ refused an offer of employment that was suitable to them (the suitability of the role is not in and of itself determinative)

— even though the claimants’ perception of the roles was objectively groundless, the employment judge had found that there was a sufficient basis for their personal perceptions of the roles (eg that they would be a loss of autonomy and status) for them not to have acted unreasonably in refusing them

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Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Insurer Direct Line has successfully defended a case by a claims adviser that it unfairly dismissed him, with the EAT ruling that the employment tribunal had been entitled to find that there was no dismissal because the employee had mutually agreed to terminate his employment after his mental health problems meant he could not work.

In Riley v Direct Line Insurance Group plc [2023] EAT 118, the EAT ruled that an employment tribunal was entitled to find that Matthew Riley had consented to leaving his job. This is because he knew that he would receive lifetime insurance payments after being left unable to work due to mental health problems stemming from autistic spectrum disorder.

His Honour Judge (HHJ) Murray Shanks said the employment tribunal did not err when it rejected Riley’s case that he was duped into terminating his employment. ‘There was ample evidence for the conclusion reached, and the tribunal considered in detail whether Mr Riley’s consent was freely given’, he said. HHJ Shanks added that the tribunal ‘went to considerable lengths to emphasise their conclusions that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing’.

Riley was absent from work from 2014 until October 2017 due to anxiety and depression, according to the judgment. He began to make a phased return—but was again left unable to work from May 2018 because of anxiety and paranoia, the judgment says. He met with managers in August 2018 and September 2018, when he discussed leaving the job and relying on an insurance policy with UNUM that would make payments equating to 80% of his salary until he reached retirement age, according to the judgment.

Direct Line notified Riley in September 2018 that he was being dismissed following a meeting at which UNUM confirmed that he would be entitled to the benefits of the policy, the judgment says. Riley launched a case at the employment tribunal later that year, lodging claims of unfair dismissal and disability discrimination over allegations that he had been tricked by managers, according to the judgment.

But the tribunal dismissed his case in 2019, rejecting Riley’s evidence that he was put under pressure and did not understand what he was being told by managers. It also found that Riley had told managers that he knew terminating his employment to rely on the insurance policy was ‘where it’s been heading for the last four years’, according to the appeal judgment. The tribunal also concluded that Riley’s discussions with managers about his leaving had been supportive and designed to help him make the right decision.

John Platts-Mills, of Devereux Chambers, Riley’s counsel, argued before the EAT that the tribunal had failed to address the questions of who really terminated their client’s employment and whether the claims adviser really gave ‘true, mutual consent’, according to the appeal judgment.

But HHJ Shanks rejected the argument, ruling that the tribunal had ‘considered evidence relating to this in detail’. ‘It is true that they did not expressly refer to his disability in this context, but they must have had it well in mind when they rejected his evidence that he did not understand what was being said at meetings and found that he had made a fully informed decision’, he said.

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Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

In Greater Glasgow Health Board v Mullen [2023] EAT 122, the EAT dismissed the employer’s appeal against the decision of the employment tribunal which found that the employer’s reason for dismissing their employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The tribunal further concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation. The issue was whether the tribunal had erred in their decision.

The EAT held, among other things, that: (i) in the circumstances it was not open to the employment tribunal to base its conclusion about the fairness of the dismissal in terms of section 98(4) of the Employment Rights Act 1996 on a factual hypothesis that the ‘real reason’ for the dismissal was something different to the established reason; and (ii) on the findings in fact made by the employment tribunal, the only conclusion to which they could properly have come was that dismissal was within the range of reasonable responses open to the employer and was fair. Consequently, the employment tribunal’s judgment was set aside, and the claim of unfair dismissal was dismissed.

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Vicarious Liability: School not liable for acts of work experience student

In MXX v A Secondary School [2022] EWHC 2207 (QB) the Court of Appeal upheld the High Court’s decision that the defendant, a co-educational secondary school providing education for children aged 11 to 16, was not vicariously liable for the sexual assaults carried out by PXM on the claimant (a pupil), subsequent to PXM undertaking a work experience placement at the school. The court held that the judge had been wrong to have found that the relationship between the defendant and PXM was not akin to employment but that:

— given the limited nature of PXM’s role during the course of one week (eg he had no pastoral responsibility), the facts did not begin to satisfy the requirements of the close connection test

— the grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.

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Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

A British insurance company has been ordered to pay one of its former workers £64,645 after the tribunal found it failed to make reasonable adjustments for an employee with menopausal symptoms, who later resigned.

In Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022, Employment Judge Wade found that Direct Line Insurance Services Ltd did not fully consider the impact of menopause on Maxine Lynskey when it launched a warning and disciplinary process based on her performance. ‘At that time the disadvantage the claimant faced in doing her job while struggling with menopausal symptoms ought to have been recognised as such and adjustments made’, Judge Wade wrote.

The insurer must pay the sum to Lynskey to account for a range of factors, including damages for injury to feelings as well as losses she suffered, according to a remedy judgment. These events are a ‘serious and sustained number of contraventions over a period involving both the claimant’s line manager and her line managers and HR’, the tribunal found.

Lynskey was a motor sales consultant for Direct Line from April 2016. She had ‘very good’ performance ratings in that role. She then informed her manager at a meeting she was having health issues related to menopause.

‘It was clear from the information the claimant provided that she was being profoundly affected by menopausal symptoms and was seeking treatment for them; that was apparent from March 2020’, Judge Wade wrote.

Lynskey then moved to a different team considered to be a ‘better fit’ in light of her personal and health circumstances, albeit one that did not involve a sales related bonus. However, the tribunal found that with this new role, Lynskey’s managers should have been aware of health issues that would affect her performance. ‘The respondent knew, or ought reasonably to have known, from March 2020, that the claimant had become a disabled person by reason of menopausal symptoms’, Judge Wade wrote. ‘She was self-evidently at a disadvantage in comparison with colleagues without her disability in meeting the respondent’s performance standards and targets, and generally more likely to be sanctioned or face disciplinary/performance warnings.’

Lynskey began underperforming, and was told she wouldn’t receive a pay rise because her performance was rated ‘need for improvement’, the judge wrote. The tribunal ruled that it was unfavourable treatment to score her performance without fully factoring in her disability. ‘Need for improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve, or meet the required standards’, it said. She later faced a warning meeting where her manager ‘failed to recognise or take in the explanations’ around her symptoms. Lynskey then faced a disciplinary meeting where her health condition was not fully considered. Judge Wade found that the subsequent disciplinary warning ‘was unfavourable treatment because of something arising in consequence of disability’.

‘It is clear a less discriminatory approach could have been taken, including occupational health referral, consideration of other roles, and accepting the claimant’s mitigation, namely her disability’, the judge wrote.

After a period of ill health and personal issues outside work, Lynskey’s sick pay was stopped, the ruling said. She then submitted a grievance to her employer before ultimately resigning in May 2022, then brought constructive unfair dismissal and Equality Act 2010 complaints against the insurance company.

The tribunal upheld Lynskey’s arguments that Direct Line failed to make reasonable adjustments for her, as well as her complaints about discrimination because of her menopause symptoms. It rejected her complaints relating to constructive unfair dismissal, sex and age.

The tribunal handed down an extempore judgment (given verbally at the end of the case, not written down) on 28 April 2023, and Direct Line requested the written reasons, which were published on 25 August 2023.

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Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

In Iourin v The Chancellor, Masters and Scholars of the University of Oxford [2023] EAT 108 the EAT considered a number of appeals against an employment tribunal’s decision dismissing the claimant’s claims for direct sex discrimination, victimisation, and disability discrimination against the respondent under the Equality Act 2010.

The claimant had attempted to hug and kiss a colleague when they were in a car together. She raised a grievance and the grievance committee held that this conduct was unwanted but that, in the context of their relationship, it did not amount to harassment or sexual harassment. The claimant was however required to undergo training related to harassment, which he claimed was sex discrimination.

In finding that this did not amount to sex discrimination, the employment tribunal had made a material error of law by relying on its mistaken account of the grievance committee’s finding—stating that it was harassment but not sexual harassment—in reaching its conclusion that this was the non-discriminatory reason for the training requirement. That claim was therefore remitted to the employment tribunal for rehearing.

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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 – July 2023

Employment,
25th July 2023

Employment Law

This month there has been a lot of movement in rights at work – with a new jobs ‘passport’ for injured or disabled veterans, a private member’s bill to bring in a definition of ‘bullying’ at work, a consultation launched on the Disability Action Plan, the government’s response to the ethnicity pay reporting consultation and ACAS is consulting on a new draft Code of Practice to cover flexible working requests. There is also a consultation from the DBT on the future of the labour market enforcement strategy and ACAS’s latest annual report on how much it is needed.

Labour Market: MoD and DWP announce new jobs ‘passport’ for injured or disabled veterans

Labour Market: DBT launches consultation on Labour Market Enforcement Strategy for 2024 to 2025

Rights at Work: Parliament introduces bill to define bullying at work

Disability: DWP launches consultation on proposals for Disability Action Plan

Ethnicity Pay Reporting: Government publishes response to ethnicity pay reporting consultation

ACAS: New consultation published on new draft Code of Practice on flexible work requests

ACAS: Annual ACAS report for 2022 to 2023 reveals dispute resolution ever necessary

Labour Market: MoD and DWP announce new jobs ‘passport’ for injured or disabled veterans

The Ministry of Defence (MoD) and Department for Work and Pensions (DWP) has announced a new Adjustment Passports scheme to help smooth the way for injured or disabled Armed Forces to re-enter civilian work life. This scheme aims to remove barriers to the labour market by providing a transferable record of workplace adjustments, removing Access to Work assessments and reassessments, thus unlocking a pool of talent for employers and businesses to assist in economy growth. Guidance for the scheme has also been published.

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Labour Market: DBT launches consultation on Labour Market Enforcement Strategy for 2024 to 2025

The Department for Business and Trade (DBT) has published a consultation seeking responses to assist the Director of Labour Market Enforcement, Margaret Beels, in putting together the labour market enforcement strategy for 2024-25. The role of Director of Labour Market Enforcement was created in 2017 to bring together a coherent assessment of the extent of labour market exploitation, identifying routes to tackle exploitation and harnessing the strength of the three main enforcement bodies: HMRC National Minimum Wage; the Gangmasters and Labour Abuse Authority (GLAA); and the Employment Agency Standards Inspectorate (EAS).

Each year the Director submits a Labour Market Enforcement Strategy to Government to set priorities for the three main enforcement bodies.

Both the interim DLME Strategy 2022 to 2023 (published in March 2023) and the full DLME Strategy for 2023 to 2024 (awaiting clearance from government) proposed four themes as a structure for thinking about identifying and tackling labour market non-compliance. These four themes are:

Improving the radar picture to have a better understanding of the non-compliance threat.
Improving focus and effectiveness of the compliance and enforcement work of the three bodies under my remit
Better Joined-up Thinking to minimise the opportunities for exploitation of gaps in employment protection.
Improving engagement with employers and support for workers

The DLME Strategy for 2024 to 2025 will continue to build on these themes and this call for evidence seeks information about a number of these areas and provides an opportunity for respondents to draw to our attention evidence that they have of other areas where they observe significant risk of worker exploitation.

The consultation closes on 8 September 2023.

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Rights at Work: Parliament introduces bill to define bullying at work

Labour MP Rachael Maskell recently introduced a Private Members’ Bill to define workplace bullying and introduce legal duties on employers to prevent it, and it passed its first reading in Parliament on 11 July 2023.

She cited research from the Trades Union Congress in 2019 that estimated one quarter of employees are bullied at work, with most people who say they are bullied never reporting it. Maskell told the House of Commons. ‘There’s no legal definition, no legal protection, no legal route to justice, and without protection, many will leave their employer’.

If adopted, the Bill would provide a legal definition of ‘bullying’ in the workplace for the first time in the UK. Employees would be able to bring bullying claims to an employment tribunal and employers that fail to implement a statutory ‘respect at work code’ would face sanctions. The Equality and Human Rights Commission would also have powers to investigate systemic bullying damaging workplace cultures.

Maskell said the Bill would mean the definition of bullying by the workplace mediator ACAS as ‘offensive, intimidating, malicious, insulting or humiliating behaviour’ would be extended into statute and the usual method of determining compensation for injury to feelings would be applied. But its main goal is establishing a minimum standard for workplace conduct and discouraging managers who use their power over colleagues to ‘denigrate and destroy’, Maskell said.

The Bill follows bullying claims against former Justice Secretary Dominic Raab, who resigned after an investigation found he had belittled staffers. Lawyers said at the time that the lack of a legal definition of bullying made it hard but necessary to set expectations around workplace conduct.

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Disability: DWP launches consultation on proposals for Disability Action Plan

The Department for Work and Pensions (DWP) has launched a consultation on the government’s Disability Action Plan. The plan involves raising awareness of technology for disabled people, mandatory disability awareness training for taxi drivers, autism-friendly programmes for cultural and heritage sites and ensuring businesses are aware of disabled people’s needs. The plan is designed to make the UK a more inclusive society in the long term and to facilitate immediate and practical measures to improve disabled people’s lives for the better. The consultation will close on 6 October 2023.

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Ethnicity Pay Reporting: Government publishes response to ethnicity pay reporting consultation

The UK government has published a response to the ethnicity pay reporting consultation which aimed to gather views on what information should be reported, who should report it, and the next steps for consistent and transparent reporting. The government has concluded that, while ethnicity pay gap reporting can be a valuable tool to assist employers, it may not always be the most appropriate mechanism for every type of employer. Therefore, the government has confirmed that, as set out in the ‘Inclusive Britain’ report in 2022, it will not be legislating to make ethnicity pay reporting mandatory at this stage. Instead, the government has produced guidance (which was published in April 2023) to support employers who wish to report voluntarily.

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ACAS: New consultation published on new draft Code of Practice on flexible work requests

The Advisory, Conciliation and Arbitration Service (ACAS) has published a consultation on a new draft Code of Practice on handling flexible working requests. The new draft code is aimed at addressing the significant changes in ways of working since the current ACAS code was published in 2014. It is also designed to take into account anticipated changes to the Employment Rights Act 1996 around flexible working. The consultation closes at 11:59pm on 6 September 2023.

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ACAS: Annual ACAS report for 2022 to 2023 reveals dispute resolution ever necessary

ACAS has published its annual report for 2022 to 2023, revealing a greater demand for its dispute resolution services. Key facts and figures include highlighted in this year’s report include:

ACAS’s intervention in 621 collective disputes between employers and groups of workers, a 22% increase to the previous year
105,754 notifications for early conciliation and ACAS staff finding a resolution in over 72,000 cases
over 14.4 million visits to the ACAS website
649,179 calls from employers and employees across Great Britain to the ACAS helpline

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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 Case Update – July 2023

Employment,
25th July 2023

Employment Law

A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.

Injunctions: Witnesses and disclosure of documents at disciplinary hearings
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
Worker Status: Can a person have two different employers at the same time for the same work?
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
Tribunals: Apparent bias in case of lay member posting on social media

Injunctions: Witnesses and disclosure of documents at disciplinary hearings

In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.

This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.

In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.

On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).

In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.

The Claimant sent a letter before claim setting out:

1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].

2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.

3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.

4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.

The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.

In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.

The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.

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Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?

In R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.

In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.

Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:

that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).

The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).

The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.

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Worker Status: Can a person have two different employers at the same time for the same work?

In United Taxis Ltd v Comolly [2023] EAT 93, the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi. After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi. After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.

The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment. United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly.

However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it. There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise. The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.

The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.

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Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair

In Charalambous v National Bank of Greece [2023] EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas [1976] ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.

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Tribunals: Apparent bias in case of lay member posting on social media

In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie) [2023] EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.

The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter [2001] UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.

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Employment Law General Update – June 2023

Employment,
27th June 2023

Employment Law

This month we bring you updates on government reforms to employment law and the ping-pong battle over which laws shall be retained following Brexit; which companies are failing to pay national minimum wage, a review in diversity and goals for the 4 day week for political parties to endorse; our UK strike laws are being critiqued and we will soon know which occupations we are most lacking in the UK.

Brexit: Government consults on reforms to working time rules, holiday pay and TUPE
Brexit: Lords put further amendments back to Commons on REULRR Bill
Pay: Department for Business and Trade names companies failing to pay NMW
Diversity: Parker review sets new targets for FTSE 350 and private companies
Working Patterns: 4 Day Week campaign launches Mini Manifesto
Trade Unions: International Labour Organization comments on UK strike laws
Immigration: MAC intends to publish its shortage occupation list review in autumn 2023

Brexit: Government consults on reforms to working time rules, holiday pay and TUPE

On 12 May 2023, the government published a consultation paper, setting out its plans regarding the future of retained EU employment law. The consultation paper confirms the government’s intention to keep retained EU employment laws in the following areas without any change: family leave rights (maternity, paternity, adoption and parental leave), ‘atypical’ workers’ rights (part-time workers, fixed-term workers and agency workers), and information and consultation rights. However, certain reforms are proposed in the areas of working time, paid holiday rights and rights upon the transfer of a business or an outsourcing. The government says it has identified areas for reform of laws it considers are ‘too onerous for business to be used effectively or too complex for workers to know, understand and use’. Amanda Steadman, principal knowledge lawyer at Brahams Dutt Badrick French LLP, sets out in her article the proposed changes in the consultation and the next steps.

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Brexit: Lords put further amendments back to Commons on REULRR Bill

On 24 May 2023, the House of Commons debated the Lords amendments to the Retained EU Law (Revocation and Reform) Bill (REULRR Bill), with a majority of MPs disagreeing with three amendments. Lords amendments 6, 15 and 42 were rejected and Lords amendments 1 and 16 were further amended. Lords amendments 2 to 5, 7 to 14, 17 to 41 and 43 were agreed to.

On 20 June 2023, the House of Lords debated Commons amendments to the REULRR Bill. The Lords approved two amended motions, proposing amendments in lieu of those previously rejected by the House of Commons. These amendments relate to the two outstanding issues in debate—environmental protection and parliamentary scrutiny. Continuing the ‘ping pong’ process, the House of Commons considered the Lords message on 21 June 2023, with the government moving that the Lords amendments be rejected again. The Bill was scheduled to return to the House of Lords on 26 June 2023.

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Pay: Department for Business and Trade names companies failing to pay NMW

The Department for Business and Trade (DBT) has published the names of 202 employers who have failed to provide their lowest paid staff the national minimum wage (NMW). Approximately 63,000 workers across the companies did not receive NMW as a result of deductions from wages (39%), failure by the companies to properly compensate for working time (39%) and incorrect apprenticeship rates (21%).

In the top 3 in this Round 19 are WH Smith Retail Holdings Ltd, Lloyds Pharmacy Ltd and Marks and Spencer PLC. Some in the list owe as little as £5500 to one employee but the larger offenders have failed to pay cumulatively hundreds of thousands of pounds to thousands of workers.

Employers are reminded that the minimum wage law applies to all parts of the UK. Employers should always carry out the necessary checks (guidance is available on the Gov website: Calculating the Minimum Wage), and HMRC consider all complaints from workers, so they are reminding workers to check their pay with advice available through the Check your pay website.

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Diversity: Parker review sets new targets for FTSE 350 and private companies

The Parker Review Committee has published a 2023 update report on ‘Improving the Ethnic Diversity of UK Business’. The independent review, which published its first report in 2016, was commissioned by the former Department for Business, Energy and Industrial Strategy to consult on ethnic diversity in UK boards. The review also set several diversity targets for FTSE 100 and FTSE 250 companies. The update contains the results of the review’s survey of those targets in 2022 in addition to a number of new targets to be achieved by 2027.

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Working Patterns: 4 Day Week campaign launches Mini Manifesto

The 4 Day week campaign has published a ‘Mini Manifesto’, which they are calling on political parties to endorse ahead of the next general election. 4 Day Week is a national campaign for a 32-hour working week with no reduction in pay. The manifesto lays out the campaign’s key principles and goals.

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Trade Unions: International Labour Organization comments on UK strike laws

The International Labour Organization (ILO) has critiqued the UK’s strike laws and called for the UK government to bring union laws in line with international law. In a rare intervention that has not been used against the UK since 1995, the ILO issued an instruction for ministers to seek assistance from the ILO and report back on progress by 1 September 2023. The Trades Union Congress has called this ‘hugely embarrassing’ for ministers.

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Immigration: MAC intends to publish its shortage occupation list review in autumn 2023

The Migration Advisory Committee (MAC) has confirmed, by way of an update to its guidance webpage, that it intends to publish its report reviewing the shortage occupation list in autumn 2023. This is later than the anticipated date of June 2023, as stated in previous press releases.

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Employment Law Case Update – June 2023

Employment,
27th June 2023

Employment Law

This month we look at several aspects of the Equality Act through the lens of religious discrimination, race discrimination and harassment. We also take a look at how one should properly calculate holiday pay so as not to fall foul of the Working Time Regulations.

Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
Holiday Pay: How to calculate holiday pay on termination of employment

Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment

In Higgs v Farmor’s School [2023] EAT 89, the EAT held that in dismissing a direct religion or belief discrimination claim brought by a Christian employee following complaints relating to her social media posts which criticised the nature of sex education in schools (including gender fluidity and same sex marriage) the employment tribunal had erred in that it failed to:

conclude that there was a close or direct nexus between the employee’s Facebook posts and her protected beliefs
determine the reason why the employer acted as it had, and
assess whether the employer’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others

The proportionality assessment, which the tribunal had not carried out, was necessary to determine whether the employer’s actions were because of, or related to, the manifestation of the employee’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation.

The EAT also set out basic principles that underpin the approach adopted when assessing proportionality of any interference with rights to freedom of religion and freedom of expression to assist tribunals and to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.

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Race Discrimination: Judgment against qualifications body held not to be Meek-compliant

The case of General Medical Council v Karim [2023] EAT 87 concerned a claimant doctor who was subject to an investigation by his employer. That led to a referral to the General Medical Council (GMC). The employment side of things was settled when he resigned and a settlement agreement was entered into. However the GMC matter continued. The claimant then made a claim of discrimination by the GMC as a qualifications body, making various complaints in relation to its handling of the matter.

The employment tribunal upheld some (but not all) of the complaints of direct race discrimination on the basis that the burden of proof had passed but not been satisfied.

The GMC appealed to the EAT.

Allowing the GMC’s appeal, the EAT held, in summary, that the tribunal had failed to engage with key aspects of its case, and so produced a decision which was not Meek-compliant; and reached some findings and conclusions at different points that were conflicting or contradictory.

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Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment

In Greasley-Adams v Royal Mail Group Ltd [2023] EAT 86 the EAT had to consider (amongst other grounds of appeal) whether an employment tribunal had failed in its analysis of the claimant’s claims of harassment under section 26 of the Equality Act 2020 by not having regard to conduct of which he was not aware.

The EAT, dismissing the appeal, held that only conduct of which the claimant was aware could amount to harassment. This was because:

the perception of the person claiming harassment was a key and indeed mandatory component in determining whether harassment had occurred
as confirmed by the relevant authorities, if there was no awareness, there could be no perception.

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Holiday Pay: How to calculate holiday pay on termination of employment

In Connor v Chief Constable of West Yorkshire Police [2023] EAT 42 the EAT considered the provisions of a ‘relevant agreement’ reached in relation to holiday pay on termination of employment and how these compared to the calculations provided for by the Working Time Regulations 1998 (‘WTR’) and found it not to be compatible.

In this case the Claimant’s employment contract stated that holiday pay on termination of employment would be calculated based on 1/365^th annual salary. This meant, on that upon his termination, he received a lower payment for accrued holiday than that which he would have received using the calculation set-out in the WTR.

The tribunal held that the 1/365^th calculation was a valid ‘relevant agreement’ under Regulation 14(3) (which states that the amount of holiday pay due on termination of employment is either that which would be prescribed if the formula set out in the WTR were applied or such other sum which is stated to be payable on termination of employment pursuant to a ‘relevant agreement’) and that therefore there had been no unlawful deduction from the claimant’s wages.

The EAT disagreed. They held that a ‘relevant agreement’ under Regulation 14(3) on the payment of holiday on termination of employment cannot result in a payment which is lower than that which would be calculated using the method set out in the WTR. The Claimant was entitled to the higher amount. . Regulation 14 provides a method of calculation for the purposes of regulations 13 and 13A for an incomplete leave year. The entitlement to annual leave, and payment, are not modified by regulation 14. The regulation provides a formula of calculation which promotes the right to annual leave and the attendant payment for holiday. The phrase “such sum as may be provided for the purposes of this regulation in a relevant agreement” refers to any agreement that provides a formula which is in keeping with the rights provided for in the regulations.

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Equality Act: EHRC issues menopause in the workplace guidance for employers

Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024

Pay: 500+ companies named and shamed for not paying National Minimum Wage

Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement

Immigration: Dates announced on Skilled Worker and Family Immigration

Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

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Equality Act: Unknown future claims can be waived in a settlement agreement if sufficiently particularised

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What’s in store for Employment law in early 2024?

Holiday Pay: Government publishes new guidance on pay and entitlement

Flexible Working: ACAS publishes a revised Code of Practice on requests for flexible working

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Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship

Termination: No ‘special circumstances exception’ when assessing resignation or dismissal

Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity

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Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024

Wage Updates: New benefit and pension rates published for 2024-25

Pay Disparity: TUC publishes latest data on disability pay gap

Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK

Immigration: Home Office publishes updated Code of Practice on illegal working penalties

Health at Work: Government publishes response to occupational health consultation

Health at Work: CIPD report on menstruation and support at work

What were the key findings?

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Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay

Retained EU Employment Law: Government response to consultation and new draft regulations available

Retained EU Employment Law consultation response

Draft Regulations

Immigration: Home Office publishes updated code of practice on illegal working penalties

Trade Unions: Government publishes guidance on issuing work notices ahead of strike action

Disability: TUC publishes latest data on disability pay gap

Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation

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Worker Status: Individual providing services through genuine partnership cannot be an employee

Constructive Unfair Dismissal: Incorrect use of hypothetical comparators

Race Discrimination: Differentiating comparators

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Sex Discrimination: ‘Deadnaming’ transgender worker amounts to less favourable treatment

Holiday Pay: Landmark case confirms a gap of three months or a correct payment does not necessarily break a series of deductions

Contract: Bonus clause conditional on staying in employment not restraint of trade

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Health at Work: DWP updates guidance on fit notes

Right to Work Checks: Employers are no longer required to verify a digital CoA with the ECS

Data Protection: UK government approves the UK-US data bridge

Data Protection: An employer’s guide to understanding UK GDPR and DPA 2018

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Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023

Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill

Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023

Workers’ Rights: TUC launches AI taskforce to help fill legislative gap

Data Protection: ICO seeks views on first phase of draft biometric data guidance

HMRC Update: August Employer Bulletin

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TUPE: Employment decision on when a TUPE transfer takes place

Redundancy: Employees in restructure did not unreasonably refuse suitable employment

Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

Vicarious Liability: School not liable for acts of work experience student

Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

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Labour Market: MoD and DWP announce new jobs ‘passport’ for injured or disabled veterans

Labour Market: DBT launches consultation on Labour Market Enforcement Strategy for 2024 to 2025

Rights at Work: Parliament introduces bill to define bullying at work

Disability: DWP launches consultation on proposals for Disability Action Plan

Ethnicity Pay Reporting: Government publishes response to ethnicity pay reporting consultation