News & Views

Employment Law Case Update – May 2023

Employment,
29th May 2023

Employment Law

This month’s summary includes a look at the pools used for comparison in discrimination cases, considering all the options before dismissing for redundancy, taking a look at the special circumstances where someone might be employed by two organisations and what caused a director to be disqualified for 9 years.

Indirect Discrimination: What constitutes too narrow a pool for comparison?
Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic
Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes
Directors: Disqualification order for director who failed to protect funds and keep proper accounting records

Indirect Discrimination: What constitutes too narrow a pool for comparison?

In Boohene and others v Royal Parks Ltd [2023] EAT 69, the claimants were contract workers employed by a third party to work on its toilet and cleaning services contract with the respondent in London. Their minimum rates of pay were set below London Living Wage (“LLW”); this contrasted with the respondent’s direct employees, who were office-based and had a level of pay higher than LLW. The employment tribunal found that the respondent had committed to ensuring that the minimum pay of its direct employees would not fall below LLW but had decided not to accept the option of LLW as the minimum pay rate on the toilet and cleaning contract.

The claimants brought claims of indirect race discrimination in respect of their treatment as contract workers as compared to the respondent’s direct employees. The tribunal upheld these complaints as falling within the definition of indirect discrimination under section 19 Equality Act 2010, (“the EqA”), rendered unlawful by reason of section 41. The respondent appealed.

The EAT upheld the appeal, finding for the respondent. On its findings of fact in this case, the tribunal had been entitled to conclude that these claims fell within section 41(1) EqA, the respondent having exercised sufficient control as to minimum level of pay that was to be paid to workers on the toilet and cleaning contract. Although ostensibly set by the contractual term agreed between the claimants and the contractor, the tribunal permissibly found that the decision not to pay LLW was made by the respondent, the contractor had merely executed that decision; in this respect, it was the respondent that had determined the relevant term on which the claimants were to be allowed to do their work. For the purposes of section 19 EqA, the tribunal was similarly entitled to find that it was the respondent that had applied the relevant provision criterion or practice (“PCP”). The tribunal had, however, fallen into error in defining the PCP in this case and this had led it to adopt an indefensible pool for comparison. Although the claimants’ pleaded case had identified a PCP that distinguished between the respondent’s direct employees and its outsourced workers, the case at trial was put on the more limited comparison between the respondent’s direct employees and the workers on the toilets and cleaning contract. In accepting the latter case, the tribunal had improperly excluded from the pool for comparison all other outsourced workers undertaking work for the respondent. That was an error that undermined the tribunal’s approach to the comparative exercise it was required to undertake in this case. The appeal was allowed because the tribunal should have compared directly employed staff with all outsourced workers (and not just those on the cleaning contract). When analysing the impact of a PCP, the pool being considered should consist of the entire group it affects.

The respondent would not, however, have succeeded in its further challenge to the tribunal’s approach to comparability. In considering whether there were any material differences between the advantaged and disadvantaged groups, on the facts of this case, the tribunal had been entitled to find that the nature of the work and the identity of the employer were not relevant to the question whether the respondent had drawn a distinction between its directly employed staff and outsourced workers when committing to LLW as a minimum rate of pay. A further valid point of challenge had been raised in relation to the tribunal’s failure to address the case of the claimant, Mr Marro, who did not share the relevant protected characteristic. Had this point not been rendered academic by the EAT’s earlier conclusion, this final ground of appeal would also have been allowed and this question remitted to the tribunal for determination.

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Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic

In Lovingangels Care Ltd v Mhindurwa [2023] EAT 65, the claimant was a live-in carer. The person for whom she cared went into hospital. In the normal course of events the claimant would have moved to care for another of the respondent’s clients. In the early stages of the Coronavirus pandemic there was limited scope for such movement. The respondent did not have another client for the claimant to move to because of the Coronavirus pandemic. The respondent dismissed the claimant by reason of redundancy. The employment tribunal held that her dismissal was unfair because the respondent did not consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve and it would be able to place the claimant with another client; and also, because the appeal hearing was no more than a rubber-stamping exercise.

The respondent appealed against the finding of unfair dismissal. There was no error of law in the decision of the employment tribunal. Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Coronavirus pandemic does not require any variation to the law of unfair dismissal, which is robust enough to deal with such exceptional circumstances.

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Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes

In Fire Brigades Union v Embery [2023] EAT 51, the EAT found that there is a broad principle that a person cannot simultaneously have two employers, subject to an exception for the case of a person having two ‘compatible’ employments. On the facts of this particular claim for unfair dismissal by a fire-fighter, the claimant was not employed by the union as well as by the fire brigade.

The question of whether a person can have two employers for the same job is an unusual one. It is often seen in the context of vicarious liability for torts but not in the context of employment rights, such as unfair dismissal, as here. This case concerned a fire brigade employee who was subsequently elected as a regional union official and was released from fire-fighting duties to work full-time on union duties. The EAT reviewed the case law on dual employment and identified a broad principle that a person cannot simultaneously have two employers for the same job. The EAT noted the exception to this principle identified by the EAT in Gough for the case of a person having two ‘compatible’ employments. It cast doubt on the reasoning in that judgment which relied on the vicarious liability case of Viasystems. The EAT in this case found that to be of ‘little assistance’ given the different policy context. It held that this was not an unusual or exceptional case in which the claimant could have been employed by the Fire Brigades Union (FBU) as well as by the London Fire Brigade (LFB).

The employment tribunal held that the claimant was an employee of the FBU and had been unfairly dismissed (but not discriminated against). In determining that the claimant was an employee the tribunal held that:

he received substantial remuneration in the form of the ‘top up’ of around £7,000 ‘as no doubt a sweetener to encourage people into full time Union roles’ plus his LFB salary which was ‘covered by the Union’;
the FBU had substantial control over his work. He could have been removed from office if his duties were not performed satisfactorily, he had to perform his work personally, he had to work full-time and only for the FBU and he was provided with equipment and expenses, and a car allowance;
if he failed to abide by the FBU rules there was a process which could effectively lead to his dismissal, as in this case; and
when working for the union he was not under the control and direction of LFB.

The union appealed on the basis that, in finding that the claimant was an employee of the FBU and not the London Fire Brigade, the employment tribunal had erred in that it:

ignored and/or did not apply the material law;
failed to explain its application of the law; and
reached a decision which was not open to it on the facts, applying the material law (the ‘perversity’ ground).

The EAT dismissed the union’s appeal and substituted a decision dismissing the claim for unfair dismissal.

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Directors: Disqualification order for director who failed to protect funds and keep proper accounting records

In Secretary of State for Business, Energy and Industrial Strategy v Joiner [2023] EWHC 1032 (Ch) the Chancery Division ruled on the claimant Secretary of State’s application for a disqualification order under section 6 of the Company Directors Disqualification Act 1986 against the defendant. The claimant alleged that the defendant: (i) had failed to ring-fence and protect certain funds which were held by the company called Team Property Management Limited (Team) for the account of a major customer called the Quadrangle RTM Company Limited; and (ii) had failed to ensure that Team kept proper accounting records, or at least had failed to deliver them up to the official receiver. The court held, among other things, that the defendant had failed to appreciate and observe the duties attendant on the privilege of conducting business with limited liability, and he had demonstrated a serious lack of commercial probity and a lack of insight as to the unacceptability of his business practices. Accordingly, the court had agreed with the claimant’s assessment of the appropriate disqualification period, and it had decided that a nine-year period of disqualification should be made.

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Further Information:

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

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

News & Views

Employment Law General Update – May 2023

Employment,
29th May 2023

Employment Law

This month’s news provides an update on the effect of the Retained EU Law Bill and the scrapping of the sunset clause, a new smart regulation from the DBT, a report on the post-pandemic economic growth in the UK labour markets, new guidance from ACAS on both managing stress at work and making reasonable adjustments for mental health at work, a new podcast from the HSE to support disabled people in the workplace and a consultation from the EBA on the benchmarking of diversity practices. Lastly, we have the results of research carried out on unfair treatment of parents following fertility treatment.

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights
Employment Law: Department for Business and Trade – Smart regulation unveiled to cut red tape and grow the economy
Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
Disability: HSE launches podcast to support disabled people in the workplace
Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights

On 10 May 2023, the government announced that it will scrap the proposed sunset clause from the Retained EU Law (Revocation and Reform) Bill. As we have previously reported in our Employment Law News, the sunset clause would have meant that most retained EU law in secondary legislation would have been revoked at the end of 2023. Instead at least 600 pieces of retained EU law will be set out in a revocation schedule, which can be found here. Any laws not listed in the revocation schedule will be retained automatically.

Meanwhile, the Department for Business and Trade has published a response to a letter by the Rt Hon Caroline Nokes MP, Chair of the Women and Equalities Committee, requesting further explanation about the Retained EU Law Bill’s effect on equality rights and protections. The response by the Rt Hon Kemi Badenoch MP, Minister for Women & Equalities, confirms that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. It sets out that most equality protections will remain unaffected, as they are provided for in primary legislation, in particular the Equality Act 2010 (to which no changes are expected because of the Bill) and any relevant secondary legislation and additional instruments will be considered.

It also highlights that where additional provision is required, the Bill enables the UK Government and the devolved governments to protect the rights and protections of UK citizens. This includes a restatement power which allows departments to codify rights into domestic legislation. The response emphasises that this power will secure rights and protections, by laying them out accessibly and clearly in statute.

Employment rights

The response sets out that the government does not intend to amend workers’ legal rights through the Bill, that the UK provides for greater protections for workers than are required by EU law and that the government remains committed to making sure that workers are properly protected in the workplace.

Parental leave

The response emphasises that the repeal of maternity rights is not and has never been government policy, and that the UK is in fact further along than the EU when it comes to maternity rights.

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Employment Law: Government’s “Smart regulation unveiled to cut red tape and grow the economy”

On the 10 May 2023 the Department for Business and Trade published its paper “Smarter regulation unveiled to cut red tape and grow the economy” which the government describes as “the first dynamic package of deregulatory reforms to grow the economy, cut costs for businesses and support consumers …”

The governments announcements include the following proposed amendments to employment law:

The government is proposing to remove retained EU case law that requires employers to record working hours for almost all.

Making rolled-up holiday pay lawful. Rolled up holiday pay is where an employer includes a sum representing holiday pay in an enhanced hourly rate rather than continuing to pay workers as normal when they actually take leave. This was ruled to be in breach of the Working Time Directive by the ECJ well over a decade ago.
The merger of annual leave (20 days derived from the EU’s Working Time Directive) and additional leave (being the additional 8 days holiday provided under the Working Time Regulations). Whilst this appears to be sensible it will be interesting to see how the European case law which specifically applies to the 20 days annual leave, such as what constitutes holiday pay and taking such holiday in the year in which it falls, is dealt with.
TUPE – there are proposals to do away with the need for elections of employee representatives for businesses with fewer than 50 employees or transfers of fewer than 10 employees.

The government has launched consultation on these points.

The government has also proposed limiting the length of non-compete clauses to three months. This will require the passing of legislation, which, the government says will be dealt with when parliamentary time allows.

So we wait to see exactly what legislative changes come about following these announcements.

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Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets

A House of Commons Committee report says the government must reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections. The government has two months to respond to the committee’s proposals which are on topics including the machinery of government with responsibility for labour market policy; technology and skills development; workers’ rights and protection; and older workers.

The report, which follows on from a Call for Evidence on the state of play in the UK Labour market post-Brexit and the COVID-19 pandemic, highlights that:

with 500,000 people having left the British workforce since the start of the pandemic, a shortage of labour weighs heavily on the potential for economic growth;
economic inactivity has risen among people aged 50 to 64 years;
the way in which the recommendations of the Taylor Review have been implemented has been fragmented and drawn-out;
the enforcement of labour market rules is under-resourced.

It calls on the government to:

consider establishing a Ministry of Labour and appoint a new Minister of State for Labour in the Cabinet, as well as a Cabinet Committee on Labour;
take various actions in respect of technology and skills;
reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections;
consider new legal structures for flexible work that include appropriate rights and protections for workers;
provide more protection for workers from any damaging effects of night-time working;
pursue the creation of the planned single enforcement body which would clarify rights of redress for those most in need;
continue and expand support for older workers.

It also calls on businesses to:

be more open to create more flexible constructions of work;
offer more flexible working opportunities to benefit from a huge untapped pool of older workers and to assess whether their recruitment practices and workplaces are ‘ageist’.

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Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work

Managing stress at work:

ACAS has published new advice for employers on managing stress at work after YouGov revealed 33% of British workers disagreed that their organisation was effective at managing work-related stress. YouGov was commissioned by ACAS and surveyed just over 1,000 employees in Great Britain. ACAS sets out that stress can be caused by demands of the job, relationships at work, poor working conditions and life events outside of work such as financial worries. An ACAS poll in March 2023 revealed that 63% of employees felt stressed due to the rising cost of living.

Advice for employers on managing stress at work include:

looking out for any signs of stress among staff. Signs include poor concentration, tiredness, low mood and avoiding social events;
being approachable available and have an informal chat with staff who are feeling stressed;
respecting confidentiality and being sensitive and supportive when talking to staff about work-related stress;
communicating any internal and external help available to staff such as financial advice if the cost of living is a cause of stress.

ACAS states that creating a positive work environment can make employees healthier and happier at work, reduce absence levels and improve performance.

ACAS advice on managing stress can be accessed here.

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Making reasonable adjustments for mental health at work:

ACAS has published new guidance for employers and workers on reasonable adjustments for mental health. ACAS states that ‘employers should try to make reasonable adjustments even if the issue is not a disability’. The guidance covers:

what reasonable adjustments for mental health are;
examples of reasonable adjustments for mental health;
what reasonable adjustments can be made for mental health;
requesting reasonable adjustments for mental health;
responding to reasonable adjustments for mental health requests;
managing employees with reasonable adjustments for mental health;
reviewing policies with mental health in mind.

ACAS has also published case studies exploring how different organisations have helped staff with reasonable adjustments for mental health.

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Disability: HSE launches podcast to support disabled people in the workplace

The Health and Safety Executive (HSE) has launched a new podcast aiming to help employers support disabled workers and those with long-term health conditions in the workplace. The podcast features discussion by host Mick Ord, former BBC Radio journalist, Moya Woolley, Occupational Health Policy Team Leader at HSE and Rebecca Hyrslova, Policy Advisor at Federation of Small Businesses (FSB); and offers advice for employers on how to create a supportive and enabling workplace, take an inclusive approach to workplace health, understand the work barriers that impact on workers, make suitable workplace adjustments or modifications, develop skills, knowledge and understanding, use effective and accessible communication, and support sickness absence and return to work.

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Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices

The European Banking Authority (EBA) has launched a consultation on guidelines on the benchmarking of diversity practices including diversity policies and the gender pay gap pursuant to Articles 75(1) and 91(11) of the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV) and Article 34(1) of the Investment Firms Directive (Directive (EU) 2019/2034). The EBA has been collecting data on diversity since 2015 based on information requests. The EBA hopes that the issuance of these guidelines will lead to a higher level of transparency regarding the EBA’s work on the topic of diversity and gender equality and will help improve the quality of the collected data as well as the awareness of all stakeholders on these topics. The new reporting format is expected to apply for the collection of data in 2025 for the financial year 2024. Responses are sought to the consultation by 24 July 2023.

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Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Pregnant Then Screwed published a press release during Infertility Awareness Week revealing the unfair treatment women face in the workplace due to their reproductive health. Research has revealed that of the 43% of women who informed their employer of their fertility treatment, one in four did not receive any support from their employer. One in four women also experienced unfair treatment because of undergoing fertility treatment. Unfair treatment was also experienced by 22% of women who disclosed their pregnancy loss to their employer while 6% of partners who disclosed the same faced negative treatment.

The press release confirms Pregnant Then Screwed will be launching a new programme to help employers deal with reproductive health issues in the workplace better. They will be hosting a Women in the Workplace seminar for businesses to find out more about the new training and accreditation scheme which signals fertility friendly employers. This free event will take place in June 2023.

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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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Dixcart Legal Employment Law Facts and Figures – 2023

Dixcart Legal Limited,
27th April 2023

Employment Law

Dixcart Legal provides you with a summary of Employment Law Facts and Figures for 2023.

For more information, please contact: Anne-Marie Pavitt.

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Employment Law General Update – April 2023

Employment,
25th April 2023

Employment Law

A lot going on this month. New rates and consultations regarding NLW and NMW, new requirement for immigration scale-up route, an update on the Retained EU Law Bill and discussions over the definition of ‘sex’ under the Equality Act. Meanwhile, there is a review into whistleblowing law, an inquiry into seasonal worker visas, a blog on loneliness in the workplace, and a review relating to the work prospects of autistic people.

Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
Whistleblowing: Government launches whistleblowing law review
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
Welfare: Glassdoor reveals survey findings on employee loneliness
Disability: DWP publishes new review to increase work prospects of autistic people
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations

SI 2023/354: These Regulations are made to amend the National Minimum Wage Regulations 2015, SI 2015/621. They come into force on 1 April 2023 and increase:

the rate of the national living wage for workers who are aged 23 or over from £9.50 to £10.42 per hour
the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 23) from £9.18 to £10.18 per hour
the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.83 to £7.49 per hour
the rate of the national minimum wage for workers who are under the age of 18 from £4.81 to £5.28 per hour
the rate for apprentices within SI 2015/621, reg 5(1)(a) and (b) from £4.81 to £5.28 per hour
the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £8.70 to £9.10 for each day that accommodation is provided

The Low Pay Commission (LPC) has published a consultation seeking views on the impact of National Living Wage (NLW) and National Minimum Wage (NMW) increases for 2024. The NLW is expected to rise to between £10.90 and £11.43 in 2024. The information gathered will be used to inform the LPC’s recommendations to the government in the Autumn. The consultation closes on 9 June 2023 at 11:45pm.

See also our updated Facts and Figures for 2023

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Whistleblowing: Government launches whistleblowing law review

On 27 March 2023, the government published a press release confirming that they have launched a review of the whistleblowing framework. The press release states that the review will gather evidence on the effectiveness of the current whistleblowing regime in enabling workers to speak about wrongdoing and protect those who do so. The press release confirms that the evidence gathering stage of the review will end in Autumn 2023. The review will pursue views and evidence from whistleblowers, key charities, employers and regulators.

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Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route

The Home Office has updated its sponsor guidance in relation to the Scale-up route. Notably, it confirms that an ‘endorsing body pathway’ is being launched, on 13 April 2023, for prospective employer applicants who do not meet the sponsor licence eligibility requirements (eg ‘if their HMRC history is not long enough’). As an alternative, prospective sponsors will be able to obtain an endorsement from a Home Office-approved endorsing body and submit this with the licence application (which must be made no more than three months from the date of endorsement). The guidance confirms that the endorsement process will attract a fee, and further details will be published in due course. Other changes include a new Annex SC2, setting out the changes to the route from 12 April 2023, in line with the Statement of Changes in Immigration Rules HC 1160.

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Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa

The Chair of the Migration Advisory Committee (MAC), Professor Brian Bell, has published a letter written to the Minister of State for Immigration, Robert Jenrick, regarding an inquiry into the Seasonal Worker visa. The inquiry will consider the rules under which the scheme operates, the size and costs of the scheme, the potential for exploitation and poor labour market practice, evidence from international comparisons and the long-run need for such a scheme. Bell has also confirmed that MAC will be working with the Department of Environment, Food and Rural Affairs (DEFRA) during the inquiry.

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Welfare: Glassdoor reveals survey findings on employee loneliness

Glassdoor has published a blog with insights from its new study which surveyed 2,000 employees to understand the levels of employee loneliness in the UK. The blog reveals the impact of poor workplace social life and the importance of workplace friendships to retaining staff.

Key findings include:

six in ten people with less than five years of work experience are lonely all or most of the time
only 51% of employees connect socially with colleagues at least once a month
28% of workers under 35 would stay in a job they did not like if the workplace social life was good
89% of workers believe feeling a sense of belonging with their company is vital to their overall workplace happiness
nearly 49% of workers say a good social life has a significant impact on their overall job satisfaction and mental health

Common reasons for workplace loneliness include less in-person interaction with co-workers, inflexibility in the workplace, and a lack of focus on creating a sense of belonging or community by an employer.

Glassdoor reveals that without a good workplace social life, workers are more likely to be less productive and engaged. They are also more likely to experience stress, anxiety and eventually burnout.

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Disability: DWP publishes new review to increase work prospects of autistic people

The Department for Work and Pensions (DWP), supported by the autism charity Autistica, has launched a review, the Buckland Review of Autism Employment, to increase the employment prospects of autistic people. The review, which will be led by Sir Robert Buckland KC MP and start in May 2023, will consider how the government can support employers to recruit and retain autistic people and enjoy the benefits of a neurodiverse workforce. Recommendations for change will be made to the Secretary of State in September 2023.

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Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum

The House of Commons has released a research briefing on autism, policy and services. The briefing sets out the Department for Work and Pensions’ annual set of statistics on the employment of disabled people, which reports that the lowest rates of employment among disabled people are those on the autism spectrum.

In the 2020–21 financial year, 26.5% of disabled people on the autism spectrum were in employment, compared to 52.5% of all disabled people and 80.4% of non-disabled people in the same period. In 2016, the National Autistic Society reported that 77% of unemployed people with autism wanted to work.

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Brexit: An update on the Retained EU Law (Revocation and Reform) Bill

Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. This Act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. The Bill would automatically revoke, or ‘sunset’, most retained EU law at the end of 2023. This would not apply to retained EU law that is domestic primary legislation.

Ministers and devolved authorities could exempt most (but not all) retained EU law from the sunset, and UK ministers (but not devolved authorities) could delay the sunset until 23 June 2026 at the latest for specific descriptions of retained EU law. Any retained EU law that still applied after the end of 2023 would be renamed as assimilated law. The Bill would give ministers and devolved authorities powers to restate, reproduce, revoke, replace or update retained EU law and assimilated law by statutory instrument.

The Bill would also repeal the principle of supremacy of retained EU law from UK law at the end of 2023, although its effects could be reproduced by statutory instrument in relation to specific pieces of retained EU law. The Bill would also make changes to the way that courts could depart from retained EU case law.

The Bill would change the way that some types of retained EU law can be modified. It would ‘downgrade’ retained direct EU legislation so that this could be amended by secondary legislation. It would also remove additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation.

The government has published a ‘dashboard’ of retained EU law, although it acknowledges this is not a comprehensive catalogue of all retained EU law that may be in scope of the Bill. The dashboard is due to be updated regularly.

Concerns have been raised throughout the Bill’s progress about the amount of retained EU law to be reviewed before the sunset deadline and whether some may end up being revoked inadvertently. In the Commons, MPs expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the Bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. They were also critical of a lack of parliamentary scrutiny of and input into the process of reforming retained EU law. However, the only amendments made to the Bill in the House of Commons were government amendments to clarify the Bill’s drafting.

The Bill is now with the House of Lords. Five days of Committee proceedings—when a Bill is examined in detail—concluded on 8 March 2023.

Over the five days, Peers put forward many amendments to the Bill on a range of subjects. Opposition peers were scathing in their comments on the Bill. For example, Baroness Ludford (LD), said the Bill was ‘pretty hopeless’ and accused the government of adopting a ‘slash and burn’ approach to legislative reform, with opposition amendments seeking to bring to it ‘some rationalisation and order’. For the government, Lord Callanan, said, on the contrary, a ‘significant minority’ of retained EU law was ‘legally inoperable’ and that it was ‘not good governance’ to subject it to ‘complex and unnecessary parliamentary processes’ before being able to remove it from the statute book. He added that the amendments, including those seeking to delay the sunset, would ‘hamper efforts to realise the opportunities the Bill presents’.

The Bill has come out of Committee stage in the Lords with amendments, including the insertion of a new clause setting out exceptions to the sunset of REUL, and it seems likely that further amendments will be made at Report stage. It is noteworthy that at Second Reading in the Lords a significant number of Conservative peers spoke against the Bill. The level of opposition expressed by peers from all parties indicates that it may not be straightforward for the government to get the Bill into law. It seems likely that the government will need to accept at least some of the Lords’ amendments if it wishes to avoid a lengthy period of ‘ping pong’ between the Lords and the Commons.

In contrast to the approach being taken in respect of much retained EU law, the House of Lords is, in parallel, scrutinising the Financial Services and Markets Bill, which would similarly revoke retained EU law relating to financial services, but contains developed provisions which enable the Treasury and financial services regulators to replace that EU Law with legislation designed specifically for UK markets.

Report stage on the Bill—a further chance for the House of Lords to closely scrutinise elements of the Bill and make changes—began on 19 April 2023.

Authors: David Mundy, Aaron Nelson, and Joanna Purkis at BDB Pitmans, for LexisNexis.

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Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

On 21 February 2023, the Minister for Women and Equalities, Kemi Badenoch, requested advice from the Equality and Human Rights Commission (EHRC) regarding the definition of the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA 2010). EHRC have provided an initial response to the Minister’s request namely suggesting that the UK government carefully consider implications any change to the legislation could have.

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 – April 2023

Employment,
25th April 2023

Employment Law

The devil is in the detail. This month’s case updates include recusing an EAT member for apparent bias to ensure impartiality, upholding a procedural system so that mass litigants could not be removed from an equal pay case, and taking a look at the detail of restrictive covenants, to reduce the effect where it was too fantastical to be valid.

Tribunals: EAT lay member recused due to appearance of bias
Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

Tribunals: EAT lay member recused due to appearance of bias

In Higgs v Farmor’s School and the Archbishops’ Council of the Church of England [2023] EAT 45, the EAT allowed the appellant’s application for the recusal of a lay member from hearing the instant appeal against the respondent. The appellant had filed for an application for the recusal of the lay member, AM, from the hearing of the appeal based on apparent bias. It was alleged that AM’s former position as Assistant General Secretary of the National Education Union (NEU), when that entity was campaigning on matters of educational policy, had publicly expressed clear views, on the opposite side of a heated debate to the position of the appellant. The respondent did not consent to the application for recusal.

The court held, among other things, that a reasonable and well-informed observer would not see AM as an impartial judge for the appeal. Accordingly, applying the test of the fair-minded and informed observer (Porter v Magill), there was an appearance of bias such that the lay member should be recused from hearing the appeal.

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Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim

In Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386 the Court of Appeal, Civil Division, dismissed the appeal brought by the appellant, a supermarket company, from a decision which had allowed the respondents’ appeal and reinstated their claims. In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included the appellant and other well-known retailers. The case involves two separate but related equal pay claims against Sainsbury’s Supermarkets Ltd and Lloyds. One was brought by women seeking equal pay to male staff and another that would ensure men’s pay does not fall below the women’s if the first claim succeeds.

The claims had generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The appellant alleged that the judge had erred in law in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected large numbers of those claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service relating to early conciliation (EC) of their claims.

The court held, among other things, that the judge’s construction of rule 10 was the correct one. A panel of three judges in the Court of Appeal unanimously ruled that the attempt by Sainsbury’s to remove the majority of claimants in the 865-person lawsuit because their names were not listed in early-stage paperwork was “highly technical” and lacked “any substantive merit”. While a claim form should contain the name and address of each claimant and each respondent, it was sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared. There was no suggestion the 700 workers had failed to follow the correct procedure, Lord Justice Bean held.

“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claim”’, Lord Justice Bean wrote. “The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number”.

Tribunal rules requiring claimants to provide this information are a “preliminary filter” rather than an opportunity to strike out a claim, he added. “I do not accept…that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the star”’, Lord Justice Bean ruled.

Accordingly, the Court upheld the EAT’s decision in the respondents’ favour for a more fundamental reason relating to the structure and wording of the Rules of Procedure.

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Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

The Court of Appeal in Boydell v (1) NZP Limited and (2) AI ICE (Luxembourg) Midco S.A.R.L. [2023] EWCA Civ 373, was tasked with considering whether a restrictive covenant that covered what it needed to and what had been contemplated by the parties, but also unintentionally covered other areas (described as “fantastical”) and which had not been contemplated, can it still be valid?

Dr Boydell worked for NZP Ltd, a specialist pharmaceutical business covering a niche area of the pharmaceutical industry described in summary as the development, production and sale of bile acid derivatives for sale to pharmaceutical companies for use by them in their products and is part of the ICE Pharma Group of companies (the second defendant being the ultimate holding company). His contract of employment included a non-competition covenant preventing him from working in any capacity for any competing businesses of either NZP or any of its group companies.

NZP and ICE sought to enforce two sets of restrictive covenants. One set, contained in a variation to the Appellant’s employment contract, ran for one year from the termination of his employment. The other set, contained in a shareholder’s agreement ran for two years. The judge granted an interim injunction enforcing the one year covenants in the employment contract until the trial, with some modifications but refused to enforce the two year restrictions in the shareholder’s agreement (which the companies did not seek to appeal). In doing so, the Judge severed certain parts of the clause, including removing the reference to other group companies. This decision was appealed by NZP who argued that the Judge could not use severance to significantly change the effect of the restraints.

The Court of Appeal disagreed and held that if a clause covers what it needs to and what was contemplated but also unintentionally covers areas which are “fantastical” (Home Counties Dairies Ltd v Skilton) then it may still be valid. If there are two realistic constructions then the court should rely on the one which would result in a valid clause. This meant that, by severing the references to group companies (which were “fantastical”), the Judge had not significantly changed the overall effect of the clause.

Lord Justice Bean (at para.30) said, “The whole burden of the clause is directed to the specialist activities of NZP, which it lists at some length. The judge was entitled, at least at the interim injunction stage, to sever the words from the clause and grant an injunction on a more limited basis. There is a serious question to be tried as to whether other group companies have significant areas of business which are wholly distinct from the activities carried out by NZP. I would, however, refuse Ms Stone’s application for permission to cross-appeal against the judge’s decision to sever the relevant words from clause 3.1.”

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Employment Law General Update – March 2023

Employment,
27th March 2023

Employment Law

This month the news focuses on some key employment announcements from the Spring budget, changes to work checks guidance, a new proposed UK version of GDPR and a proposed right to request a more predictable working pattern. Lastly a new government employment champion has been announced to urge businesses to take action on the menopause.

Spring Budget 2023: Key Employment Announcements
Immigration: Revisions made to right to work checks guidance
GDPR: Government announces new UK version of GDPR
Working Practices: Proposed new statutory right to request a more predictable working pattern
Menopause: Czar urges businesses to step up on policies

Spring Budget 2023 – Key Employment Announcements

In the Spring Budget 2023, delivered on 15 March 2023, the Chancellor of the Exchequer, Jeremy Hunt, announced a series of measures intended to support the UK workforce. Among the announcements were the introduction of a new Health and Disability White Paper on how to provide support and opportunities for workers with disabilities, the planned abolition of the lifetime allowance to encourage workers over 50 to stay in employment, the reiteration of government support for Private Members’ Bills providing unpaid carers with additional leave, parents with greater protections against redundancy, and parents of children in neonatal care with paid statutory leave, and commitments to encourage and facilitate flexible working arrangements between employers and employees.

In respect of immigration, Jeremy Hunt announced measures to tackle immediate labour shortages and ease business visits to the UK and further support for those who have come to the UK through the Ukraine Visa Schemes. Building off the Autumn Statement 2022, the Budget confirmed the government’s plan to deliver on three of the five key priorities set out by the Prime Minister in January: to halve inflation, reduce debt and grow the economy. The Spring Budget 2023 lists employment, education and enterprises as priorities for delivering on growth and building a high wage high skill economy.

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Immigration: Revisions made to right to work checks guidance

The Home Office has updated its guidance for employers carrying out right to work checks. The guidance was updated late in the day on 28 February 2023 to reflect legislative changes and current practice. Examples include clarifying that employers should carry out on an online check for those with a pending Home Office application, administrative review or appeal, circumstances in which an employer should contact the Employer Checking Service and what employers should do if they are presented with a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024. Similar changes have been made, on the same day, to the right to rent checks guidance for landlords.

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GDPR: Government announces new UK version of GDPR

The UK government has announced that British businesses will save billions of pounds through a new version of GDPR, which will replace the EU’s data protection laws after Brexit. The new law will allow UK businesses to avoid costly compliance fees and will maintain high levels of data protection for consumers. The changes are expected to provide a boost to the UK economy and enhance the UK’s reputation as a leader in data protection.

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Working Practices: Proposed new statutory right to request a more predictable working pattern

The Workers (Predictable Terms and Conditions) Bill (the Bill) proposes to give eligible workers a new statutory right to request a more predictable working pattern. This follows the Taylor review of modern working practices and the resulting 2018 Good Work Plan in which the government committed to introduce policies to end ‘one-sided flexibility’. Eligible workers (not just employees) will have the right to make a request where:

there is a lack of predictability as regards any part of their work pattern (the work pattern being the number of working hours, the days of the week and the times on those days when the worker works, and the length of the worker’s contract)
the change relates to their work pattern
their purpose in applying for the change is to get a more predictable work pattern

An application must state that it is a request for a more predictable working pattern, and specify the change applied for and the date on which it is proposed it should take effect.

The Bill does not contain other earlier government commitments to introduce a right to reasonable notice of working hours and compensation for shifts cancelled without reasonable notice.

A worker can only apply for a change to their working pattern if they have been employed by the same employer (whether or not under the same contract) at some point during the month immediately preceding a ‘prescribed period’ (this will be specified in regulations and is expected to be 26 weeks ending with the date of the application). There is no requirement for the service to be continuous.

A worker can only make two applications in any 12-month period. This includes any application under the flexible working provisions if that request is for a change which would result in a more predictable contract.

The Bill contains a similar set of rights for agency workers:

an agency worker may be able to apply to a temporary work agency for a more predictable working pattern where they have had a contract with the agency at some point in the month immediately before a ‘prescribed period’ (to be set out in regulations)
if the agency worker has worked for a hirer in the same role continuously for 12 weeks (within a period of time which will be set out in regulations) they may also be able to apply to the hirer for a contract of employment, or other worker’s contract, which is more predictable than their current working pattern

There is no definition of ‘predictability’ in the Bill. It does, however, specifically state that workers on a fixed term contract of 12 months or less may request that the term is extended or becomes permanent. Other than that, it seems that a ‘lack of predictability’ will cover any worker whose hours or days vary in a way which provides them with uncertainty, such as:

casual/zero hours workers without a guaranteed number of hours
annualised hours workers if the employer has discretion over the working pattern
workers whose hours are determined by a shift pattern or rota, where that pattern/rota varies unpredictably

In many ways the process for dealing with requests reflects the flexible working regime. There is no obligation on the employer to agree to a request, but they must deal with the application in a reasonable manner and respond within one month. An employer can only reject an application for one or more of the specified reasons, which are:

the burden of additional costs
detrimental effect on ability to meet customer demand
detrimental impact on the recruitment of staff
detrimental impact on other aspects of the employer’s business
insufficiency of work during the periods the worker proposes to work
planned structural changes

If the worker’s contract terminates during the one month ‘decision period’ the requirements still apply. However, there are then some additional acceptable grounds for refusing a request such as the employer having acted reasonably in dismissing for misconduct or redundancy. A worker will be able to bring an employment tribunal claim if an employer fails to follow the requirements set out above which, if the claim is successful, could result in an order for reconsideration of the request or compensation. The amount of compensation will be set by regulations and could be limited to eight weeks’ pay as it is under the flexible working regime.

There is no timetable for implementation yet and, as noted above, some of the detail of how the right to request will operate in practice still has to be set out in separate regulations.

The new right will have the most impact in sectors where the use of casual workers and changeable shift patterns/rotas is widespread, and on businesses using short fixed-term contracts or agency workers. It is likely to lead to an increased focus on how best to manage these type of working arrangements.

The Bill only provides for the right to ask for a more predictable working pattern, not a right to a predictable working pattern. However, organisations which engage individuals on unpredictable working patterns will need to establish policies and procedures to deal with requests. They should also be aware that, if employment status isn’t clear, an individual might claim worker status while making an application for a more predictable working arrangement

(Content provided to Lexis-Nexis by Julie Keir, practice development lawyer at Brodies LLP.)

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Menopause: Czar urges businesses to step up on policies

Helen Tomlinson, England’s first-ever menopause employment champion has called on businesses to develop policies and to normalize discussing the subject, saying that she has witnessed ‘the transformational power’ that talking about the health condition can have in a workplace. The Department for Work and Pensions (DWP) announced on 6 March 2023 that it had appointed Tomlinson to the post to raise awareness about the health condition. Tomlinson will also aim to encourage more employers to develop policies so women who experience symptoms are better supported, the DWP added. Tomlinson said that fewer than a quarter of UK businesses ‘currently have a menopause policy, but as I take on this role, I am determined that my generation of women in work will break the menopause taboo and have confidence that their health is valued’.

The DWP said that she will raise awareness of menopause, while promoting the benefits for businesses and the economy when women are supported to stay in work. Her role could also include advising employers about ‘small but significant’ changes they can make to the workplace, including offering women experiencing the symptoms of menopause more regular breaks and creating cooler spaces in offices, the DWP added.

The announcement of Tomlinson’s appointment came after the DWP had previously published official responses to two reports on menopause and the workplace. Tomlinson is Head of Talent in the UK and Ireland at the human resources provider Adecco Group. She was appointed to the role on a voluntary basis by the DWP, where she will work closely with Mims Davies, the Minister for Social Mobility, Youth and Progression. Davies said that menopause is a major reason that too many women leave the workforce early, often when they are at the peak of their skills and experience with so much more still to contribute. Tomlinson will also work closely with Lesley Regan, who was appointed as the government’s first women’s health ambassador in 2022.

According to the DWP, a quarter of women report that they have considered leaving their job due to experiencing menopause. Not all women experience symptoms that stop them from working, but research suggests that those with serious menopausal symptoms take an average of 32 weeks of leave from work over the length of their employment.

Many women tend to suffer in silence during perimenopause and menopause. Seeing this subject acknowledged at government level, gives hope that it will inspire businesses to do the same – educating and raising awareness about menopause-related issues, whilst also providing assistance and support to those who need it.

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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 Case Update – March 2023

Employment,
27th March 2023

Employment Law

A round-up of the most significant employment law cases to be published over the last month regarding unfair dismissal and determining the date the contract was terminated, considering how an employee’s disabilities may have affected his conduct, respecting privacy through restricted reporting at tribunals and a look at how the ICO and Easylife settled a monetary penalty for unlawful data processing.

Unfair Dismissal: Determining the effective date of termination of the contract
Disability Discrimination: Determining whether an employee’s disabilities had had an effect on his conduct
Restricted Reporting: Anonymity in hearing cases in the tribunals
Data Protection: ICO and Easylife reach agreement regarding monetary penalty

Unfair Dismissal: Determining the effective date of termination of the contract

In Meaker v Cyxtera Technology UK Ltd [2023] EAT 17 the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal, concerning the correct approach, in law, to the calculation of the effective date of termination of employment (EDT), pursuant to s.97 of the Employment Rights Act 1996 and for the purposes of a complaint of unfair dismissal. The employee appealed after his unfair dismissal claim was struck out as being out of time. The employer argued that the determination of the EDT was not governed by contractual principles and that, where an employee was dismissed in breach of contract, the EDT was the date on which the dismissal was communicated, regardless of whether he accepted it.

The EAT ruled that the employment tribunal (the ET) had not erred in holding that a letter, which the employer had sent to the employee in February 2020, was a termination letter; and that the effective date of termination, for the purposes of the unfair dismissal claim, was the date of receipt of that letter, even if it had been a repudiatory breach that had not been accepted by the claimant at common law. The EAT held that it was not bound to conclude that the meaning of the letter was rendered ambiguous by the fact that the opening paragraph of the relevant settlement agreement had referred to termination being effected by mutual agreement; and that the ET had been entitled to take the view that, even where there had been no mutual agreement, the termination (by the letter) had been clear.

The EAT ruled that there was no sign in the authorities that it was considered that the EDT would only be the date of a repudiatory breach if the contract had, in fact, been brought to an end by the employee accepting that breach. Further, the EAT held that the ET had not erred in holding that the employee had not shown that it had not been reasonably practicable for him to have presented his unfair dismissal complaint in time.

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Disability Discrimination: Determining whether an employee’s disabilities had had an effect on his conduct

In McQueen v General Optical Council [2023] EAT 36, the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal against the employment tribunal’s (the ET’s) decision, dismissing his claim which alleged unfavourable treatment by the respondent employer because of something arising in consequence of a disability, pursuant to s.15 of the Equality Act 2010 (EqA 2010). The employee had dyslexia, some symptoms of Asperger’s Syndrome, neurodiversity and left sided hearing loss, which had caused some difficulties with his interactions in the workplace. The employer, which was the statutory regulator of optometrists and opticians practising in the UK, had employed the employee as a registration officer. The employee had had ‘meltdowns’ at work, which had led to disciplinary proceedings. Subsequently, he had left that employment.

The employee contended that: (i) the ET had misapplied the broad test of causation required where a claim under s.15 was being considered, in that its reasoning had been contrary to the psychiatric and psychological evidence; (ii) the disability did not, necessarily, need to be the sole or even main reason for the ‘something’ that arose in consequence of it; (iii) the employer had, itself, linked the employee’s behaviour to his disabilities; and (iv) in considering whether there had been discrimination of the kind where ‘A treats B unfavourably because of something arising in consequence of B’s disability’ (EqA 2010 s 15(1)(a)), the ET had failed to appreciate that the words ‘in consequence of’ were, at least, as broad as the ‘because of’ test.

The EAT held that, although it had reservations about the structure and quality of the ET’s decision and reasoning, the ET had not erred in law or principle in the application of s.15 to the facts; and that it had not adopted too strict a test of causation when considering the effects of the employee’s disabilities. The correct reading of the decision was that the ET had found that those effects had not played any part in the conduct that had led to the unfavourable treatment complained of. The EAT held that, once the ET had determined that the employee’s disabilities had not had any effect on his conduct on the occasions in question, the further question whether any unfavourable treatment had been ‘because of’ that conduct had not arisen.

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Restricted Reporting: Anonymity in hearing cases in the tribunals

In A v Choice Support (Formerly MCCH Ltd) [2023] EAT 18, the Employment Appeal Tribunal (the EAT) ruled on the respondent’s application, pursuant to r.19 of the Employment Appeal Tribunal Rules 1993, SI 1993/2854, to make permanent a temporary restricted reporting order which had been made at the EAT level, pursuant to r.23 of the 1993 Rules, and arising out of s.11 of the Employment Tribunal’s Act 1996 (the Act), and in line with an order made by the employment tribunal (the ET) pursuant to r.50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, SI 2013/1237 (r.50) and s.11 of the Act. The application arose in circumstances where the respondent provided support to vulnerable adults, and the employee alleged that an individual (EA), with whom she had worked at the same property, had raped her.

The EAT held that: (i) r.50 set out a much broader discretion beyond s.11 of the Act; (ii) the orders should make specific reference to which elements of s.11 and/or r.50 the relevant decision was applying; (iii) the distinction between anonymity orders and restrictions on reporting should clearly be separate parts of any such order, setting out whether they were made pursuant to the section or on broader grounds; (iv) if there was concern about jigsaw identification, any order should be made in terms which clearly prohibited publication of any particular detail of the case facts which it was thought might lead to identification; and (v) a restricted reporting order should only be made (and made permanent) when a less restrictive order would not suffice.

The EAT held that the employee should remain anonymised, that EA’s rights under art 8 of the European Convention on Human Rights had been engaged and that, as ‘a person affected’, he should be anonymised and that, because of the risk of jigsaw identification, EA’s parents should remain anonymised. Further, the EAT ruled that the anonymisation should be made the subject of a permanent order.

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Data Protection: ICO and Easylife reach agreement regarding monetary penalty

The Information Commissioner’s Office (ICO) has reached an agreement with Easylife Ltd (Easylife) to reduce the monetary penalty notice to £250,000 for breaching the UK General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR). Easylife has accepted the ICO’s findings as set out in the monetary penalty notice and has agreed to pay the reduced fine. This follows the ICO’s fine to Easylife on 4 October 2022, where an investigation found that Easylife was making assumptions about customers’ medical conditions, based on their purchase history, to sell further health related products. This was deemed to involve processing of a special category data without a lawful basis, where Easylife has since stopped the unlawful processing of special category data.

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Employment Law General Update – February 2023

Employment,
27th February 2023

Employment Law

We bring you a month of reports and inquiries. Two reports from a think tank and the IES into how women’s finances are affected by their working life and what impact this can have on the gender pension gap. A new Bill has been given government backing to give zero hours workers more certainty by requesting a more predictable work pattern. A troubling and impactful inquiry has been published into the TSSA, with stark consequences, and a study finds that despite having whistleblowing policies in place, many require better implementation and training.

Pensions: Think tank publishes two reports on the gender pension gap with recommendations
Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
Trade Unions: Inquiry finds Sexual harassment rife at TSSA
Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds

Pensions: Think tank publishes two reports on the gender pension gap with recommendations

Two reports from think tank Phoenix Insights and the Institute for Employment Studies (IES) exploring women’s finances through the lens of the workplace, set out a number of recommendations to assist women’s ability to save thereby closing the gender pension gap. The gender pay gap already disadvantages women’s future finances because it means they are more likely to contribute less to their retirement savings than their male peers. The research found that this disparity is made worse by life events, including motherhood, menopause, divorce, childcare, menstruation and caring responsibilities which can all disproportionately affect a woman’s earnings, and therefore pension contributions.

Some of the key findings in the reports include that the gender pay gap is a significant contributor to the gender pension gap, yet women on average contribute a larger proportion of their salary to their pension. On average, women are contributing a higher percentage of their monthly income into their pension than men up until middle age – 6.1% compared to 5.8% aged 35-44 by middle age – where care responsibilities fall to one in four women in the UK – men are paying almost £80 more per month into their pension than women. Women are more likely than men to fall under the auto-enrolment threshold (women 35% : men 11%). Automatic enrolment closed the contribution gap in participation but increased the gap in terms of contribution. Women are more likely to be economically inactive due to long-term health conditions than men. There is limited awareness among employers of the causes and consequences of the gender pension gap, resulting in a lack of action over and above the statutory minimum allowances that seek to improve the savings capacity of women across the different life stages.

The think tank report recommends employers should be required to inform employees about the pensions impact that changes to their working hours and earnings may have, to help close the gender pension gap.

The opportunity for employers – five key recommendations:

re-enrol workers into pension schemes annually, rather than the statutory three years, to give workers the opportunity to re-engage if they have taken career breaks or have opted out because of a lack of affordability
ensure employer pension contributions continue during periods of parental leave
adopt a minimum of five days unpaid leave per year for those with childcare responsibilities, and where possible, five days paid carer’s leave
make flexible working the norm from day one and highlight this across all job roles
ensure workplace health policies offer explicit and visible support for reproductive conditions such as miscarriage, fertility treatment, for those diagnosed with endometriosis and managing menopause symptoms

The role of government – five key recommendations:

legally require employers to provide information on how contractual changes impact pension contributions
revisit the Carer’s Leave Bill to ensure that unpaid careers can access up to ten days statutory paid leave
the legal right to flexible working should be available from the first day of employment, and the number of reasons to reject flexibility should reduce from eight to two
widen the coverage of auto-enrolment by lowering age and earnings eligibility threshold to 18 years and £0, respectively
review the advice and guidance boundary so that a larger population can access tailored and reliable financial support

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Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern

The Department for Business, Energy & Industrial Strategy (BEIS) has announced that the government is backing Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill. The Bill seeks to ensure that all employees, even agency workers, receive more predictable working patterns.

‘Hard working staff on zero hours contracts across the country put their lives on hold to make themselves readily available for shifts that may never actually come’ said Labour Markets Minister, Kevin Hollinrake. ‘Employers having one-sided flexibility over their staff is unfair and unreasonable. This Bill will ensure workers can request more predictable working patterns where they want them, so they can get on with their daily lives.’ The Bill provides that if an employee’s existing working pattern lacks certainty in terms of the hours they work, the times they work, or if it is a fixed term contract for less than 12 months, they may make a formal application to change their working pattern to make it more predictable. The move comes as part of a package of policies designed to further workers’ rights, such as:

paid neonatal care leave
requiring employers to ensure that all tips, gratuities, and service charges are paid to workers in full
entitling unpaid carers to a period of unpaid leave
providing employees with a day one right to request flexible working, and a greater say over when, where, and how they work

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Trade Unions: Inquiry finds sexual harassment rife at TSSA

A misogynistic, ‘mafia-like’ culture of sexual harassment, bullying and violent language has permeated one of Britain’s transport unions, a new independent inquiry has revealed. An investigation by Baroness Helena Kennedy KC into the Transport Salaried Staffs’ Association (TSSA) concluded on 8 February 2023 that ‘there has been sexual harassment, discrimination and bullying within the TSSA and that the leadership and culture has enabled these behaviours through wilful blindness, power hoarding and poor practices’.

Kennedy’s report called for sweeping changes in an organisation where absolute power was concentrated in ‘a very small number of hands’, and called for new leadership at the TSSA. The TSSA opened the investigation in September 2022 after its General Secretary at the time, Manuel Cortes, was accused of sexual harassment by several women. Cortes, who has since retired with an undisclosed payout, denies the allegations. Kennedy pointed out in her report that neither the internal leadership of the TSSA nor the executive committee understood that to say they had not witnessed inappropriate behaviour is not an acceptable response to an ‘atmosphere of fear’ and an environment of ‘open secrets’.

Only two of the 50 people who volunteered to speak to Kennedy as she carried out her inquiry had any positive words to say about the TSSA’s culture, according to her report. The rest described a ‘dysfunctional’ and ‘mafia-like’ culture across the TSSA. The organisation was sexist, racist and homophobic, they said.

Kennedy said that a ‘distressing element’ of her inquiry was realising how little senior leaders at the TSSA seemed to have ‘moved with the times’. Their approach to management was ‘controlling’ and described by many staff members as bullying. The barrister said that, combined with governance failings, meant the ‘outdated attitudes of scepticism and disbelief of women’ formed a ‘dangerous mixture’.

Kennedy noted that the recent history of ‘wage suppression’, particularly in the public sector, and the ‘casual erosion of employment rights’ through precarious work points to an urgent need for healthy trade unions. She recommended a sweeping change of leadership, a realistic time-frame for reform and ‘serious investment of time in culture change’ to make a success of the TSSA.

TSSA said in response that the report made ‘difficult reading’ and highlighted serious problems that the union had to tackle. A spokesperson said the TSSA recognised the need for sweeping reform and stated its commitment to tackle institutional issues and drive through a culture change. ‘As a union, TSSA fights for equality, fairness and social justice for all, regularly winning on equality issues for our members’, the spokesperson said. ‘But it is clear from this report that our union has not followed the values we aspire to for our members.’

The President and Treasurer of the TSSA have stood down with immediate effect and interim replacements had been appointed, the spokesperson added. The TSSA has confirmed it is committed to take comprehensive, considered and meaningful action to address [the report’s] findings, and to enable the necessary further investigation and decisions to be made, the TSSA has suspended all five senior members of staff named in the report, including former General Secretary, Manuel Cortes.

Responding to the report, the TUC stated that ‘sexual harassment and bullying have no place in the trade union movement or any workplace. The TUC believes the women who came forward to share their experiences’. The TSSA have been asked to meet with the TUC General Secretary and the TUC President to discuss next steps.

The Kennedy report comes after a similar 2020 investigation into the GMB, conducted by Karon Monaghan KC, concluded that the GMB is institutionally sexist, and bullying, misogyny, cronyism and sexual harassment are endemic within the GMB.

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Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds

On 16 February 2023, an article by People Management reported that a study by whistleblowing and compliance services provider Safecall, which surveyed HR managers and directors from 222 organisations, found that that while 17 per cent of respondent organisations lacked a whistleblowing policy, the majority (83 per cent) did have one in place, and for those companies that provide internal whistleblowing services, only 58 per cent of their investigators had been formally trained.

The report also discovered:

more than two fifths (42 per cent) of employees responsible for managing whistleblowing complaints have either self-taught, learned their skills through experience, or have no experience at all
more than half (57 per cent) of HR professionals surveyed believed that their employees were actively encouraged to report wrongdoing.
however, just 42.6 per cent said employees “generally feel safe” to do so,
the majority (74 per cent) of HR professionals could not be certain that whistleblowers were confident in raising concerns, and
one in five (20 per cent) organisations have whistleblowing processes that their employees would find to be “highly untrustworthy”.

The article goes on to discuss various aspects of having whistleblowing policies. A policy that emphasises how employees can bring matters to their employer’s attention, which may help employers avoid or at least reduce the risk of employment claims by increasing the likelihood that disclosures will be readily identified as qualifying as a protected disclosures.

However, problems arise where there is a fundamental lack of trust between an organisation and its workforce. Having a whistleblowing policy that ensures there is a clear procedure that must be followed by all staff when a complaint is made can support businesses in fostering a transparent and open company culture. The policy should also demonstrate that staff should not be victimised or subjected to any detrimental treatment as a result of bringing a complaint.

Last year, legal experts warned HR professionals of the consequences of workers whistleblowing on their former and current employers for coronavirus job retention schemes, with law firm Pinsent Masons reporting that 13,775 furlough fraud whistleblowing reports were made to HMRC.

Meanwhile, a previous People Management report found that one in five (20 per cent) employees who had gone to their bosses with concerns over furlough fraud and breaches of Covid-19 safety rules were sacked as result.

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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 Case Update – February 2023

Employment,
27th February 2023

Employment Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 2023

Employment,
24th January 2023

Employment Law

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

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

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

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

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

Challenge 1: Supporting employees with cancer

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

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

Challenge 2: Ongoing NHS delays

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

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

Challenge 3: Soaring work-related illness

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

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

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

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

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

• health services

• fire and rescue services

• education services

• transport services

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

• border security.

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

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

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

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

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

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

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

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

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

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

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

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

Further Information:

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

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Employment Law Case Update – January 2023

Employment,
24th January 2023

Employment Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Discrimination: Narrow test for marital status discrimination confirmed

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

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

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

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

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

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

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

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

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

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Data Protection: Misuse of private information and abuse of process

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

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

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

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

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

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Further Information:

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

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

Employment,
19th January 2023

Employment Law

The purpose of this Information Note

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

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

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

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

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

How long will it take?

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

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

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

The work we will do for you

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

Key stages

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

Our pricing

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

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

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

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

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

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

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

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

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

Additional costs – Attendance at an Employment Tribunal Hearing

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

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

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

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

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

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

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

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

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

Additional costs – Excluded items

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

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

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

Funding of costs – Employment dispute cover

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

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

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

Version: 5

Effective Date: 01 January 2023

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Employment Law General Update – December 2022

Employment,
12th December 2022

Employment Law

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

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

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

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

Measures to be implemented by the government include:

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

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

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

1. Leaders take charge

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

2. Challenge negative office cultures

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

3. Close the gap and be transparent

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

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

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

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

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

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

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

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

To read the article in full, click here.

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Inclusion: Socio-Economic Diversity taskforce publishes class barrier report

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

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

1. Leadership

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

2. Assess

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

3. Take action

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

4. Set goals

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

5. Publish

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

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

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

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

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

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Company Cars: Advisory fuel rates from 1 December 2022

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

Further Information:

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

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Employment Law Case Update – December 2022

Employment,
12th December 2022

Employment Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Further Information:

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

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Employment Law General Update – November 2022

Employment,
28th November 2022

Employment Law

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

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

Gender Pay Gap: ONS 2022 gender pay gap data published

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

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

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

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

Other trends seen in 2021 remain:

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

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

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

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

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

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

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

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

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

ACAS advises that employers:

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

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

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

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

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

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

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

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

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

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

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

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Leave: Government backs Carer’s Leave Bill

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

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

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

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

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

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

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

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

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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 2022

Employment,
28th November 2022

Employment Law

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

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

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

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

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

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

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Settlement Agreements: Unknown future claims cannot be settled in advance

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

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

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

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

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

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

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

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

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

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

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Unions: Supreme Court to hear bid to protect striking workers

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

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

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

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

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

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Indirect Discrimination: What constitutes too narrow a pool for comparison?

Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic

Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes

Directors: Disqualification order for director who failed to protect funds and keep proper accounting records

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Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets

Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work

Managing stress at work:

Making reasonable adjustments for mental health at work:

Disability: HSE launches podcast to support disabled people in the workplace

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Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

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Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum

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