This month’s case digest covers how to compare workers in cases of less favourable treatment, considering different aspects of unfair dismissal claims, the intricacies of holiday pay accrual, and when time spent doing something work-related is not actually working time for the purposes of pay and therefore the National Minimum Wage.
Worker Status: Less favourable treatment on ground of part-time working
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
Worker Status: Less favourable treatment on ground of part-time working
In Augustine v Data Cars Ltd [2024] EAT 117, the EAT held that a part-time taxi driver was treated less favourably by the employer’s application of a £148 per week flat rate circuit fee because, applying the pro rata temporis principle, the claimant was:
paying a higher circuit fee than his full-time comparator when considered as a proportion of his hours worked, and/or
was taking home a lower hourly rate of pay.
The principle of pro rata temporis means whereby when a comparable permanent employee is employed with specific terms and conditions of employment, the fixed-term employee will be employed with the same terms and conditions of employment, based on a comparison of the period of employment of the comparable permanent employee and the fixed-term employee respectively.
However, because the part-time working was not the ‘sole’ reason for the less favourable treatment, the imposition of the flat rate fee did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. While the EAT preferred the test on causation set out by the EAT (England) in Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616 (that the part-time working has to be the ‘effective and predominant’ cause of the less favourable treatment) it nonetheless applied the test set out by the Inner House of the Court of Session (CSIH) (Scotland) in McMenemy v Capita Business Services Ltd [2007] IRLR 400 (that the part-time working has to be the sole cause of the less favourable treatment) because it recognised the legitimate public interest in having a consistent approach in cases both north and south of the Scotland/England border.
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
In Masiero and Others v Barchester Healthcare Ltd [2024] EAT 112, the EAT has agreed that a healthcare provider’s mandatory coronavirus (COVID-19) vaccine policy did not infringe a group of care home workers’ human rights, ruling that they were fairly dismissed because the company had a right to protect its residents.
In particular, the EAT held that the employment tribunal had been entitled to find that:
the claimants’ dismissals were compatible with their rights under the European Convention on Human Rights and the Human Rights Act 1998;
the respondent’s policy did not involve the imposition of a mandatory requirement to submit to medical treatment in abrogation of the claimant’s right to free and informed consent;
the interference with the claimants’ Article 8 rights was justified in pursuit of the respondent’s aims of (among other things) protecting care home residents’ rights to life under Article 2.
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
In Birkett v Integral UK [2024] EAT 107, the EAT held that the employment tribunal had made insufficient findings in respect of:
the respondent’s process of searching for alternative jobs, at the time of the claimant’s dismissal, and
the circumstances in which the claimant was unsuccessful for a specific vacancy, for which he had been interviewed.
Both issues were relevant to the fairness of the claimant’s dismissal for the purposes of section 98(4) of the Employment Rights Act 1996:
merely to state a conclusion on a disputed point that there were, for example, no vacancies, without any analysis of, and findings on, the respondent’s enquiries, was not sufficient;
if findings are not made about the basic fairness of the recruitment process, the risk is that it would be open to any employer to absolve itself of liability by offering an interview, without a wider analysis of the fairness for the purposes of Employment Rights Act 1996, s 98(4).
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
In Knight v Off Broadway Ltd [2024] EAT 109, the claimant, a bar manager, brought claims that, in addition to a payment in lieu of holiday accrued in the leave year in which his employment terminated, he was also entitled to carry-over unused holiday from previous years.
The EAT held that the employment tribunal had:
correctly found on the facts of the case that there were no Covid-related circumstances which entitled the claimant to carry-over unused holiday entitlement under the then in place (but now withdrawn) amendments to the Working Time Regulations 1998, SI 1998/1833 (WTR 1998);
erred in failing to consider whether the respondent had done sufficient to inform the claimant, in particular, that any unused holiday at the end of the holiday year could not be carried over (see Max-Planck-Gesellschaft zur Főrderung der Wissenschaffen e.V. v Shimizu [2018] All ER (D) 30 (Nov), the principles from which have now been incorporated into the WTR 1998).
HHJ Auerbach noted that in Shimizu the Court of Justice of the European Union referred to the employer being required to ensure that the worker is actually in a position to take the paid annual leave to which he is entitled by encouraging him ‘formally if need be’ to do so, while ‘informing’ him in good time that leave not taken during the holiday year will be lost. He said that would be sufficient in the given case to satisfy that obligation will be a fact-sensitive matter for the tribunal.
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
In Taylors Service Ltd v Commissioners for HM Revenue and Customs [2024] EAT 102, HMRC issued the respondent (a company providing labour to poultry farms around the country) with a notices of underpayment of the national minimum wage because it did not pay its workers on zero hours contracts for time spent travelling on its minibuses from their home addresses to and from farms. The respondent appealed, first to the employment tribunal which dismissed the appeal, and then to the EAT.
The EAT allowing the appeal, holding that:
the approach taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] IRLR 466 to the interpretation of the National Minimum Wage Regulations 2015 (NMW 2015), SI 2015/621, regs 30 and 32 also applies to regs 30 and 34 and, accordingly, time spent ‘just’ travelling is not ‘time work’ for the purposes of reg 30 unless it is deemed to be such by reg 34;
as the tribunal in this case had found that the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in time work by virtue of reg 34, the only conclusion open to the tribunal on the facts as it found them to be was that the workers were not engaged in ‘time work’ for the purposes of NMW 2015, SI 2015/621, reg 30.
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.
This month we bring you a range of employment law updates. A CIPD survey revealed...
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Employment Law General Update – July 2024
Employment,
26th July 2024
Employment Law
This month we bring you a brief summary of the employment, pensions and immigration highlights of the King’s Speech, a look at new guidance from the EHRC on job advertising and how not to fall foul of the legislation, with a particular reference to the protected characteristic of ‘sex’. We also have a looking at the reasons and recommendations for a Seasonal Worker Scheme and consider the results of the Co-Op’s first pay gap report considering the socioeconomic background of workers.
Discrimination: EHRC updates its guidance on discriminatory adverts
Immigration: MAC publishes review of the Seasonal Worker visa
Pay Disparity: Co-op publishes socioeconomic pay gap report
The King’s Speech 2024: Employment, Pensions and Immigration
His Majesty, King Charles III, has set out the government’s priorities and proposed policies for the next parliamentary session at the State Opening of Parliament, which took place on 17 July 2024.
This includes 40 legislative proposals to be addressed in the 2024–2025 parliamentary session. In his speech, King Charles explained that the government’s ‘legislative programme will be mission led and based upon the principles of security, fairness and opportunity for all’.
This King’s Speech 2024 focuses on improving the living standards of working people through economic growth and taking the ‘brakes off Britain’. A major employment announcement came in the form of the Employment Rights Bill, as the government commits to deliver its ‘Plan to Make Work Pay: Delivering a New Deal for Working People’ and to legislate to ban zero-hour contracts, end fire and rehire practices, and introduce certain employment rights from day one. The government will also work on delivering a new Draft Equality (Race and Disability) Bill, which will enshrine the full right to equal pay for ethnic minorities and disabled people in law. The Skills England Bill will be introduced to seek to understand national and local skills needs via establishment of a new body, ‘Skills England‘. The Skills England Bill will also establish a new partnership with employers and reform the apprenticeship levy.
Pensions
The speech contained the announcement of a new Pensions Schemes Bill, stating, ‘Bills will be brought forward… to strengthen pensions investment‘. The Bill aims to increase the amount available for pension savers and states it could help an average earner, who saves over their lifetime in a defined contribution scheme, to have over £11,000 more in their pension pots with which to secure their retirement income.
Immigration
The speech also covered the introduction of the new Border Security, Asylum and Immigration Bill which seeks to ‘modernise‘ the asylum and immigration system and strengthen and secure the border.
Discrimination: EHRC updates its guidance on discriminatory adverts
The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory adverts. The main updates are to the section ‘When is an advert which restricts a job or service to particular groups unlawful’. The guidance now includes examples in relation to an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010 and where an occupational requirement applies, the employer must make sure that it is objectively justifiable.
Guidance in relation to the protected characteristic of ‘sex’ now states that ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). This means that a sex-based occupational requirement that an applicant is a woman, as is common within specialist support services for women, such as rape counselling, will include women who are recorded female at birth and also transgender women who have obtained a GRC. The guidance notes, however, that Schedule 9 of Equality Act 2010 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include people who have obtained a GRC. It states that a ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under Equality Act 2010.
Immigration: MAC publishes review of the Seasonal Worker visa
The Migration Advisory Committee (MAC) has published its review of the Seasonal Worker visa, which sets out the reasons for having a Seasonal Worker Scheme, how the scheme works, the economic and social impact of the scheme, the impact of the scheme on employers, the welfare issues that arise for the workers, and recommendations based on five key themes. The report considers the call for evidence that ran from June–October 2023, stakeholder engagement, and both internal and external research.
Pay Disparity: Co-op publishes socioeconomic pay gap report
The Co-op has become the first retailer to publish a pay gap report based specifically on socioeconomic background. The report collected data submitted voluntarily from 48% of its 57,000 employees, finding a mean pay gap of 5.2% between those of a higher and of a lower socioeconomic background. Employees from a lower socioeconomic background are also less likely to progress into more senior positions, according to the data.
As a result of the findings, Co-op has ‘doubled down’ on its Social Mobility Plan, including campaigning for the government to make socioeconomic background a protected characteristic under the Equality Act 2010. Co-op has also set a target of collecting 80% of socioeconomic employee data for the next 12 months. In addition to the main report, Co-op also published a one-page summary.
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.
This month we bring you a range of employment law updates. A CIPD survey revealed...
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Employment Law Case Update – June 2024
Employment,
26th June 2024
Employment Law
This month our employment news has been rolling in from all levels of the courts and tribunals. A claim for personal injury due to workplace suspension and discipline was dismissed by the High Court who also found that legal representation wasn’t needed for a regular disciplinary hearing for a trade union. The Court of Appeal dismissed a claim of racial discrimination by contract workers, saying it didn’t fit the legal criteria, while the EAT sent back a case about a company’s holiday policy during the pandemic, saying it might be unfair to non-British workers. A postal worker’s dismissal due to illness should have considered job reassignment options, according to another ruling from the EAT, and further confirmed that future claims can be included in settlement agreements if clearly stated.
Conduct: Civil claim for personal based on suspension and disciplinary process fails
Trade Unions: Trade union disciplinary hearing could proceed without legal representation
Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
Conduct: Civil claim for personal injury based on suspension and disciplinary process fails
In Cavanaugh v Folsana Pressed Sections Ltd [2024] EWHC 1381 (KB), the claimant, who had been dismissed for gross misconduct, was unsuccessful in his claim that the defendant (his former employer) had suspended him without reasonable and proper cause, and that its breaches of duty, contractual and tortious, in suspending him and subjecting him to disciplinary investigation, had caused his psychiatric injury. The High Court held that:
the defendant had not acted in breach of any contractual or tortious duty to the claimant in suspending the claimant, carrying out an investigation into his treatment of staff, or pursuing disciplinary proceedings against him, in circumstances where another employee had resigned and had raised genuine issues as to the claimant’s treatment of him and of other employees;
the mental health notifications made by the claimant had not put the defendant on notice that further psychiatric injury had been a reasonably foreseeable consequence of its continuation of the investigation and disciplinary process;
the defendant had made such adjustments to the process as the claimant had requested, and, in any event;
the alleged breaches had not been the cause of the claimant’s losses.
Trade Unions: Trade union disciplinary hearing could proceed without legal representation
In Bhogal v National Education Union (NEU) [2024] EWHC 1295 (Ch) the High Court refused to grant an injunction which the claimant sought, to allow him legal representation at a disciplinary appeal hearing. It held that:
the NEU disciplinary rules do not permit legal representation at hearings and the claimant had no reasonable prospect of showing otherwise;
the claimant did have reasonable prospects of showing that where natural justice requires legal representation to be granted, then that will override any contractual provision preventing legal representation (i.e. as a matter of law);
the claimant did not have reasonable prospects of showing that natural justice required legal representation at his hearing, as this was a fairly ordinary disciplinary case.
In deciding the final issue the court took into account the following facts, based on the decision in R v Home Secretary ex p Tarrant [1985] QB 251:
the seriousness of the charge;
whether any points of law were likely to arise;
the capacity of the claimant to present their own case;
procedural difficulties;
the need for reasonable speed in the decision making process;
the need for fairness between the claimant and other participants.
Race Discrimination: Contract workers could not bring indirect discrimination pay claim against client
In Boohene v The Royal Parks Ltd [2024] EWCA Civ 583 the claimant contract workers, who were predominantly of black or other minority ethnicity, brought a claim in the employment tribunal for indirect racial discrimination purportedly under section 41 of the Equality Act 2010, which is headed ‘Contract Workers’. The alleged discrimination consisted of a failure to pay the claimants the London Living Wage, which the respondent paid to its directly employed staff, who were predominantly white. The employment tribunal allowed the claim and the EAT overturned the decision. The claimants appealed to the Court of Appeal.
Dismissing the appeal, the Court of Appeal held that the claim of indirect discrimination had not fallen within the scope of s.41(1) of the Equality Act 2010. The claimants could have no claim against the respondent under s.41 because the treatment which they complained about related to the remuneration payable under their contracts with a third party and had nothing directly to do with the principal-worker relationship.
Discrimination: Employer’s pandemic holiday policy was indirectly discriminatory but justification needs to be reconsidered
In NLS Ltd v Zaluski [2024] EAT 86 the respondent had policies that staff were responsible for ensuring that authorised leave factored in any period of quarantine, and that staff must return from holiday on the pre-authorised date, with any failure to do so beyond three days liable to be classed as gross misconduct. The claimant had to travel to Poland following the death of his family and due to various quarantine periods he overstayed his leave and was given a final written warning. The employment tribunal held that the respondent’s policy indirectly discriminated against those who, like the claimant, are not British, and was not justified.
The EAT allowed the respondent’s appeal in relation to justification. The EAT also found that the tribunal had erred in awarding aggravated damages. Both issues were remitted to a different tribunal.
Unfair Dismissal: Tribunal should have considered the issue of redeployment as a matter of course
In Bugden v Royal Mail Group Ltd [2024] EAT 80, the claimant, who had been dismissed as a result of periods of ill-health absence over a number of years, contended that the employment tribunal should itself have raised the possibility of redeployment both as a potential reasonable adjustment under s.20 of the Equality Act 2010 and in relation to its determination of the fairness of the dismissal under s.98(4) of the Employment Rights Act 1996. This issue had not been argued by the claimant before the employment tribunal and was not referred to in the list of issues.
The EAT held that the tribunal:
had not erred in failing to raise redeployment as a potential reasonable adjustment with the parties as it was not an issue which ‘shouted out’ from the material before it, but
had erred in failing to consider the issue of redeployment, as an alternative to dismissal, when determining the fairness of the dismissal as this was a sufficiently well-established principle that it should have addressed as a matter of course even though it had not been raised by the parties.
Settlement of Future Claims: EAT in England and Wales follows Court of Session’s decision in Bathgate
In Clifford v IBM United Kingdom Ltd [2024] EAT 90, the EAT held that:
future claims can be waived in a settlement agreement so long as appropriately clear language is used; and
this is the case irrespective of whether it is a ‘clean break’ end of employment situation or the parties remain in a continuing employment relationship.
The EAT in England and Wales endorsed and followed the Court of Session’s decision in Bathgate v Technip Singapore [2024] IRLR 326. At the heart of the decision is the reasoning that the purpose of s.147(3) of the Equality Act 2010, and in particular subparagraph (b), is to prevent an employer being able to use a blanket waiver in relation to which an employee could sign away their rights without appreciating the significance of what they were doing. There are, however, no temporal limitations on what kind of claims can be waived. As such, s.147(3) of the Equality Act 2010 regulates how the parties enter into a statutory settlement agreement, rather than constraining what kinds of claims can be settled.
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.
This month we bring you a range of employment law updates. A CIPD survey revealed...
News & Views
Employment Law General Update – June 2024
Employment,
26th June 2024
Employment Law
This month we bring you a range of employment law updates. A CIPD survey revealed that a quarter of UK employees faced workplace conflict in the past year, with women, ethnic minorities, and disabled workers most affected. PwC reported a slight decrease in the UK’s gender pay gap, though significant disparities remain, particularly in the Financial Services sector. NHS Employers updated guidance on settlement agreements and confidentiality clauses and the Institute of Directors opened a consultation on a new voluntary Code of Conduct for Directors to enhance decision-making and public trust.
CIPD Study: Quarter of UK employees have experienced workplace conflict in the past year
Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024
Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses
Corporate Governance:Institute of Directors publishes consultation on Code of Conduct for Directors
CIPD study: Quarter of UK employees have experienced workplace conflict in the past year
On 11 June 2024, website People Management published an article revealing that a recent survey by the CIPD has highlighted that women, ethnic minorities and disabled workers are the most likely to report encountering conflict, as commentators call for employers to recognise the importance of a positive culture.
a quarter (25 per cent) of UK employees – an estimated eight million people – have encountered workplace conflict in the last year;
the most prevalent types of conflict were: being humiliated or undermined at work (48 per cent), being shouted at or having a heated argument (35 per cent), verbal abuse or insult (34 per cent) and discriminatory behaviour (20 per cent);
just over half (54 per cent) of those who reported conflict said they were satisfied with their jobs, compared to 77 per cent of those who did not experience conflict;
employees who experienced conflict were found twice as likely to say they would leave their job in the following year (33 per cent, compared to 16 per cent of those who had not reported conflict).
The report also noted that:
people who experience conflict in the workplace have lower job satisfaction and are more likely to experience ill mental and physical health;
less than a third (28 per cent) of those who experienced workplace conflict in the past 12 months reported that their work had a good impact on their mental health, compared to 43 per cent of those who did not experience conflict;
a quarter (25 per cent) of those who reported experiencing conflict said work had a positive impact on their physical health, compared to 32 per cent of those who did not face conflict;
two fifths (42 per cent) of those who experienced workplace conflict in the previous 12 months said they ‘always’ or ‘frequently’ felt exhausted, and 37 per cent said they always or often felt under pressure.
The CIPD survey found that employees’ most common response to conflict was to simply ‘let it go’ (47 per cent), followed by discussing with a manager or HR (29 per cent), informal discussions, either with someone outside work such as family or friends (21 per cent) or with the other person involved (17 per cent). Only a few (1 per cent) took the case to an employment tribunal. Two thirds (66 per cent) of people said their conflict was either fully or partially resolved. Just 36 per cent said their workplace conflict had been fully resolved.
The report said: “It would, of course, be unrealistic to suggest that every source of conflict can be resolved to the full satisfaction of both parties. But more than a third did say they had no resolution at all.”
It continued: “Those who reported conflict were significantly less likely to think senior managers and directors had the right vision, or that they were able, or could be trusted, to act with integrity.”
For more commentary on the findings and advice and approaches to management which can be helpful, please read the full article.
Gender Pay Gap: PwC publishes data on mandatory UK gender pay gap reporting 2023–2024
PwC has published data relating to the mandatory pay gap of organisations reporting for the year 2023–2024. The data shows a decrease in the mean gender pay gap of 0.4% over the past year, down from 12.2% to 11.8%, with an overall reduction of 1.6% in the mean pay gap since 2017 when reporting started. This time around 10,408 companies disclosed their gender pay gap. Almost 60% of organisations reported decreases, though the majority of these reductions were below 2%.
The Financial Services sector continues to report the biggest gender pay gaps, which is reflective of the ongoing issues with gender equality within the sector.
According to PwC, these incremental reductions in the gender pay gap are indicative that ‘pay parity remains out of reach’, but that there are things that businesses can do in order to drive change.
Contracts: NHS Employers updates guidance on use of settlement agreements and confidentiality clauses
NHS Employers has updated its guidance for employers on the use of settlement agreements and confidentiality clauses when resolving a workplace dispute or ending an employment contract. The guidance includes the latest information on legislative requirements, good practice examples on the freedom to speak up, guidance on Mutually Agreed Resignation Schemes, information on board members and the NHS England Fit and Proper Person Test Framework, and links to further resources.
Corporate Governance: Institute of Directors publishes consultation on Code of Conduct for Directors
The Institute of Directors (also known as the IoD) has published a consultation document on a Code of Conduct for Directors. The Institute of Directors has said that the Code will be a practical tool to help directors make better decisions and provides organisational leaders with a behavioural framework to help them build and maintain public trust in their business activities. The Institute of Directors emphasises that the Code is a voluntary commitment and is not intended to create a new burden of compliance.
The Institute of Directors requests the business community and general public to provide their views on the Code by 16 August 2024.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – May 2024
Employment,
24th May 2024
Employment Law
This month’s update includes some interesting cases examining an injunction in a would-be whistleblowing case and the effective maintenance of the confidentiality of the documents to be disclosed, the specifics of case law surrounding the discrimination elements of two quite different claims, and a complex case distinguishing worker status from volunteer status where remuneration is involved.
Injunction: Employee cannot use tribunal to bring stolen documents into public domain
Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities
Injunction: Employee cannot use tribunal to bring stolen documents into public domain
In Payone GmbH v Logo [2024] EWHC 981 (KB) the King’s Bench Division granted the claimant employer a final injunction against the defendant employee, restraining him from making further use of documents which he had misappropriated during his employment (the confidential documents). The claimant was a payment services provider, incorporated and domiciled in Germany. The defendant, a self-proclaimed ‘whistleblower’, had made substantial disclosures of the confidential documents, which he had also deployed in Employment Tribunal (ET) proceedings against the claimant. Judgment had been entered for the claimant on its claims for conversion, breach of contract and equitable breach of confidence.
In the present proceedings, the main issue was whether the defendant should be restrained by final injunction from making further use of the confidential documents, even though some (or all) of it had (according to the claimant) entered the ‘public domain’ through the ET proceedings.
The court held, among other things, that: (i) the confidential information had not lost the quality of confidence; (ii) save insofar as express references were made to it in the ET judgment, neither the information, nor documents including it, had entered the ‘public domain’, so as to defeat the claimant’s entitlement to restrain further disclosure consistently with free speech considerations; (iii) the nature of the references in the ET judgment did not undermine confidentiality in the documents themselves; (iv) the protection of the claimant’s rights to confidentiality and property was a legitimate aim; (v) to the extent that open justice was engaged, it was substantially outweighed by the interests of the claimant and affected third parties, who would suffer prejudice if the information were made public; and (vi) in circumstances where the claimant had applied for default judgment on its only claim in the proceedings, namely for a final injunction, and where the judge had struck out a witness statement put forward by the defendant as a defence, there could be no question of the defendant maintaining any defence to the claimant’s claim; and (vii) legally, the balance of interests fell firmly in favour of maintaining confidentiality.
The court rejected the proposition that an employer whose confidential documents had effectively been stolen and then deployed against it in the ET waived rights of confidence in those documents against the employee unless the employer applied for extensive restrictions, including a private hearing in the ET.
Disability Discrimination: Tribunal did not properly consider discriminatory element of claim
In Z v Y [2024] EAT 63, the Employment Appeal Tribunal (EAT) allowed the claimant’s appeal against the decision of the Employment Tribunal (ET) who ruled that the claimant was constructively unfairly dismissed by the respondent, but that her claims under the Equality Act 2010 had been brought out of time and were to be dismissed. The claimant’s claim had included a complaint of discriminatory constructive dismissal but clarification of her case focused on the allegations of prohibited conduct. The claimant contended, among other things, that: (i) it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal; and (ii) the ET erred in its approach to the determination of whether there had been a continuing act, considering each of the found instances of discrimination in isolation, when it ought to have adopted a holistic approach.
The EAT held, among other things, that: (i) the ET had erred in failing to determine the claim of discriminatory constructive dismissal, which was part of the pleaded case before it; (ii) the list of issues had not replaced the pleaded claim; and (iii) the ET had been wrong to slavishly stick to the list. Consequently, the claim of discriminatory constructive dismissal and the issue had been remitted to the ET for reconsideration along with the issue of remedy.
Equality Act: Not up to Tribunal not to make a finding of liability against named respondents when the statutory test is met
In Baldwin v (1) Cleves School, (2) Hodges, (3) Miller [2024] EAT 66, the Employment Tribunal had found the respondent employer liable for acts carried out by the two individual respondents. However, it dismissed separate claims against the individual respondents brought under section 110 of the Equality Act 2010, on the basis that it found their acts were misguided attempts to address a complex situation.
The Employment Appeal Tribunal held that there had been an error of law because:
a contravention of s.110 Equality Act 2010 arises if A is an employee, A does a discriminatory act in the course of their employment, that act amounts to a contravention of Equality Act 2010 by the employer and none of the express exceptions in s.110 apply.
s.110 confers no discretion on an employment tribunal not to find a contravention of that section if the conditions for individual liability under it are met (as they were in this case).
Worker Status: ‘Volunteer’ Coastal Rescue Officer was a worker when carrying out remunerated activities
In Groom v Maritime and Coastguard Agency [2024] EAT 21, the respondent, the Maritime and Coastguard Agency (MCA), runs the Coastguard Rescue Services (CRS) which is made up of 325 Coastguard Rescue Teams. There are approximately 108 employed staff and 3500 volunteer Coastal Rescue Officers (CRO) and Station Officers (SO). Generally, an individual is understood to be a volunteer if they are not obliged to work but agree to perform work for which they are not paid. Without consideration there can be no contract (whether as an employee or as a worker). However, volunteers may be reimbursed expenses that they have genuinely incurred with losing their status as a volunteer. As a volunteer, an individual can come and go as they please. Volunteer roles can often be ill-defined and, if some consideration can be found, an individual may find that their ‘voluntary’ role amounts to one as a ‘worker’ or an ‘employee’, thus acquiring statutory employment rights
The claimant was a CRO and then an SO. Documents that governed the relationship between the claimant and respondent included a Volunteer Handbook, a Volunteer Commitment, a Code of Conduct and a document headed ‘Coastguard Rescue Service—Detail Coastguard Rescue Officer Remuneration’. These documents explain that, while there is no obligation to claim remuneration, it is possible to do so for time, travel and expenses associated with specific activities.
The claimant was invited to a disciplinary hearing. His membership of the CRS was terminated and he was issued with a P45. The claimant brought employment tribunal proceedings claiming that he was a worker and should have been afforded the right to be accompanied at the disciplinary hearing.
The employment tribunal decided that the claimant was not a worker because there was no contract between himself and the respondent and the relationship was genuinely voluntary. Its reasoning included that:
the agreement was described as a voluntary agreement;
there was no ‘automatic’ remuneration for any activity and many CROs never claim;
there were a number of activities for which remuneration was not payable at all, participation in which is only explicable in the context of volunteering;
the degree of control did not appear to be particularly significant;
the fact that an HMRC investigation concluded CROs were not workers was ‘clearly significant’.
The claimant appealed to the EAT.
The EAT allowed the appeal. It held that:
the tribunal had erred in finding that there was no contract at all between the parties, particularly taking into account the right to remuneration for particular activities;
there was no dispute between the parties that the claimant was obliged to perform services personally and that the MCA was not a client or customer of a business carried on by the claimant;
the claimant was therefore a worker when he undertook activities in respect of which he was entitled to remuneration;
the question of worker status in relation to attendance at non-remunerated activities remains an open question, which the parties may argue in the tribunal.
The EAT’s more detailed reasoning on the entitlement to remuneration and the existence of a contract included, among other things, that although use of the word volunteer may suggest an absence of intention to create legal relations, ‘volunteer’ is not a term of art, the legal status of all volunteers is not necessarily the same and ultimately, whether or not there is a contract is determined from the documents as a whole. On the documents in this case, the tribunal erred in failing to find that when the claimant attended an activity (at least one attracting remuneration) there was a contract under which he provided services to the respondent.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – May 2024
Employment,
24th May 2024
Employment Law
May’s news is centred around immigration matters that have arisen recently as they relate to employment law, the government’s response to the ‘Sexism in the City’ report (which is actually quite an interesting read), and some updates from the ICO and EU parliament about how we should be dealing with data in the UK, and the penalties and fines if you don’t get it right.
Immigration: Food delivery companies to introduce Right to Work checks for substitute drivers
Immigration: CPS publishes report on reducing migration to the UK
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 May 2024
Data Protection: New detailed guidance from the ICO on fines and penalties
Data Protection: EU Parliament submits written evidence in Lords’ UK-EU data adequacy inquiry
Immigration: Food delivery companies to introduce Right to Work checks for substitute drivers
The Home Office has announced that following discussions with the government, Deliveroo, Just Eat and Uber Eats have confirmed their intentions to take steps to prevent exploitation of account sharing by their drivers. All three companies have confirmed their intention to roll out new processes which will enable them to check whether substitute drivers have a legal right to work in the UK. Deliveroo has already started this process, beginning right to work checks for substitute drivers as part of the registration process earlier this month.
Immigration: CPS publishes report on reducing migration to the UK
The Centre for Policy Studies (CPS) has published a report, written by former Immigration Minister Robert Jenrick MP, former minister Neil O’Brien MP, and CPS Research Director Karl Williams, entitled ‘Taking back control’ which argues that recent immigration to the UK has placed pressure on housing, public services and infrastructure while failing to deliver on the economic benefits which its advocates have promised. The report sets out over 30 recommendations which the authors believe will reduce immigration, including:
retiring the Shortage Occupation List altogether, rather than replacing it with an Immigration Salary List
raising the minimum hourly wage in the care sector by 20–40p and setting the salary threshold for health and care visas above the National Living Wage
creating an annual cap on each individual visa route, but creating time-limited exceptions to visa limits for NHS workers, until the NHS Long Term Workforce Plan ramps up.
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 May 2024
The below data shows the number of Home Office-approved employer sponsors, according to visa route, as listed on the Home Office’s register of licensed sponsors on the specified date.
As at 13 May 2024, Skilled Worker sponsors account for the majority of employers (over 84.23%). 8.57% of sponsors have a Global Business Mobility-Senior or Specialist Worker licence, and the remaining 13 work routes account for the remaining 7.2%.
Sex Discrimination: Responses published to ‘Sexism in the City’ Report
The Treasury Committee has published the responses by HM Treasury, the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) to its Sexism in the City inquiry report. One reform put forward in the report was a total ban on the use of non-disclosure agreements (NDAs) in all harassment cases. In its response, the government highlights action it has taken in preventing the use of NDAs in other sectors and says an NDA would ‘most likely’ be unenforceable when related to reporting a crime to the police.
Data Protection: New detailed guidance from the ICO on fines and penalties
In March 2024, the Information Commissioner’s Office (ICO) published new guidance (the Guidance) setting out how it will determine penalty notices and calculate fines under the UK General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR) and the Data Protection Act 2018 (DPA 2018) (together, the UK data protection laws). The Guidance replaces the sections about penalty notices in the ICO Regulatory Action Policy published in November 2018 (the RA Policy) and is significantly more detailed. The Guidance applies to all new cases regarding infringements of the UK data protection laws and to existing cases in which no notice of intent to impose a fine has been issued.
The Guidance is divided into three sections:
statutory background
circumstances in which the ICO would consider a penalty notice appropriate
calculation of the appropriate amount of the fine
The Guidance also contains a useful table at Annex 1 setting out the provisions of the UK data protection laws for which the ICO can impose a fine.
When assessing whether to issue a penalty notice, the ICO will consider: (i) the seriousness of the infringement; (ii) relevant aggravating or mitigating factors; and (iii) the effectiveness, proportionality and dissuasiveness of a penalty.
The ICO will take the following five-step approach when calculating any fine:
1) Assessment of the seriousness of the infringement
2) Accounting for turnover (where the controller or processor is part of an undertaking)
3) Calculation of the ‘starting point’ having regard to the seriousness of the infringement and, where relevant, the turnover of the undertaking
4) Adjustment to take into account any aggravating or mitigating factors
5) Assessment of whether the fine is effective, proportionate and dissuasive.
Data Protection: EU Parliament submits written evidence in Lords’ UK-EU data adequacy inquiry
The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) has submitted written evidence to the House of Lords European Affairs Committee (EAC)’s inquiry into data adequacy and its implications for the UK-EU relationship. The LIBE Committee starts its submission by making remarks on the Data Protection and Digital Information Bill (DPDIB) currently reviewed by the UK Parliament, including the definition of ‘singling out‘ and ‘pseudonymised data‘. The LIBE Committee then provides responses to the questions asked by the Lords Committee.
The LIBE Committee expresses reserves in relation to changes to the role of the ICO as set out by the DPDIB, deeming that they ‘constitute a significant departure from the EU data protection supervision model, where the independence of the national supervision authority is an important cornerstone’. The LIBE Committee then goes on to point out that the topic of onward transfers and ‘Henry VIII‘ clauses set out in the DPIB may be factors influencing the next European Commission when deciding whether to renew the adequacy decisions for the UK in June 2025. It is also concerned that the provisions of the DPDIB permitting automated decision making and large database of personal data to be used for AI training and development without informing the data subjects or seeking their consent would be contrary to Article 22 of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR).
The LIBE Committee further shares its concerns that the UK adequacy status could lead to the bypassing of the EU rules on international transfers to countries or international organisations not deemed adequate under EU law, and that the UK could become a transit country for data that cannot be sent from the EU/EEA to ‘inadequate’ third countries.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – March 2024
Employment,
24th March 2024
Employment Law
This month’s case updates include a case of unfair dismissal which sparked a debate over the bounds of reasonable responses of an employer in dismissing an employee for posting a racist ‘joke’ on an intranet, we scrutinize parental leave protection against dismissal, look at whether employers can be held vicariously liable for detriments amounting to dismissal caused by co-workers in whistleblowing cases, and take a look at the potential discrimination of a Christian actor removed from a role due to anti-gay social media posts, although she admitted she would never had played that role anyway. Lastly, looking at Equal Pay, we investigate the ‘material factor defence’.
Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave
Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal
Discrimination: Fired ‘Color Purple ‘actor loses appeal over Christian beliefs
Equal Pay: Identification of decision-maker is not essential to material factor defence
Unfair Dismissal: Band of Reasonable responses
In Vaultex UK Ltd v Bialas [2024] EAT 19 the question before the EAT was whether the original tribunal had been entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses.
The Claimant posted a racist joke on the Respondent’s intranet, which was used by all its employees. The Respondent was a large company which conducts cash processing. The Claimant had a long, unblemished service record and apologised for his actions but nonetheless, the Respondent decided to dismiss the Claimant for gross misconduct.
The tribunal held that the Claimant had been unfairly dismissed, and had even directed itself, citing pertinent authority, that, in relation to sanction, a band of reasonable responses approach should be applied, and that the tribunal “must not simply substitute its judgment for that of the employer in this case”. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.
The Respondent appealed. The first ground of the appeal was the assertion that the tribunal nevertheless committed the error of substituting its own opinion of the appropriate sanction for that of the Respondent. The second ground was that, on the question of whether the sanction of dismissal was within the band of reasonable responses, the tribunal reached a conclusion which was perverse or not within the range of reasonable decisions open to it.
The EAT found that this was not a case where the tribunal found that there was unfairness because a relevant circumstance was not considered by the employer at all. To the contrary, the tribunal specifically found that the Claimant’s long service and the fact that this was a first offence were taken into account by the Respondent. Secondly, given that the tribunal found that the Respondent’s policies and procedures made it clear that conduct of this sort was considered to be potentially so serious that it could result in dismissal for a first offence, and, indeed, that they explained that, even if not directed at another employee, such conduct might amount to discriminatory harassment of colleagues exposed to it, and that this post was placed on an intranet used by the entire workforce, they did not find that it was reasonably open to the tribunal to conclude, if it did, that the Claimant’s prior clean record of long service meant that dismissal was outside of the reasonable band of responses.
The EAT therefore held that the tribunal had, in fact, substituted its own view for that of the Respondent and upheld both grounds of appeal. The EAT concluded that “any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case“. It held that the response was within the band of reasonable responses and therefore substituted a finding of fair dismissal.
Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave
In Hilton Foods Solutions Ltd v Wright [2024] EAT 28 the EAT had to consider how protection from dismissal arises regarding parental leave. An employee is protected against being dismissed because s/he took parental leave. In broad terms, an employee is also protected if s/he ‘sought’ to take parental leave, pursuant to regulation 20 of the Maternity and Parental Leave Regulations 1999 (MAPLE Regs), SI 1999/3312. His Honour Judge Tayler noted that this appeal raises one point of construction; what is required for an employee to have ‘sought’ to take parental leave? The Respondent argued that the employee must have complied with certain formal requirements of the MAPLE Regs that are a prerequisite of exercising the right to take parental leave. The Claimant (Mr Wright) argued that whether an employee has sought to take parental leave is a question of fact for the appreciation of the Employment Tribunal having considered all the relevant evidence.
The EAT held that the use of the word ‘sought’ was of an ordinary English construction and therefore the question of whether an employee has ‘sought’ to take parental leave for the purposes of this regulation 20 should be based on a factual determination made by the employment tribunal having considered the relevant evidence and circumstances. In addition, it concluded that there is no absolute requirement that the employee must have given notice to take parental leave pursuant to paragraphs 1(b) and 3 of MAPLE Regs, Schedule 2.
Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal
In Wicked Vision Ltd v Rice [2024] EAT 29, the Claimant brought a claim of automatic unfair dismissal against the Respondent on the basis that he was dismissed because he had made protected disclosures. The Claimant later tried to amend his claim, to add that the act of the dismissing officer in dismissing him was a detriment on grounds of whistleblowing for which the Respondent was liable. The tribunal allowed the amendment.
At appeal, the EAT disagreed with the tribunal and held that:
a claimant cannot claim that their employer (a company) is vicariously liable under section 47B(1B) of the Employment Rights Act 1996 (ERA 1996) for the act of a co-worker (in this case the company’s owner) for the ‘detriment of dismissal’; and
such a claim is barred by ERA 1996, s 47B(2) because the alleged detriment ‘amounts to dismissal (within the meaning of Part X)’ of ERA 1996.
Therefore the correct claim was the one originally made by the Claimant.
The Claimant was an actor, cast to play the role of Celie in the stage production of ‘The Color Purple’. Celie is seen as an iconic lesbian role and, when the claimant’s casting was announced, a social media storm developed relating to a past Facebook post in which she had expressed her belief that homosexuality was a sin. The consequences of that storm led to the termination of the Claimant’s contracts with the theatre (the Second Respondent) and her agency (the First Respondent). Arising out of those events, she brought Employment Tribunal (“ET”) claims of religion and belief discrimination and harassment, and breach of contract. Shortly before the ET hearing, having only then read the script, the Claimant volunteered she would never in fact have played the part of Celie, and would have resigned from the role in due course. She continued with her claims, but these were all dismissed and an award of costs made against her.
The Claimant appealed against those decisions, and against a further order relating to the continued use of the hearing documents. The Respondents cross-appealed the ET’s finding that the Claimant had suffered detrimental treatment, its failure to find that there was an occupational requirement that the actor playing Celie had not manifested a belief such as that expressed in the Claimant’s Facebook post, and its failure to find that keeping the Claimant on the books of the agency would effectively have amounted to compelled speech.
The EAT dismissed the appeals. Although, contrary to the Respondents’ first ground of cross-appeal, it had been open to the ET to find that the Claimant had suffered detrimental treatment, it had not fallen into the error of confusing reason and motive but had permissibly found that, whilst the Claimant’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract. In the circumstances, it was unnecessary to rule on the occupational requirement or compelled speech arguments. As for the harassment claim, the ET had not failed to have regard to the impact on the Claimant of the social medial storm (the “other circumstances” for the purposes of section 26(4)(b) Equality Act 2010), but had found that the Respondents had not caused, or contributed to, that circumstance, and permissibly found that the Claimant’s treatment had not reasonably had the requisite effect.
The ET had also been entitled to reject the Claimant’s argument that any breach of ECHR rights would amount to a “violation of dignity”; that argument was academic, as the ET had not found that any of the Claimant’s ECHR rights had been infringed. The ET had also been correct to dismiss the Claimant’s breach of contract claim against the Second Respondent. She had been offered the full contract fee, so there was no pecuniary loss. Moreover, as the Claimant knew she would not play a lesbian character, but had not raised this with the theatre, or sought to inform herself as to the requirements of the role of Celie, she was in repudiatory breach of her express obligations, and of the implied term of trust and confidence. Although the Second Respondent was not aware of this at the date of termination, no damages (e.g. for loss of publicity/enhanced reputation) could be due.
In making a costs award against the Claimant, the ET had been entitled to reach the conclusion that her claims either had no reasonable prospect of success from the outset, or that they had no reasonable prospect once the Claimant realised that she would never in fact have played the role of Celie, or that the conduct of the claims had been unreasonable; as such it had permissibly found the threshold for a costs award was met. As for the Claimant’s objection to the amount of the award (the entirety of the Respondents’ costs, subject to detailed assessment), the ET: (i) was entitled to find that the change in the Claimant’s case had an effect on the entire proceedings, and (ii) had drawn inferences that were open to it on its findings as to the conduct of the Claimant’s case, such that it had permissibly taken into account the resources of those who had supported the litigation for their own purposes. As for the order restricting the future publication of all hearing documents, that had been a decision open to the ET under its powers of case management. It had had due regard to the open justice principle and been entitled to exercise its discretion in the way that it had.
Equal Pay: Identification of decision-maker is not essential to material factor defence
In Scottish Water v Edgar [2024] EAT 32, the Claimant brought an equal pay claim under the Equality Act, 2010. Her comparator was a male employee with the same job title and within the same pay band who had been appointed after her. The Appellant raised a ‘material factor defence’ (i.e. the employer is able to give a genuine reason for the difference in pay between the Claimant and their comparator that is not related to gender) that the difference in pay was due to the comparator’s superior skills, experience and potential. The Appellant led evidence about discussions within its organisation about those matters and about the resultant level of salary ultimately offered to the comparator at the time of his appointment. It also sought to lead comparative evidence of the Claimant’s skills, experience and potential both at the time of and after his appointment.
The Employment Tribunal (ET) directed itself that the Appellant required to prove the identity of the pay decision-maker at the point in time when the comparator was engaged. It concluded that the Appellant had not done so, and that the material factor defence accordingly failed. It also directed itself that comparative evidence of the respective skills, experience and potential of the Claimant and the comparator in a period of time after the comparator’s appointment was irrelevant.
comparative evidence of the respective skills and abilities of the claimant and the comparator from a period in time after the comparator’s appointment is not necessarily irrelevant to the employer’s defence, according to the EAT.
The ET’s judgment was set aside and the preliminary issue was remitted to a differently constituted tribunal. It was observed that the primary purpose of the reasons section of any decision of an ET should be to explain to the parties clearly and concisely why the tribunal reached its decision.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – March 2024
Employment,
24th March 2024
Employment Law
We bring news of several changes to the leave allowances for parents and carers in this month’s update. We also look at the latest report from the Treasury about the shocking levels of sexual harassment and bullying in the city whilst the Parker Review has found while there has been some improvement in ethnic minority representation on boards, there is still plenty of room for improvement. We also share news on the new ICO guidance on information sharing in a mental health emergency at work.
Discrimination: Sexism in the City report finds ‘shocking’ levels of sexual harassment and bullying
Diversity and Gender Pay Gap: Parker Review Committee update report expands scope of targets for ethnic minority representation
Data Protection: ICO issues guidance on information sharing in a mental health emergency at work
Parental & Carer’s Leave: New Regulations come into force
The new Paternity Leave (Amendment) Regulations 2024 (SI 2024/329) are made to amend the Paternity and Adoption Leave Regulations 2002, SI 2002/2788, the Paternity and Adoption Leave (Adoption from Overseas) Regulations 2003, SI 2003/921, and the Paternity, Adoption and Shared Parental Leave (Parental Order Cases) Regulations 2014, SI 2014/3096. They came into force on 8 March 2024 and apply to children whose:
expected week of childbirth is after 6 April 2024; or
expected date of placement for adoption, or expected date of entry into Great Britain for adoption, is on or after 6 April 2024.
The changes include, amongst other things:
allowing an employee to choose to take either two non-consecutive weeks’ paternity leave (birth), or a single period of either one week or two weeks; and
extending the period in which paternity leave (birth) must be taken from 56 days after the birth of the child, to 52 weeks after the birth.
The new Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 (SI 2024/264) are made to extend an existing statutory protection from redundancy that currently applies to those employees who are on maternity, adoption or shared parental leave. The extension means this protection also applies to pregnant women and new parents who have recently returned from any period of maternity or adoption leave, or from a period of six or more weeks of shared parental leave. The Regulations are due to come into force on 6 April 2024. Therefore any employers currently considering commencing a redundancy process or in the middle of one should review any affected employees who may now be protected under these new Regulations.
The Carer’s Leave Regulations 2024 (SI 2024/251) are made to implement a new statutory entitlement to Carer’s Leave for employees from 6 April 2024. They ensure that this leave will be available to employees for the purpose of caring for a dependant with a long-term care need. They are also due to come into force on 6 April 2024.
These are supported by The Carer’s Leave (Consequential Amendments to Subordinate Legislation) Regulations 2024 (SI 2024/266) which make necessary amendments to various pieces of secondary legislation in consequence of the Carer’s Leave Act 2023 which makes provision for the new statutory right to carer’s leave, available for employed carers from 6 April 2024. When calculating entitlements to certain other benefits or rights, leave is often a relevant factor. This instrument makes provision to ensure that it is clear in those pieces of secondary legislation how carer’s leave should be treated in those calculations.
Discrimination: Sexism in the City report finds ‘shocking’ levels of sexual harassment and bullying
The Treasury Committee has published its Sexism in the City report, following an inquiry launched in July 2023, and is calling for an end to the ‘era of impunity’ after finding a ‘shocking’ prevalence of sexual harassment and bullying, and a culture which is ‘holding back women’ in the City. The Committee welcomes proposals by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority (PRA) to strengthen their regimes for tackling non-financial misconduct, including sexual harassment, but calls on them to ‘drop their prescriptive plans for extensive data reporting and target setting’. The FCA has responded to the report.
Diversity and Gender Pay Gap: Parker Review Committee update report expands scope of targets for ethnic minority representation
The Parker Review Committee has published its March 2024 report into ethnic diversity across UK businesses. For the first time, the Committee has expanded its review to include senior management data, commenting that this yields a clearer picture than looking into boards of directors alone. It has also expanded its research to include private companies (50 in total) as well as listed companies. The report found that:
96% of FTSE 100 companies have at least one ethnic minority director on their board, compared with 44% of private companies;
ethnic minorities currently represent an average of 13% of senior management positions within FTSE 100 companies, with a target set to increase this average to 17% by 2027.
Hywel Ball, Chairman and Managing Partner of EY UK, says:
“The Parker Review, and the targets that it sets, provide an important benchmark and objective criteria to encourage fair representation of ethnic minorities. Crucially, it ensures we lead efforts to diversify UK business with respect to ethnicity from the top down and continue to be held accountable, no matter the macroeconomic climate. Representation matters – the more diverse boardroom and executive teams are, the greater the ripples across the organisation. Over the last nine years, there has been good progress but we are still a long way from achieving parity based on ethnicity. This year’s figures – 12 ethnic minority CEOs in the FTSE 100 and 7 Chairs – are encouraging but show there is work to be done to ensure our business leaders fairly represent their customers and society they serve.”
Data Protection: ICO issues guidance on information sharing in a mental health emergency at work
The Information Commissioner’s Office (ICO) has issued guidance for employers on sharing their workers’ personal information in a mental health emergency. The guidance sets out advice on when, and how, it is appropriate to share workers’ personal information where the employer believes that someone is at risk of causing serious harm to themselves or others due to their mental health. The ICO adds that it is good practice to plan ahead in order to make timely and better-informed decisions during a mental health emergency. The guidance considers what a mental health emergency is, how mental health information differs under data protection law, how to plan for information sharing and the lawful bases and special category conditions that are most likely to apply.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – February 2024
Employment,
26th February 2024
Employment Law
In this issue, we delve into recent legal cases that shed light on critical aspects of employment law looking at the treatment of a gender-critical professor over their research, the intricacies of whistleblowing as it may or may not affect job applicants, an examination of the Transfer of Undertakings (Protection of Employment) regulations (TUPE), and the delicate balance between anonymity and justice in relation to fabricated sexual assault allegations.
Whistleblowing: Job applicants are not entitled to bring claims when they have suffered detriment because of making a protected disclosure
TUPE: Liability for harassment claim does not transfer if both employees do not transfer
Anonymity: Claimant who made up sexual assault was not entitled to privacy orders
Discrimination & Harassment: Gender-critical professor was discriminated against for research
In Phoenix v The Open University (3322700/2021 & 3323841/2021), a gender-critical professor has persuaded an employment tribunal that her employer university harassed and discriminated against her based on her views before unfairly pushing her to resign.
At the tribunal, the Employment Judge Young ruled that Open University professors led a ‘call to discriminate’ against Professor Jo Phoenix by releasing an open letter protesting against her gender-critical research network. The discriminatory letter led to a ‘pile-on’ against Phoenix, Judge Young said. The judge said that the university failed to provide a suitable working environment for Phoenix by leaving her exposed to the backlash, which amounted to a breach of the implied term of trust and confidence in her contract and ultimately led her to resign. She found that The Open University did not protect Phoenix from the ‘negative campaign’ against her after she launched her research network because it ‘did not want to be seen to give any kind of support to academics with gender critical beliefs’, the judge said.
The university employed Phoenix as a professor from 2016 until she resigned in December 2021 following what she described as an ‘exceptionally painful’ part of her career amid widespread opposition to her views. Equality laws protect Phoenix’s belief (a position often referred to as gender-critical) which holds a person cannot change their biological sex and that sex cannot be conflated with gender identity, according to the 155-page ruling.
Phoenix ran a research network at the university that examined sex, gender and sexuality from a gender-critical perspective, according to the ruling. But the network met significant opposition from her colleagues, the judgment says. Criminology professor Louise Westmarland harassed Phoenix by comparing her views to those of ‘a racist uncle at the Christmas table’, the judge said. ‘Westmarland knew that likening [Phoenix] to a racist was upsetting’, Judge Young said. ‘We conclude that its purpose was to violate [Phoenix’s] dignity because, inherent in the comment, is an insult of being put in the same category as racists.’
Her colleagues also discriminated against her when they ‘gave her the silent treatment’ during a departmental meeting in response to Phoenix securing a grant of CAN$1m grant for research into transgender prisoners. Criminology lecturer Deborah Drake also discriminated against Phoenix by instructing her not to speak to the rest of the department about her research, about Essex University’s decision to cancel her talk on trans rights and imprisonment and about accusations of being a ‘transphobe’ that she was facing, Judge Young said. ‘Others were allowed to speak about their research in subsequent meetings…and research updates were part of the agenda for departmental meetings’, the judge said.
A series of tweets and retweets by Open University staff referring to Phoenix as transphobic also insulted her and discriminated against her, according to the judgment. The university also continued to harass Phoenix after her resignation by publishing further statements on its website condemning her research, Judge Young said.
‘I am delighted that the tribunal found in my favour’, Phoenix said in a statement. ‘Academics and universities must now, surely, recognise their responsibilities toward promoting diversity of viewpoints and tolerance of alternative views.’ Leigh Day partner Annie Powell, who represented Phoenix, added that she hopes to see ‘no further cases of academics being treated so badly because of their protected beliefs’.
Professor Tim Blackman, vice-chancellor of the Open University, said, ‘Our priority has been to protect freedom of speech while respecting legal rights and protections. We are disappointed by the judgment and will need time to consider it in detail, including our right to appeal.’
The Employment Appeal Tribunal overturned in 2021 a ruling by a lower tribunal that gender-critical views are not a protected belief. It held that the opinions held by a woman who lost her job after she published comments about transgender people online were legally protected. Ms Forstater was subsequently awarded over £106,000 by the employment tribunal. The employment tribunal ruled in a different case in May 2023 that the Open University did not discriminate against a member of staff that it sacked for sending a racist tweet to Star Wars actor John Boyega.
Whistleblowing: Job applicants are not entitled to bring claims when they have suffered detriment because of making a protected disclosure
The EAT in Sullivan v Isle of Wight Council [2024] EAT 3 confirmed the position that whistleblowing detriment claims are confined to workers (as defined) and do not extend to job applicants, except in the case of applicants for jobs with certain specified NHS employers under the Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations 2018. It confirms that using a Gilham style argument, applying the right to freedom from discrimination under Article 14, read with the right to freedom of expression under Article 10, of the European Convention on Human Rights, to extend the reach of such claims to job applicants, will not succeed, in particular because being a job applicant is not some ‘other status’ for the purpose of Article 14.
All workers have the right to bring a claim in relation to any detriment suffered because of any act or omission by their employer, done on the ground that the complainant made a protected disclosure. ‘Worker’ in this context has an extended definition. The protection applies to workers (as defined). Job applicants are generally not covered. However, certain NHS employers are prohibited from discriminating against job applicants because it appears that they have made a protected disclosure.
In Gilham, a whistleblowing detriment claim under Employment Rights Act 1996 (‘the Act’), the Supreme Court held that the claimant, a district judge, was not a worker for the purposes of the Act (because she had no contract) but held that judicial-office-holders were nonetheless entitled to bring claims for whistleblowing protection under the Act because the exclusion of judges was in breach of their right to freedom from discrimination under Article 14, read with the right to freedom of expression under Article 10, of the European Convention on Human Rights (ECHR). The Supreme Court concluded that the Act should therefore be read and given effect so as to extend their whistleblowing protection to the holders of judicial office.
The claimant in this case had two unsuccessful applications for financial officer roles with the respondent. She then lodged complaints alleging that multiple inappropriate/discriminatory comments had been made during her interviews including that she had been called ‘mentally insane’. Her complaints were rejected and she was refused an appeal. Later she lodged claims for discrimination, victimisation and whistleblowing detriment. The detriment claim related to the refusal to allow her an appeal which she said was because of an allegation of financial mismanagement that she had made against one of the interviewers in relation to a charity with which he was involved. She alleged that even though the whistleblowing provisions only applied to workers (which she was not) they should be extended to job applicants, such as her, using Articles 10 and 14 of the ECHR.
The employment tribunal dismissed the whistleblowing detriment claim and the claimant appealed. The EAT upheld part of the tribunal’s decisions but also dismissed the appeal on the basis that:
Whilst the facts fell within the ambit of the right to freedom of expression protected by Article 10 ECHR, it was only applicable subject to the following conditions.
An external job applicant is not in a situation analogous to that of the internal applicant, who is already embedded in the workplace and whose disclosure is made in that context. It was also accepted that this particular claimant’s situation was not analogous to that of an internal applicant. Her application process had come to an end some months previously. Her subsequent disclosure had related to matters unconnected with the application made, or, indeed, with the respondent itself, and had been advanced under a complaints policy of which any member of the public was able to avail themself in relation to any perceived wrongdoing by the respondent. The NHS Regulations were not applicable here.
The claimant had relied on the status of an external job applicant as the ‘other status’ for the purposes of Article 14 ECHR. However, that was found not to be of the same quality as the occupational classification (judicial officeholder) as in the precedent case. The claimant did not possess or acquire a status, or occupational classification, independent of her act of applying for a job.
Whilst the EAT found the employment tribunal’s approach to the question of proportionality was problematic, in the absence of any evidence going to that matter and the structured approach to answering that question required by the precedent case, it was not relevant here due to the above three issues. Had the answers to the those questions been otherwise, the matter would have been remitted for fresh consideration of that particular question.
TUPE: Liability for harassment claim does not transfer if both employees do not transfer
In Sean Pong Tyres Ltd v Moore [2024] EAT 1 the EAT found that the transferor employer’s primary liability to its employee for the harassment did not transfer to the transferee employer under TUPE where the employee’s employment did not transfer to the new employer for reasons that were not connected with it (e.g. as in this case where the employee’s employment came to an end before the transfer for unrelated reasons).
In this case, the claimant resigned in April 2021 and claimed unfair constructive dismissal and harassment based on the actions of a fellow employee, Mr Owusu. In July 2021, after the claimant had left, there was a TUPE transfer of the respondent business, including Mr Owusu, to Credential. Neither Mr Owusu nor Credential were made respondents to the claim. The claim was only brought against the respondent by whom the claimant had been employed. When the hearing began the respondent’s representative applied to amend the response to argue that the respondent was not liable for the harassment, on the basis that liability for that had transferred to Credential under TUPE 2006.
The employment tribunal dismissed the respondent’s amendment application on the basis that the effect of TUPE 2006 was not to transfer liability for harassment to Credential in respect of the claimant who they had never employed and that, following the Selkent principles, on the facts, the balance of prejudice was in favour of the claimant.
The employment tribunal then upheld the claims of unfair constructive dismissal and harassment. The respondent appealed to the EAT who dismissed the appeal, finding that the transferor employer’s primary liability to its employee for the harassment does not transfer to the transferee employer if the employee’s employment does not transfer for reasons that were not connected with it (e.g. as in this case where the employee’s employment came to an end before the transfer for unrelated reasons).
This should come as a relief to transferees who might otherwise have found themselves liable for Equality Act 2010 claims by individuals who they had never employed (although it is likely that such liability could have been dealt with by suitable warranties/indemnities in a transfer agreement).
Anonymity: Claimant who made up sexual assault was not entitled to privacy orders
In Z v Commerzbank and others [2024] EAT 11, a claimant who was found by an employment tribunal to have made up a sexual assault allegation, and who had made no such allegation to the police (or other appropriate person), was not entitled to continued protection under anonymity and restricted reporting orders that an employment judge had made. For a claimant to have the protection of section 1(1) of the Sexual Offences (Amendment) Act 1992 (SO(A)A 1992) there must be a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought (such as a complaint to the police, a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system). In addition, the tribunal’s decision, that the claimant’s account given in his evidence was in large part false and, in particular, that his complaints of sexual harassment and sexual assault were fabricated, was a material change of circumstances entitling the tribunal to revoke the anonymity and restricted reporting orders. Also, the tribunal’s balancing exercise in relation to Convention rights was not flawed, according to the Employment Appeal Tribunal.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – February 2024
Employment,
26th February 2024
Employment Law
Welcome to our February employment law updates covering issues such as: the EHRC’s guidance on menopause in the workplace under the Equality Act, the National Minimum Wage sees latest amendments, over 500 companies are named and shamed for wage non-compliance. Discussions around ‘fire and rehire’ practices intensify, and updates on Skilled Worker and Family Immigration are announced, including changes limiting careworkers’ dependents and ending the Ukraine Family Scheme. Stay informed as we navigate these key developments.
Equality Act: EHRC issues menopause in the workplace guidance for employers
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
Pay: 500+ companies named and shamed for not paying National Minimum Wage
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
Immigration: Dates announced on Skilled Worker and Family Immigration
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme
Equality Act: EHRC issues menopause in the workplace guidance for employers
The Equality and Human Rights Commission (EHRC) has issued new guidance on menopause in the workplace, setting out employer’s legal obligations under the Equality Act 2010. The new guidance aims to clarify these obligations and provide practical tips for employers on making reasonable adjustments and fostering positive conversations about the menopause. If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they may be considered a disability. Under the Equality Act 2010, an employer will be under a legal obligation to make reasonable adjustments and to not discriminate against the worker. Additionally, workers experiencing menopause symptoms may be protected from less favourable treatment related to their symptoms on the grounds of age and sex.
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
The draft National Minimum Wage (Amendment) (No 2) Regulations 2024, which are due to come into force on 1 April 2024:
abolish the rate of the national minimum wage for workers who are aged 21 or over (but are not yet aged 23 years) so that workers aged 21 or over will now qualify for the national living wage, rather than a lower national minimum wage rate;
increase the rate of the national living wage for workers who are aged 21 or over from £10.42 to £11.44 per hour;
increase the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £7.49 to £8.60 per hour;
increase the rate of the national minimum wage for workers who are under the age of 18 from £5.28 to £6.40 per hour;
increase the apprenticeship rate for workers within SI 2015/621, reg 5(1)(a), (b), from £5.28 to £6.40 per hour;
increase the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £9.10 to £9.99 for each day that accommodation is provided.
Pay: 500+ companies named and shamed for not paying National Minimum Wage
The Department for Business and Trade (DBT) has named more than 500 companies for not paying national minimum wage to over 172,000 employees. Defaulting employers have been ordered to repay these workers almost £16m to backfill these breaches. This is the 20th list to be published by the government since the introduction of the naming scheme in 2013 under which it publicly ‘names and shames’ employers who fail to pay the minimum wage. The ‘naming and shaming’ scheme was paused from July 2018 until it recommenced in February 2020 in a revised form.
Employers named include major high street brands, including Estee Lauder, Easyjet, Greggs, Wickes and River Island. One employer, Staffline Recruitment Ltd, failed to pay £5,125,270.93 to 36,767 workers.
The businesses named have since paid back what they owe to their staff and have also faced financial penalties of up to 200% of their underpayment. The investigations by His Majesty’s Revenue and Customs (HMRC) concluded between 2015 and 2023.
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
The Department for Business and Trade has published a response to the consultation on a draft statutory code of practice on dismissal and re-engagement. The consultation lasted from 24 January 2023 to 18 April 2023 and considered the action to be taken by employers when considering whether to dismiss and re-engage employees. As a result of the consultation, the government has made a number of changes to the draft code.
Changes to the code include:
a change to the sequencing of the code to ensure the sections on information sharing and consultation appear earlier;
the separate lists of information for employers to share located at paragraphs 25 and 33 have been combined;
the requirement for employers to conduct a full re-assessment of plans after information sharing and consultation;
changing the obligation to phase in changes to ‘best practice’;
a reduction in the length of the code and amendments to make it clearer and less technical;
a greater requirement on employers contacting ACAS prior to dismissal and re-engagement.
Immigration: Dates announced on Skilled Worker and Family Immigration
The Minister of State for Legal Migration and the Border, Tom Pursglove MP, has made a Statement to the House of Commons giving more details of the timeline for various aspects of the five-point legal migration plan relating to the Skilled Worker and family migration routes. In terms of new announcements, he confirmed that there will be two sets of Statements of Changes in Immigration Rules, issued on 19 February 2024 and 14 March 2024, and the dates that the changes will come into force for these purposes.
The 19th February 2024 Immigration Rules will come into force on 11 March 2024 and will:
remove the right for care workers and senior care workers to bring dependants
ensure that care providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission (CQC)
The 14 March 2024 Immigration Rules will:
raise the Skilled Worker general salary threshold from £26,000 to £38,000 (with some exceptions) from 4 April 2024, and remove the 20% going rate discount for occupations on the Shortage Occupation List (being renamed the Immigration Salary List), as well as temporarily add any occupations as recommended by the Migration Advisory Committee to the new Immigration Salary List
raise the minimum income threshold from 11 April 2024 from £18,600 to £29,000 (in due course it will be raised to £34,300 and then £38,700).
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme
The Home Office has issued a new Statement of Changes in Immigration Rules HC 556, along with an Explanatory Memorandum (EM). The Statement makes anticipated changes as regards the dependants of careworkers and senior careworkers in the Skilled Worker/Health and Care visa route, and also makes a number of surprise and immediate changes to the Ukraine Schemes, including ending the Ukraine Family Scheme from 3pm on the 19th February 2024.
Skilled Worker/Health and care visa route
The Statement implements the first part of the Home Secretary’s ‘Five-point plan for Legal Migration’, which seeks to reduce net migration, and removes the possibility for dependent partners and children to apply in the Skilled Worker/Health and Care visa route where the main applicant is applying in, or has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6148 (Senior care worker). The change will not apply for dependants where the main applicant already has leave in Skilled Worker in either SOC code, or applied for entry clearance or leave in the route on or before 11 March 2024 (and also will not apply where such a main applicant subsequently applies to extend or change employer in either SOC code, or applies for settlement). It will also not apply for children born in the UK.
In addition, sponsors of persons initially applying in either SOC code on or after 11 March 2024 will be required to have Care Quality Commission (CQC) registration and to be currently carrying out a regulated activity. Similar transitional provisions apply as above for further applications by persons who were granted leave under the Rules on or before 10 March 2024 as regards working for a sponsor which does not meet the new requirements.
These changes are effected via amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024. The EM states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’. It goes on to say that ‘in the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.’
Ukraine Schemes
Closure of the Ukraine Family Scheme
The Statement announces the closure of the Ukraine Family Scheme from 3pm on 19 February 2024. The Ukraine Family Scheme allowed British nationals and those with a qualifying immigration status to sponsor family members. This included immediate and extended family members, as well as the immediate family members of extended family members (e.g. a British national could sponsor a cousin and their children).
Going forwards many people who could have applied under the Ukraine Family Scheme will have to apply under the Homes for Ukraine Sponsorship Scheme instead. This requires an offer of six months accommodation, assessed as suitable by the local authority.
Persons impacted by this change may need advice on alternative immigration options, such as making a human rights claim to join family in the UK.
Reduction in period of leave to 18 months
Ukraine Scheme visa-holders have been receiving three years leave. From 3pm on 19 February 2024 a positive grant of leave will only result in 18 months leave to remain, rather than three years leave. This affects persons who applied before the change in the law and have not yet received a decision on their case.
A limited exception is for unaccompanied minors, who will still receive three years leave, so long as they made their initial hosting application before 3pm on 19 February 2024, even if the local authority check takes place later. Unaccompanied minors who apply after that date will still only receive 18 months leave.
Extension scheme to close on 16 May 2024 except for some children born in the UK
The Ukraine Extension Scheme allows Ukrainians with a time-limited visa in the UK to switch into the Ukraine Scheme, recognising that Ukrainians cannot be expected to return to Ukraine. The deadline to apply has been changed, but it appears that there are currently no plans to increase the 16 May 2024 deadline for the Scheme. This will mean that Ukrainians on other visas, including visit, student, seasonal worker and family visas, will no longer be able to switch into the Ukraine Extension Scheme from that date.
The Statement creates an exception to the closure of the Ukraine Extension Scheme for children born in the UK to a parent who has leave under the Ukraine Scheme. This will come into force on 11 March 2024. The children will receive leave in line with their parent (or if both parents are here, in line with whichever parent’s leave expires last). Such children have been using this scheme informally already, but it is helpful to see a provision in the Rules. Unfortunately, the new provision is silent on what children born outside the UK to a parent with a Ukraine Scheme visa should do.
Additional grounds for refusal
Part 9 of the Immigration Rules sets out general grounds for refusal of immigration applications on character grounds. Only some of those criteria have so far applies to Ukraine Scheme applications and mainly those focused on criminality. The Statement provides that from 3pm on 19 February 2024 additional grounds for refusal will apply, including previous breaches of immigration laws, failures to provide information when required and other general grounds for refusing entry clearance or cancelling permission on arrival. Anecdotally, there have been some cases of arrivals from Ukraine who do not have the right documentation and so this may be a response to that. This does however indicate a tightening up of visa controls for Ukrainians.
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.
This month our employment news has been rolling in from all levels of the courts...
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Employment Law Case Update – December 2023
Employment,
15th December 2023
Employment Law
As the year draws to a close we delve into some technical cases – an update on the case that just keeps on giving (Deliveroo), a look at how “heat of the moment” resignations play out and when they might be considered to have in fact been an unfair or wrongful dismissal, and how a tribunal got it wrong in not calling out a respondent’s alleged dishonesty.
Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
Termination:No ‘special circumstances exception’ when assessing resignation or dismissal
Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity
Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
On 21 November 2023, the Supreme Court handed down its judgment in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43. The issues at stake were, did the Central Arbitration Committee’s refusal to accept the Union’s application to be recognised by Deliveroo for collective bargaining interfere with the rights of Deliveroo riders to form and join a trade union under Article 11 of the European Convention on Human Rights? If so, was this interference justified? Should the courts below have construed section 296(1)(b) of the 1992 Act so as to give effect to Article 11?
This appeal concerns collective bargaining rights in respect of Deliveroo riders. The appellant, the Independent Workers Union of Great Britain (“the Union”) is an independent trade union whose members include Deliveroo riders. The second respondent, Roofoods Ltd (“Deliveroo”) operates the Deliveroo food and drinks delivery service.
On 28 November 2016, the Union submitted an application to the first respondent, the Central Arbitration Committee (“the CAC”), that the Union should be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders in the Camden zone. Applications are considered by the CAC in accordance with Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The CAC refused to accept the Union’s application on the basis that the riders were not “workers” within the meaning of the 1992 Act. This was because Deliveroo did not require them to provide delivery services personally, but permitted the use of substitutes, i.e. they did not provide “personal service”.
Both the High Court and the Court of Appeal dismissed the Union’s claim for judicial review of the CAC’s decision. The Union then appealed to the Supreme Court.
In a unanimous decision delivered by Lord Lloyd-Jones and Lady Rose in a joint judgment, the Supreme Court agreed with the previous decisions of the lower courts that the Deliveroo riders in question did not have an employment relationship with Deliveroo for the purposes of article 11 of the European Convention on Human Rights (ECHR) (i.e. the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions), and therefore the provisions of that article did not apply to them.
Termination: No ‘special circumstances exception’ when assessing resignation or dismissal
In Omar v Epping Forest District Citizens Advice [2023] EAT 132 the EAT had to consider the position of a claimant who had resigned ‘in the heat of the moment’ and then sought to retract the resignation. The claimant had contended that he should not be treated as having resigned as the situation fell within the so-called ‘special circumstances exception’ recognised in Sothern v Frank Charlesly[1981] IRLR 278. He argued that he had been unfairly and wrongfully dismissed. The employment tribunal disagreed and found that the claimant had resigned.
The EAT held, among other things, that the employment tribunal had erred in law by failing to make adequate findings of fact and failed to direct itself properly in accordance with the applicable legal principles set out in Sothern v Frank Charlesly. The EAT summarised the case law on the issue, including, among other things, that:
there is no such thing as the ‘special circumstances exception’; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context;
words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation (i.e. the reasonably bystander test);
the subjective uncommunicated intention of the speaking party is not relevant, but the subjective understanding of the recipient is relevant but not determinative in assisting the tribunal form a judgment as to what the reasonable bystander would have thought.
Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity
In Stuart Harris Associates Ltd v Gobudhun [2023] EAT 145 the EAT dismissed the respondent employer’s appeal against the decision of the employment tribunal that held that: first, the claimant employee had been constructively dismissed; and second, the respondent had been either dishonest or incompetent when they engaged in the expenses practice that had led to the claimant’s resignation.
The respondent contended that the employment tribunal had erred in law since: (i) it had prejudged the case; (ii) descended into the arena by conducting their own extensive research into the law and practice of filing tax returns; and (iii) determined that the respondent’s principal, had been either ‘dishonest’ or ‘incompetent’ when it had not been put to him in terms that his conduct was dishonest or incompetent.
The EAT held, among other things, that: (i) the failure to put to the respondent that he had acted dishonestly amounted to a serious procedural irregularity which meant that the finding of dishonesty had to be set aside; and (ii) there had been no prejudgment of the case and the employment tribunal’s conduct regarding the hearing had not been unfair.
Consequently, given that the employment tribunal’s conclusions as to unfair constructive dismissal could stand irrespective of the finding as to dishonesty, the decision overall remained and was not set aside.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – December 2023
Employment,
15th December 2023
Employment Law
This month we have a plethora of publications and information for you. There are changes to National Living Wage, benefit and pension rates all due in April 2024. Two reports have been published recently looking at pay gaps for those with disabilities and people with different ethnicities, unsurprisingly the news is not positive. Some helpful guidance from the Home Office for employers to ensure they avoid the new raised penalties for employing illegal workers, and the government’s response to the occupational health consultation has been published. Lastly, the CIPD has produced an interesting report on menstruation at work, which is well worth a read to understand how this affects a large proportion of the workforce and what can be done to support women at work.
Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
Wage Updates: New benefit and pension rates published for 2024-25
Pay Disparity: TUC publishes latest data on disability pay gap
Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
Immigration: Home Office publishes updated Code of Practice on illegal working penalties
Health at Work: Government publishes response to occupational health consultation
Health at Work: CIPD report on menstruation and support at work
Wage Updates: National Living Wage to apply to all workers aged 21+ from April 2024
The government has accepted the Low Pay Commission (LPC) recommendations on National Minimum Wage (NMW) and National Living Wage (NLW) rates to apply from 1 April 2024. The LPC notes that this is the largest ever increase to the minimum wage in cash terms. The National Living Wage will apply to all workers aged 21 and over from 1 April 2024 (previously applying only to those aged 23 and over). The new rates are as follows:
Wage Updates: New benefit and pension rates published for 2024-25
The government has published proposed new benefit and pension rates for 2024 to 2025 including in respect of Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP), Statutory Adoption Pay (SAP), Statutory Shared Parental Pay (SSPP), Statutory Parental Bereavement Pay (SPBP), Maternity Allowance (MA) and Statutory Sick Pay (SSP). The rates of these benefits are normally increased in April each year in line with the Consumer Prices Index (CPI). The Written Statement to Parliament by the Secretary of State for Work and Pensions, Mel Stride, states that these rates will rise by 6.7% in line with CPI for the year to September 2023 and the new rates for the tax year 2024–2025 will come into effect on 8 April 2024. The DWP policy paper reveals that:
the standard rate for Statutory Maternity Pay (SMP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the standard rate for Statutory Adoption Pay (SAP), ie the rate that applies after the first 6 weeks of pay at 90% of the employee’s normal weekly earnings, will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Paternity Pay and Statutory Shared Parental Pay (SPP and SSPP) will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Statutory Parental Bereavement Pay will increase from £172.48 to £184.03 per week (or be set at 90% of the employee’s weekly earnings if that amount is lower);
the rate for Maternity Allowance (MA) will increase from £172.48 to £184.03 per week (or be set at 90% of the individual’s weekly earnings if that amount is lower);
the rate of Statutory Sick Pay (SSP) will increase from £109.40 to £116.75 per week;
the amount of the weekly lower earnings limit, that applies to National Insurance contributions, below which employees are not entitled to SMP, SPP, SAP, SSPP and SSP (but remain entitled to Maternity Allowance) will remain at £123.
Pay Disparity: TUC publishes latest data on disability pay gap
The Trades Union Congress (TUC) has published new analysis of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers. That makes for a pay difference of £3,460 a year for someone working a 35-hour week – and means that disabled people effectively work for free for the last 47 days of the year. Disabled women face an even bigger pay penalty of 30% (£3.73 an hour, £130.55 a week, or £6,780 a year) less than disabled men – effectively double discrimination. The research also shows that the disability pay gap persists for workers for most of their careers. At age 25 the pay gap is £1.73 an hour hitting a high of £3.18 an hour, or £111.30 a week, for disabled workers aged 40 to 44.
The analysis looked at pay data from across the country and found disability pay gaps in every region and nation of the UK. The highest pay gaps are in Wales (21.6% or £2.53 an hour), followed by the South East (19.8% or £2.78 an hour) and the East of England (17.7% or £2.30 an hour).
The research found that disability pay gaps also vary by industry. The biggest pay gap is in financial and industrial services, where the pay gap stands at a huge 33.2% (£5.60 an hour).
Not only are disabled workers paid less than non-disabled workers, they are also more likely to be excluded from the job market. Disabled workers are twice as likely as non-disabled workers to be unemployed (6.7% compared to 3.3%). And the analysis shows disabled BME workers face a much tougher labour market – one in 10 (10.4%) BME disabled workers are unemployed compared to nearly one in 40 (2.6%) white non-disabled workers.
The analysis shows that disabled workers are more likely than non-disabled workers to be on zero-hours contracts (4.5% to 3.4%). And disabled BME women are nearly three times as likely as non-disabled white men (6.0% to 2.2%) to be on these insecure contracts.
The TUC says zero-hours contracts hand the employer total control over workers’ hours and earning power, meaning workers never know how much they will earn each week, and their income is subject to the whims of managers. The union body argues that this makes it hard for workers to plan their lives, look after their children and get to medical appointments. And it makes it harder for workers to challenge unacceptable behaviour by bosses because of concerns about whether they will be penalised by not being allocated hours in future.
The report goes on to discuss how Labour’s New Deal for Working People would affect workers’ rights.
Pay Disparity: ONS publishes new report on ethnicity pay gaps in the UK
The Office for National Statistics (ONS) has published a new report on ethnicity pay gaps in the UK for 2022 which reveals, in particular, that Black, African, Caribbean or Black British employees continue to earn less median gross hourly pay than White employees, which has been consistent since 2012.
The main points from the report are that in the UK in 2022:
Black, African, Caribbean or Black British employees earned less (£13.53) median gross hourly pay than White employees (£14.35)
between 2012 and 2022, Black, African, Caribbean or Black British employees were the only ethnicity group to be consistently earning less than White employees
country of birth had an impact on how much employees earned: UK-born Black, African, Caribbean or Black British employees earned more (£15.18), while non-UK-born Black British employees earned less (£12.95) when compared with UK-born White employees (£14.26), a pay gap of negative 6.5% and 9.2% respectively
after holding personal and work characteristics constant, to provide an adjusted pay gap based on a like-for-like comparison, UK-born White employees earn more on average than most ethnic minority employees
when adjusting for pay-determining characteristics (e.g. occupation or where the job is), the pay gap narrowed and in some instances reversed, for example:
UK-born Asian or Asian British employees earned on average 11.9% more than UK-born White employees, but after adjustment it was estimated that they earned 1.9% less
UK-born Black, African, Caribbean or Black British employees, move from earning 6.5% more to earning 5.6% less compared with White employees
Other findings included that:
in relation to Mixed or Multiple ethnic groups, White and Black Caribbean employees (a Mixed ethnic group) had the lowest median gross hourly earnings (£11.75) in 2022, compared with White British employees (£14.42). This was a pay gap of 18.5%, the opposite of what was seen for the overall Mixed or Multiple ethnic employees
Asian or Asian British employees in 2022 earned more than White employees, with a pay gap of negative 3.3%. However, based on the more detailed ethnicity classification of Asian or Asian British employees in England and Wales, Chinese and Indian employees had higher earnings compared with White British employees, while Bangladeshi and Pakistani employees earned less compared with White British employees
a breakdown of White employees showed that the highest earnings were reported by White Irish employees (£20.20 median gross hourly pay), which represents a pay gap of negative 40.1% relative to White British employees. This suggests that White Irish employees are in higher-paid occupations
the main factors that explain most differences between the groups were: occupation, highest qualification level, geography, age and sex
Immigration: Home Office publishes updated Code of Practice on illegal working penalties
The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time. There will be a sixty thousand pound (£60,000) (up from twenty thousand pounds (£20,000)) maximum penalty applied to any employer found to have been employing a person who is disqualified from working by reason of their immigration status in the UK.
The advise is that employers have a key role to play in preventing illegal working in the UK. They do this by carrying out right to work checks on people before employing them, to make sure they are allowed to do the work in question. If you are in any doubt, please contact us so that we can help you avoid a penalty.
Health at Work: Government publishes response to occupational health consultation
The Department for Work and Pensions has published its response to the consultation it held on increasing employer use of Occupational Health Services entitled ‘Occupational Health: Working Better’. The government has evaluated the responses to the consultation and opted to introduce a voluntary minimum framework for quality occupational health provision and explore new voluntary workplace health and disability standards, examining options for a new small- and medium-sized enterprise group purchasing framework, and learning from the existing Workforce Expansion scheme to develop a long-term strategic occupational workforce approach.
Health at Work: CIPD report on menstruation and support at work
The Chartered Institute of Personnel and Development (CIPD) has published the findings from its survey of over 2,000 women, aged 18–60. The report, CIPD: Menstruation and support at work looks at the prevalence and type of menstruation symptoms, their impact on work, menstrual health conditions and the impact these have on the ability of employees to stay in and progress at work. It highlights the difference workplace support can make and the types of adjustments that are seen to be most helpful when managing symptoms at work.
This detailed report provides an eye-opening (and at times quite shocking) insight into the extent to which women experience symptoms from menstruation (i.e. periods) and from menstrual health conditions, and the impact these have on them at work.
The report is helpful to both employers and employees in demonstrating the scale of the problem and the need for an open and supportive workplace—this may form part of the employer’s work on employee wellbeing or ESG issues.
Managers need to be educated and trained about menstruation and menstrual health and the employer should encourage a culture where women feel comfortable discussing their symptoms and the impact these have on them. This would benefit everyone because it would reduce misunderstandings about absences, reduce the risk of discrimination and, in time, hopefully help to reduce gender pay gaps.
In the report the CIPD explains that:
‘Employers offering appropriate support in the workplace can help people feel included, offer dignity and reduce embarrassment. It can increase employee attendance, but also legitimise absence where this is needed. It can increase employee performance, engagement, retention and employer branding.
Employers can improve employee experience by creating environments and work cultures that are menstruation friendly, and providing support for menstrual health conditions that are underpinned by the principles of compassion, empathy and inclusivity.’
The introduction to the report explains that:
the survey included over 2,000 women, aged 18-60, who currently menstruate, or have previously menstruated, while in employment;
‘menstruation’ refers to the monthly period in which bleeding occurs;
‘menstrual health’ has a broader meaning and recognises that while menstruation is a natural bodily function, some people experience physical and/or mental health symptoms and challenges linked to menstruation. These range from painful, heavy and/or irregular periods and premenstrual syndrome (PMS) through to formally diagnosed chronic health conditions such as endometriosis, adenomyosis, polycystic ovary syndrome (PCOS) and premenstrual dysphoric disorder (PMDD). Some of these conditions can have significant impacts on daily life and can also affect fertility;
while the report predominantly references women in relation to menstruation and menstrual health, the CIPD recognises that there is also an impact on some transgender and non-binary individuals who will require support and flexibility relevant to their needs.
What were the key findings?
Prevalence of symptoms
The responses to the survey showed that:
57% of those responding currently menstruate each month and 92% say they have previously menstruated each month while in employment;
79% of respondents have experienced menstruation symptoms, with the most common being abdominal cramps (60%), feeling irritable (52%), fatigue (49%), bloating (49%) and low mood (47%), but there are a wide range of symptoms;
those aged 18–34 were more likely to experience a high proportion of the symptoms;
15% have a menstrual condition such as endometriosis, PCOS, PMDD or fibroids.
Impact at work
In relation to how these symptoms impacted on people at work, the report states that:
69% of those who have experienced symptoms from menstruation report that they have had a negative impact at work, rising to 81% for people with a diagnosed menstrual condition;
the kinds of effects people have experienced are many and varied, but the main ones are feeling more tired (79%), working when they haven’t felt well enough to do so (61%) and feeling less able to concentrate (63%);
53% had been unable to go to work at some point because of menstruation symptoms and for 4% this was the case every month;
49% never tell their manager that their absence is related to their menstrual cycle;
20% always tell their manager that their absence is related to their menstrual cycle;
employees are less likely to tell their manager if their manager is male;
reasons given for not telling their manager the real reason included that they felt the problem would be trivialised (45%), feeling embarrassed (43%), that they prefer to keep the matter private (42%), that there’s too much stigma/ taboo (35%), that the employer/ manager wouldn’t be understanding (24%), having a male manager (24%) and worried the manager would think that performance would be affected (19%);
people are more likely to feel supported by colleagues than by their employer or manager (41%, compared with 21% and 26%, respectively);
12% of employees report that their organisation provides support for menstruation and menstrual health and 67% said there is no support available;
the most common support available is free period products (18%), paid sick leave (15%) and paid time off for medical appointments (12%);
the types of support that respondents said would be most helpful included free period products (53%), planned flexible working (44%), more breaks when needed (41%), paid time off for medical appointments (39%), paid sick leave (32%), access to a rest room (e.g. lounge area) (31%), adjustments to work tasks (28%), a better equipped bathroom (e.g. with a shower) (27%), clothing change (25%), and free hot water bottles (23%).
The wider impact of menstruation at work
The findings of the report include that:
6% of respondents say that menstrual symptoms have impacted them in a way which has led to formal action at work;
7% feel they have been discriminated against at work because of menstrual symptoms (those with a male manager (8%) are more likely to say this than those who have a female manager (4%));
a lack of support has promoted 8% to leave or consider leaving their jobs;
12% say that their menstrual symptoms have had a negative impact on their career progression;
workplace support makes a difference with those who work in organisations without support more likely to say that their symptoms had a negative impact on their career progression (14% compared with 5% who work for organisations with support).
Recommendations and good practice
The CIPD makes the following recommendations for supporting menstrual health in the workplace:
build an open and inclusive culture where menstruation is normalised thorough supportive discussions and open dialogue;
create awareness and tackle stigma;
develop a support framework;
train and support people managers.
For full details of how these can be implemented, see pages 13–14 of the report.
In addition to the recommendations above, organisations can offer specific support for employees experiencing menstrual health conditions, e.g.:
embedding good people management practices;
creating the climate for successful sharing of information;
ensuring employees have easy access to information and support;
managing absence and performance management with compassion and flexibility;
providing access to, and training in, work adjustments.
For further information on ways to implement these in the context of menstrual wellbeing and health, see pages 14–15 of the report.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – November 2023
Employment,
22nd November 2023
Employment Law
This month’s employment law updates cover various critical issues. The Work and Pensions Committee seeks input on statutory sick pay, while the Government has published its response to the EU employment law consultations. The Home Office updates illegal working penalty guidelines, and we have Government guidance on the handling labour unions before strikes. The TUC’s data on the disability pay gap underscores the importance of inclusivity, and a WoRC report examines systemic factors in the exploitation of migrant workers. Stay informed for compliance in this evolving employment landscape.
Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
Immigration: Home Office publishes updated code of practice on illegal working penalties
Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
Disability: TUC publishes latest data on disability pay gap
Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation
Sick Pay: Work and Pensions Committee publishes call for evidence on statutory sick pay
The Work and Pensions Committee has issued a call for evidence on statutory sick pay (SSP), requesting the public views and ability to submit evidence until Friday, 8 December 2023. The Work and Pensions Select Committee calls for this inquiry to assess the existing ‘effectiveness of SSP in supporting claimants and if SSP should be reformed to better enable a recipient’s recovery and return to work’.
Retained EU Employment Law: Government response to consultation and new draft regulations available
Retained EU Employment Law consultation response
The government has officially released its response to the ‘Retained EU Employment Law’ consultation, addressing proposed reforms within the Working Time Regulations 1998 (WTR) related to annual leave, holiday pay calculations, and record-keeping requirements. Additionally, it responded to the consultation concerning the annual leave entitlement calculation for part-year and irregular hours workers in light of the Supreme Court’s Harpur Trust v Brazel 2022 ICR 1380 decision.
The government has proposed the introduction of a ‘rolled-up’ holiday pay system for irregular hours and part-year workers and allow for an annual leave accrual method of 12.07% of hours worked for these groups. This means that instead of receiving a separate payment when taking annual leave, certain workers, specifically those with irregular hours or part-year employment (which may include agency workers), will get an extra amount added to their regular pay.
However, the government has decided not to proceed with the idea of creating a single annual leave entitlement that combines the ‘basic’ and ‘additional’ annual leave entitlements into a single 5.6-week entitlement (i.e. four weeks required by EU law and the 1.6 weeks mandated by the Working Time Regulations). Instead, they want to maintain two separate “pots” of annual leave with two different pay rates. This means that workers will still receive four weeks of leave at their normal pay rate and 1.6 weeks at a basic pay rate.
Additionally, the government plans to pass laws to make it clearer what should be included in the calculation of normal remuneration for holiday pay. They are also considering more significant changes to how holiday pay rates are determined.
In response to the Harpur Trust ruling, the initial proposal suggested using a 52-week reference period to calculate annual leave entitlement. However, many people raised concerns about the extra work this would create and the challenges it posed for workers whose hours changed from year to year or for those in their first year of employment.
To keep things simpler, the government has opted for a different approach. They will use an accrual method to figure out annual leave entitlement, where workers get 12.07% of the hours they’ve worked in a specific pay period. This method was commonly used before the Harpur Trust decision and better reflects the hours a worker has actually worked in the current year. For other workers in their first year of employment, things will remain the same. They will continue to accrue annual leave by receiving 1/12th of their statutory entitlement on the first day of each month and adjusting it accordingly.
The response also mentions that the government will maintain certain EU case laws to protect workers’ rights regarding carrying over unused annual leave when they can’t take it due to maternity, family-related leave, or being sick. They will also introduce a way for irregular hours and part-year workers to accrue annual leave when they’ve had periods of maternity, family-related leave, or sickness.
Additionally, the government will proceed with changes to record-keeping requirements in the Working Time Regulations (WTR). This change clarifies that businesses do not have to keep daily records of how many hours each worker works. This clarification aims to address concerns that a previous ruling by the European Court of Justice might have required employers to track the exact daily hours worked by each employee, rather than maintaining adequate and proportionate records based on the workplace and working patterns.
Regarding TUPE (Transfer of Undertakings), the government will move forward with its proposal to simplify consultation obligations during a transfer. Small businesses (with fewer than 50 employees) will be allowed to directly consult with employees if there are no existing employee representatives, avoiding the need to organize elections for new representatives. Additionally, businesses of any size can directly consult with employees (if there are no existing representatives) when a transfer involves fewer than ten employees.Top of Form
Draft Regulations
The Department of Business and Trade has published the draft Equality Act 2010 (Amendment) Regulations 2023. The draft SI restates some protections in relation to pregnancy, maternity and breastfeeding, indirect discrimination, access to employment and occupation, equal pay and the definition of disability which would otherwise be lost from 1 January 2024 under the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023).
These draft regulations are proposed to reproduce in domestic law certain interpretive effects of retained EU law which, under REUL(RR)A 2023, will cease to apply to the UK statute book after the end of 2023. This will mean that, in the areas covered by this instrument, the law will continue to have the same effect after the end of 2023 as it did before. They are due to come into force on 1 January 2024.
The draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 will amend the Working Time Regulations 1998 (in relation to record-keeping, paid holiday for irregular hours workers and part-year workers, normal pay, and the carrying forward of paid holiday) and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (in relation to information and consultation obligations on small businesses for transfers on or after 1 July 2024) and revoke the European Cooperative Society (Involvement of Employees) Regulations 2006. They are due to come into force on 1 January 2024.
Immigration: Home Office publishes updated code of practice on illegal working penalties
The Home Office has published a new draft Code of Practice on the civil penalty schemes for employers (preventing illegal working). The draft is an update to the version published in March 2022 and will be the sixth version of the code. This latest version of the code will be applied to all right to work checks from 22 January 2024 including where a follow-up check is required to maintain a statutory excuse, even if the initial check was undertaken using a previous version of the code which was current at the time.
The draft code has been amended further to the issue of draft Statutory Instruments (SIs) which will raise the starting point for penalties to £45,000 for a breach (if there are no previous breaches in the last three years) and £60,000 for repeated breaches. The draft codes will come into force at the same time as the related SIs, which are: (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2023 and the Immigration (Restrictions on Employment and Residential Accommodation) (Codes of Practice) (Amendment) Order 2023. These are each stated to come into force on 22 January 2024, or, if later, on the twenty-first day after the day on which it is made. However, the code assumes 22 January 2024 as a commencement date.
Trade Unions: Government publishes guidance on issuing work notices ahead of strike action
The Department of Business and Trade has published guidance for employers, trade unions and workers on issuing work notices ahead of strike action. Work notices, which were introduced under the Strikes (Minimum Service Levels) Act 2023, allow employers to require a workforce to meet minimum service levels for an upcoming strike period where the trade union has given notice to the employer of the strike and the employer provides a service covered by minimum service level regulations.
The new guidance is designed to be read alongside the government’s range of guidance on industrial action which can be found here.
The guidance covers:
the purpose of a work notice and the steps for preparing it;
considerations when preparing a work notice;
considerations upon deciding to issue a work notice;
consulting with trade unions;
guidance on producing a work notice;
guidance on notifying workers of a notice;
duties on workers and trade unions following issue of a work notice;
Disability: TUC publishes latest data on disability pay gap
The Trade Union Congress (TUC) has published new analysis [TUC slams “zero progr<a id=”back”></a>ess” on disability pay gap in last decade | TUC] of the pay gap between non-disabled and disabled workers. According to data from the TUC, the pay gap is currently higher than it was 10 years ago, with non-disabled workers earning approximately 14.6% more than disabled workers.
The key findings of the analysis include:
the pay gap is only marginally lower than it was when the TUC launched disability Pay Gap Day in 2016/17;
disabled women face the biggest pay penalty with non-disabled men earning an average of 30% more;
the industry with the biggest pay gap is financial and industrial services which currently stands at 33.2%;
disabled workers are twice as likely to be unemployed than non-disabled workers;
one in 10 BME disabled workers are unemployed compared to nearly one in 40 white non-disabled workers;
disabled workers are more likely to be on zero-hours contracts than non-disabled workers.
The TUC has called for action from the government to put an end to discrimination against disabled workers in the labour market and has backed Labour’s New Deal for Working People.
Immigration: WoRC report looks at systemic drivers of UK migrant worker exploitation
The charity Work Rights Centre (WoRC) has published a report which looks at what lies behind increasing reports of migrant worker exploitation in the UK, particularly in certain sectors such as health and care. Drawing on 40 case studies, interviews with caseworkers, and policy analysis, the report identifies the post-Brexit work sponsorship system and piecemeal/weak labour enforcement as two key systemic drivers. It makes a number of recommendations, including reforms to the work sponsorship system (replacing employer sponsorship entirely, or alternatively a range of reforms to the sponsorship system to facilitate protection of sponsored migrants against exploitation), increasing protections for all workers (including establishing a Single Enforcement Body for all labour rights, giving protection against unfair dismissal from the first day of employment and instituting secure reporting of exploitative practices), and implementing a migrant worker welfare strategy (including the creation of an independent Migrant Commissioner role).
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – November 2023
Employment,
22nd November 2023
Employment Law
This month’s case law shines a light on a less-common area of worker status – where a partnership is providing a service to a company and how to ensure no employee relationship is found, and provides a useful insight into using comparators for discrimination claims.
Worker Status: Individual providing services through genuine partnership cannot be an employee
Worker Status: Individual providing services through genuine partnership cannot be an employee
In Anglian Windows Ltd t/a Anglian Home Improvements v Webb [2023] EAT 138 the EAT held that if there is an agreement between a genuine partnership and an employer for the partnership to provide certain services, then, providing that the arrangement is not a sham, there cannot also be an employment relationship between the individual partner providing those services and the employer, and, accordingly that partner cannot bring a claim of unfair dismissal against the employer (because they do not have the necessary status of being an employee).
This judgment concerns the unusual situation of a partnership entering into an agreement with a company for one of its partners to perform a sales role and then that individual partner trying to claim that they are an employee of that company in order to claim unfair dismissal.
The claimant and his wife had a partnership trading as Webb Consultants. The claimant was appointed as Area Sales Leader for the respondent but provided services (and was paid) through Webb Consultants. The contract provided that the claimant would not be an employee and would ‘at all times remain either a self-employed sole trader, a limited company or a partnership’. The claimant was dismissed and claimed unfair dismissal. The respondent applied to strike out the claim on the basis that it did not have reasonable prospects of success because the claimant was not an employee.
The employment tribunal refused to strike out the claim on the basis that the fact of these arrangements (which involved a genuine partnership and were not suggested to be a sham) did not preclude the possibility of the claimant being able to establish employee status. In reaching this conclusion, the tribunal sought to distinguish the EAT’s decision in Firthglow Ltd v Descombes and anor UKEAT/0916/03. The respondent appealed.
The EAT disagreed with the tribunal’s finding. The EAT held that the tribunal had erred in seeking to draw a distinction between this case and Descombes, where it had been held that, where the relevant work was being undertaken under an agreement with a partnership, that precluded the possibility of one of the individual partners being able to claim he was an employee. The tribunal ought to have followed Descombes. Although it was open to the EAT not to follow a previous decision at this level, none of the circumstances that might warrant adopting this course of action. Moreover, the agreed facts, confirmed by the tribunal’s own findings, meant that the possibility of the existence of a contract of employment between the claimant and the respondent was precluded in the circumstances of this case. That being so, the claimant’s claim of unfair dismissal could have no reasonable prospect of success and the tribunal ought to have allowed the respondent’s strike out application. Therefore the appeal was allowed, the tribunal’s judgment set aside and a finding substituted that the claimant’s claim must be dismissed as having no reasonable prospect of success.
Although employers might, as a result of this judgment, be tempted to engage people to work for them through a partnership (as a means of avoiding them gaining rights as employees) the fact that the courts and tribunals will look behind any such arrangement to determine whether it is a sham, and not reflecting the true agreement between the parties, should discourage them from doing so in practice.
Constructive Unfair Dismissal: Incorrect use of hypothetical comparators
In The No. 8 Partnership v Simmons [2023] EAT 140 the claimant pursued claims of constructive unfair dismissal and of direct associative disability discrimination, relating to the respondent’s refusal to grant her time off for her dependent father under section 57A Employment Rights Act 1996. In considering the claim of direct discrimination, the Employment Tribunal constructed hypothetical comparators without first giving the parties the opportunity to give evidence or make submissions on the hypothetical circumstances envisaged. The tribunal also found that the reason for the refusal of section 57A leave was the respondent’s unwarranted misinterpretation of the section and that one of the decision-makers was dismissive of the care that aged parents required. Having found that the respondent had thus discriminated against the claimant, the tribunal concluded that this meant that it had breached the implied term of trust and confidence, which had also been breached by the respondent’s failure to personally communicate with the claimant before reaching any decision. The respondent appealed.
The EAT allowed the appeal. By failing to afford the parties the opportunity to address its hypothetical comparisons (in evidence or submissions), the tribunal had adopted an unfair procedure. The comparators thus constructed were also flawed as they failed to provide a like-for-like comparison for the purposes of section 23 Equality Act 2010 and, in the case of the second case, relied on a comparison with an individual sharing the same protected characteristic as the claimant. Moreover, given its finding as to the respondent’s reason for refusing section 57A leave, it was perverse of the tribunal to conclude that this was because of the claimant’s father’s disability. That conclusion was also perverse given the tribunal’s further finding that one of the respondent’s partners would have treated any carer of an aged parent (regardless of disability) in the same way.
Having allowed the appeal against the finding of discrimination, this also undermined the tribunal’s reasoning on constructive unfair dismissal. The alternative basis for that conclusion was, however, also flawed as the tribunal had failed to apply the correct test when determining whether there had been a breach of the implied term of trust and confidence and had failed to provide an adequate explanation of it finding that a breach arose from a failure of personal communication.
In the direct race discrimination case of Virgin Active Ltd v Hughes [2023] EAT 130, the question before the EAT was whether it was correct for the employment tribunal to consider a colleague who had made a comment about her own race as a valid comparator for a claimant who had made a comment about a colleague’s race.
The claimant in this case was a gym manager who had been dismissed. He had won several claims at the tribunal, including unfair dismissal, automatic and ‘ordinary’ unfair dismissal, and race discrimination concerning the handling of his disciplinary process and a grievance. The respondent appealed on various grounds and succeeded in overturning the findings related to race discrimination.
The tribunal had considered three of the claimant’s colleagues as comparators, even though their situations appeared significantly different from the claimant’s. The tribunal argued that the differences in treatment of these comparators shifted the burden of proof and upheld the complaint.
However, the EAT disagreed with the tribunal’s approach. It pointed out that the tribunal had not adequately assessed whether the claimant’s comparators were indeed suitable comparators, given their differing circumstances. A tribunal should carefully evaluate any material differences between a claimant and a valid comparator. The more significant the differences in their circumstances, the less likely the disparate treatment indicates discrimination. To illustrate this, the EAT provided an example: if two individuals of different races both undergo a job interview and one succeeds while the other does not, this alone wouldn’t be enough to shift the burden of proof. However, if both candidates scored equally in an assessment but were treated differently, that might indeed warrant shifting the burden of proof.
Additionally, the judgment highlighted that delay, on its own, is not sufficient grounds for an appeal. (The judgment had been delayed due to the Employment Tribunal Judge’s serious ill-health.)
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law General Update – September 2023
Employment,
21st September 2023
Employment Law
We bring you an update of some key pieces of information affecting employment law, and potentially employers, published over the last two months to help keep you up to date.
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023
Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill
Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023
Workers’ Rights: TUC launches AI taskforce to help fill legislative gap
Data Protection: ICO seeks views on first phase of draft biometric data guidance
Immigration: Number of Home Office-approved sponsor employers, by visa route, as at 13 September 2023
The Home Office has published the number of approved employer sponsors, according to visa route, as listed on the Home Office’s register of licensed sponsors on the specified date. As at 13 September 2023, Skilled Worker sponsors account for the majority of employers (80.70%). 10.75% of sponsors have a Global Business Mobility: Senior or Specialist Worker licence, and the remaining 13 work routes account for the remaining (8.55%).
Economic Crime: Lords to drop Anti-Money Laundering provisions in Economic Crime and Corporate Transparency Bill
Peers in the House of Lords on 11 September 2023 sought to strike a compromise with the Commons over controversial provisions in economic crime legislation by curtailing a new corporate criminal offence while also limiting the size of companies caught in its net. Peers dropped plans by unanimous consent to expand corporate criminal liability in the Economic Crime and Corporate Transparency Bill to include a new offence making it a crime for companies that fail to prevent money laundering. But members of Parliament’s upper chamber also voted 211-185 in favour of exempting only the very smallest of companies from a government offence holding companies criminally liable for failing to prevent fraud.
Trade Unions: TUC to report government to ILO over Strikes (Minimum Service Levels) Act 2023
The Trades Union Congress (TUC) has announced that it is reporting the government to the International Labour Organization (ILO) over the Strikes (Minimum Service Levels) Act 2023. The TUC has stated that the legislation falls far below international legal standards and there are concerns that the legislation could be in breach of the UK-EU trade agreement. The ILO has already warned the government that existing and prospective legislation should be in line with ILO standards.
Workers’ Rights: TUC launches AI taskforce to help fill legislative gap
The Trades Union Congress (TUC) has announced the launch of a new AI taskforce as part of its ‘urgent’ call for new legislation safeguarding workers’ rights. The taskforce has been launched following warnings that the UK is ‘way behind the curve’ on AI regulation, with many EU and other countries already drafting legislation specific to AI in the workplace. The taskforce will consist of leading specialists in law, technology, politics, HR and the voluntary sector with the primary purpose of filling any current legislative gaps in UK employment law around AI regulation at work. The taskforce will aim to publish an expert-drafted AI and Employment Bill in the early part of 2024.
Data Protection: ICO seeks views on first phase of draft biometric data guidance
The Information Commissioner’s Office (ICO) has published the first phase of draft biometric and data guidance, which explains how data protection law applies when biometric data is used in biometric recognition systems. The consultation on the first phase will close on 20 October 2023, with the second phase opening for a call of evidence in 2024.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – September 2023
Employment,
21st September 2023
Employment Law
This month we bring you a plethora of interesting cases centring around dismissal in all its forms – be they agreed, part of a restructure or initiated for a reason. The questions will always be: is that reason fair and/or have you followed the correct procedure? Have a look at our case run down here.
TUPE: Employment decision on when a TUPE transfer takes place
Redundancy: Employees in restructure did not unreasonably refuse suitable employment
Unfair Dismissal: Direct Line beats claims advisers case over agreed exit
Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal
Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim
TUPE: Employment decision on when a TUPE transfer takes place
In Rajput v Commerzbank and Société Générale [2023] EAT 116 the EAT held that (i) in a ‘series of transactions’ cases, the transfer does not necessarily take place at the end of the series, and (ii) when determining the date of the transfer, a tribunal can have regard to matters which occur outside the UK. Regulation 3(1)(a), which provides that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to undertakings which are ‘situated immediately before the transfer in the UK’, does not mean that a tribunal must focus solely on events which take place within the UK-businesses which are situated in the UK.
Sarah Clarke, barrister at 3PB, who represented the claimant in this appeal, writes in a case analysis for Lexis Nexis that, on the face of it, the EAT’s finding that a transfer can take place at any point within the ‘series of transactions’ could cause uncertainty and increase the amount of litigation in this area. However, she goes on to say that she considers that, in the vast majority of cases, a transfer will take place at the end of the series. The question to be determined is when responsibility for the carrying on of the business transfers to the transferee and it is difficult to envisage many situations in which responsibility would transfer over prior to the end of the transactions. Indeed, as a matter of logic, if a transfer is ‘effected’ by a series of transactions, it cannot be until the last of those transactions that the transfer is complete, as otherwise the later transactions could not have ‘effected’ the transfer. However, this argument was rejected by the EAT and, in her view, there is scope for further judicial consideration of this.
In relation to the location of the business, this case makes it clear that, when determining when a transfer takes place, a tribunal’s focus ought not to be solely on those matters which occur in the UK. The relevance of geography to TUPE is simply that the business must be situated in the UK immediately before the transfer takes place. However, this does not preclude the business operating from other locations outside the UK. Thus, when dealing with this issue, parties must ensure that they provide evidence to the tribunal which clearly explains all matters relevant to the transfer, regardless as to where in the world those events took place.
The claimant was employed by Commerzbank (CB) from 2012 as a senior compliance officer. She was dismissed in March 2020 and brought various claims, including automatic unfair dismissal (on the basis that the sole or principal reason for her dismissal was the TUPE transfer) and victimisation (following a previous successful discrimination claim she had brought against CB). She had worked within the Equity Markets and Commodities Division (EMC) of the business, which was sold to Société Générale (SG), following a business purchase agreement which was signed in November 2018.
The EMC business was divided into three divisions, namely Flow Trading, Asset Management (AM) and Exotics, Vanilla and Funds (EVF), and was spread across several countries, including the UK, Luxembourg and Germany. The claimant worked across all three divisions.
For the purpose of the business sale, each division was (i) allocated its own purchase price, and (ii) divided into sub-batches, which transferred over a period of time. The EVF division transferred over in six batches from March to October 2019, with AM transferring over from May to November 2019. The last part of the EMC business to transfer over was Flow. It was based mainly in Germany, with only a small presence in London consisting of five employees. Most of Flow had transferred over by March 2020, with the remainder transferring in May 2020.
The employment tribunal found that the transfer took place on 1 October 2019 on the basis that 95% of the UK operation had transferred over by then. The judge thus ignored the last division which transferred over, as this was based predominantly in Germany.
The EAT, Mr Justice Kerr sitting alone, concluded that:
‘…there is no presumption or rule that a transfer effected by a series of transactions occurs at the end of the series. Completion may be artificially delayed. The last transaction in the series may be a minor detail, putting the last piece of the jigsaw in place long after the transferee has started running the business to the exclusion of the transferor.’
However, he agreed that the judge had erred in excluding from his consideration the Flow part of the business. The question to be determined was when responsibility for the carrying on of the business was transferred to the transferee (CELTEC v Astley). It was an agreed fact that Flow formed ‘part of the organised grouping of resources’ which comprised the EMC business. There was no reason why an ‘organised grouping of resources’ (in the words of TUPE 2006, SI 2006/246, reg 3(2)) could not be located across several countries at once. A business or part of a business can be ‘situated’ in the UK without its entire operation being located in the UK. He concluded that ‘there is nothing in the TUPE Regulations that required the tribunal to confine its consideration to the part of the organised grouping of resources based in this country.’
Redundancy: Employees in restructure did not unreasonably refuse suitable employment
In Mid and South Essex NHS Foundation Trust v Stevenson [2023] EAT 115 the EAT had to consider whether the respondent had been entitled to refuse to make redundancy payments to the claimants where the employment tribunal had held that the alternative roles offered to them were ‘suitable’ but that their rejection of them was not unreasonable due to their personal perceptions of those roles.
The EAT held that there was no error in the employment tribunal’s approach:
— the relevant statutory test is whether the claimants ‘unreasonably’ refused an offer of employment that was suitable to them (the suitability of the role is not in and of itself determinative)
— even though the claimants’ perception of the roles was objectively groundless, the employment judge had found that there was a sufficient basis for their personal perceptions of the roles (eg that they would be a loss of autonomy and status) for them not to have acted unreasonably in refusing them
Unfair Dismissal: Direct Line beats claims advisers case over agreed exit
Insurer Direct Line has successfully defended a case by a claims adviser that it unfairly dismissed him, with the EAT ruling that the employment tribunal had been entitled to find that there was no dismissal because the employee had mutually agreed to terminate his employment after his mental health problems meant he could not work.
In Riley v Direct Line Insurance Group plc [2023] EAT 118, the EAT ruled that an employment tribunal was entitled to find that Matthew Riley had consented to leaving his job. This is because he knew that he would receive lifetime insurance payments after being left unable to work due to mental health problems stemming from autistic spectrum disorder.
His Honour Judge (HHJ) Murray Shanks said the employment tribunal did not err when it rejected Riley’s case that he was duped into terminating his employment. ‘There was ample evidence for the conclusion reached, and the tribunal considered in detail whether Mr Riley’s consent was freely given’, he said. HHJ Shanks added that the tribunal ‘went to considerable lengths to emphasise their conclusions that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing’.
Riley was absent from work from 2014 until October 2017 due to anxiety and depression, according to the judgment. He began to make a phased return—but was again left unable to work from May 2018 because of anxiety and paranoia, the judgment says. He met with managers in August 2018 and September 2018, when he discussed leaving the job and relying on an insurance policy with UNUM that would make payments equating to 80% of his salary until he reached retirement age, according to the judgment.
Direct Line notified Riley in September 2018 that he was being dismissed following a meeting at which UNUM confirmed that he would be entitled to the benefits of the policy, the judgment says. Riley launched a case at the employment tribunal later that year, lodging claims of unfair dismissal and disability discrimination over allegations that he had been tricked by managers, according to the judgment.
But the tribunal dismissed his case in 2019, rejecting Riley’s evidence that he was put under pressure and did not understand what he was being told by managers. It also found that Riley had told managers that he knew terminating his employment to rely on the insurance policy was ‘where it’s been heading for the last four years’, according to the appeal judgment. The tribunal also concluded that Riley’s discussions with managers about his leaving had been supportive and designed to help him make the right decision.
John Platts-Mills, of Devereux Chambers, Riley’s counsel, argued before the EAT that the tribunal had failed to address the questions of who really terminated their client’s employment and whether the claims adviser really gave ‘true, mutual consent’, according to the appeal judgment.
But HHJ Shanks rejected the argument, ruling that the tribunal had ‘considered evidence relating to this in detail’. ‘It is true that they did not expressly refer to his disability in this context, but they must have had it well in mind when they rejected his evidence that he did not understand what was being said at meetings and found that he had made a fully informed decision’, he said.
Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal
In Greater Glasgow Health Board v Mullen [2023] EAT 122, the EAT dismissed the employer’s appeal against the decision of the employment tribunal which found that the employer’s reason for dismissing their employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The tribunal further concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation. The issue was whether the tribunal had erred in their decision.
The EAT held, among other things, that: (i) in the circumstances it was not open to the employment tribunal to base its conclusion about the fairness of the dismissal in terms of section 98(4) of the Employment Rights Act 1996 on a factual hypothesis that the ‘real reason’ for the dismissal was something different to the established reason; and (ii) on the findings in fact made by the employment tribunal, the only conclusion to which they could properly have come was that dismissal was within the range of reasonable responses open to the employer and was fair. Consequently, the employment tribunal’s judgment was set aside, and the claim of unfair dismissal was dismissed.
Vicarious Liability: School not liable for acts of work experience student
In MXX v A Secondary School [2022] EWHC 2207 (QB) the Court of Appeal upheld the High Court’s decision that the defendant, a co-educational secondary school providing education for children aged 11 to 16, was not vicariously liable for the sexual assaults carried out by PXM on the claimant (a pupil), subsequent to PXM undertaking a work experience placement at the school. The court held that the judge had been wrong to have found that the relationship between the defendant and PXM was not akin to employment but that:
— given the limited nature of PXM’s role during the course of one week (eg he had no pastoral responsibility), the facts did not begin to satisfy the requirements of the close connection test
— the grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.
Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker
A British insurance company has been ordered to pay one of its former workers £64,645 after the tribunal found it failed to make reasonable adjustments for an employee with menopausal symptoms, who later resigned.
In Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022, Employment Judge Wade found that Direct Line Insurance Services Ltd did not fully consider the impact of menopause on Maxine Lynskey when it launched a warning and disciplinary process based on her performance. ‘At that time the disadvantage the claimant faced in doing her job while struggling with menopausal symptoms ought to have been recognised as such and adjustments made’, Judge Wade wrote.
The insurer must pay the sum to Lynskey to account for a range of factors, including damages for injury to feelings as well as losses she suffered, according to a remedy judgment. These events are a ‘serious and sustained number of contraventions over a period involving both the claimant’s line manager and her line managers and HR’, the tribunal found.
Lynskey was a motor sales consultant for Direct Line from April 2016. She had ‘very good’ performance ratings in that role. She then informed her manager at a meeting she was having health issues related to menopause.
‘It was clear from the information the claimant provided that she was being profoundly affected by menopausal symptoms and was seeking treatment for them; that was apparent from March 2020’, Judge Wade wrote.
Lynskey then moved to a different team considered to be a ‘better fit’ in light of her personal and health circumstances, albeit one that did not involve a sales related bonus. However, the tribunal found that with this new role, Lynskey’s managers should have been aware of health issues that would affect her performance. ‘The respondent knew, or ought reasonably to have known, from March 2020, that the claimant had become a disabled person by reason of menopausal symptoms’, Judge Wade wrote. ‘She was self-evidently at a disadvantage in comparison with colleagues without her disability in meeting the respondent’s performance standards and targets, and generally more likely to be sanctioned or face disciplinary/performance warnings.’
Lynskey began underperforming, and was told she wouldn’t receive a pay rise because her performance was rated ‘need for improvement’, the judge wrote. The tribunal ruled that it was unfavourable treatment to score her performance without fully factoring in her disability. ‘Need for improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve, or meet the required standards’, it said. She later faced a warning meeting where her manager ‘failed to recognise or take in the explanations’ around her symptoms. Lynskey then faced a disciplinary meeting where her health condition was not fully considered. Judge Wade found that the subsequent disciplinary warning ‘was unfavourable treatment because of something arising in consequence of disability’.
‘It is clear a less discriminatory approach could have been taken, including occupational health referral, consideration of other roles, and accepting the claimant’s mitigation, namely her disability’, the judge wrote.
After a period of ill health and personal issues outside work, Lynskey’s sick pay was stopped, the ruling said. She then submitted a grievance to her employer before ultimately resigning in May 2022, then brought constructive unfair dismissal and Equality Act 2010 complaints against the insurance company.
The tribunal upheld Lynskey’s arguments that Direct Line failed to make reasonable adjustments for her, as well as her complaints about discrimination because of her menopause symptoms. It rejected her complaints relating to constructive unfair dismissal, sex and age.
The tribunal handed down an extempore judgment (given verbally at the end of the case, not written down) on 28 April 2023, and Direct Line requested the written reasons, which were published on 25 August 2023.
Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim
In Iourin v The Chancellor, Masters and Scholars of the University of Oxford [2023] EAT 108 the EAT considered a number of appeals against an employment tribunal’s decision dismissing the claimant’s claims for direct sex discrimination, victimisation, and disability discrimination against the respondent under the Equality Act 2010.
The claimant had attempted to hug and kiss a colleague when they were in a car together. She raised a grievance and the grievance committee held that this conduct was unwanted but that, in the context of their relationship, it did not amount to harassment or sexual harassment. The claimant was however required to undergo training related to harassment, which he claimed was sex discrimination.
In finding that this did not amount to sex discrimination, the employment tribunal had made a material error of law by relying on its mistaken account of the grievance committee’s finding—stating that it was harassment but not sexual harassment—in reaching its conclusion that this was the non-discriminatory reason for the training requirement. That claim was therefore remitted to the employment tribunal for rehearing.
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