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’s case digest covers how to compare workers in cases of less favourable treatment...
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.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – July 2023
Employment,
25th July 2023
Employment Law
This month there has been a lot of movement in rights at work – with a new jobs ‘passport’ for injured or disabled veterans, a private member’s bill to bring in a definition of ‘bullying’ at work, a consultation launched on the Disability Action Plan, the government’s response to the ethnicity pay reporting consultation and ACAS is consulting on a new draft Code of Practice to cover flexible working requests. There is also a consultation from the DBT on the future of the labour market enforcement strategy and ACAS’s latest annual report on how much it is needed.
Labour Market: MoD and DWP announce new jobs ‘passport’ for injured or disabled veterans
Labour Market: DBT launches consultation on Labour Market Enforcement Strategy for 2024 to 2025
Rights at Work: Parliament introduces bill to define bullying at work
Disability: DWP launches consultation on proposals for Disability Action Plan
Ethnicity Pay Reporting: Government publishes response to ethnicity pay reporting consultation
ACAS: New consultation published on new draft Code of Practice on flexible work requests
ACAS: Annual ACAS report for 2022 to 2023 reveals dispute resolution ever necessary
Labour Market: MoD and DWP announce new jobs ‘passport’ for injured or disabled veterans
The Ministry of Defence (MoD) and Department for Work and Pensions (DWP) has announced a new Adjustment Passports scheme to help smooth the way for injured or disabled Armed Forces to re-enter civilian work life. This scheme aims to remove barriers to the labour market by providing a transferable record of workplace adjustments, removing Access to Work assessments and reassessments, thus unlocking a pool of talent for employers and businesses to assist in economy growth. Guidance for the scheme has also been published.
Labour Market: DBT launches consultation on Labour Market Enforcement Strategy for 2024 to 2025
The Department for Business and Trade (DBT) has published a consultation seeking responses to assist the Director of Labour Market Enforcement, Margaret Beels, in putting together the labour market enforcement strategy for 2024-25. The role of Director of Labour Market Enforcement was created in 2017 to bring together a coherent assessment of the extent of labour market exploitation, identifying routes to tackle exploitation and harnessing the strength of the three main enforcement bodies: HMRC National Minimum Wage; the Gangmasters and Labour Abuse Authority (GLAA); and the Employment Agency Standards Inspectorate (EAS).
Each year the Director submits a Labour Market Enforcement Strategy to Government to set priorities for the three main enforcement bodies.
Both the interim DLME Strategy 2022 to 2023 (published in March 2023) and the full DLME Strategy for 2023 to 2024 (awaiting clearance from government) proposed four themes as a structure for thinking about identifying and tackling labour market non-compliance. These four themes are:
Improving the radar picture to have a better understanding of the non-compliance threat.
Improving focus and effectiveness of the compliance and enforcement work of the three bodies under my remit
Better Joined-up Thinking to minimise the opportunities for exploitation of gaps in employment protection.
Improving engagement with employers and support for workers
The DLME Strategy for 2024 to 2025 will continue to build on these themes and this call for evidence seeks information about a number of these areas and provides an opportunity for respondents to draw to our attention evidence that they have of other areas where they observe significant risk of worker exploitation.
Rights at Work: Parliament introduces bill to define bullying at work
Labour MP Rachael Maskell recently introduced a Private Members’ Bill to define workplace bullying and introduce legal duties on employers to prevent it, and it passed its first reading in Parliament on 11 July 2023.
She cited research from the Trades Union Congress in 2019 that estimated one quarter of employees are bullied at work, with most people who say they are bullied never reporting it. Maskell told the House of Commons. ‘There’s no legal definition, no legal protection, no legal route to justice, and without protection, many will leave their employer’.
If adopted, the Bill would provide a legal definition of ‘bullying’ in the workplace for the first time in the UK. Employees would be able to bring bullying claims to an employment tribunal and employers that fail to implement a statutory ‘respect at work code’ would face sanctions. The Equality and Human Rights Commission would also have powers to investigate systemic bullying damaging workplace cultures.
Maskell said the Bill would mean the definition of bullying by the workplace mediator ACAS as ‘offensive, intimidating, malicious, insulting or humiliating behaviour’ would be extended into statute and the usual method of determining compensation for injury to feelings would be applied. But its main goal is establishing a minimum standard for workplace conduct and discouraging managers who use their power over colleagues to ‘denigrate and destroy’, Maskell said.
The Bill follows bullying claims against former Justice Secretary Dominic Raab, who resigned after an investigation found he had belittled staffers. Lawyers said at the time that the lack of a legal definition of bullying made it hard but necessary to set expectations around workplace conduct.
Disability: DWP launches consultation on proposals for Disability Action Plan
The Department for Work and Pensions (DWP) has launched a consultation on the government’s Disability Action Plan. The plan involves raising awareness of technology for disabled people, mandatory disability awareness training for taxi drivers, autism-friendly programmes for cultural and heritage sites and ensuring businesses are aware of disabled people’s needs. The plan is designed to make the UK a more inclusive society in the long term and to facilitate immediate and practical measures to improve disabled people’s lives for the better. The consultation will close on 6 October 2023.
Ethnicity Pay Reporting: Government publishes response to ethnicity pay reporting consultation
The UK government has published a response to the ethnicity pay reporting consultation which aimed to gather views on what information should be reported, who should report it, and the next steps for consistent and transparent reporting. The government has concluded that, while ethnicity pay gap reporting can be a valuable tool to assist employers, it may not always be the most appropriate mechanism for every type of employer. Therefore, the government has confirmed that, as set out in the ‘Inclusive Britain’ report in 2022, it will not be legislating to make ethnicity pay reporting mandatory at this stage. Instead, the government has produced guidance (which was published in April 2023) to support employers who wish to report voluntarily.
ACAS: New consultation published on new draft Code of Practice on flexible work requests
The Advisory, Conciliation and Arbitration Service (ACAS) has published a consultation on a new draft Code of Practice on handling flexible working requests. The new draft code is aimed at addressing the significant changes in ways of working since the current ACAS code was published in 2014. It is also designed to take into account anticipated changes to the Employment Rights Act 1996 around flexible working. The consultation closes at 11:59pm on 6 September 2023.
ACAS: Annual ACAS report for 2022 to 2023 reveals dispute resolution ever necessary
ACAS has published its annual report for 2022 to 2023, revealing a greater demand for its dispute resolution services. Key facts and figures include highlighted in this year’s report include:
ACAS’s intervention in 621 collective disputes between employers and groups of workers, a 22% increase to the previous year
105,754 notifications for early conciliation and ACAS staff finding a resolution in over 72,000 cases
over 14.4 million visits to the ACAS website
649,179 calls from employers and employees across Great Britain to the ACAS helpline
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – July 2023
Employment,
25th July 2023
Employment Law
A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.
Injunctions: Witnesses and disclosure of documents at disciplinary hearings
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
Worker Status: Can a person have two different employers at the same time for the same work?
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
Tribunals: Apparent bias in case of lay member posting on social media
Injunctions: Witnesses and disclosure of documents at disciplinary hearings
In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.
This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.
In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.
On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).
In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.
The Claimant sent a letter before claim setting out:
1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].
2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.
3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.
4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.
The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.
In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.
The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
In R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.
In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.
Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:
that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).
The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).
The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.
Worker Status: Can a person have two different employers at the same time for the same work?
In United Taxis Ltd v Comolly [2023] EAT 93, the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi. After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi. After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.
The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment. United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly.
However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it. There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise. The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.
The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
In Charalambous v National Bank of Greece [2023] EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas [1976] ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.
Tribunals: Apparent bias in case of lay member posting on social media
In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie) [2023] EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.
The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter [2001] UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – June 2023
Employment,
27th June 2023
Employment Law
This month we bring you updates on government reforms to employment law and the ping-pong battle over which laws shall be retained following Brexit; which companies are failing to pay national minimum wage, a review in diversity and goals for the 4 day week for political parties to endorse; our UK strike laws are being critiqued and we will soon know which occupations we are most lacking in the UK.
Brexit: Government consults on reforms to working time rules, holiday pay and TUPE
Brexit: Lords put further amendments back to Commons on REULRR Bill
Pay: Department for Business and Trade names companies failing to pay NMW
Diversity: Parker review sets new targets for FTSE 350 and private companies
Trade Unions: International Labour Organization comments on UK strike laws
Immigration:MAC intends to publish its shortage occupation list review in autumn 2023
Brexit: Government consults on reforms to working time rules, holiday pay and TUPE
On 12 May 2023, the government published a consultation paper, setting out its plans regarding the future of retained EU employment law. The consultation paper confirms the government’s intention to keep retained EU employment laws in the following areas without any change: family leave rights (maternity, paternity, adoption and parental leave), ‘atypical’ workers’ rights (part-time workers, fixed-term workers and agency workers), and information and consultation rights. However, certain reforms are proposed in the areas of working time, paid holiday rights and rights upon the transfer of a business or an outsourcing. The government says it has identified areas for reform of laws it considers are ‘too onerous for business to be used effectively or too complex for workers to know, understand and use’. Amanda Steadman, principal knowledge lawyer at Brahams Dutt Badrick French LLP, sets out in her article the proposed changes in the consultation and the next steps.
Brexit: Lords put further amendments back to Commons on REULRR Bill
On 24 May 2023, the House of Commons debated the Lords amendments to the Retained EU Law (Revocation and Reform) Bill (REULRR Bill), with a majority of MPs disagreeing with three amendments. Lords amendments 6, 15 and 42 were rejected and Lords amendments 1 and 16 were further amended. Lords amendments 2 to 5, 7 to 14, 17 to 41 and 43 were agreed to.
On 20 June 2023, the House of Lords debated Commons amendments to the REULRR Bill. The Lords approved two amended motions, proposing amendments in lieu of those previously rejected by the House of Commons. These amendments relate to the two outstanding issues in debate—environmental protection and parliamentary scrutiny. Continuing the ‘ping pong’ process, the House of Commons considered the Lords message on 21 June 2023, with the government moving that the Lords amendments be rejected again. The Bill was scheduled to return to the House of Lords on 26 June 2023.
Pay: Department for Business and Trade names companies failing to pay NMW
The Department for Business and Trade (DBT) has published the names of 202 employers who have failed to provide their lowest paid staff the national minimum wage (NMW). Approximately 63,000 workers across the companies did not receive NMW as a result of deductions from wages (39%), failure by the companies to properly compensate for working time (39%) and incorrect apprenticeship rates (21%).
In the top 3 in this Round 19 are WH Smith Retail Holdings Ltd, Lloyds Pharmacy Ltd and Marks and Spencer PLC. Some in the list owe as little as £5500 to one employee but the larger offenders have failed to pay cumulatively hundreds of thousands of pounds to thousands of workers.
Employers are reminded that the minimum wage law applies to all parts of the UK. Employers should always carry out the necessary checks (guidance is available on the Gov website: Calculating the Minimum Wage), and HMRC consider all complaints from workers, so they are reminding workers to check their pay with advice available through the Check your pay website.
Diversity: Parker review sets new targets for FTSE 350 and private companies
The Parker Review Committee has published a 2023 update report on ‘Improving the Ethnic Diversity of UK Business’. The independent review, which published its first report in 2016, was commissioned by the former Department for Business, Energy and Industrial Strategy to consult on ethnic diversity in UK boards. The review also set several diversity targets for FTSE 100 and FTSE 250 companies. The update contains the results of the review’s survey of those targets in 2022 in addition to a number of new targets to be achieved by 2027.
Working Patterns: 4 Day Week campaign launches Mini Manifesto
The 4 Day week campaign has published a ‘Mini Manifesto’, which they are calling on political parties to endorse ahead of the next general election. 4 Day Week is a national campaign for a 32-hour working week with no reduction in pay. The manifesto lays out the campaign’s key principles and goals.
Trade Unions: International Labour Organization comments on UK strike laws
The International Labour Organization (ILO) has critiqued the UK’s strike laws and called for the UK government to bring union laws in line with international law. In a rare intervention that has not been used against the UK since 1995, the ILO issued an instruction for ministers to seek assistance from the ILO and report back on progress by 1 September 2023. The Trades Union Congress has called this ‘hugely embarrassing’ for ministers.
Immigration:MAC intends to publish its shortage occupation list review in autumn 2023
The Migration Advisory Committee (MAC) has confirmed, by way of an update to its guidance webpage, that it intends to publish its report reviewing the shortage occupation list in autumn 2023. This is later than the anticipated date of June 2023, as stated in previous press releases.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – June 2023
Employment,
27th June 2023
Employment Law
This month we look at several aspects of the Equality Act through the lens of religious discrimination, race discrimination and harassment. We also take a look at how one should properly calculate holiday pay so as not to fall foul of the Working Time Regulations.
Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
Holiday Pay: How to calculate holiday pay on termination of employment
Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
In Higgs v Farmor’s School [2023] EAT 89, the EAT held that in dismissing a direct religion or belief discrimination claim brought by a Christian employee following complaints relating to her social media posts which criticised the nature of sex education in schools (including gender fluidity and same sex marriage) the employment tribunal had erred in that it failed to:
conclude that there was a close or direct nexus between the employee’s Facebook posts and her protected beliefs
determine the reason why the employer acted as it had, and
assess whether the employer’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others
The proportionality assessment, which the tribunal had not carried out, was necessary to determine whether the employer’s actions were because of, or related to, the manifestation of the employee’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation.
The EAT also set out basic principles that underpin the approach adopted when assessing proportionality of any interference with rights to freedom of religion and freedom of expression to assist tribunals and to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.
Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
The case of General Medical Council v Karim [2023] EAT 87 concerned a claimant doctor who was subject to an investigation by his employer. That led to a referral to the General Medical Council (GMC). The employment side of things was settled when he resigned and a settlement agreement was entered into. However the GMC matter continued. The claimant then made a claim of discrimination by the GMC as a qualifications body, making various complaints in relation to its handling of the matter.
The employment tribunal upheld some (but not all) of the complaints of direct race discrimination on the basis that the burden of proof had passed but not been satisfied.
The GMC appealed to the EAT.
Allowing the GMC’s appeal, the EAT held, in summary, that the tribunal had failed to engage with key aspects of its case, and so produced a decision which was not Meek-compliant; and reached some findings and conclusions at different points that were conflicting or contradictory.
Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
In Greasley-Adams v Royal Mail Group Ltd [2023] EAT 86 the EAT had to consider (amongst other grounds of appeal) whether an employment tribunal had failed in its analysis of the claimant’s claims of harassment under section 26 of the Equality Act 2020 by not having regard to conduct of which he was not aware.
The EAT, dismissing the appeal, held that only conduct of which the claimant was aware could amount to harassment. This was because:
the perception of the person claiming harassment was a key and indeed mandatory component in determining whether harassment had occurred
as confirmed by the relevant authorities, if there was no awareness, there could be no perception.
Holiday Pay: How to calculate holiday pay on termination of employment
In Connor v Chief Constable of West Yorkshire Police [2023] EAT 42 the EAT considered the provisions of a ‘relevant agreement’ reached in relation to holiday pay on termination of employment and how these compared to the calculations provided for by the Working Time Regulations 1998 (‘WTR’) and found it not to be compatible.
In this case the Claimant’s employment contract stated that holiday pay on termination of employment would be calculated based on 1/365th annual salary. This meant, on that upon his termination, he received a lower payment for accrued holiday than that which he would have received using the calculation set-out in the WTR.
The tribunal held that the 1/365th calculation was a valid ‘relevant agreement’ under Regulation 14(3) (which states that the amount of holiday pay due on termination of employment is either that which would be prescribed if the formula set out in the WTR were applied or such other sum which is stated to be payable on termination of employment pursuant to a ‘relevant agreement’) and that therefore there had been no unlawful deduction from the claimant’s wages.
The EAT disagreed. They held that a ‘relevant agreement’ under Regulation 14(3) on the payment of holiday on termination of employment cannot result in a payment which is lower than that which would be calculated using the method set out in the WTR. The Claimant was entitled to the higher amount. . Regulation 14 provides a method of calculation for the purposes of regulations 13 and 13A for an incomplete leave year. The entitlement to annual leave, and payment, are not modified by regulation 14. The regulation provides a formula of calculation which promotes the right to annual leave and the attendant payment for holiday. The phrase “such sum as may be provided for the purposes of this regulation in a relevant agreement” refers to any agreement that provides a formula which is in keeping with the rights provided for in the regulations.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – May 2023
Employment,
29th May 2023
Employment Law
This month’s summary includes a look at the pools used for comparison in discrimination cases, considering all the options before dismissing for redundancy, taking a look at the special circumstances where someone might be employed by two organisations and what caused a director to be disqualified for 9 years.
Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic
Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes
Directors: Disqualification order for director who failed to protect funds and keep proper accounting records
Indirect Discrimination: What constitutes too narrow a pool for comparison?
In Boohene and others v Royal Parks Ltd [2023] EAT 69, the claimants were contract workers employed by a third party to work on its toilet and cleaning services contract with the respondent in London. Their minimum rates of pay were set below London Living Wage (“LLW”); this contrasted with the respondent’s direct employees, who were office-based and had a level of pay higher than LLW. The employment tribunal found that the respondent had committed to ensuring that the minimum pay of its direct employees would not fall below LLW but had decided not to accept the option of LLW as the minimum pay rate on the toilet and cleaning contract.
The claimants brought claims of indirect race discrimination in respect of their treatment as contract workers as compared to the respondent’s direct employees. The tribunal upheld these complaints as falling within the definition of indirect discrimination under section 19 Equality Act 2010, (“the EqA”), rendered unlawful by reason of section 41. The respondent appealed.
The EAT upheld the appeal, finding for the respondent. On its findings of fact in this case, the tribunal had been entitled to conclude that these claims fell within section 41(1) EqA, the respondent having exercised sufficient control as to minimum level of pay that was to be paid to workers on the toilet and cleaning contract. Although ostensibly set by the contractual term agreed between the claimants and the contractor, the tribunal permissibly found that the decision not to pay LLW was made by the respondent, the contractor had merely executed that decision; in this respect, it was the respondent that had determined the relevant term on which the claimants were to be allowed to do their work. For the purposes of section 19 EqA, the tribunal was similarly entitled to find that it was the respondent that had applied the relevant provision criterion or practice (“PCP”). The tribunal had, however, fallen into error in defining the PCP in this case and this had led it to adopt an indefensible pool for comparison. Although the claimants’ pleaded case had identified a PCP that distinguished between the respondent’s direct employees and its outsourced workers, the case at trial was put on the more limited comparison between the respondent’s direct employees and the workers on the toilets and cleaning contract. In accepting the latter case, the tribunal had improperly excluded from the pool for comparison all other outsourced workers undertaking work for the respondent. That was an error that undermined the tribunal’s approach to the comparative exercise it was required to undertake in this case. The appeal was allowed because the tribunal should have compared directly employed staff with all outsourced workers (and not just those on the cleaning contract). When analysing the impact of a PCP, the pool being considered should consist of the entire group it affects.
The respondent would not, however, have succeeded in its further challenge to the tribunal’s approach to comparability. In considering whether there were any material differences between the advantaged and disadvantaged groups, on the facts of this case, the tribunal had been entitled to find that the nature of the work and the identity of the employer were not relevant to the question whether the respondent had drawn a distinction between its directly employed staff and outsourced workers when committing to LLW as a minimum rate of pay. A further valid point of challenge had been raised in relation to the tribunal’s failure to address the case of the claimant, Mr Marro, who did not share the relevant protected characteristic. Had this point not been rendered academic by the EAT’s earlier conclusion, this final ground of appeal would also have been allowed and this question remitted to the tribunal for determination.
Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic
In Lovingangels Care Ltd v Mhindurwa [2023] EAT 65, the claimant was a live-in carer. The person for whom she cared went into hospital. In the normal course of events the claimant would have moved to care for another of the respondent’s clients. In the early stages of the Coronavirus pandemic there was limited scope for such movement. The respondent did not have another client for the claimant to move to because of the Coronavirus pandemic. The respondent dismissed the claimant by reason of redundancy. The employment tribunal held that her dismissal was unfair because the respondent did not consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve and it would be able to place the claimant with another client; and also, because the appeal hearing was no more than a rubber-stamping exercise.
The respondent appealed against the finding of unfair dismissal. There was no error of law in the decision of the employment tribunal. Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Coronavirus pandemic does not require any variation to the law of unfair dismissal, which is robust enough to deal with such exceptional circumstances.
Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes
In Fire Brigades Union v Embery [2023] EAT 51, the EAT found that there is a broad principle that a person cannot simultaneously have two employers, subject to an exception for the case of a person having two ‘compatible’ employments. On the facts of this particular claim for unfair dismissal by a fire-fighter, the claimant was not employed by the union as well as by the fire brigade.
The question of whether a person can have two employers for the same job is an unusual one. It is often seen in the context of vicarious liability for torts but not in the context of employment rights, such as unfair dismissal, as here. This case concerned a fire brigade employee who was subsequently elected as a regional union official and was released from fire-fighting duties to work full-time on union duties. The EAT reviewed the case law on dual employment and identified a broad principle that a person cannot simultaneously have two employers for the same job. The EAT noted the exception to this principle identified by the EAT in Gough for the case of a person having two ‘compatible’ employments. It cast doubt on the reasoning in that judgment which relied on the vicarious liability case of Viasystems. The EAT in this case found that to be of ‘little assistance’ given the different policy context. It held that this was not an unusual or exceptional case in which the claimant could have been employed by the Fire Brigades Union (FBU) as well as by the London Fire Brigade (LFB).
The employment tribunal held that the claimant was an employee of the FBU and had been unfairly dismissed (but not discriminated against). In determining that the claimant was an employee the tribunal held that:
he received substantial remuneration in the form of the ‘top up’ of around £7,000 ‘as no doubt a sweetener to encourage people into full time Union roles’ plus his LFB salary which was ‘covered by the Union’;
the FBU had substantial control over his work. He could have been removed from office if his duties were not performed satisfactorily, he had to perform his work personally, he had to work full-time and only for the FBU and he was provided with equipment and expenses, and a car allowance;
if he failed to abide by the FBU rules there was a process which could effectively lead to his dismissal, as in this case; and
when working for the union he was not under the control and direction of LFB.
The union appealed on the basis that, in finding that the claimant was an employee of the FBU and not the London Fire Brigade, the employment tribunal had erred in that it:
ignored and/or did not apply the material law;
failed to explain its application of the law; and
reached a decision which was not open to it on the facts, applying the material law (the ‘perversity’ ground).
The EAT dismissed the union’s appeal and substituted a decision dismissing the claim for unfair dismissal.
Directors: Disqualification order for director who failed to protect funds and keep proper accounting records
In Secretary of State for Business, Energy and Industrial Strategy v Joiner [2023] EWHC 1032 (Ch) the Chancery Division ruled on the claimant Secretary of State’s application for a disqualification order under section 6 of the Company Directors Disqualification Act 1986 against the defendant. The claimant alleged that the defendant: (i) had failed to ring-fence and protect certain funds which were held by the company called Team Property Management Limited (Team) for the account of a major customer called the Quadrangle RTM Company Limited; and (ii) had failed to ensure that Team kept proper accounting records, or at least had failed to deliver them up to the official receiver. The court held, among other things, that the defendant had failed to appreciate and observe the duties attendant on the privilege of conducting business with limited liability, and he had demonstrated a serious lack of commercial probity and a lack of insight as to the unacceptability of his business practices. Accordingly, the court had agreed with the claimant’s assessment of the appropriate disqualification period, and it had decided that a nine-year period of disqualification should be made.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – May 2023
Employment,
29th May 2023
Employment Law
This month’s news provides an update on the effect of the Retained EU Law Bill and the scrapping of the sunset clause, a new smart regulation from the DBT, a report on the post-pandemic economic growth in the UK labour markets, new guidance from ACAS on both managing stress at work and making reasonable adjustments for mental health at work, a new podcast from the HSE to support disabled people in the workplace and a consultation from the EBA on the benchmarking of diversity practices. Lastly, we have the results of research carried out on unfair treatment of parents following fertility treatment.
Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights
Employment Law: Department for Business and Trade – Smart regulation unveiled to cut red tape and grow the economy
Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
Disability: HSE launches podcast to support disabled people in the workplace
Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
Sex Discrimination: Research reveals unfair treatment at work after fertility treatment
Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights
On 10 May 2023, the government announced that it will scrap the proposed sunset clause from the Retained EU Law (Revocation and Reform) Bill. As we have previously reported in our Employment Law News, the sunset clause would have meant that most retained EU law in secondary legislation would have been revoked at the end of 2023. Instead at least 600 pieces of retained EU law will be set out in a revocation schedule, which can be found here. Any laws not listed in the revocation schedule will be retained automatically.
Meanwhile, the Department for Business and Trade has published a response to a letter by the Rt Hon Caroline Nokes MP, Chair of the Women and Equalities Committee, requesting further explanation about the Retained EU Law Bill’s effect on equality rights and protections. The response by the Rt Hon Kemi Badenoch MP, Minister for Women & Equalities, confirms that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. It sets out that most equality protections will remain unaffected, as they are provided for in primary legislation, in particular the Equality Act 2010 (to which no changes are expected because of the Bill) and any relevant secondary legislation and additional instruments will be considered.
It also highlights that where additional provision is required, the Bill enables the UK Government and the devolved governments to protect the rights and protections of UK citizens. This includes a restatement power which allows departments to codify rights into domestic legislation. The response emphasises that this power will secure rights and protections, by laying them out accessibly and clearly in statute.
Employment rights
The response sets out that the government does not intend to amend workers’ legal rights through the Bill, that the UK provides for greater protections for workers than are required by EU law and that the government remains committed to making sure that workers are properly protected in the workplace.
Parental leave
The response emphasises that the repeal of maternity rights is not and has never been government policy, and that the UK is in fact further along than the EU when it comes to maternity rights.
Employment Law: Government’s “Smart regulation unveiled to cut red tape and grow the economy”
On the 10 May 2023 the Department for Business and Trade published its paper “Smarter regulation unveiled to cut red tape and grow the economy” which the government describes as “the first dynamic package of deregulatory reforms to grow the economy, cut costs for businesses and support consumers …”
The governments announcements include the following proposed amendments to employment law:
The government is proposing to remove retained EU case law that requires employers to record working hours for almost all.
Making rolled-up holiday pay lawful. Rolled up holiday pay is where an employer includes a sum representing holiday pay in an enhanced hourly rate rather than continuing to pay workers as normal when they actually take leave. This was ruled to be in breach of the Working Time Directive by the ECJ well over a decade ago.
The merger of annual leave (20 days derived from the EU’s Working Time Directive) and additional leave (being the additional 8 days holiday provided under the Working Time Regulations). Whilst this appears to be sensible it will be interesting to see how the European case law which specifically applies to the 20 days annual leave, such as what constitutes holiday pay and taking such holiday in the year in which it falls, is dealt with.
TUPE – there are proposals to do away with the need for elections of employee representatives for businesses with fewer than 50 employees or transfers of fewer than 10 employees.
The government has launched consultation on these points.
The government has also proposed limiting the length of non-compete clauses to three months. This will require the passing of legislation, which, the government says will be dealt with when parliamentary time allows.
So we wait to see exactly what legislative changes come about following these announcements.
Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
A House of Commons Committee report says the government must reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections. The government has two months to respond to the committee’s proposals which are on topics including the machinery of government with responsibility for labour market policy; technology and skills development; workers’ rights and protection; and older workers.
The report, which follows on from a Call for Evidence on the state of play in the UK Labour market post-Brexit and the COVID-19 pandemic, highlights that:
with 500,000 people having left the British workforce since the start of the pandemic, a shortage of labour weighs heavily on the potential for economic growth;
economic inactivity has risen among people aged 50 to 64 years;
the way in which the recommendations of the Taylor Review have been implemented has been fragmented and drawn-out;
the enforcement of labour market rules is under-resourced.
It calls on the government to:
consider establishing a Ministry of Labour and appoint a new Minister of State for Labour in the Cabinet, as well as a Cabinet Committee on Labour;
take various actions in respect of technology and skills;
reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections;
consider new legal structures for flexible work that include appropriate rights and protections for workers;
provide more protection for workers from any damaging effects of night-time working;
pursue the creation of the planned single enforcement body which would clarify rights of redress for those most in need;
continue and expand support for older workers.
It also calls on businesses to:
be more open to create more flexible constructions of work;
offer more flexible working opportunities to benefit from a huge untapped pool of older workers and to assess whether their recruitment practices and workplaces are ‘ageist’.
Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
Managing stress at work:
ACAS has published new advice for employers on managing stress at work after YouGov revealed 33% of British workers disagreed that their organisation was effective at managing work-related stress. YouGov was commissioned by ACAS and surveyed just over 1,000 employees in Great Britain. ACAS sets out that stress can be caused by demands of the job, relationships at work, poor working conditions and life events outside of work such as financial worries. An ACAS poll in March 2023 revealed that 63% of employees felt stressed due to the rising cost of living.
Advice for employers on managing stress at work include:
looking out for any signs of stress among staff. Signs include poor concentration, tiredness, low mood and avoiding social events;
being approachable available and have an informal chat with staff who are feeling stressed;
respecting confidentiality and being sensitive and supportive when talking to staff about work-related stress;
communicating any internal and external help available to staff such as financial advice if the cost of living is a cause of stress.
ACAS states that creating a positive work environment can make employees healthier and happier at work, reduce absence levels and improve performance.
ACAS advice on managing stress can be accessed here.
Making reasonable adjustments for mental health at work:
ACAS has published new guidance for employers and workers on reasonable adjustments for mental health. ACAS states that ‘employers should try to make reasonable adjustments even if the issue is not a disability’. The guidance covers:
what reasonable adjustments for mental health are;
examples of reasonable adjustments for mental health;
what reasonable adjustments can be made for mental health;
requesting reasonable adjustments for mental health;
responding to reasonable adjustments for mental health requests;
managing employees with reasonable adjustments for mental health;
reviewing policies with mental health in mind.
ACAS has also published case studies exploring how different organisations have helped staff with reasonable adjustments for mental health.
Disability: HSE launches podcast to support disabled people in the workplace
The Health and Safety Executive (HSE) has launched a new podcast aiming to help employers support disabled workers and those with long-term health conditions in the workplace. The podcast features discussion by host Mick Ord, former BBC Radio journalist, Moya Woolley, Occupational Health Policy Team Leader at HSE and Rebecca Hyrslova, Policy Advisor at Federation of Small Businesses (FSB); and offers advice for employers on how to create a supportive and enabling workplace, take an inclusive approach to workplace health, understand the work barriers that impact on workers, make suitable workplace adjustments or modifications, develop skills, knowledge and understanding, use effective and accessible communication, and support sickness absence and return to work.
Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
The European Banking Authority (EBA) has launched a consultation on guidelines on the benchmarking of diversity practices including diversity policies and the gender pay gap pursuant to Articles 75(1) and 91(11) of the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV) and Article 34(1) of the Investment Firms Directive (Directive (EU) 2019/2034). The EBA has been collecting data on diversity since 2015 based on information requests. The EBA hopes that the issuance of these guidelines will lead to a higher level of transparency regarding the EBA’s work on the topic of diversity and gender equality and will help improve the quality of the collected data as well as the awareness of all stakeholders on these topics. The new reporting format is expected to apply for the collection of data in 2025 for the financial year 2024. Responses are sought to the consultation by 24 July 2023.
Sex Discrimination: Research reveals unfair treatment at work after fertility treatment
Pregnant Then Screwed published a press releaseduring Infertility Awareness Week revealing the unfair treatment women face in the workplace due to their reproductive health. Research has revealed that of the 43% of women who informed their employer of their fertility treatment, one in four did not receive any support from their employer. One in four women also experienced unfair treatment because of undergoing fertility treatment. Unfair treatment was also experienced by 22% of women who disclosed their pregnancy loss to their employer while 6% of partners who disclosed the same faced negative treatment.
The press release confirms Pregnant Then Screwed will be launching a new programme to help employers deal with reproductive health issues in the workplace better. They will be hosting a Women in the Workplace seminar for businesses to find out more about the new training and accreditation scheme which signals fertility friendly employers. This free event will take place in June 2023.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – April 2023
Employment,
25th April 2023
Employment Law
A lot going on this month. New rates and consultations regarding NLW and NMW, new requirement for immigration scale-up route, an update on the Retained EU Law Bill and discussions over the definition of ‘sex’ under the Equality Act. Meanwhile, there is a review into whistleblowing law, an inquiry into seasonal worker visas, a blog on loneliness in the workplace, and a review relating to the work prospects of autistic people.
Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
Whistleblowing: Government launches whistleblowing law review
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
Welfare: Glassdoor reveals survey findings on employee loneliness
Disability: DWP publishes new review to increase work prospects of autistic people
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’
Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
SI 2023/354: These Regulations are made to amend the National Minimum Wage Regulations 2015, SI 2015/621. They come into force on 1 April 2023 and increase:
the rate of the national living wage for workers who are aged 23 or over from £9.50 to £10.42 per hour
the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 23) from £9.18 to £10.18 per hour
the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.83 to £7.49 per hour
the rate of the national minimum wage for workers who are under the age of 18 from £4.81 to £5.28 per hour
the rate for apprentices within SI 2015/621, reg 5(1)(a) and (b) from £4.81 to £5.28 per hour
the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £8.70 to £9.10 for each day that accommodation is provided
The Low Pay Commission (LPC) has published a consultation seeking views on the impact of National Living Wage (NLW) and National Minimum Wage (NMW) increases for 2024. The NLW is expected to rise to between £10.90 and £11.43 in 2024. The information gathered will be used to inform the LPC’s recommendations to the government in the Autumn. The consultation closes on 9 June 2023 at 11:45pm.
Whistleblowing: Government launches whistleblowing law review
On 27 March 2023, the government published a press release confirming that they have launched a review of the whistleblowing framework. The press release states that the review will gather evidence on the effectiveness of the current whistleblowing regime in enabling workers to speak about wrongdoing and protect those who do so. The press release confirms that the evidence gathering stage of the review will end in Autumn 2023. The review will pursue views and evidence from whistleblowers, key charities, employers and regulators.
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
The Home Office has updated its sponsor guidance in relation to the Scale-up route. Notably, it confirms that an ‘endorsing body pathway’ is being launched, on 13 April 2023, for prospective employer applicants who do not meet the sponsor licence eligibility requirements (eg ‘if their HMRC history is not long enough’). As an alternative, prospective sponsors will be able to obtain an endorsement from a Home Office-approved endorsing body and submit this with the licence application (which must be made no more than three months from the date of endorsement). The guidance confirms that the endorsement process will attract a fee, and further details will be published in due course. Other changes include a new Annex SC2, setting out the changes to the route from 12 April 2023, in line with the Statement of Changes in Immigration Rules HC 1160.
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
The Chair of the Migration Advisory Committee (MAC), Professor Brian Bell, has published a letter written to the Minister of State for Immigration, Robert Jenrick, regarding an inquiry into the Seasonal Worker visa. The inquiry will consider the rules under which the scheme operates, the size and costs of the scheme, the potential for exploitation and poor labour market practice, evidence from international comparisons and the long-run need for such a scheme. Bell has also confirmed that MAC will be working with the Department of Environment, Food and Rural Affairs (DEFRA) during the inquiry.
Welfare: Glassdoor reveals survey findings on employee loneliness
Glassdoor has published a blog with insights from its new study which surveyed 2,000 employees to understand the levels of employee loneliness in the UK. The blog reveals the impact of poor workplace social life and the importance of workplace friendships to retaining staff.
Key findings include:
six in ten people with less than five years of work experience are lonely all or most of the time
only 51% of employees connect socially with colleagues at least once a month
28% of workers under 35 would stay in a job they did not like if the workplace social life was good
89% of workers believe feeling a sense of belonging with their company is vital to their overall workplace happiness
nearly 49% of workers say a good social life has a significant impact on their overall job satisfaction and mental health
Common reasons for workplace loneliness include less in-person interaction with co-workers, inflexibility in the workplace, and a lack of focus on creating a sense of belonging or community by an employer.
Glassdoor reveals that without a good workplace social life, workers are more likely to be less productive and engaged. They are also more likely to experience stress, anxiety and eventually burnout.
Disability: DWP publishes new review to increase work prospects of autistic people
The Department for Work and Pensions (DWP), supported by the autism charity Autistica, has launched a review, the Buckland Review of Autism Employment, to increase the employment prospects of autistic people. The review, which will be led by Sir Robert Buckland KC MP and start in May 2023, will consider how the government can support employers to recruit and retain autistic people and enjoy the benefits of a neurodiverse workforce. Recommendations for change will be made to the Secretary of State in September 2023.
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
The House of Commons has released a research briefing on autism, policy and services. The briefing sets out the Department for Work and Pensions’ annual set of statistics on the employment of disabled people, which reports that the lowest rates of employment among disabled people are those on the autism spectrum.
In the 2020–21 financial year, 26.5% of disabled people on the autism spectrum were in employment, compared to 52.5% of all disabled people and 80.4% of non-disabled people in the same period. In 2016, the National Autistic Society reported that 77% of unemployed people with autism wanted to work.
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. This Act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. The Bill would automatically revoke, or ‘sunset’, most retained EU law at the end of 2023. This would not apply to retained EU law that is domestic primary legislation.
Ministers and devolved authorities could exempt most (but not all) retained EU law from the sunset, and UK ministers (but not devolved authorities) could delay the sunset until 23 June 2026 at the latest for specific descriptions of retained EU law. Any retained EU law that still applied after the end of 2023 would be renamed as assimilated law. The Bill would give ministers and devolved authorities powers to restate, reproduce, revoke, replace or update retained EU law and assimilated law by statutory instrument.
The Bill would also repeal the principle of supremacy of retained EU law from UK law at the end of 2023, although its effects could be reproduced by statutory instrument in relation to specific pieces of retained EU law. The Bill would also make changes to the way that courts could depart from retained EU case law.
The Bill would change the way that some types of retained EU law can be modified. It would ‘downgrade’ retained direct EU legislation so that this could be amended by secondary legislation. It would also remove additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation.
The government has published a ‘dashboard’ of retained EU law, although it acknowledges this is not a comprehensive catalogue of all retained EU law that may be in scope of the Bill. The dashboard is due to be updated regularly.
Concerns have been raised throughout the Bill’s progress about the amount of retained EU law to be reviewed before the sunset deadline and whether some may end up being revoked inadvertently. In the Commons, MPs expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the Bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. They were also critical of a lack of parliamentary scrutiny of and input into the process of reforming retained EU law. However, the only amendments made to the Bill in the House of Commons were government amendments to clarify the Bill’s drafting.
The Bill is now with the House of Lords. Five days of Committee proceedings—when a Bill is examined in detail—concluded on 8 March 2023.
Over the five days, Peers put forward many amendments to the Bill on a range of subjects. Opposition peers were scathing in their comments on the Bill. For example, Baroness Ludford (LD), said the Bill was ‘pretty hopeless’ and accused the government of adopting a ‘slash and burn’ approach to legislative reform, with opposition amendments seeking to bring to it ‘some rationalisation and order’. For the government, Lord Callanan, said, on the contrary, a ‘significant minority’ of retained EU law was ‘legally inoperable’ and that it was ‘not good governance’ to subject it to ‘complex and unnecessary parliamentary processes’ before being able to remove it from the statute book. He added that the amendments, including those seeking to delay the sunset, would ‘hamper efforts to realise the opportunities the Bill presents’.
The Bill has come out of Committee stage in the Lords with amendments, including the insertion of a new clause setting out exceptions to the sunset of REUL, and it seems likely that further amendments will be made at Report stage. It is noteworthy that at Second Reading in the Lords a significant number of Conservative peers spoke against the Bill. The level of opposition expressed by peers from all parties indicates that it may not be straightforward for the government to get the Bill into law. It seems likely that the government will need to accept at least some of the Lords’ amendments if it wishes to avoid a lengthy period of ‘ping pong’ between the Lords and the Commons.
In contrast to the approach being taken in respect of much retained EU law, the House of Lords is, in parallel, scrutinising the Financial Services and Markets Bill, which would similarly revoke retained EU law relating to financial services, but contains developed provisions which enable the Treasury and financial services regulators to replace that EU Law with legislation designed specifically for UK markets.
Report stage on the Bill—a further chance for the House of Lords to closely scrutinise elements of the Bill and make changes—began on 19 April 2023.
Authors: David Mundy, Aaron Nelson, and Joanna Purkis at BDB Pitmans, for LexisNexis.
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’
On 21 February 2023, the Minister for Women and Equalities, Kemi Badenoch, requested advice from the Equality and Human Rights Commission (EHRC) regarding the definition of the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA 2010). EHRC have provided an initial response to the Minister’s request namely suggesting that the UK government carefully consider implications any change to the legislation could have.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – April 2023
Employment,
25th April 2023
Employment Law
The devil is in the detail. This month’s case updates include recusing an EAT member for apparent bias to ensure impartiality, upholding a procedural system so that mass litigants could not be removed from an equal pay case, and taking a look at the detail of restrictive covenants, to reduce the effect where it was too fantastical to be valid.
Tribunals: EAT lay member recused due to appearance of bias
Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?
Tribunals: EAT lay member recused due to appearance of bias
In Higgs v Farmor’s School and the Archbishops’ Council of the Church of England [2023] EAT 45, the EAT allowed the appellant’s application for the recusal of a lay member from hearing the instant appeal against the respondent. The appellant had filed for an application for the recusal of the lay member, AM, from the hearing of the appeal based on apparent bias. It was alleged that AM’s former position as Assistant General Secretary of the National Education Union (NEU), when that entity was campaigning on matters of educational policy, had publicly expressed clear views, on the opposite side of a heated debate to the position of the appellant. The respondent did not consent to the application for recusal.
The court held, among other things, that a reasonable and well-informed observer would not see AM as an impartial judge for the appeal. Accordingly, applying the test of the fair-minded and informed observer (Porter v Magill), there was an appearance of bias such that the lay member should be recused from hearing the appeal.
Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
In Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386 the Court of Appeal, Civil Division, dismissed the appeal brought by the appellant, a supermarket company, from a decision which had allowed the respondents’ appeal and reinstated their claims. In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included the appellant and other well-known retailers. The case involves two separate but related equal pay claims against Sainsbury’s Supermarkets Ltd and Lloyds. One was brought by women seeking equal pay to male staff and another that would ensure men’s pay does not fall below the women’s if the first claim succeeds.
The claims had generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The appellant alleged that the judge had erred in law in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected large numbers of those claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service relating to early conciliation (EC) of their claims.
The court held, among other things, that the judge’s construction of rule 10 was the correct one. A panel of three judges in the Court of Appeal unanimously ruled that the attempt by Sainsbury’s to remove the majority of claimants in the 865-person lawsuit because their names were not listed in early-stage paperwork was “highly technical” and lacked “any substantive merit”. While a claim form should contain the name and address of each claimant and each respondent, it was sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared. There was no suggestion the 700 workers had failed to follow the correct procedure, Lord Justice Bean held.
“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claim”’, Lord Justice Bean wrote. “The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number”.
Tribunal rules requiring claimants to provide this information are a “preliminary filter” rather than an opportunity to strike out a claim, he added. “I do not accept…that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the star”’, Lord Justice Bean ruled.
Accordingly, the Court upheld the EAT’s decision in the respondents’ favour for a more fundamental reason relating to the structure and wording of the Rules of Procedure.
Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?
The Court of Appeal in Boydell v (1) NZP Limited and (2) AI ICE (Luxembourg) Midco S.A.R.L. [2023] EWCA Civ 373, was tasked with considering whether a restrictive covenant that covered what it needed to and what had been contemplated by the parties, but also unintentionally covered other areas (described as “fantastical”) and which had not been contemplated, can it still be valid?
Dr Boydell worked for NZP Ltd, a specialist pharmaceutical business covering a niche area of the pharmaceutical industry described in summary as the development, production and sale of bile acid derivatives for sale to pharmaceutical companies for use by them in their products and is part of the ICE Pharma Group of companies (the second defendant being the ultimate holding company). His contract of employment included a non-competition covenant preventing him from working in any capacity for any competing businesses of either NZP or any of its group companies.
NZP and ICE sought to enforce two sets of restrictive covenants. One set, contained in a variation to the Appellant’s employment contract, ran for one year from the termination of his employment. The other set, contained in a shareholder’s agreement ran for two years. The judge granted an interim injunction enforcing the one year covenants in the employment contract until the trial, with some modifications but refused to enforce the two year restrictions in the shareholder’s agreement (which the companies did not seek to appeal). In doing so, the Judge severed certain parts of the clause, including removing the reference to other group companies. This decision was appealed by NZP who argued that the Judge could not use severance to significantly change the effect of the restraints.
The Court of Appeal disagreed and held that if a clause covers what it needs to and what was contemplated but also unintentionally covers areas which are “fantastical” (Home Counties Dairies Ltd v Skilton) then it may still be valid. If there are two realistic constructions then the court should rely on the one which would result in a valid clause. This meant that, by severing the references to group companies (which were “fantastical”), the Judge had not significantly changed the overall effect of the clause.
Lord Justice Bean (at para.30) said, “The whole burden of the clause is directed to the specialist activities of NZP, which it lists at some length. The judge was entitled, at least at the interim injunction stage, to sever the words from the clause and grant an injunction on a more limited basis. There is a serious question to be tried as to whether other group companies have significant areas of business which are wholly distinct from the activities carried out by NZP. I would, however, refuse Ms Stone’s application for permission to cross-appeal against the judge’s decision to sever the relevant words from clause 3.1.”
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – March 2023
Employment,
27th March 2023
Employment Law
This month the news focuses on some key employment announcements from the Spring budget, changes to work checks guidance, a new proposed UK version of GDPR and a proposed right to request a more predictable working pattern. Lastly a new government employment champion has been announced to urge businesses to take action on the menopause.
Working Practices: Proposed new statutory right to request a more predictable working pattern
Menopause: Czar urges businesses to step up on policies
Spring Budget 2023 – Key Employment Announcements
In the Spring Budget 2023, delivered on 15 March 2023, the Chancellor of the Exchequer, Jeremy Hunt, announced a series of measures intended to support the UK workforce. Among the announcements were the introduction of a new Health and Disability White Paper on how to provide support and opportunities for workers with disabilities, the planned abolition of the lifetime allowance to encourage workers over 50 to stay in employment, the reiteration of government support for Private Members’ Bills providing unpaid carers with additional leave, parents with greater protections against redundancy, and parents of children in neonatal care with paid statutory leave, and commitments to encourage and facilitate flexible working arrangements between employers and employees.
In respect of immigration, Jeremy Hunt announced measures to tackle immediate labour shortages and ease business visits to the UK and further support for those who have come to the UK through the Ukraine Visa Schemes. Building off the Autumn Statement 2022, the Budget confirmed the government’s plan to deliver on three of the five key priorities set out by the Prime Minister in January: to halve inflation, reduce debt and grow the economy. The Spring Budget 2023 lists employment, education and enterprises as priorities for delivering on growth and building a high wage high skill economy.
Immigration: Revisions made to right to work checks guidance
The Home Office has updated its guidance for employers carrying out right to work checks. The guidance was updated late in the day on 28 February 2023 to reflect legislative changes and current practice. Examples include clarifying that employers should carry out on an online check for those with a pending Home Office application, administrative review or appeal, circumstances in which an employer should contact the Employer Checking Service and what employers should do if they are presented with a Biometric Residence Permit (BRP) with an expiry date of 31 December 2024. Similar changes have been made, on the same day, to the right to rent checks guidance for landlords.
The UK government has announced that British businesses will save billions of pounds through a new version of GDPR, which will replace the EU’s data protection laws after Brexit. The new law will allow UK businesses to avoid costly compliance fees and will maintain high levels of data protection for consumers. The changes are expected to provide a boost to the UK economy and enhance the UK’s reputation as a leader in data protection.
Working Practices: Proposed new statutory right to request a more predictable working pattern
The Workers (Predictable Terms and Conditions) Bill (the Bill) proposes to give eligible workers a new statutory right to request a more predictable working pattern. This follows the Taylor review of modern working practices and the resulting 2018 Good Work Plan in which the government committed to introduce policies to end ‘one-sided flexibility’. Eligible workers (not just employees) will have the right to make a request where:
there is a lack of predictability as regards any part of their work pattern (the work pattern being the number of working hours, the days of the week and the times on those days when the worker works, and the length of the worker’s contract)
the change relates to their work pattern
their purpose in applying for the change is to get a more predictable work pattern
An application must state that it is a request for a more predictable working pattern, and specify the change applied for and the date on which it is proposed it should take effect.
The Bill does not contain other earlier government commitments to introduce a right to reasonable notice of working hours and compensation for shifts cancelled without reasonable notice.
A worker can only apply for a change to their working pattern if they have been employed by the same employer (whether or not under the same contract) at some point during the month immediately preceding a ‘prescribed period’ (this will be specified in regulations and is expected to be 26 weeks ending with the date of the application). There is no requirement for the service to be continuous.
A worker can only make two applications in any 12-month period. This includes any application under the flexible working provisions if that request is for a change which would result in a more predictable contract.
The Bill contains a similar set of rights for agency workers:
an agency worker may be able to apply to a temporary work agency for a more predictable working pattern where they have had a contract with the agency at some point in the month immediately before a ‘prescribed period’ (to be set out in regulations)
if the agency worker has worked for a hirer in the same role continuously for 12 weeks (within a period of time which will be set out in regulations) they may also be able to apply to the hirer for a contract of employment, or other worker’s contract, which is more predictable than their current working pattern
There is no definition of ‘predictability’ in the Bill. It does, however, specifically state that workers on a fixed term contract of 12 months or less may request that the term is extended or becomes permanent. Other than that, it seems that a ‘lack of predictability’ will cover any worker whose hours or days vary in a way which provides them with uncertainty, such as:
casual/zero hours workers without a guaranteed number of hours
annualised hours workers if the employer has discretion over the working pattern
workers whose hours are determined by a shift pattern or rota, where that pattern/rota varies unpredictably
In many ways the process for dealing with requests reflects the flexible working regime. There is no obligation on the employer to agree to a request, but they must deal with the application in a reasonable manner and respond within one month. An employer can only reject an application for one or more of the specified reasons, which are:
the burden of additional costs
detrimental effect on ability to meet customer demand
detrimental impact on the recruitment of staff
detrimental impact on other aspects of the employer’s business
insufficiency of work during the periods the worker proposes to work
planned structural changes
If the worker’s contract terminates during the one month ‘decision period’ the requirements still apply. However, there are then some additional acceptable grounds for refusing a request such as the employer having acted reasonably in dismissing for misconduct or redundancy. A worker will be able to bring an employment tribunal claim if an employer fails to follow the requirements set out above which, if the claim is successful, could result in an order for reconsideration of the request or compensation. The amount of compensation will be set by regulations and could be limited to eight weeks’ pay as it is under the flexible working regime.
There is no timetable for implementation yet and, as noted above, some of the detail of how the right to request will operate in practice still has to be set out in separate regulations.
The new right will have the most impact in sectors where the use of casual workers and changeable shift patterns/rotas is widespread, and on businesses using short fixed-term contracts or agency workers. It is likely to lead to an increased focus on how best to manage these type of working arrangements.
The Bill only provides for the right to ask for a more predictable working pattern, not a right to a predictable working pattern. However, organisations which engage individuals on unpredictable working patterns will need to establish policies and procedures to deal with requests. They should also be aware that, if employment status isn’t clear, an individual might claim worker status while making an application for a more predictable working arrangement
(Content provided to Lexis-Nexis by Julie Keir, practice development lawyer at Brodies LLP.)
Menopause: Czar urges businesses to step up on policies
Helen Tomlinson, England’s first-ever menopause employment champion has called on businesses to develop policies and to normalize discussing the subject, saying that she has witnessed ‘the transformational power’ that talking about the health condition can have in a workplace. The Department for Work and Pensions (DWP) announced on 6 March 2023 that it had appointed Tomlinson to the post to raise awareness about the health condition. Tomlinson will also aim to encourage more employers to develop policies so women who experience symptoms are better supported, the DWP added. Tomlinson said that fewer than a quarter of UK businesses ‘currently have a menopause policy, but as I take on this role, I am determined that my generation of women in work will break the menopause taboo and have confidence that their health is valued’.
The DWP said that she will raise awareness of menopause, while promoting the benefits for businesses and the economy when women are supported to stay in work. Her role could also include advising employers about ‘small but significant’ changes they can make to the workplace, including offering women experiencing the symptoms of menopause more regular breaks and creating cooler spaces in offices, the DWP added.
The announcement of Tomlinson’s appointment came after the DWP had previously published official responses to two reports on menopause and the workplace. Tomlinson is Head of Talent in the UK and Ireland at the human resources provider Adecco Group. She was appointed to the role on a voluntary basis by the DWP, where she will work closely with Mims Davies, the Minister for Social Mobility, Youth and Progression. Davies said that menopause is a major reason that too many women leave the workforce early, often when they are at the peak of their skills and experience with so much more still to contribute. Tomlinson will also work closely with Lesley Regan, who was appointed as the government’s first women’s health ambassador in 2022.
According to the DWP, a quarter of women report that they have considered leaving their job due to experiencing menopause. Not all women experience symptoms that stop them from working, but research suggests that those with serious menopausal symptoms take an average of 32 weeks of leave from work over the length of their employment.
Many women tend to suffer in silence during perimenopause and menopause. Seeing this subject acknowledged at government level, gives hope that it will inspire businesses to do the same – educating and raising awareness about menopause-related issues, whilst also providing assistance and support to those who need it.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – March 2023
Employment,
27th March 2023
Employment Law
A round-up of the most significant employment law cases to be published over the last month regarding unfair dismissal and determining the date the contract was terminated, considering how an employee’s disabilities may have affected his conduct, respecting privacy through restricted reporting at tribunals and a look at how the ICO and Easylife settled a monetary penalty for unlawful data processing.
Unfair Dismissal: Determining the effective date of termination of the contract
Disability Discrimination: Determining whether an employee’s disabilities had had an effect on his conduct
Data Protection: ICO and Easylife reach agreement regarding monetary penalty
Unfair Dismissal: Determining the effective date of termination of the contract
In Meaker v Cyxtera Technology UK Ltd [2023] EAT 17 the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal, concerning the correct approach, in law, to the calculation of the effective date of termination of employment (EDT), pursuant to s.97 of the Employment Rights Act 1996 and for the purposes of a complaint of unfair dismissal. The employee appealed after his unfair dismissal claim was struck out as being out of time. The employer argued that the determination of the EDT was not governed by contractual principles and that, where an employee was dismissed in breach of contract, the EDT was the date on which the dismissal was communicated, regardless of whether he accepted it.
The EAT ruled that the employment tribunal (the ET) had not erred in holding that a letter, which the employer had sent to the employee in February 2020, was a termination letter; and that the effective date of termination, for the purposes of the unfair dismissal claim, was the date of receipt of that letter, even if it had been a repudiatory breach that had not been accepted by the claimant at common law. The EAT held that it was not bound to conclude that the meaning of the letter was rendered ambiguous by the fact that the opening paragraph of the relevant settlement agreement had referred to termination being effected by mutual agreement; and that the ET had been entitled to take the view that, even where there had been no mutual agreement, the termination (by the letter) had been clear.
The EAT ruled that there was no sign in the authorities that it was considered that the EDT would only be the date of a repudiatory breach if the contract had, in fact, been brought to an end by the employee accepting that breach. Further, the EAT held that the ET had not erred in holding that the employee had not shown that it had not been reasonably practicable for him to have presented his unfair dismissal complaint in time.
Disability Discrimination: Determining whether an employee’s disabilities had had an effect on his conduct
In McQueen v General Optical Council [2023] EAT 36, the Employment Appeal Tribunal (the EAT) dismissed the employee’s appeal against the employment tribunal’s (the ET’s) decision, dismissing his claim which alleged unfavourable treatment by the respondent employer because of something arising in consequence of a disability, pursuant to s.15 of the Equality Act 2010 (EqA 2010). The employee had dyslexia, some symptoms of Asperger’s Syndrome, neurodiversity and left sided hearing loss, which had caused some difficulties with his interactions in the workplace. The employer, which was the statutory regulator of optometrists and opticians practising in the UK, had employed the employee as a registration officer. The employee had had ‘meltdowns’ at work, which had led to disciplinary proceedings. Subsequently, he had left that employment.
The employee contended that: (i) the ET had misapplied the broad test of causation required where a claim under s.15 was being considered, in that its reasoning had been contrary to the psychiatric and psychological evidence; (ii) the disability did not, necessarily, need to be the sole or even main reason for the ‘something’ that arose in consequence of it; (iii) the employer had, itself, linked the employee’s behaviour to his disabilities; and (iv) in considering whether there had been discrimination of the kind where ‘A treats B unfavourably because of something arising in consequence of B’s disability’ (EqA 2010 s 15(1)(a)), the ET had failed to appreciate that the words ‘in consequence of’ were, at least, as broad as the ‘because of’ test.
The EAT held that, although it had reservations about the structure and quality of the ET’s decision and reasoning, the ET had not erred in law or principle in the application of s.15 to the facts; and that it had not adopted too strict a test of causation when considering the effects of the employee’s disabilities. The correct reading of the decision was that the ET had found that those effects had not played any part in the conduct that had led to the unfavourable treatment complained of. The EAT held that, once the ET had determined that the employee’s disabilities had not had any effect on his conduct on the occasions in question, the further question whether any unfavourable treatment had been ‘because of’ that conduct had not arisen.
Restricted Reporting: Anonymity in hearing cases in the tribunals
In A v Choice Support (Formerly MCCH Ltd) [2023] EAT 18, the Employment Appeal Tribunal (the EAT) ruled on the respondent’s application, pursuant to r.19 of the Employment Appeal Tribunal Rules 1993, SI 1993/2854, to make permanent a temporary restricted reporting order which had been made at the EAT level, pursuant to r.23 of the 1993 Rules, and arising out of s.11 of the Employment Tribunal’s Act 1996 (the Act), and in line with an order made by the employment tribunal (the ET) pursuant to r.50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations, SI 2013/1237 (r.50) and s.11 of the Act. The application arose in circumstances where the respondent provided support to vulnerable adults, and the employee alleged that an individual (EA), with whom she had worked at the same property, had raped her.
The EAT held that: (i) r.50 set out a much broader discretion beyond s.11 of the Act; (ii) the orders should make specific reference to which elements of s.11 and/or r.50 the relevant decision was applying; (iii) the distinction between anonymity orders and restrictions on reporting should clearly be separate parts of any such order, setting out whether they were made pursuant to the section or on broader grounds; (iv) if there was concern about jigsaw identification, any order should be made in terms which clearly prohibited publication of any particular detail of the case facts which it was thought might lead to identification; and (v) a restricted reporting order should only be made (and made permanent) when a less restrictive order would not suffice.
The EAT held that the employee should remain anonymised, that EA’s rights under art 8 of the European Convention on Human Rights had been engaged and that, as ‘a person affected’, he should be anonymised and that, because of the risk of jigsaw identification, EA’s parents should remain anonymised. Further, the EAT ruled that the anonymisation should be made the subject of a permanent order.
Data Protection: ICO and Easylife reach agreement regarding monetary penalty
The Information Commissioner’s Office (ICO) has reached an agreement with Easylife Ltd (Easylife) to reduce the monetary penalty notice to £250,000 for breaching the UK General Data Protection Regulation, Retained Regulation (EU) 2016/679 (UK GDPR). Easylife has accepted the ICO’s findings as set out in the monetary penalty notice and has agreed to pay the reduced fine. This follows the ICO’s fine to Easylife on 4 October 2022, where an investigation found that Easylife was making assumptions about customers’ medical conditions, based on their purchase history, to sell further health related products. This was deemed to involve processing of a special category data without a lawful basis, where Easylife has since stopped the unlawful processing of special category data.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – February 2023
Employment,
27th February 2023
Employment Law
We bring you a month of reports and inquiries. Two reports from a think tank and the IES into how women’s finances are affected by their working life and what impact this can have on the gender pension gap. A new Bill has been given government backing to give zero hours workers more certainty by requesting a more predictable work pattern. A troubling and impactful inquiry has been published into the TSSA, with stark consequences, and a study finds that despite having whistleblowing policies in place, many require better implementation and training.
Pensions: Think tank publishes two reports on the gender pension gap with recommendations
Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
Trade Unions: Inquiry finds Sexual harassment rife at TSSA
Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds
Pensions: Think tank publishes two reports on the gender pension gap with recommendations
Two reports from think tank Phoenix Insights and the Institute for Employment Studies (IES) exploring women’s finances through the lens of the workplace, set out a number of recommendations to assist women’s ability to save thereby closing the gender pension gap. The gender pay gap already disadvantages women’s future finances because it means they are more likely to contribute less to their retirement savings than their male peers. The research found that this disparity is made worse by life events, including motherhood, menopause, divorce, childcare, menstruation and caring responsibilities which can all disproportionately affect a woman’s earnings, and therefore pension contributions.
Some of the key findings in the reports include that the gender pay gap is a significant contributor to the gender pension gap, yet women on average contribute a larger proportion of their salary to their pension. On average, women are contributing a higher percentage of their monthly income into their pension than men up until middle age – 6.1% compared to 5.8% aged 35-44 by middle age – where care responsibilities fall to one in four women in the UK – men are paying almost £80 more per month into their pension than women. Women are more likely than men to fall under the auto-enrolment threshold (women 35% : men 11%). Automatic enrolment closed the contribution gap in participation but increased the gap in terms of contribution. Women are more likely to be economically inactive due to long-term health conditions than men. There is limited awareness among employers of the causes and consequences of the gender pension gap, resulting in a lack of action over and above the statutory minimum allowances that seek to improve the savings capacity of women across the different life stages.
The think tank report recommends employers should be required to inform employees about the pensions impact that changes to their working hours and earnings may have, to help close the gender pension gap.
The opportunity for employers – five key recommendations:
re-enrol workers into pension schemes annually, rather than the statutory three years, to give workers the opportunity to re-engage if they have taken career breaks or have opted out because of a lack of affordability
ensure employer pension contributions continue during periods of parental leave
adopt a minimum of five days unpaid leave per year for those with childcare responsibilities, and where possible, five days paid carer’s leave
make flexible working the norm from day one and highlight this across all job roles
ensure workplace health policies offer explicit and visible support for reproductive conditions such as miscarriage, fertility treatment, for those diagnosed with endometriosis and managing menopause symptoms
The role of government – five key recommendations:
legally require employers to provide information on how contractual changes impact pension contributions
revisit the Carer’s Leave Bill to ensure that unpaid careers can access up to ten days statutory paid leave
the legal right to flexible working should be available from the first day of employment, and the number of reasons to reject flexibility should reduce from eight to two
widen the coverage of auto-enrolment by lowering age and earnings eligibility threshold to 18 years and £0, respectively
review the advice and guidance boundary so that a larger population can access tailored and reliable financial support
Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
The Department for Business, Energy & Industrial Strategy (BEIS) has announced that the government is backing Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill. The Bill seeks to ensure that all employees, even agency workers, receive more predictable working patterns.
‘Hard working staff on zero hours contracts across the country put their lives on hold to make themselves readily available for shifts that may never actually come’ said Labour Markets Minister, Kevin Hollinrake. ‘Employers having one-sided flexibility over their staff is unfair and unreasonable. This Bill will ensure workers can request more predictable working patterns where they want them, so they can get on with their daily lives.’ The Bill provides that if an employee’s existing working pattern lacks certainty in terms of the hours they work, the times they work, or if it is a fixed term contract for less than 12 months, they may make a formal application to change their working pattern to make it more predictable. The move comes as part of a package of policies designed to further workers’ rights, such as:
paid neonatal care leave
requiring employers to ensure that all tips, gratuities, and service charges are paid to workers in full
entitling unpaid carers to a period of unpaid leave
providing employees with a day one right to request flexible working, and a greater say over when, where, and how they work
Trade Unions: Inquiry finds sexual harassment rife at TSSA
A misogynistic, ‘mafia-like’ culture of sexual harassment, bullying and violent language has permeated one of Britain’s transport unions, a new independent inquiry has revealed. An investigation by Baroness Helena Kennedy KC into the Transport Salaried Staffs’ Association (TSSA) concluded on 8 February 2023 that ‘there has been sexual harassment, discrimination and bullying within the TSSA and that the leadership and culture has enabled these behaviours through wilful blindness, power hoarding and poor practices’.
Kennedy’s report called for sweeping changes in an organisation where absolute power was concentrated in ‘a very small number of hands’, and called for new leadership at the TSSA. The TSSA opened the investigation in September 2022 after its General Secretary at the time, Manuel Cortes, was accused of sexual harassment by several women. Cortes, who has since retired with an undisclosed payout, denies the allegations. Kennedy pointed out in her report that neither the internal leadership of the TSSA nor the executive committee understood that to say they had not witnessed inappropriate behaviour is not an acceptable response to an ‘atmosphere of fear’ and an environment of ‘open secrets’.
Only two of the 50 people who volunteered to speak to Kennedy as she carried out her inquiry had any positive words to say about the TSSA’s culture, according to her report. The rest described a ‘dysfunctional’ and ‘mafia-like’ culture across the TSSA. The organisation was sexist, racist and homophobic, they said.
Kennedy said that a ‘distressing element’ of her inquiry was realising how little senior leaders at the TSSA seemed to have ‘moved with the times’. Their approach to management was ‘controlling’ and described by many staff members as bullying. The barrister said that, combined with governance failings, meant the ‘outdated attitudes of scepticism and disbelief of women’ formed a ‘dangerous mixture’.
Kennedy noted that the recent history of ‘wage suppression’, particularly in the public sector, and the ‘casual erosion of employment rights’ through precarious work points to an urgent need for healthy trade unions. She recommended a sweeping change of leadership, a realistic time-frame for reform and ‘serious investment of time in culture change’ to make a success of the TSSA.
TSSA said in response that the report made ‘difficult reading’ and highlighted serious problems that the union had to tackle. A spokesperson said the TSSA recognised the need for sweeping reform and stated its commitment to tackle institutional issues and drive through a culture change. ‘As a union, TSSA fights for equality, fairness and social justice for all, regularly winning on equality issues for our members’, the spokesperson said. ‘But it is clear from this report that our union has not followed the values we aspire to for our members.’
The President and Treasurer of the TSSA have stood down with immediate effect and interim replacements had been appointed, the spokesperson added. The TSSA has confirmed it is committed to take comprehensive, considered and meaningful action to address [the report’s] findings, and to enable the necessary further investigation and decisions to be made, the TSSA has suspended all five senior members of staff named in the report, including former General Secretary, Manuel Cortes.
Responding to the report, the TUC stated that ‘sexual harassment and bullying have no place in the trade union movement or any workplace. The TUC believes the women who came forward to share their experiences’. The TSSA have been asked to meet with the TUC General Secretary and the TUC President to discuss next steps.
The Kennedy report comes after a similar 2020 investigation into the GMB, conducted by Karon Monaghan KC, concluded that the GMB is institutionally sexist, and bullying, misogyny, cronyism and sexual harassment are endemic within the GMB.
Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds
On 16 February 2023, an article by People Management reported that a study by whistleblowing and compliance services provider Safecall, which surveyed HR managers and directors from 222 organisations, found that that while 17 per cent of respondent organisations lacked a whistleblowing policy, the majority (83 per cent) did have one in place, and for those companies that provide internal whistleblowing services, only 58 per cent of their investigators had been formally trained.
The report also discovered:
more than two fifths (42 per cent) of employees responsible for managing whistleblowing complaints have either self-taught, learned their skills through experience, or have no experience at all
more than half (57 per cent) of HR professionals surveyed believed that their employees were actively encouraged to report wrongdoing.
however, just 42.6 per cent said employees “generally feel safe” to do so,
the majority (74 per cent) of HR professionals could not be certain that whistleblowers were confident in raising concerns, and
one in five (20 per cent) organisations have whistleblowing processes that their employees would find to be “highly untrustworthy”.
The article goes on to discuss various aspects of having whistleblowing policies. A policy that emphasises how employees can bring matters to their employer’s attention, which may help employers avoid or at least reduce the risk of employment claims by increasing the likelihood that disclosures will be readily identified as qualifying as a protected disclosures.
However, problems arise where there is a fundamental lack of trust between an organisation and its workforce. Having a whistleblowing policy that ensures there is a clear procedure that must be followed by all staff when a complaint is made can support businesses in fostering a transparent and open company culture. The policy should also demonstrate that staff should not be victimised or subjected to any detrimental treatment as a result of bringing a complaint.
Last year, legal experts warned HR professionals of the consequences of workers whistleblowing on their former and current employers for coronavirus job retention schemes, with law firm Pinsent Masons reporting that 13,775 furlough fraud whistleblowing reports were made to HMRC.
Meanwhile, a previous People Management report found that one in five (20 per cent) employees who had gone to their bosses with concerns over furlough fraud and breaches of Covid-19 safety rules were sacked as result.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – February 2023
Employment,
27th February 2023
Employment Law
This month’s review covers a range of issues. We look at sex discrimination involving a lack of a private toilet for a female employee, how an employee who worked term time should have had her holiday pay calculated to take account of the national minimum wage, a potential revision of couriers’ holiday pay following the Pimlico Plumbers case, how not to deal with a flexible working request, and an appeal to reconsider a dismissal related to the pandemic.
Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
In Earl Shilton Town Council v Miller [2023] EAT 5, the EAT has rejected Earl Shilton Town Council’s case that it did not treat ex-clerk Karen Miller worse than men in its shared toilet arrangement. The council launched its appeal after the employment tribunal ruled in 2020 it failed to provide appropriate toilet facilities to ex-clerk Karen Miller for almost two years between 2016 and 2018. The tribunal concluded that Ms Miller had been treated less favourably because she ran the risk of seeing men using the urinal. The council argued in its appeal that Ms Miller was not treated less favourably than men because they were just as much at risk of being seen at the urinal as she was of seeing them. The Judge Tayler rejected its case, concluding that Ms Miller’s sex discrimination claim did not fall apart just because a man could also make a similar complaint. It was enough to establish that Ms Miller had a worse experience than a man would seeing another man at the urinal, he said.
‘Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals’, Judge Tayler said. ‘While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourably.’
The judgment details how the council, which was based in a Methodist Church that it shared with a playschool, only had access to a female toilet that was in the school’s half of the building. Female staff would have to check with playschool workers that no children were using the toilet first because of child safety concerns, according to the judgment. The toilets were not always immediately accessible as a result. The council offered her the use of the men’s toilet, which has a single cubicle and a multi-person urinal. But there was no lock on the external door, creating the risk that a woman might walk in on a man using the urinal or leave the cubicle to find a man using it. The council also contended in its appeal that the sharing arrangements could not be discriminatory because they were caused by child safety concerns.
Judge Taylor ruled that the arrangements were not good enough, citing the lack of a sanitary bin and suggesting that installing a lock on the toilet door may have made it compliant.
‘The facilities were inadequate for the claimant because she is a woman’, he said. ‘Accordingly, the safeguarding issue could only go to motive and could not prevent direct discrimination being established.’
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
In Lloyd v Elmhurst School Limited [2002] EAT 169, the claimant was employed by the respondent, a private school, as a teaching assistant. She initially worked two days a week and then this was increased to three days a week (21 hours per week). She was paid monthly in equal instalments. The claimant’s contract did not set out hours of work. However, it stated that during term time she would work as directed by the Head Teacher and be entitled to the usual school holidays as holidays with pay. The respondent calculated the claimant’s salary based on 40 weeks of the year. The claimant brought a claim in the employment tribunal for unlawful deduction from wages based on an underpayment of the National Minimum Wage (NMW). She argued that her hours over the year should be calculated as 52 weeks x 21 hours, and not 40 weeks x 21 hours. If her method of calculation was accepted as correct there was an underpayment of the NMW.
A salaried worker is entitled to receive the NMW for their ‘basic hours’ which, by virtue of regulations 3, 21(3), 22(5) of the NMW Regulations 2015 (NMWR 2015), are determined by the terms of their contract of employment, even if those basic hours are greater than the hours actually worked. On the facts of this case, even though the claimant only worked term-time as a teaching assistant, she was entitled to the NMW for 52 weeks of the year rather than just her working weeks plus statutory holiday, because her contract provided that ‘… she was entitled to the usual school holidays as holiday with pay’, according to the EAT.
The employment tribunal dismissed the claimant’s claim. It found that the claimant worked term-time only; when the claimant accepted her job it was on her and the school’s understanding that she would work term time only; the contract did not explicitly set this out but this was consistent with clause 3(b) of the contract; the wording of clause 4 of the contract did not mean that these hours were deemed to be working hours for the purposes of the NMW legislation; the wording ‘the usual school holidays as holidays with pay’ did not mean that the 12 weeks of school holiday should be paid at the same rate as when the claimant was working/on statutory leave and included in her basic hours worked calculation for NMW purposes.
The claimant appealed to the EAT. In relation to the construction of ‘basic hours’ in NMWR 2015, it was not in dispute that the claimant was a permanent employee, who was employed throughout the school year and who was engaged in ‘salaried hours work’ for the purpose of NMWR 2015, nor that the claimant met the four conditions in regulation 21, including the second condition in regulation 21(3) that she was entitled to be paid in respect of a number of hours in a year and that those hours necessarily could be ascertained from her contract.
The principal point of dispute on statutory interpretation was which non-working hours of absence or holiday count towards basic hours. The claimant argued that, while it depends on the individual contract, basic hours include all the hours which are paid as contractual holiday. While the respondent argued that the only periods of absence which count towards basic hours are those which are absences from days when the worker would otherwise be working.
The EAT allowed the appeal. It agreed with the claimant on the issue of statutory interpretation and held that the code, Act and regulations were a poor guide to what hours are to be treated as basic hours, and the ascertainment of the claimant’s ‘basic hours’ depended on the meaning of her contract: the statutory question was not answered by looking at the hours which she in fact worked. Her annual basic hours, as ascertained from her contract, would then fall to be divided by 12 to give the hours of salaried work for each one-month pay reference period. It held that as a matter of general principle, some periods of fully paid absence count towards the ‘basic hours’ of salaried hours work, e.g. if the worker’s contract said they were entitled to a salary of £400 a week for a 40-hour week and to seven weeks’ holiday at full pay their annual basic hours would be based on a multiplier of 52 weeks.
In relation to the individual grounds of appeal, the EAT held that the tribunal erred in examining the hours the claimant in fact worked, to which it added her statutory entitlement to paid annual leave; failing to ascertain the number of hours in the year for which the claimant was entitled to salary in accordance with her contract, as to which the meaning of clause 4 of her contract was of central importance; examining whether the claimant was engaged in ‘working activity’ outside term-time, rather than asking whether those periods of contractual holiday could form part of her basic hours; inconsistently including statutory leave but excluding contractual leave; and relying regulation 27 (whether a worker is ‘available at or near a place of work’ for the purpose of doing work) and not to regulation 21(3), and, in doing, so wrongly focused on when the claimant was in fact engaged in working or working activity.
The EAT remitted the matter to a freshly constituted employment tribunal for the determination, in light of its judgment, of all the issues relevant to the claimant’s claim of unlawful deduction from wages.
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
InAlston and 44 Ors v The Doctors Laboratory Ltd and Ors [2023] EAT 13 a group of couriers have successfully applied to the EAT to set aside by consent an employment tribunal decision on an application of time limits in holiday pay claims under the Working Time Regulations 1998 (WTR 1998) which had ruled that they could carry over paid holidays between years only if they had not already taken unpaid leave, after arguing that a Court of Appeal decision voided the employment tribunal judgment on this point.
Forty-five claimants, 38 of them represented by trade union Independent Workers of Great Britain (IWGB), argued before the EAT that the Court of Appeal’s decision in Smith v Pimlico Plumbers Ltd in February 2022 removed restrictions on how much paid leave they are due. The Honourable Mrs Justice Eady, current President of the EAT, agreed, saying that an employment tribunal’s 2020 decision in the couriers’ case ‘cannot stand and must be set aside’. The couriers ‘were and remain entitled to carry over any untaken paid annual leave’ until their contracts end or the employer, The Doctors Laboratory Ltd, allows them to take the paid holidays they have accrued, Mrs Justice Eady ruled.
It is one of the first cases to rely on the Pimlico Plumbers precedent, which allows people who were wrongly denied paid holiday to claim up to 5.6 weeks’ worth of pay—the equivalent of statutory annual leave—for each year of their employment. For people who have been misclassified as self-employed rather than workers, the precedent removed a previous two-year limit to compensation claims—now, they can stretch back as far as 1996.
The Doctors Laboratory, the UK’s largest independent clinical lab, did not give its couriers paid holiday until 2018, when it conceded they were entitled to up to four weeks a year as ‘limb (b) workers’, a legal category of worker under section 230(3) of the Employment Rights Act 1996.
The company argued before the employment tribunal in 2020 that unpaid leave the couriers had taken before 2018 should be subtracted from their holiday entitlement going forward.
The tribunal agreed the couriers’ right to carry over leave year-on-year ‘exists subject to qualification’.
Employment Judge Elliott ruled that unpaid leave was ‘capable of amounting to annual leave’ because it fulfils the health and safety objective of the European Working Time Directive, which is the root of UK working time law. But the couriers’ counsel argued before the EAT that Pimlico Plumbers allows workers to accumulate paid holiday if they have taken unpaid leave for reasons beyond their control.
The couriers and The Doctors Laboratory remain at odds over whether the couriers count as workers. If so, they could be entitled to the full 5.6 weeks’ statutory annual leave. Judge Eady remitted the matter to the employment tribunal for further directions.
Indirect Discrimination: Rejection of flexible working request is application of PCP
In Glover v (1) Lacoste UK Ltd (2) Harmon [2023] EAT 4 the EAT dealt with the question of when a provision, criterion or practice (PCP) can be said to have been ‘applied’ to an employee, for the purposes of a claim of indirect discrimination under section 19 of Equality Act 2010. The EAT held that once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the PCP (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application.
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
The EAT has agreed to hear arguments from a salesman fired after asking to work from home or be granted a leave of absence during the COVID-19 lockdown, that the employment tribunal failed to consider his belief that these were reasonable steps to avoid infection. The EAT granted Francesco Accattatis permission to challenge a decision in favour of his former employer Fortuna Group, which sells protective medical equipment like face masks and gloves. The company said Accattatis had failed to ‘support and fully comply with company policies’, which included working from its office in Enfield, North London, when it fired him in April 2020, approximately a month into the first national coronavirus lockdown. But Accattatis argued a 2021 employment tribunal ruling only considered the company’s belief that it was not possible for him to work from home or be placed on furlough. ‘To focus exclusively on the respondent’s view of the situation was an error’, his counsel, told the EAT. ‘I don’t see that the respondent’s view of whether something is feasible, or whether it was feasible, was a relevant matter’.
Under the Employment Rights Act 1996 (ERA 1996), it is unlawful to fire an employee for refusing to return to a workplace because they believed there was a ‘serious and imminent danger’ they couldn’t reasonably avoid. Whether the steps the employee took were appropriate to avoid that danger must be judged ‘by reference to all the circumstances, including, in particular, his knowledge and the facilities and advice available to him at the time’.
The employment tribunal ruled Accattatis’ requests were not appropriate steps because the company ‘reasonably and justifiably concluded’ that he could not work from home or claim furlough.
But Judge James Tayler agreed at a hearing on 9 February 2023 that it is arguable the tribunal misinterpreted the law and allowed the appeal to proceed. Accattatis will also be able to argue that the reason Fortuna gave for his dismissal was not properly distinguished from managers’ low opinion of him.
He had asked his bosses several times about working from home, which he felt was possible. Fortuna and the tribunal disagreed that Accattatis was needed in the office to manage deliveries of equipment and use specialist software, the 2021 judgment noted. He sent several emails throughout April 2020 while on sick leave for a suspected case of Covid-19 urging managers to place him on furlough. ‘I can assure you I already received confirmation from several sources that [the] coronavirus job retention scheme is easily accessible, by any company still actively trading during this time of emergency, without any downside to it’, one email reads. His counsel said this demonstrated Accattatis’ belief that furlough was possible and that urging Fortuna to reconsider was an appropriate step. ‘It’s the manner of the demands, that they were impertinent, that was the reason for the dismissal’, he said.
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law General Update – January 2023
Employment,
24th January 2023
Employment Law
As we welcome in the fresh new year, there is a need to focus on helping employees with health issues as the NHS struggles more than ever. We highlight three areas where employers can make a real difference. Other challenges this year come from union strikes, and the government looks to balance the rights of strikers with continuing to provide minimum levels of service in specified public services in a new bill before the Commons, along with an update on the Neonatal Care Bill which covers parental leave. With people working more flexibly consultations have started on proposals to pro-rata holiday entitlement for part-year and irregular hours workers.
Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
Parental Leave: House of Commons publishes update on Neonatal Care Bill
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Website, People Management, published an article on 20 January 2023 by Imogen Cardwell (Clinical Operations Director at PAM OH) promoting a proactive approach from employers to address health challenges facing employees including soaring cancer rates, increasing work-related illness and NHS delays. You can read the full article [here] but below is a summarised version.
She reports that with an NHS backlog of more than 7.2 million, it will impact more than a million employees, with 15 per cent of employees affected being forced to go on long-term sick leave, and 40 per cent of cancer patients are having to wait more than the 62-day target for life-saving cancer treatment . At the same time, two-fifths of employees believe work has made them sick, primarily due to work-related stress and musculoskeletal (MSK) issues. All of which means the NHS backlog, rising cancer cases and increasing work-related illness are the three major wellbeing challenges employers will need to address in 2023.
Challenge 1: Supporting employees with cancer
Employers will need to do more to support terminally ill employees to stay in work, so long as it is safe to do so. This is both a legal duty, under the Equality Act 2010, but also a moral duty. Integral to this is supporting employees by making the reasonable adjustments needed to allow them to remain in work, such as allowing flexible working or changing working hours for a period to account for someone’s needs.
Managers should be encouraged to talk to employees about what they think would help them and an occupational health clinician can also advise on appropriate adjustments that would work for the individual and business, both now and as the employee goes through important milestones and treatments.
Challenge 2: Ongoing NHS delays
Before the pandemic, employees would typically get signed off work by their GP until after they had been treated and had some post-surgery rehabilitation, which might have been around 6 weeks. With wait times of up to a year, this might not be acceptable going forward. Be aware of the risk of financial hardship, and long-term absence which has been shown to lead to lack of confidence, isolation and an increased risk of future worklessness.
Again, reasonable adjustments to help keep people in work will be critical going forward. Workplace wellbeing initiatives or occupational health advisors might also be able to support the individual with linked conditions, for example, losing weight to reduce joint pain and need for an operation.
Challenge 3: Soaring work-related illness
Days lost to work-related ill health cost billions per year, primarily work-related stress, depression or anxiety and MSK issues. What drives these issues? Employers should review their health data, including referrals to occupational health and health screening insights. As well as conduct ‘employee listening’ with surveys designed to uncover the root causes of work-related stress. This can often be addressed with workshops and manager training based on the HSE’s Management Standards for reducing stress, which look at everything from workload to working relationships.
In the case of soaring MSK issues, workplace risk assessments can be used to identify where employees are setting themselves up for future injury. While body mapping workshops, where employees place stickers on body maps to reveal where they have injuries or niggles, can also be used. These encourage employees to share tips and advice with one another on how they’re using the same equipment, or doing the same job, in a way that prevents injury. As it’s often the smallest behavioural changes that make the biggest difference.
A free guide to Health at Work is available from PAM Wellbeing here.
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
The House of Commons (HoC) Library has published a research briefing on the Strikes (Minimum Service Levels) Bill, which was introduced to the House of Commons and given its first reading on 10 January 2023. The Bill enables regulations to be made by the Secretary of State at the Department for Business, Energy & Industrial Strategy (after consultation) setting minimum levels of service in specified public services so that those services do not completely shut down when there are strikes. For these purposes a strike does not include an overtime ban or a call-out ban. The Bill would grant the Secretary of State the power to set ‘minimum service regulations’ that could set minimum service levels for workers during strikes in the following sectors:
• health services
• fire and rescue services
• education services
• transport services
• decommissioning of nuclear installations and management of radioactive waste and spent fuel
• border security.
The Bill grants employers the power to give a ‘work notice’ to a trade union about any strike that affects a service subject to the Bill. The notice would have to specify which workers the employer to continue work in order to ensure service levels required by the minimum service regulations. Where a union fails to ‘take reasonable steps’ to ensure compliance with the work notice it loses protection from liability. Furthermore, the Bill removes automatic protection from unfair dismissal for any employee who strikes contrary to a valid work notice.
The second reading of the Bill was due to take place on 16 January 2023.
Parental Leave: House of Commons publishes update on Neonatal Care Bill
The House of Commons (HoC) has published a briefing paper on the Neonatal Care (Leave and Pay) Bill 2022–23, which was introduced by Stuart C McDonald MP as a Private Member’s Bill on 15 June 2022.
The Bill would introduce neonatal care leave and statutory neonatal care pay. As these are both new rights, they require the Minister to pass regulations to bring them into force. Parents whose children spend at least one week in neonatal care would qualify for the day one right to neonatal leave. The duration of the leave and when it must be taken would be set by regulations. It would be a minimum of one week and the period in which it could be availed of would last a minimum of 67 weeks starting from the date of the child’s birth. Employees with at least 26 weeks continuous service can avail of neonatal care pay during periods of neonatal leave. While limit and duration of pay would be set by regulations the minimum limit that could be claimed would be a minimum of 12 weeks.
There have been calls since 2014 for such a bill to be introduced. Following a consultation, the Government committed to introduce neonatal care and pay in March 2020. This was reiterated by the then Labour Markets Minister Paul Scully when he was responding to a parliamentary question on 25 May 2022. All MP’s who spoke during the second reading of the Bill were in favour of it passing. Similarly, all contributions at committee stage were in favour of the Bill and all amendments were accepted. However, concerns over the length of time the government were taking to implement the Bill were also raised.
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
The Department for Business, Energy & Industrial Strategy (BEIS) is conducting a consultation on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. The consultation follows the recent Supreme Court judgment in Harpur Trust v Brazel [2022] IRLR 67.
As part of the consultation, BEIS proposes to introduce a holiday entitlement reference period for part-year and irregular hours workers. BEIS wants to ensure that holiday pay and entitlement is directly proportionate to the time part-year and irregular hours staff are working. The consultation also aims to understand how entitlement is currently calculated for agency workers and how the consultation proposal could be implemented.
The consultation may be of interest and impact employers, workers, business representative groups, unions, and those representing the interests of groups in the labour market.
Further information regarding the Calculating holiday entitlement for part-year and irregular hours workers Consultation can be accessed here. The Proposal to simplify Holiday Pay and Entitlement Consultation Impact Assessment can be accessed here.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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’s case digest covers how to compare workers in cases of less favourable treatment...
News & Views
Employment Law Case Update – January 2023
Employment,
24th January 2023
Employment Law
We start off the new year with a Court of Appeal decision on whether a worker who declined to go back to work for fear of COVID-19 was unfairly dismissed or not, the first of its kind at this level. We also take a look at two discrimination cases, a Court of Justice of the European Union case about requirements on employers to provide ‘special corrective appliances’ (such as glasses), and a claim for misuse of private information concerning the reasonable expectation of privacy in private WhatsApp messages.
COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
Discrimination: Narrow test for marital status discrimination confirmed
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
Data Protection: Misuse of private information and abuse of process
COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
In Rodgers v Leeds Laser Cutting [2022] EWCA Civ 1659, the claimant worked for the respondent as a laser operative in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working. Following the first national ‘lockdown’ on 23 March 2020, the respondent told employees that the business would remain open, asked staff to work as normally as possible and stated ‘we are putting measures in place to allow us to work as normal’. Recommendations were made by an external risk assessment covering most of the things which were already in place before it was undertaken. The claimant left work as usual on 27 March 2020, having not made any complaint about his conditions at work. He obtained a self-isolation note until 3 April 2020 due to having a cough. On 29 March 2020, the claimant told his line manager he had to self-isolate because one child was high risk with sicklecell and a 7 month old baby. His manager agreed. Unfortunately, during this period he drove a friend who had broken his leg to hospital and at some point worked in a pub during the lockdown. On 24 April 2020 he found out he’d been dismissed and was sent his P45.
The claimant made a claim for unfair dismissal on the grounds of health and safety. Under the Employment Rights Act 1996 (ERA 1996), s.100(1)(d), any dismissal of an employee will be automatically unfair, if the reason (or, if more than one, the principal reason) for the dismissal is that, in circumstances of danger which the worker/employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee:
left or proposed to leave, or
(while the danger persisted) refused to return to
their place of work or any dangerous part of their place of work. ‘Dangers’ in this context are not limited to dangers arising out of the workplace itself, but also cover dangers caused by the behaviour of fellow employees.
The questions that the employment tribunal has to decide in a case under ERA 1996, s.100(1)(d) are:
Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
Was that belief reasonable? If so:
Could they reasonably have averted that danger? If not:
Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
Was that the reason (or principal reason) for the dismissal?
The tribunal rejected the claim for a number of reasons, including that his evidence was inconsistent, his beliefs of serious imminent danger were not supported by his actions (driving his friend to hospital and working in a pub) and not related to his workplace but to the world at large, he had made no complaint about his specific working conditions, and the measures put in place by the employer (if followed) would make the business as safe as possible from infection.
The claimant appealed, arguing that the tribunal had erred in law by concluding that because his belief was one of a serious and imminent danger at large (i.e. in the whole community), his belief that his workplace presented a serious and imminent danger was not objectively reasonable. The Court of Appeal, like the EAT before it, dismissed the appeal because the claimant’s case failed on its own facts. While the coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, this was not the situation in this particular claimant’s case in respect of his workplace.
The Court of Appeal has confirmed that, on the particular facts of this case, where the employee refused to return to work during the coronavirus (COVID-19) pandemic in circumstances where the employer had put in place social distancing in the workplace and other measures like handwashing and face masks, the employment tribunal did not err in law in concluding that the claimant had not reasonably believed that there were circumstances of danger which were serious and imminent, or which could not be reasonably averted, and as result the dismissal was not automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996).
Guidance was given on the interpretation of ERA 1996, s 100(1)(d) including that:
it is sufficient that the employee had a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. They do not also have to prove that objectively such circumstances of danger did in fact exist;
the subsection does not apply where the perceived danger arose on the employee’s journey to work. The perceived danger must arise at the workplace. However it does not follow that the danger need be present only at the workplace;
while the paradigm case under ERA 1996, s 100 (1)(d) is where a danger arises by reason of some problem with the premises or equipment, there is nothing about the risk of employees infecting each other with a disease that takes it outside the scope of the subsection: the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.
While the outcome of this case ultimately turned on its own particular facts, the judgment is nonetheless of interest because it is the first appeal to reach the Court of Appeal on the application of ERA 1996, s 100(1) to dismissals related to the coronavirus (COVID-19) pandemic.
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
In Davies v EE Ltd [2022] EAT 191, the EAT considered what amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim relating to an alleged failure to make reasonable adjustments.
The employee, who was employed full-time, relied on two PCPs, which she contended had left her at a substantial disadvantage: (i) a requirement for employees to complete a full-time working pattern of 40 hours per week, with each shift approximately 9½ hours in length, and (ii) a requirement for employees to complete the shifts without agreeing any reduction in hours. The employment tribunal held that because the respondent employed some employees on a part-time basis and had allowed the claimant a phased return to work, neither PCP had been made out on the facts.
The EAT held that the tribunal had erred in law in concluding that the fact that the employer had other staff who worked part-time had meant that a PCP of requiring the employee to work her contracted hours of 40 per week had not been applied to her. Also, the fact that a temporary adjustment had been made during the employee’s phased return to work did not mean that the PCP had ceased to exist.
Discrimination: Narrow test for marital status discrimination confirmed
In Ellis v Bacon [2022] EAT 188, the EAT considered a matter of two married director/shareholders whose messy divorce impacted the divorcing wife’s income from the company. Another director, Mr Ellis, sided with the husband, Mr Bacon, in relation to the marital dispute and was compliant with him in removing the Mrs Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The employment tribunal held that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as a wife to Mr Bacon. Mr Ellis appealed.
The EAT held that in a claim of direct discrimination because of the protected characteristic of marriage, the employment tribunal must consider whether it was the claimant’s marital status which was the cause of the less favourable treatment and not the fact that they were married to a particular person. Further, an appropriate hypothetical comparator is someone in a close relationship but not married, and the tribunal must consider whether such a person would have been treated differently.
A person directly discriminates against another person where they treat them less favourably than they treat or would treat others, and they do so because of a protected characteristic. Marriage and civil partnership are protected characteristics. A person has the protected characteristic of marriage if the person is married (which includes a person who is married to a person of the same sex); of civil partnership if the person is a civil partner. Note that people who are not married, or not civil partners, do not have this protected characteristic.
Cases on discrimination because of marriage are very rare. This judgment confirms that the test is to be narrowly construed, with the causative reason for the less favourable treatment being the marital status and not:
the identity of the spouse, or
the closeness of the relationship.
As a result, there seems very limited scope for claimants to bring successful claims in the context of modern society and the legal concept of protection on grounds of marital status looks increasingly like an outdated concept.
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
In TJ v Inspectoratul General pentru Imigrări, C-392/21, the Court of Justice of the European Union held that Article 9 of Council Directive 90/270/EEC, on the minimum safety and health requirements for work with display screen equipment, which is implemented in the UK by regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992, must be interpreted as follows:
there is no requirement for a causal link between display screen work and potential visual difficulties;
‘special corrective appliances’ include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment;
those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes, i.e. they may be used at other times too; and
the employer’s obligation to provide the workers concerned with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.
Data Protection: Misuse of private information and abuse of process
In FKJ v RVT [2023] EWHC 3 (KB), which concerned a claim for misuse of private information, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ’s private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were ‘of the most intimate kind’. FKJ brought a claim for misuse of private information.
While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants’ grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT’s conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court.
RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.
The court gave short shrift to the defendants’ applications, reaching the ‘clear conclusion that they are without merit’. Parts of the applications were ‘not worthy of serious consideration’ and appeared to be ‘an attempt to stifle a claim that the defendants would prefer not to contest on its merits’. Both the strike out and summary judgment applications were dismissed.
[Written by Charlotte Clayson, partner at Trowers & Hamlins LLP, for Lexis+.]
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.
