Employment Law Newsletter – October 2019

Cases:

Other news:

Unfair dismissal: Evaluative conclusions not necessary for disciplinary investigation report

In Dronsfield v The University of Reading UKEAT/0255/18, Dr Dronsfield was an academic working at the University of Reading. He was dismissed following a disciplinary process for his conduct which was deemed by his employer to have been of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.” (namely, having had a sexual relationship with a student). Dr Dronsfield brought a claim for unfair dismissal but this was rejected by the first two tribunals. On appeal, the EAT looked at the tribunal’s approach to evidence which had been removed from a draft investigation report and the fairness of altering this report.

The disciplinary process involved various stages of investigation and report, recommendations to the Vice-Chancellor, charges and hearing, decision to dismiss, and then appeal. A disciplinary panel carried out the investigation and prepared the draft investigation report. On advice from the in-house solicitor, their evaluative conclusions of whether the employee’s conduct amounted to misconduct as defined by the employer’s rules was removed so that it was not included in the final report. The tribunals agreed that it  was appropriate for the solicitor to advise that the investigation report should be restricted to factual findings and a conclusion as to whether there was a prima facie case to answer, and not include any evaluative judgments on whether the conduct fell within the relevant categories, as this was a matter for the disciplinary tribunal subsequently appointed. The initial drafts of the investigation report (which contained the opinions that were helpful to the employee’s case but which the in-house solicitor had advised be removed) were reviewed at the appeal stage, but the appeal had not been upheld.

The EAT held that it was clear that the tribunal had considered the overall fairness of the whole process followed by the employer, including the appeal stage, and had been entitled to find that the dismissal was fair. Further, the tribunal had properly concluded that adopting that approach was not unfair. The appeal was dismissed.

Race Discrimination: Burden of proof shifted to employer

In Base Childrenswear Limited v Otshudi [2019] EWCA Civ 1648, the claimant worked for the employer as a photographer until she was summarily dismissed. She is a black African from the Democratic Republic of the Congo. She brought several claims but only one (racial harassment) was subsequently pursued. Whilst Ms Otshudi had been told she had been dismissed for redundancy, her employer later admitted in the ET3 it had suspected her of stealing, and had told her it was redundancy to minimise confrontation.

However, the tribunal and the EAT found that race had been a factor in Ms Otshudi’s dismissal, because although there may have been a genuinely held belief that she was stealing, this belief stemmed from a stereotypical prejudice against black people (whether he had been aware of it or not). The Court of Appeal went a stage further to consider s.136 of the Equality Act – applying the burden of proof test. In this case, the manager had lied about the real reason for the dismissal and this had formed a prima facie case of race discrimination. The burden of proof therefore shifted to the employer, who had provided no evidence that race played no part in their decision-making. For this reason, the appeal was dismissed.

Religious discrimination: Christian doctor’s beliefs on transgender patients incompatible with human dignity

In Mackereth v DWP & Advanced Personnel Management Group (UK) Ltd (ET/1304602/2018) Dr Mackereth brought claims of harassment, and direct and indirect discrimination against his employer (the DWP) and the agency (APMG)  used to recruit and onboard DWP employees. Dr Mackereth was employed as a Health and Disabilities Assessor. He is a Christian (his religion being a relevant protected characteristic for the purposes of the Equality Act 2010); he believes that God created men and women, and does not believe that they can change their sex/gender. As a result he refused to call transgendered service users by their chosen pronoun (i.e. he refused to comply with the DWP’s gender reassignment or equal opportunities policy, and failed to observe the GMC’s best practice).

That Dr Mackereth’s Christianity was protected under the Equality Act was accepted by the tribunal. However, it found that his belief that only God created men and women and therefore individuals could not choose their gender and his lack of belief in conscientious objection to transgenderism were ‘incompatible with human dignity’. This is part of the test set out in Grainger v Nicholson UKEAT/0219/09:

  • The belief must be genuinely held.
  • It must be a belief and not … an opinion or viewpoint based on the present state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion and importance.
  • It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Having found that Dr Mackereth’s beliefs were incompatible with human dignity, the harassment and discrimination claims fell away.

Sex Discrimination: Pension scheme not capable of retroactive amendment to prevent discrimination

In Safeway Ltd v Newton & Safeway Pension Trustees Ltd [2019] EUECJ C-171/18, the Court of European Justice (ECJ) considered a change that was made to Safeway’s pension scheme, a question referred to it for preliminary reference from the Court of Appeal. Initially, the pension scheme allowed men and women to receive their pensions at different ages – 65 for men and 60 for women. Following the case of Barber v Guardian Royal Exchange, in which it was held that fixing a different ‘Normal Pension Age’ (NPA) for different sexes constituted discrimination under Article 119 of the EC Treaty (i.e. equal pay for equal work), Safeway decided to change its NPA to 65 for everyone from 1 December 1991. In later proceedings, the Court of Appeal held that Safeway had not properly implemented this until 2 May 1996. The questions then referred to the CJEU was whether the pension rights of the members of the pension scheme in relation to the period from 1 December 1991 to 2 May 1996 must be calculated on the basis of a uniform NPA of 60 or 65, and therefore, whether the pension Trust Deed could validly, in respect of that period, retroactively equalise the NPA of those members to that of the persons within the previously disadvantaged category, namely male workers.

The ECJ declared that it was not possible in this case for the pension scheme to adopt a different measure which equalises with retroactive effect the NPA in order to end discrimination (i.e. fixing of an NPA differentiated by gender) for the period in issue.  This is so, even where such a measure is authorised under national law and under the Trust Deed governing that pension scheme. It found that whilst there should not be any form of discrimination, it was equally the case that there must be certainty at law regarding accrued rights, and retrospectively amending these accrued rights in order to avoid discrimination was in breach of that certainty. The only exception to this rule to end discrimination for pension schemes is where it is warranted by an overriding public interest, which in some cases may include the risk of seriously undermining the financial balance of the pension scheme.

Unlawful deduction of wages: No backstop for recovery of National Minimum Wage claims

In Bath Hill Court (Bournemouth) Management Company Limited v Coletta [2019] EWCA Civ 1707 Mr Coletta had made a claim for unlawful deduction of wages due to his employer failing to pay him the national minimum wage (pursuant to s.23 of the Employment Rights Act 1996 (ERA)) for the period of his employment from February 2000 to August 2015. When the tribunal’s judgement was given in December 2016, he was only awarded £44,603 by way of arrears – the tribunal applied a cut-off of six years on the basis that the claim was caught by the provisions of the Limitation Act 1980. Mr Coletta appealed to the EAT contending that the 1980 Act had no application and that he was entitled to arrears in respect of the whole period (15 years) of his employment. The EAT allowed his appeal, and judgment was substituted in the agreed sum of £100,252.42.

At the Court of Appeal the issue was which statute took precedence in this matter – the provisions of the 1980 Act (a 6 year cut off) or the provisions of s.23 ERA (which require a claim to be presented within 3 months of the last in a series of deductions). This is because s.39 of the 1980 Act means that the 6 year limitation period does not apply if another enactment takes precedence. The Court of Appeal found that identifying whether a provision constitutes a period of limitation by focusing on its substance rather than its specific procedural qualities was the best approach. In upholding the decision of the EAT, the Court of Appeal awarded Mr Coletta arrears of the national minimum wage stretching over the 15 years of his employment.

The claim pre-dates the coming into force of the Deductions from Wages (Limitation) Regulations 2014, which subsequently implemented a limitation period of two years on recovery for deductions.  This decision may be useful for historic underpayment cases such as sleeping in and holiday pay cases. 

Other news:

ICO: Brexit – do you need a Standard Contractual Clause (SCC)?

As previously advised in our March 2019 newsletter, the ICO has produced Brexit-related data protection advice. For those small or medium-sized UK-based organisations who receive data from EEA countries, they suggest you consider their guidance on how to keep the flow of data following Brexit. One of their pieces of advice is to get a specific contract in place, if you don’t already, which contains EU approved clauses. Their website provides template Standard Contractual Clauses (SCCs) which you can use, together with advice on how to use them, and even an interactive tool to help you work out whether you need an SCC and which of their tools to use if you do. If you have any questions, or require specific advice on this area, please contact Dixcart Legal for more information.

Diversity: Senior industry leaders promote workplace diversity and inclusion

In February 2016, the government appointed Sir Philip Hampton and the late Dame Helen Alexander to chair an independent review to ensure that talented women at the top of business are recognised, promoted and rewarded. The government has just announced a new government-backed board had been set up to encourage business leaders to promote diversity and inclusion, in response to the Hampton-Alexander Review. It is called the Men As Change Agents (MACA) “Lead the Change” Board and they met for the first time on 25 September 2019. Some of their targets are:

  • To help reach a target where 33% of executive level FTSE 350 business leaders are women by the end of 2020.
  • That Board members will also work to increase ethnic diversity in an effort to ensure that each FTSE 100 board should have at least one ethnic minority director by 2021, and each FTSE 250 board should have at least one ethnic minority director by 2024.
ACAS: New Guidance on Menopause

Friday 18 October was World Menopause Day. At a time when there are increasing numbers of women not only in the workplace but working longer, and where tolerance and diversity are being actively promoted, it is incumbent upon employers to be understanding and sensitively manage and support those dealing with the symptoms of menopause.

ACAS has therefore published helpful new guidance to assist employers and managers support staff who are affected by menopause symptoms at work. It is not only an important health and wellbeing matter, but it can also help avoid a discrimination claim being brought against your organisation. Providing such guidance (which includes items such as: creating and implementing a menopause policy, providing awareness training for managers, building a culture of openness and trust within a team, and providing low-cost ideas to enhance the work environment such as desk fans or alternative working hours) helps employers and employees deal openly with, and without stigma, what can be a very sensitive and personal subject.

Flexible working: New analysis shows numbers of remote workers has doubled in four years

An online job board called CV-Library recently carried out an analysis of over 175,000 vacancies posted on its site. According to their analysis, the number of people working remotely has doubled in the past four years along with increased earning potential for such roles. Unsurprisingly, the highest number of remote working roles are those in the technology industry, but areas such as education are proving that there is a greater potential for increased earning by working remotely, up to 120%. Whilst many people still see working from home as a perk, it is now becoming a legitimate way of working, and the statistics prove that productivity improves too. Not only this, but working from home improves work-life balance and health and happiness. It’s seemingly a win-win for employers and employees. No wonder more recruiters are offering more flexible ways of working.

Further information:

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