News & Views

Employment Law General Update – October 2022

Employment,
27th October 2022

Employment Law

This month our update covers a new online service to help employers support disabled employees, the CIPD has found gaps in support for employees experiencing pregnancy or baby loss, there’s new draft guidance from the ICO, an update on the future of the four-day week, frustration over the scrapping of the plans to abolish the changes to off-payroll working rules, new guidance on the Professional Qualifications Act 2022, and research into allyships for underrepresented groups.

Disability: New online service to help employers support disabled employees
Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss
Data Protection: ICO consults on monitoring at work draft guidance
Working Practices: One third of employers expect a four-day week to be a reality within ten years
IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules
Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022
Discrimination: Research finds intent to be an ally often does not translate into action

Disability: New online service to help employers support disabled employees

On 17 October 2022, the government announced a £6.4 million investment to help employers support employees with disabilities and health conditions. Part of this investment will fund a new online service that will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or out of work. The service will be free and can be accessed by any employer although it is aimed at smaller businesses who may not have in-house HR support or access to occupational health services. It is hoped this service will help small businesses develop more inclusive workforces.

An early test version of the Support with Employee Health and Disability service is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.

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Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss

A report published by the CIPD has identified gaps in workplace support for employees experiencing pregnancy or baby loss. Only a quarter of employees surveyed received paid compassionate or other special leave in this situation and a fifth of employees received no support at all from their employer. After compassionate leave, the types of support that employees identified as being most helpful were understanding from managers and colleagues that it is a difficult time, paid time off to attend appointments and the option to work from home when needed.

The CIPD has confirmed that it will publish guidance to provide practical advice for employers to improve workplace support for employees experiencing pregnancy and baby loss based on the following five principles:

Raise awareness, in a thoughtful and sensitive way, about the need for pregnancy or baby loss to be recognised as part of workplace wellbeing.
Create an open, inclusive and supportive culture to break down stigma and let employees know they will be supported.
Develop an organisational framework to support employees. This should include implementing specific policies, which the report identified only just over a third of employers have in place.
Manage absence and leave with compassion and flexibility.
Equip line managers to support people with empathy and understanding so that they feel comfortable and capable to have sensitive conversations with team members.

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Data Protection: ICO consults on monitoring at work draft guidance

On 12 October, the Information Commissioner’s Office (ICO) opened a consultation on draft employment practices and published its draft guidance on monitoring at work. The guidance is open for consultation until 11 January 2023. The ICO is publishing its draft guidance on employment practices in stages with this being the first. It has also published an impact scoping document and plans to publish additional practical tools such as checklists.

The draft guidance covers key topics such as lawful basis for monitoring, transparency, fairness and accountability. It also provides guidance on DPIAs, security and retention as well as specialist topics such as covert monitoring, use of biometric data, call monitoring, dashcams and device activity.

This follows on from the ICO’s call for views in 2021. The ICO has published a summary of the responses to its call for views.

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Working Practices: One third of employers expect a four-day week to be a reality within ten years

On 7 October 2022, the CIPD published a new report, The four-day week: Employer perspectives, which sets out employer perspectives on moving to a four-day week. The report is based on a survey which shows that 34% of respondent organisations consider that a four-day week for most workers is attainable within the next decade. One in ten respondents reported having already reduced working hours without cutting pay in the past five years (47% of those respondents confirmed the reductions were part of the COVID-19 furlough scheme). Many of the 2,000 employers surveyed felt that increased efficiency would be needed for a four-day week with no reduction in pay to be sustainable, either through organisations working smarter (66%) or the increased use of technology (68%).

The CIPD notes that the report is published amid rising interest in the concept of the four-day working week. A major trial in the UK, launched earlier this year, involves around 3,330 workers across 70 companies reducing their working week to four days with no loss of pay.

Despite the rising interest in adopting a four-day week, the report found that progress remains slow with just 1% of employers that have not already done so planning to reduce hours without lowering pay in the next three years. For organisations that have reduced working hours, the main drivers are improving employee wellbeing, helping with recruitment and retention, or a reduction in demand for products or services (36%, 30% and 32% of respondents respectively). The main challenges facing these organisations are that reduced hours do not suit everyone (32%), workers cannot achieve the same volume of work or output as before (30%), or a task requires someone to be present (26%).

A separate report, The four-day week: Scottish employer perspectives, has also been published.

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IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules

People Management reported on 18 October 2022 that business groups are frustrated by new Chancellor, Jeremy Hunt, has taken a u-turn from Kwasi Kwarteng’s mini-budget where he had proposed repealing the IR35 off-payroll tax rules for contractors.

We reported in our September Employment Law General Update that the mini-budget had planned to repeal the 2017 and 2021 reforms from 6 April 2023. It wasn’t going to abolish IR35 but would have taken us back to the rules in place from 2000 (the Intermediaries Legislation), where the onus was on the worker to correctly assess their status and pay the correct amount of tax. However, our new Chancellor has backtracked on this meaning the situation remains the same that the end client remains responsible (and liable) for determining the IR35 status of contractors. The liability and responsibility is on the fee-paying party (often the recruiter) in the supply chain applying to public sector bodies, and medium and large private sector businesses. Small companies are exempt.

Industry experts are frustrated that the promised simplification of the tax rules is not being delivered and that many businesses had already started to undertake the vital work of how their systems would need to change by April 2023. Paul Farrer, founder and chairman of global recruitment agency Aspire, said that in turbulent times like this freelancers and contractors were needed for businesses to navigate peaks and troughs in demand. However, he called the recent IR35 news a “a backward step” – not just for workers, “but for the recruitment industry and businesses that rely heavily on the flexibility and skills of the independent workforce”. Other business leaders complain that this system is complex and poorly enforced, and badly needs proper reform. To read the whole article, see People Management.

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Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022

The Professional Qualifications Act 2022 (PQA 2022) received Royal Assent on 28 April 2022, revoking the EU rules relating to the recognition of professional qualifications in the UK.

Among other things, the PQA 2022 introduced a new framework for the recognition of UK professional qualifications between different parts of the UK and overseas. Under this framework, UK regulators have a duty to publish information about the requirements for individuals to enter and remain in their professions (section 8, PQA 2022). In addition, UK regulators must, on request, share information with regulators from other parts of the UK (section 9, PQA 2022) and overseas regulators (section 10, PQA 2022). These obligations apply from 28 October 2022.

On 4 October 2022, BEIS published the following documents to assist UK regulators to comply with these new obligations:

Guidance on the obligation to publish qualification requirements under section 8 of the PQA 2022, setting out what information must be published, when the obligation applies and when published information should be updated.
Two separate guidance documents explaining the information-sharing obligations under, respectively, section 9 and section 10 of the PQA 2022. These documents set out when the legal requirements under the relevant section apply and what information must be shared. They also each contain a worked example of what a UK regulator should do when it receives a valid request for information.

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Discrimination: Research finds intent to be an ally often does not translate into action

One of the first studies into allyship in the UK workplace (published by Wates on 27 September 2022) has found that intent to support colleagues from underrepresented groups has not translated into action. The study of over 5,000 employees found that 67% of UK employees consider themselves an “ally“. However, only 36% have spoken up against discrimination or exclusion of a colleague from a minority background when they have seen it at work. Around two-fifths of respondents said that they had spent time educating themselves about the experience of minorities, although this figure was lower for senior executives.

The same research found that 40% of employees have experienced microaggressions related to identity. The figure rises to nearly 60% for LGBT employees and to 64% for respondents from Black Caribbean backgrounds. Microaggressions experienced by respondents include a name being mispronounced because it is “too hard” (60% of Black African respondents and 59% of Black Caribbean respondents) and a colleague being told that they “don’t even ‘look’ gay” (42% of men from the LGBT community). Respondents from minorities were more likely to report witnessing microaggressions or discrimination. Microaggressions or discrimination related to sexual orientation was reported by almost half of lesbian, gay and bisexual respondents compared to 25% overall. Microaggressions or discrimination related to race or ethnicity were reported by 35% of respondents, rising to 62% of Black Caribbean respondents and 47% of Pakistani respondents.

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Further Information:

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

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

News & Views

Employment Law Case Update – October 2022

Employment,
27th October 2022

Employment Law

A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.

Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
TUPE: Can the benefit of share incentive plans transfer under TUPE?
Trade Unions: Appearance of bias in disciplinary action
Workers: Bolt drivers pursue worker benefits claim

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

In Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.

The EAT noted that, as established in Williams v Compair Maxam [1982] ICR 156 and Polkey v AE Dayton Services Ltd [1987] IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.

Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.

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TUPE: Can the benefit of share incentive plans transfer under TUPE?

In Ponticelli UK Ltd v Gallagher [2022] EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.

At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.

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Trade Unions: Appearance of bias in disciplinary action

In Simpson v Unite the Union [2022] EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.

The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.

The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.

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Workers: Bolt drivers pursue worker benefits claim

According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.

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Further Information:

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

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Employment Law General Update – September 2022

Employment,
26th September 2022

Employment Law

A change in prime minister has brought about some immediate changes to laws affecting employment law, such as the Bill on which laws will be retained from the EU, repeal of the off-payroll rules (IR35) and the dropping of the Bill of Rights Bill, which was set to replace the Human Rights Act. Sadly, two reports recently demonstrate that racism and gender discrimination persist at work, while FTSE 100 company chief executives are getting a massive pay rise. Meanwhile, ACAS has published new guidance on staff suspensions.

Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons
IR35: Off-Payroll Rules to be repealed by April 2023
Human Rights: Bill of Rights Bill 2022-23 dropped by government
Equality: New TUC report highlights prevalence of racism at work
Discrimination: New report highlights persistence of gender discrimination in the workplace
Pay: Chief executives of FTSE 100 companies see average pay jump of 39%
ACAS: New guidance on staff suspensions published by ACAS

Brexit: Retained EU Law (Revocation and Reform) Bill 2022-23 introduced to House of Commons

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-23 was introduced to the House of Commons, and written ministerial statements were made summarising the Bill’s provisions. A full legal update on the Bill will follow. The written statements explain that the Bill includes provisions to:

Sunset retained EU law. Retained EU law in EU-derived secondary legislation and retained direct EU legislation will expire on 31 December 2023 unless otherwise preserved. Special features of EU law will be removed from retained EU law that remains in force after that date (assimilated law), ending the principle of the supremacy of EU law, general principles of EU law and directly effective EU rights on 31 December 2023. EU interpretive features will no longer apply to assimilated law. (The sunset date can be extended until 2026 for specified pieces of legislation.)
Reverse the priority currently given to retained direct EU legislation over domestic UK legislation passed before the end of the transition period when they are incompatible, with a power to amend the new order of priority to retain specific legislative effects where necessary in specific circumstances.
Give domestic courts greater discretion to depart from retained EU case law, and provide new court procedures for UK and devolved law officers to refer or intervene in cases involving retained EU case law.
Downgrade the status of retained direct principal EU legislation for amendment purposes so that it no longer has parity with Acts of Parliament.
Give the government powers to make secondary legislation so that retained EU law or assimilated law can be amended, repealed and replaced more easily, and enable the government (via Parliament) to clarify, consolidate and restate legislation to preserve its current effect.

The government’s news story added that all required legislation relating to tax and retained EU law will be made via the Finance Bill or subordinate tax legislation, and the government will introduce a bespoke legislative approach for retained EU law concerning VAT, excise, and customs duty in a future Finance Bill.

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IR35: Off-Payroll Rules to be repealed by 6 April 2023

In his autumn statement on 23 September, Chancellor Kwasi Kwarteng announced that the UK government will scrap the 2017 and 2021 reforms to the IR35 off-payroll working rules in the next Finance Act, aimed to be enacted on 6 April 2023. Addressing the House of Commons he said, “reforms to off payroll working have added unnecessary complexity and cost for many businesses.” This has come as a bit of a shock to many industry experts who have commented that it’s unheard of for a Chancellor to repeal primary tax legislation without consultation. It is just the reforms which are being axed, and not the IR35 system itself, which will likely be celebrated by independent contractors who have found the measures to have wrought havoc to their business and added unnecessary levels of additional work for both the contractors and the businesses that engage them.

IR35 reform in the public sector was introduced in 2017 meaning that public sector bodies become responsible for determining the IR35 status of contractors – the responsibility shifted from the contractor to the end client, rather than the contractor taking the responsibility. In addition, the reforms meant the liability also shifted from the contractor to the fee-paying party (often the recruiter) in the supply chain. IR35 reform in the private sector in 2021 mirrored this but applied only to medium and large businesses. Small companies remained exempt.

The repeal of the 2017 and 2021 reforms from 6 April 2023 doesn’t abolish IR35 but takes us back to the rules in place from 2000 (the Intermediaries Legislation). This puts the onus back on the worker to correctly assess their status and pay the correct amount of tax. It should be noted that for services provided before 6 April 2023, the current rules will still apply, even where the payment is made on or after 6 April 2023.

However, contractors may need to hold off rejoicing just for now. Some Tory Ministers are already claiming they may rebel against the next Finance Act if the pound falls below the dollar. Dave Chaplin, CEO of IR35 Shield, says: “When you read the financial impact of the repeal in the Government’s Growth Plan document, you’ll see that there are six billion pounds worth of reasons why all rejoicing would be premature, and why all parties in the supply chain should not be complacent as we approach April 2023, nor beyond.”

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Human Rights: Bill of Rights Bill 2022-23 dropped by government

On 7 September 2022, it was reported in the press that the Bill of Rights Bill 2022-23 had been dropped by the new government headed by Liz Truss and would not progress to its second reading, which had been scheduled to take place on 12 September 2022. The Bill would have repealed the Human Rights Act 1998 and reframed the UK’s legal relationship with the ECHR, to which the UK would have remained a signatory. Press reports suggest that the government is looking at different legislative options for reform.

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Equality: New TUC report highlights prevalence of racism at work

The TUC has published a report ‘Still Rigged: Racism in the UK Labour Market 2022‘, based on extensive polling, which shows that racism and racial inequality continue to be experienced in the workplace. In addition to racism impacting the types of work ethnic minority workers are employed to do, two in five people reported having experienced racism at work in the past five years. The most common types of racial harassment are racist jokes and banter (27%), being made to feel uncomfortable through use of stereotypes and appearance-based comments (26%), being bullied or harassed (21%), and racist remarks directed at the respondent or in their presence (21%). Most instances were perpetrated by fellow employees and 15% were made by a customer, client or patient. For one in six respondents, the racism was perpetrated by a manager.

Only 19% of people who experienced racist incidents reported the last incident to their employer. Nearly half of people who did not report instances of racist abuse (44%) said that they did not believe the issue would be taken seriously. Even when incidents were reported to an employer, action was taken to prevent future harassment in only 29% of instances.

The TUC has recommended that the government, employers, enforcement bodies and trade unions work together to deliver a “collective, pre-emptive response“. Specifically, the TUC suggests that the “floor of working rights” be improved for everyone, that employers have a duty to embed race equality practices in their workplaces and that there are swift and effective penalties when workers experience racism.

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Discrimination: New report highlights persistence of gender discrimination in the workplace

Randstad has published a new report ‘Randstad: Gender equality in the workplace 2022 (September 2022)‘ on gender equality in the workplace. To inform the report, 6000 workers in the construction, education, healthcare and technology sectors were surveyed. The survey sought insight into the status quo of UK workplaces, the persistence of gender discrimination, how employers in these sectors support their employees and what areas workers would like to see their employers focus on in the coming year. Among the findings are statistics which show that:

Inappropriate behaviour or comments from male colleagues had been witnessed or encountered by 72% of women surveyed.
Only 18% of women surveyed had never experienced gender discrimination.
7% of women reported having been passed over for promotion due to perceived gender discrimination.
Just under 10% said they had been offered a less important role because of their gender.
Employers are not doing enough to support female employees during the menopause, according to 73% of the women surveyed.

The report also highlights findings that are specific to each sector. Recommendations are made in three areas; ensuring the recruitment process is inclusive, fostering an inclusive workplace culture and weaving inclusion into the employee lifecycle.

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Pay: Chief executives of FTSE 100 companies see average pay jump of 39%

Research by the High Pay Centre and Trades Union Congress (TUC) shows that the median average pay for CEOs of FTSE 100 companies increased by 39%, from £2.5 million in 2020 to £3.41 million in 2021. During the pandemic, many CEOs took a voluntary pay cut when employees were placed on furlough, but CEO pay has now surpassed the 2019 median of £3.25 million. A similar pay increase was found in the average wages of FTSE 250 CEOs (38%). The average bonus received by CEOs also jumped from £828,000 in 2020 to £1.4 million in 2021.

Previous research by the thinktank suggested that the pay ratios of FTSE 350 companies between CEOs and median employees would increase to new highs after the pandemic. The report shows that CEOs receive 109 times the average pay of British workers, a higher gap than in 2019 when CEOs received 107 times the average pay of British workers.

Frances O’Grady, the general secretary of the TUC, highlighted that the CEO pay jump comes at a time where workers are experiencing “the biggest real wage falls in 20 years.” Workers’ building dissatisfaction at significantly below inflation pay rises in the context of the current cost of living crisis is being increasingly manifested in industrial action. Strikes across multiple industries have already taken place, with further walk-outs due in the coming months.

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ACAS: New guidance on staff suspensions published by ACAS

ACAS has published new guidance to advise employers on how to consider and handle staff suspensions at work, specifically during investigations. The guidance covers deciding whether to suspend someone, the process for suspending someone, supporting an employee’s mental health during suspension and pay and holiday during suspension.

ACAS recommends that because of the risk of breaching the employment contract and the stress that can be caused, a suspension should only be used when it is a reasonable way of dealing with the situation (such as while an investigation is carried out and there is a need to protect evidence, witnesses, the business, other staff or the person being investigated) and there are no appropriate alternatives. Employers should consider each situation carefully before deciding whether to suspend someone.

Suggested alternatives to suspension include:

Changing shifts, site or working from home.
Working with different customers or away from customers.
Stopping working with certain systems, tools or on specific tasks.

A suspension may also be appropriate in order to protect an employee’s health and safety (such as in medical or pregnancy circumstances).

Employers should support a suspended worker by explaining the reason for the suspension, making it clear that it does not mean that it has been decided they have done anything wrong, maintaining pay and benefits, keeping the suspension as short as possible, keeping it confidential wherever possible, and staying in regular contact throughout. The worker should be informed of their suspension in person if possible. It is good practice to allow them to be accompanied at any suspension meeting and for the suspension to be confirmed in writing.

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Further Information:

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

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Employment Law Case Update – September 2022

Employment,
26th September 2022

Employment Law

Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
Equality Act: Supporting a football club is not a protected philosophical belief
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
Fraud: A confiscation order should strip the profit from fraudulently obtained employment

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes

Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.

Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.

On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.

A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.

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COVID-19: Two and a half weeks is not long enough for long COVID to become a disability

In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.

Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.

Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.

An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:

At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.

Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.

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COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory

In Cowie and others v Scottish Fire and Rescue Service [2022] EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.

Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.

The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.

The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.

The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.

The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:

To show group disadvantage in the section 19 claims.
To justify an award of compensation for injury to feelings in the section 15 claims.

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Equality Act: Supporting a football club is not a protected philosophical belief

At a preliminary hearing in McClung v Doosan Babcock Ltd and others [2022] UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).

Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.

The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:

The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.

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Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations

In Piepenbrock v London School of Economics and Political Science [2022] EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.

HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.

The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.

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Fraud: A confiscation order should strip the profit from fraudulently obtained employment

In R v Andrewes [2022] UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.

In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.

Appeal allowed, and confiscation order restored, albeit for different reasons:

It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.

This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.

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Employment Law General Update – July 2022

Employment,
27th July 2022

Employment Law

This month’s news covers health at work with the consideration of the introduction of a maximum limit to workplace temperatures and guidance on the new fit notes. We also have an analysis of recent gender pay gap reporting, a report on the low rates of sustainable disability initiatives at FTSE 100 companies, draft regulations for banning exclusivity clauses in contracts and new ACAS guidance about workplace discrimination.

Health at Work: MPs call for maximum limit to workplace temperatures
Health at Work: DWP publishes fit note guidance for healthcare professionals
Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap
Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives
Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers
ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Health at Work: MPs call for maximum limit to workplace temperatures

An early d ay motion (EDM) which calls on the government to introduce legislation to ensure employers maintain reasonable temperatures in the workplace has been signed by 38 MPs. The EDM calls for legislation to enforce a maximum temperature of 30 degrees Celsius, or 27 degrees Celsius for workers doing strenuous work and to require employers to introduce effective control measures, such as installing ventilation or moving staff away from windows and heat sources. The issue of maximum workplace temperatures, which arises from time to time, was previously raised as an EDM in 2013.

The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) requires employers to ensure that temperatures in all workplaces inside buildings are reasonable. While an Approved Code of Practice sets a limit on minimum workplace temperatures of 16 degrees (or 13 degrees if the work involves severe physical effort), there is no limit on the maximum temperature. See what the Health and Safety Executive says about the law here.

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Health at Work: DWP publishes fit note guidance for healthcare professionals

On 1 July 2022, the Department for Work and Pensions (DWP) published Getting the most out of the fit note: guidance for healthcare professionals. The publication follows the expansion of the category of people who can sign fit notes for the purposes of SSP and social security claims and the earlier removal of the requirement for fit notes to be signed in ink. There will be a transitional period during which both the 2017 and 2022 versions of the fit note will be legally valid while relevant IT systems are updated and stocks of paper fit notes in hospitals are replaced.

The guidance has been issued alongside the publication of non-statutory guidance on who can issue fit notes and a training package on e-learning for healthcare. The resources are intended to be used together to support eligible healthcare professionals in ensuring they have the expertise and knowledge to certify and issue fit notes. The guidance reiterates that an assessment is about whether a patient is fit for work in general and not job-specific. It also recognises that incomplete fit notes can make it difficult for employers to support a patient and cause delays to a patient’s return to work.

Information is provided on the factors that should be considered when assessing fitness for work, as well as information on how to discuss a patient’s beliefs about health and work if they are reluctant to return to work. In addition, there is information on how the free text section of the note should be completed, including the importance of giving practical advice to employers. In this section, it is noted that the only reference to a patient’s current job should be in the context of possible workplace adaptations or if the job may be affecting their health. Towards the end of the guidance, there are several case studies and an FAQ section. The FAQ section highlights that a medical professional’s advice is not binding on an employer, and it is for an employer to determine whether to accept the advice.

The guidance for employers and line managers and employees has also been updated to reflect the expanded category of people who can sign fit notes.

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Gender Pay Gap: New analysis shows more companies reporting an increase in their average gender pay gap

PwC analysis of gender pay gap data has found that of the companies that disclosed their data this year 43% reported an increase in their average gender pay gap (up from 41% the year before). A decrease was reported by 53% of companies and no change was reported by the remaining 4%. 1,826 more companies reported their gender pay gap details this year.

The analysis shows that only small changes, of no more than plus or minus 5%, have been made to most companies’ pay gaps. This suggests that “significant change may take a long time” as organisations “continue to struggle with making impactful changes to the gap“.

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Diversity: Less than 40% of FTSE 100 companies have sustainable disability initiatives

A recent study by Agility in Mind has found that only 37% of FTSE 100 companies have sustainable disability initiatives in place and just 4% have neurodiversity initiatives. This is despite 99% of FTSE 100 companies having inclusive mission statements. Of the 250 business leaders who were polled as part of the research, 16% described their neurodiversity initiatives as “highly effective” compared to 26% of those who described their race or gender equality initiatives in the same way.

Separately, a TUC-commissioned survey of approximately 1,000 HR managers across different workplaces has found that 21% of workplaces do not have specific support policies for LGBT staff and only 25% have a policy setting out support for trans and non-binary staff.

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Contracts: Draft regulations laid extending ban on exclusivity clauses in employment contracts to low-income workers

Draft regulations have been laid before Parliament which will prohibit exclusivity clauses in the employment contracts of workers whose earnings are on, or less than, the lower earnings limit (currently £123 a week). The draft regulations follow a government consultation on extending to other low earners the ban on exclusivity clauses which was introduced in 2015 to zero-hours workers’ contracts.

The draft regulations largely mirror the rights of zero-hours workers set out in section 27A of the Employment Rights Act 1996 and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations (SI 2015/2021). They will make unenforceable any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer’s consent. Where they breach an exclusivity clause in their contract, employees will be protected from unfair dismissal and workers will be protected from detriment. The new unfair dismissal protection will have no qualifying period. Where an employment tribunal finds that a worker has suffered a detriment, it may make a declaration and award compensation it considers just and equitable up to an amount equal to the unfair dismissal basic and compensatory award.

The draft regulations will come into force 28 days after the day on which they are made and apply to England, Scotland and Wales.

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ACAS Advice: ACAS publishes new guidance on asking and answering questions about workplace discrimination

Following the repeal of the statutory questionnaire procedure in 2014, ACAS published non-statutory guidance, Asking and responding to questions of discrimination in the workplace to assist employees and employers in asking and responding to discrimination questions. That guidance was subsequently withdrawn.

ACAS has now published new information on its website on asking and answering questions about discrimination at work. The guidance sets out suggested steps for an employee who believes that they may have been discriminated against in the workplace, guidance on the information they should provide in writing to their employer and the types of questions they could ask their employer in order to help establish whether discrimination has taken place. The guidance also explains how employers should consider and respond to employees’ questions concerning workplace discrimination, and what might or might not amount to unlawful discrimination. An example statement and questions concerning potential discrimination to an employer and an example employer’s response are also provided.

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Employment Law Case Update – July 2022

Employment,
27th July 2022

Employment Law

This month we look at the saga of the ‘fire and rehire’ issue affecting Tesco employees and how whistleblowers can be fairly dismissed depending on their conduct. We also have two interesting cases about how direct discrimination can be viewed – the doctor who refused to address transgender people by their chosen pronouns who had not been discriminated against versus the feminist who expressed beliefs which could not be objected to (as core beliefs) even though they were capable of causing offence, and was discriminated against.

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201, the Court of Appeal has overturned the High Court’s injunction restraining Tesco from dismissing and re-engaging a group of warehouse operatives to remove a contractual pay enhancement known as “Retained Pay“. This had been incorporated through collective bargaining with the trade union USDAW as a retention incentive during a reorganisation. The collective agreement stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.

The High Court had found that there was an implied term not to use termination and re-engagement as a means of removing Retained Pay. However, the Court of Appeal held that such an implied term was not justified. Neither could the employees rely on promissory estoppel since there had been no unequivocal promises related to termination. Furthermore, it was not “unconscionable” to remove a benefit that the employees had already received for over a decade and that far exceeded any redundancy payment to which they would have been entitled had they not accepted the Retained Pay.

In any event, even if there had been a breach, the court held that the injunction was not justified. The court was not aware of any previous cases in which a final injunction had been granted to prevent a private sector employer from dismissing an employee for an indefinite period. Moreover, the terms of the injunction had not been sufficiently clear.

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Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures

In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal has upheld the EAT’s decision that an employment tribunal directed itself properly on the issue of the separability of the protected disclosures made by an employee and the reason in the minds of the decision-makers for her dismissal. The tribunal had properly considered and applied the guidance on the issue set out in authorities such as Martin v Devonshire Solicitors UKEAT/0086/10 and NHS Manchester v Fecitt and others [2012] IRLR 64. Despite the fact that the tribunal had found that the employee’s conduct when making the protected disclosures had been broadly reasonable and she had not, as alleged, questioned her colleague’s professional integrity, her dismissal was not automatically unfair because the decision-makers believed that she had acted unreasonably. The reason for dismissal in the minds of the decision-makers could be properly separable from the fact of the protected disclosures being made. The court rejected the submissions of Protect as intervenor that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct.

This decision makes it clear that even where a worker’s conduct is not objectively unreasonable when they make a protected disclosure, their employer may escape liability when it treats them detrimentally or dismisses them because it subjectively believes that the manner in which they made the disclosures was unreasonable. However, the court stressed that particularly close scrutiny of an employer’s reasons for treating them detrimentally would be needed in such a case to ensure that the real reason for adverse treatment was not the protected disclosure itself.

It is understood that the employee is considering an appeal to the Supreme Court.

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Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun

In Mackereth v DWP [2022] EAT 99, the EAT has held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns. He relied on his particular beliefs in the supremacy of Genesis 1:27 that a person cannot change their sex/gender at will, his lack of belief in what he described as “transgenderism” and his conscientious objection to “transgenderism“. However, Eady P, sitting with lay members, found that the tribunal had erred in several respects when applying the criteria from Grainger Plc v Nicholson UKEAT/0219/09 to determine whether these beliefs were capable of protection under section 4 of the Equality Act 2010. In particular, the tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. This threshold must be set at a low level so as to allow for the protection not just of beliefs acceptable to the majority, but also of minority beliefs that might cause offence (approving Forstater v CGD Europe UKEAT/0105/20).

The tribunal had been entitled to find in the alternative that the direct discrimination and harassment claims were not made out. It was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way.

The tribunal had also been entitled to reject the indirect discrimination claim. In holding that the PCPs were necessary and proportionate, it carefully considered the lack of practical alternatives to face-to-face contact with service users. In noting that Dr Mackereth had not identified any further alternatives, over and above those considered and discounted by his employer, this did not amount to the imposition of the burden of proof on him.

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Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

In Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. This follows an earlier EAT judgment in which her gender critical beliefs had been held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a “part-time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery, which argued that gender self-ID put women and girls at greater risk.

The respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held them, that had been the reason for non-renewal. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual’s qualified right to manifest their belief under Article 9 of the European Convention on Human Rights. In this case, the claimant’s tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it was capable of causing offence). In some cases the claimant had been provocative or mocking but this was the “common currency of debate” and was not objectively offensive or unreasonable.

The claimant had also been victimised when her profile was taken off the respondent’s website after she talked to The Sunday Times about her discrimination case. However, her claims of indirect discrimination and harassment were dismissed.

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Employment Law General Update – June 2022

Employment,
28th June 2022

Employment Law

This month the news focus is on the future of working practices and health. The government is being prompted to get on with setting up the new single labour enforcement body, some companies are trialling a four-day working week and BEIS has issued a call for evidence on the future of the UK labour market after COVID. Meanwhile, COVID-19 is hanging around with long-COVID, the menopause is increasingly being cited in tribunal cases and new regulations allow more healthcare professionals to sign “fit notes”.

Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body
Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”
COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19
Working Practices: Seventy companies begin trial of four-day working week
Menopause: Menopause-related employment tribunal claims nearly double over the past year
Future of Work: BEIS Committee launches call for evidence on future of UK labour market

Law Change: EHRC recommends that government set out legislative timetable for proposed single labour market enforcement body

On 9 June 2022, the Equality and Human Rights Commission (EHRC) published an inquiry which assessed the treatment and experiences of lower-paid ethnic minority workers in health and social care, particularly during the COVID-19 pandemic. One of the key findings was low awareness of employment rights. The EHRC recognised the positive role the proposed new single labour market enforcement body, which would have powers and resources to help increase awareness of and access to rights for vulnerable workers, could play in improving the treatment and experiences of such workers. However, it noted the uncertainty created by the lack of a legislative timetable for the introduction of the new body. To address this, the EHRC has recommended that the Department for Business, Energy and Industrial Strategy (BEIS) set out a legislative timetable for the introduction of the new single labour market enforcement body and ensure it is sufficiently resourced to meaningfully monitor and enforce compliance with employment rights. The EHRC also recommended that BEIS legislate to ensure that access to information on workers’ rights, including where to go if they want to raise a concern, is detailed in the statement of particulars provided under section 1 of the Employment Rights Act 1996.

The government committed to setting up a single labour market enforcement body in June 2021, when its consultation response on the proposed new body confirmed that three of the current enforcement bodies, the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, and HMRC’s National Minimum Wage Team, would be consolidated into a single agency. In April 2022, a call for evidence was issued on the labour market enforcement strategy for 2023 to 2024, which will shape the remit of the combined agency, and was open for responses until 31 May 2022. The strategy is due to be delivered to government in autumn 2022. The formation of the new agency requires primary legislation, which is awaited.

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Health at Work: New regulations will allow more healthcare professionals to sign “fit notes”

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No 2) Regulations 2022 (SI 2022/630) have been laid before Parliament. These regulations amend existing legislation on statements of fitness for work, or “fit notes”, to expand the category of people who can sign them for the purposes of SSP and social security claims. From 1 July 2022, the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604) will be amended to allow registered nurses, occupational therapists, pharmacists and physiotherapists to sign these statements. The regulations also insert a definition of “healthcare professional” which includes doctors and the four new professions. It is hoped that this change will make it easier for patients to see GPs by reducing their workloads.

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COVID-19: ONS releases latest statistics on prevalence of self-reported long COVID-19

The Office of National Statistics (ONS) has found that, as of 1 May 2022, 2 million people living in private households in the UK were experiencing self-reported long COVID-19 symptoms, considered to be symptoms that continue for more than four weeks. For 1.4 million people (71% of those with self-reported long COVID-19), symptoms adversely affected their day-to-day activities. 398,000 (20%) reported that their ability to go about their day-to-day activities had been “limited a lot”. The most common symptom reported to be part of individuals’ experience of long COVID-19 continued to be fatigue. This symptom was reported by 55% of people with self-reported long COVID-19, followed by shortness of breath (32%), a cough and muscle ache (23% each).

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Working Practices: Seventy companies begin trial of four-day working week

On 6 June 2022, around 3,330 workers at 70 companies began a trial of a four-day working week, as reported by Personneltoday.com. The trial, thought to be the largest of its type in the world, is expected to last for six months and is led by campaigning group 4 Day Week Global. It will be monitored by academics from Oxford and Cambridge Universities, as well as Boston College, who will consider the impact on employees, companies and the environment. Employers taking part have agreed that workers will receive 100% of their pay for 80% of their time, in return for workers committing to 100% productivity.

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Menopause: Menopause-related employment tribunal claims nearly double over the past year

Peoplemanagement.co.uk has reported on an analysis of court records by Menopause Experts Group has found that 23 cases cited the menopause in 2021, which is a 44% increase from the 16 cases that cited the menopause in 2020. Of these 23 cases, 16 included claims for disability discrimination, 14 included claims for unfair dismissal and 10 included claims for sex discrimination. In addition, mentions of the word “menopause” increased by 75% in tribunal documents.

This research adds to other recent findings about the impact of the menopause on employees’ experiences at work. Menopause Experts Group has suggested that employers should offer their workforce training about symptoms, signs and side-effects of the menopause and that the House of Commons Women and Equalities Committee should advocate for a requirement that all employers have a menopause policy or code of conduct.

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Future of Work: BEIS Committee launches call for evidence on future of UK labour market

On 27 May 2022, the Business, Energy and Industrial Strategy (BEIS) Committee published ‘Post-pandemic economic growth: UK labour markets’ in which it launched a call for evidence into the UK labour market, in particular whether the UK has enough workers with the right skills in the right places to do the jobs required for the economy, taking into account an ageing population, migration changes and the impact of technology. The Committee also wishes to understand whether current employment law is fit for purpose or requires reform.

Responses to the call for evidence are invited by 8 July 2022, which you can view and comment on here. Submissions are invited to questions under five headings: the state of play in the UK labour market post-Brexit and the impact of the COVID-19 pandemic on recruitment, skills shortages and the growth of the labour market; Artificial Intelligence (AI) and technology in the workplace; workers’ rights and protections; employment status and modern working practices five years on from the Taylor Review; and the impact of an ageing population on the labour market.

The Committee has indicated that it will welcome submissions which address the challenges currently facing both UK employers and workers, and which identify potential solutions and actions required by the government, businesses and employers to effectively support the UK labour market, while boosting productivity, equipping a skilled labour force and protecting workers’ rights. Since it will not be able to consider every aspect of the economy in depth, the Committee would particularly welcome data-rich case studies which might exemplify national trends.

The call for evidence follows the recent announcement that Matt Warman MP would be leading a review on the Future of Work.

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Employment Law Case Update – June 2022

Employment,
28th June 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including insights on dismissal cases, using without prejudice letters and when injunctive relief may be sought to enforce a non-compete clause. We also have an interesting case on ethical veganism v legality of actions.

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief
Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee
Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship
Dismissal: ACAS code applied to discriminatory sham redundancy dismissal
Injunctive Relief: Interim enforcement of non-compete clauses
Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

Equality Act: Ethical veganism encompassing an obligation to break the law to relieve animal suffering was not a protected belief

In Free Miles v The Royal Veterinary College ET/2206733/2020, an employment tribunal has found that a belief in ethical veganism encompassing an obligation to break the law to relieve animal suffering did not amount to a philosophical belief under section 10 of the Equality Act 2010 (EqA 2010).

Ms Free Miles was a veterinary nurse employed by the Royal Veterinary College (RVC). In February 2019, she was arrested by police in connection with alleged burglaries by the Animal Liberation Front. The police found a sick turkey at her flat which she said she had rescued. Following her arrest, Ms Free Miles was summarily dismissed by RVC for reasons including that RVC believed she was connected with an animal rights group that endorsed law breaking and that she had participated in activities including trespass and theft.

Ms Free Miles brought an employment tribunal claim against RVC for, among other things, direct and indirect philosophical belief discrimination. She relied on her belief in ethical veganism, arguing that this belief included a moral obligation to take positive action to reduce animal suffering, including trespass on property and removal of animals. By the time of the tribunal hearing, Ms Free Miles had been charged by the police with criminal offences relating to animal rights activities.

The tribunal stated that, had Ms Free Miles’ belief in ethical veganism been limited to the belief that humans should not eat, wear, use for sport, experiment on or profit from animals, it would have had no reservation in concluding that it amounted to a philosophical belief under section 10 of the EqA 2010. It also said that it might have reached the same conclusion had the moral obligation to take positive action to reduce or prevent animal suffering been limited to lawful action.

However, Ms Free Miles’ belief included trespassing on private property and acting in contravention of the law. The tribunal concluded that a belief to take actions that are unlawful and to interfere with the property rights of others could not be worthy of respect in a democratic society, so did not satisfy the fifth element of the test in Grainger Plc v Nicholson [2010] 2 All ER 253. Laws were made by democratically elected representatives and had to be obeyed by all citizens. It was not open to individuals to decide which laws to obey and disobey. Ms Free Miles’ discrimination claims therefore failed.

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Unfair Dismissal: Statutory cap should be applied to unfair dismissal compensation after deduction of earlier payments made to employee

In Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84, the EAT has held that any payments made by an employer to an employee in respect of an unfair dismissal claim must be deducted from the total compensation sum before the statutory cap is applied.

Mrs Dafiaghor-Olomu won an unfair dismissal claim against Community Integrated Care (CIC). She sought re-engagement and compensation. The tribunal refused re-engagement but awarded £46,153.55 in compensation which CIC paid in full. At a second remedies hearing following a successful appeal, the tribunal increased the compensatory award to £128,961.59. The EAT was required to determine whether the statutory cap should be applied after the earlier payment made by CIC was deducted from the sum of £128,961.59 (leaving an outstanding payment of £74,200, being the amount of the statutory cap in place at the relevant time) or whether the statutory cap should be applied to the total award before the earlier payment was deducted (leaving an outstanding payment of £28,046.45). CIC argued for the latter approach, stating that the former would mean it got no credit for the earlier payment and would be penalised for complying with the tribunal’s original order.

The EAT considered the wording of section 124(5) of the Employment Rights Act 1996. It felt that this showed that Parliament’s intention was for the tribunal to calculate the total compensation due to the employee and then subtract from it any earlier payments made by the employer before applying the cap. However, in reaching this conclusion, the EAT expressed considerable sympathy with CIC. In paying the original compensatory award, CIC had complied with what it perceived to be its duty. Had it foreseen the possibility that the tribunal would increase the award at the second remedies hearing, it would probably have declined to make any payment until the compensatory order was final. Instead, it ended up owing £74,200 plus £46,153.55 instead of just £74,200.

Additionally, the EAT upheld the employment tribunal’s decision not to reconsider its refusal to award re-engagement after the second remedies hearing on the basis that such an order was impracticable because of Mrs Dafiaghor-Olomu’s attitude towards which jobs were suitable for her. It also dismissed a cross appeal in which CIC argued that the employment tribunal had not been entitled to increase the compensatory award at the second remedies hearing.

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Constructive Dismissal: Fundamental breach possible even where employer’s actions do not suggest intention to end employment relationship

In Singh v Metroline West Ltd [2022] EAT 80 the EAT has held that, in a constructive dismissal claim, a fundamental breach of contract can be established even where the employer’s actions do not indicate an intention to end the employment relationship.

Mr Singh was invited to a disciplinary hearing by Metroline West Ltd. The next day, Mr Singh was signed off sick by his doctor. While absent, he was examined by occupational health who did not suggest his sickness was not genuine. However, Metroline believed that Mr Singh was trying to avoid the disciplinary hearing. It therefore paid him statutory sick pay only, instead of company sick pay. Mr Singh brought a claim for constructive dismissal, alleging, among other things, that the failure to pay him company sick pay was a fundamental breach of contract.

The employment tribunal found that Metroline had contractual power to suspend Mr Singh without pay if it thought his absence was not genuine, but this power had not been exercised. Separately, Mr Singh’s contract allowed company sick pay to be withheld where, after investigation, absence was found not to be genuine. There was no investigation in this case and no other relevant contractual grounds on which company sick pay could be withheld. There was therefore a breach of contract. However, the tribunal found the breach was not fundamental. By withholding pay, Metroline had not indicated an intention not to be bound by the employment relationship; rather, its aim in withholding pay was to encourage Mr Singh’s participation in a disciplinary process integral to that relationship.

However, the EAT upheld Mr Singh’s appeal on this issue. It was an error of law for the tribunal to adopt the approach that, for the breach of contract to be fundamental, there must have been an intention by the employer not to be bound by the contract in a manner that meant that it no longer wished to continue with the employment relationship. What is required is that the employer demonstrates an intention to no longer comply with the terms of the contract that is so serious that it goes to the root of the contract. In this case, there was a deliberate decision to withhold pay to which Mr Singh was entitled, resulting in a significant reduction in earnings, in circumstances where there were other contractual provisions which would have allowed Metroline to deal with suspicions about his absence. This was a fundamental breach.

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Dismissal: ACAS code applied to discriminatory sham redundancy dismissal

In Rentplus UK Ltd v Coulson [2022] EAT 81 the EAT has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) applied to a discriminatory dismissal purportedly by reason of redundancy. The tribunal had not erred in awarding the maximum 25% uplift available for failure to follow the ACAS Code.

The employer’s ground of appeal that the ACAS Code could not apply where their reason for dismissal was redundancy and the reason found by the tribunal was sex discrimination failed. This was because the tribunal had rejected redundancy as the reason for the dismissal and the upholding of the sex discrimination claim did not mean that it was the only reason for the dismissal. The EAT considered it was implicit in the tribunal’s reasoning that the claimant was in a “disciplinary situation” to which the ACAS Code applied, this being that she was dismissed due to dissatisfaction with her personally and/or her performance, which was tainted by sex discrimination, and a fair capability or disciplinary procedure should therefore have applied.

It was clear that the tribunal had concluded the dismissal process was a sham and there had been a total failure to comply with the ACAS Code. The breach was referred to as “egregious” and so was beyond unreasonable. While, generally, a tribunal should identify the employer’s failings for which an uplift is being made by reference to the relevant part of the ACAS Code which the employer is said to be in breach of, in this case the tribunal had concluded that the employer had acted in bad faith such that there was a total failure to apply any of the protections provided for by the ACAS Code. In these circumstances, there was no error of law in the award of an uplift of 25%.

The EAT provided guidance in the form of questions that tribunals considering an ACAS uplift should apply:

Is the claim one which raises a matter to which the ACAS Code applies?
Has there been a failure to comply with the ACAS Code in relation to that matter?
Was the failure to comply with the ACAS Code unreasonable?
Is it just and equitable to award an uplift because of the failure to comply with the ACAS Code and, if so, by what percentage, up to 25%?

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Injunctive Relief: Interim enforcement of non-compete clauses

In Planon Ltd v Gilligan [2022] EWCA Civ 642 the Court of Appeal has dismissed an appeal from the High Court’s refusal to grant an interim injunction to enforce a non-compete clause.

The High Court had held that the delay between the initial exchanges of correspondence between the parties and the application being heard was not the sort of delay that would disqualify the employer from interim injunctive relief. However, the employer’s prospects of success at trial in enforcing the non-compete clause were not that good, the critical point being the non-compete clause was likely to prevent the employee from being able to work in his field for 12 months. Damages would not, or might not, be an adequate remedy for either the employer or employee in this case.

While the Court of Appeal dismissed the employer’s appeal, its reasoning differed from that of the High Court. It held that the High Court had not taken the correct approach when considering whether the non-compete clause was reasonable. However, in view of the delay by the time the matter came before it, the court did not consider it appropriate to express a preliminary view about the enforceability of the clause.

The court considered the effect of delay in the case. There was a divergence of opinion between Elisabeth Laing LJ and Bean LJ, with Nugee LJ expressing no view, on the effect of the delay between the facts becoming known to the employer and the High Court hearing. Elisabeth Laing LJ considered that the judge had reached a decision open to him on the facts while Bean LJ considered that the judge would have been entitled to refuse an injunction on the ground of delay. The court noted that there was no rule of law to the effect that damages would be an adequate remedy for the employee (if it was found that at trial that a restrictive covenant is unenforceable). Bean LJ suggested that, except in cases of very wealthy defendants, or where a claimant employer is offering paid garden leave for the whole period of the restraint, it was unrealistic to argue that damages would be an adequate remedy.

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Without Prejudice: Without prejudice letter inadmissible despite exaggerated allegations

In Swiss Re Corporate Solutions Ltd v Sommer [2022] EAT 78 the EAT has held that an employment judge erred when holding that a without prejudice letter could be admitted into evidence under the “unambiguous impropriety” exception to the without prejudice rule in proceedings brought by an employee against her former employer. The without prejudice rule prevents statements made (whether in writing or orally) in a genuine attempt to settle an existing dispute from being put before the court as evidence of admissions against the interest of the party that made them.

The letter referred to the employee’s actions in having copied three emails to her personal email address when sending them to her employer in pursuit of a grievance. The emails had contained personal data and matters confidential to the employer and its clients. Before offering to settle her complaints by way of termination of her employment and payment of compensation, the letter alleged that the employee’s actions breached the confidentiality obligations in her employment contract, were a criminal offence under the Data Protection Act 2018 and meant that she had acted, or might have acted, without integrity in breach of Financial Conduct Authority (FCA) rules. This could result in summary dismissal, criminal convictions, fines and FCA findings which could make it difficult for her to work again in the regulated sector.

In holding that the unambiguous impropriety exception applied, the employment judge found that there had been no basis at all for the employer’s assertion that the employee’s actions amounted to serious misconduct and that the severity of what she had done had been grossly exaggerated in order to put pressure on her to accept the termination of her employment.

The EAT held that the employment judge had erred in finding there was no basis at all for the allegations of serious misconduct. It considered that the high threshold for unambiguous impropriety could be met in circumstances in which a party made exaggerated allegations although it was unaware of any decided case on this point. However, exaggeration would not usually pass the threshold without findings as to the guilty party’s state of mind. The employment judge did not make such findings, and the EAT doubted that this could have validly been done at a preliminary hearing without oral evidence. The only possible outcome in this case was that the without prejudice letter was inadmissible in evidence.

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Further Information:

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

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Modern Slavery

Sophie Banks,
14th June 2022

Employment Law

Modern Slavery is a serious and often hidden crime in which people are exploited for criminal gain. In 2015 the UK government introduced the Modern Slavery Act which is aimed at combating crimes of slavery and human trafficking and recognises that businesses have a role to play in tackling these crimes.

Section 54 of the Modern Slavery Act requires large commercial organisations with a global turnover above £36 million to publish a slavery and human trafficking statement every financial year. The statement must disclose what steps the organisation has taken to ensure that human trafficking is not taking place in any of its supply chains or its business; or state that it has taken no such steps. This aims to ensure that businesses are transparent about what they are doing to tackle modern slavery and human trafficking.

What is modern slavery?

Modern slavery comprises slavery, servitude, forced and compulsory labour and human trafficking. The Home Office research has identified four broad ways in which victims of modern slavery may be exploited. These are:

Labour exploitation – which usually involves unacceptably low pay and inadequate working conditions plus control over the victims meaning they have no choice but to carry out the work.

Domestic servitude – when victims are working in a private family home under poor working conditions who are often underpaid, ill-treated and feel they cannot leave their job.

Sexual exploitation – when victims are coerced into sex work or sexually abusive situations.

Criminal exploitation – when people are forced to commit crimes for someone else’s’ gain.

The common factors with all kinds of modern slavery are that a victim is, or is intended to be, used or exploited for someone else’s (usually financial) gain, without respect for their human rights. The perpetrators seeking to take advantage of them could be private individuals, running small businesses or part of a wider organised crime network. For adult victims, there will be some element of coercion involved, such as threats, use of force, deception, or abuse of power.

Freedom from slavery in the supply chain

As stated above, large commercial organisations that carry on business in the UK and have a total turnover of £36 million or more must prepare a slavery and human trafficking statement for financial years ending on or after 31 March 2016. These statements must be:

Approved by the company board –To ensure senior level accountability, the statement must be approved by (and signed by one of):
For companies, the board of directors.
For LLPs, the members.
For partnerships, the partners

It is also best practice for the statement to include the date on which the board, members or partners approved the statement.

Published on the company’s website – There should be a link to the statement in a prominent place on the organisation’s homepage. The aim is to ensure that the statement is easily accessible by anyone who wants to see it. The Home Office guidance says that the link should be directly visible on the homepage or part of an obvious drop-down menu, and clearly marked so that the contents are apparent.
Updated every year – each year an organisation should assess whether their organisation meets the criteria for the preceding financial year. If so, they must publish a modern slavery statement within 6 months of their financial year-end (and it should reference the date its financial year ended).

What should be in the statement?

The Home Office’s statutory guidance recommends that organisations cover the following six areas in their statement:

Organisation structure and supply chains
Policies in relation to slavery and human trafficking
Due diligence processes
Risk assessment and management
Key performance indicators to measure effectiveness of steps being taken
Training on modern slavery and trafficking

Organisations are not expected to guarantee that all their supply chains are ‘slavery free’. However, statements must describe the steps an organisation has taken during the financial year to deal with modern slavery risks in their supply chains and business and the detail and quality of information included under each of the six areas should improve in successive annual statements. The Government has produced the following guidance for organisations on how to ensure that slavery and human trafficking is not taking place in their business or supply chains (https://www.gov.uk/government/publications/transparency-in-supply-chains-a-practical-guide).

If an organisation has taken no steps to deal with modern slavery risks, they must still publish a statement setting this out. Anyone interested in viewing statements can use the government registry to search for organisations’ statements and view the summaries they have provided.

Enforcement

There is no criminal enforcement. The Secretary of State may enforce the duty to prepare a slavery and human trafficking statement in civil proceedings by way of injunction (or in Scotland, by specific performance of a statutory duty). If the organisation then fails to comply with the injunction, it will be in contempt of a court order and that would be punishable by an unlimited fine. Many commentators have sought a much tighter regulatory regime including:

Criminal penalties for failing to report as required.
The creation of a central database of company reports.
Clearer duties of reporting to describe the steps of due diligence undertaken by the company in making its assessment of the supply chain risks of modern slavery it has identified.

The Home Office has also published the National Enforcement Powers Guide, a guide to the legal powers that can be used to tackle modern slavery.

Future developments

The Modern Slavery (Transparency in Supply Chains) Bill 2017 had its first reading in the House of Lords on 12 July 2017. If enacted unamended the Bill will introduce the following measures:

Mandatory reporting of information – requiring organisations to publish their statements on a government website.
The statement to include information on why the organisation has taken no steps to address modern slavery in its supply chain.
A duty on the Secretary of State to publish an easily accessible list of all commercial organisations required to publish a slavery and human trafficking statement.
The disqualification of companies from being awarded public contracts where they have failed, as required, to prepare a slavery and human trafficking statement.

It is therefore an area that is likely to be subject to greater scrutiny and tighter regulation in the future, which makes it even more important for organisations to be aware of their obligations and responsibilities regarding modern slavery.

Further Information

If you have any questions regarding the above or require any assistance, please do not hesitate to contact Anne-Marie Pavitt or Sophie Banks on +44 (0)333 122 0010.

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Employment News – May 2022

Employment,
19th May 2022

Employment Law

This month the news contains the employment highlights of the Queen’s speech, how Long COVID is affecting people, a new Health & Wellbeing report from the CIPD, a new campaign to help tackle pay disparity, government guidance for businesses employing Ukrainian refugees and new legislation covering foreign professional qualifications.

Queen’s Speech 2022: Implications for employment
COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
Health & Wellbeing: CIPD publishes new report for 2022
Pay Disparity: End Salary History campaign launched to tackle pay disparity
Ukraine: New guidance for businesses offering work to people from Ukraine
Qualifications: Professional Qualifications Act 2022 receives Royal Assent

Queen’s Speech 2022: Implications for employment

On 10 May 2022, the Queen’s Speech was delivered at the opening of Parliament. A key point of interest was the notable exclusion of the long-awaited Employment Bill. Although its omission was expected (after a government official suggested it was unlikely to be included in the Queen’s speech), the TUC pointed out that the government had promised the Employment Bill to enhance workers’ rights 20 times since first announcing it in the 2019 Queen’s Speech. The head of the TUC, Frances O’Grady, said that the failure to bring forward the legislation “sent a signal that [the government is] happy for rogue employers to ride roughshod over workers’ rights“. The Employment Bill had been expected to contain measures in relation to tips, additional rights for zero hours workers and pregnant women, neonatal and paid carers’ leave and default flexible working.

The Queen’s Speech announced a new Harbours (Seafarers’ Remuneration) Bill, following the recent mass redundancies at P&O. The Bill is intended to protect seafarers working on vessels regularly visiting UK ports by giving ports the power to refuse access to ferry services that do not pay the equivalent to the national minimum wage (NMW) to seafarers while in UK waters, although no changes will be made to the NMW legislation itself. A consultation has been launched, closing on 7 June 2022. However, the British Ports Association (BPA) has already said that it has concerns about ports being made to regulate ships and that ports do not “have a core competency” in enforcing the minimum wage. The government also hopes to secure bilateral agreements on “minimum wage corridors” with France, the Netherlands, Spain, Germany, Ireland and Denmark, where seafarers on routes between either country must be paid at least the equivalent of the NMW.

In briefing notes, the government has also stated its aim to encourage greater private sector investment in employee training, including apprentices. The government will consider whether the current tax system, including the apprenticeship levy, is sufficient to incentivise businesses to invest in high-quality employee training.

Despite the absence of the anticipated Employment Bill in the Queen’s Speech, BEIS has issued a press release highlighting the actions it says the government has taken “to support workers and build a high skilled, high productivity, high wage economy“. The key measures highlighted were:

The increase of the national minimum wage (NMW) and national living wage (NLW) in April 2022. The government also named and shamed 208 employers in December 2021 who failed to pay the NMW.
An extension of the ban on exclusivity clauses for all workers whose guaranteed weekly income is below the Lower Earnings Limit.
A commitment to produce a statutory code of practice on fire and rehire.
The abolition of the Swedish derogation which had allowed agency workers to be paid less than permanent staff in certain circumstances and the introduction of the right to receive a written statement of terms on day one for all workers.
Recognising the importance of flexible working, including a consultation on making flexible working the default that closed on 1 December 2021 and to which the government response is awaited.
The introduction of a legal right to two weeks’ paid bereavement leave for those who have lost a child.
Support for employees during the COVID-19 pandemic, including protecting wages through the furlough scheme.

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COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability

An estimated 1.8 million people in the UK are experiencing long COVID symptoms, according to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms. Long COVID is the term used to describe COVID-19 symptoms that persist for more than four weeks, but 44% of people self-reporting long COVID had been affected for at least a year and 13% for at least two years. 67% of those with self-reported long COVID say that their day-to-day activities are adversely affected by their symptoms, amounting to 1.2 million people, and 19% report that their ability to undertake day-to-day activities has been “limited a lot“. Long COVID is most prevalent in people aged between 35 and 49, females, people living in more deprived areas and people working in social care, teaching, education or health care. There is also increased prevalence in people who already have another activity-limiting health condition or disability.

In a tweet posted on 7 May, the EHRC stated that “without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability“. COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement. It said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010, if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way. Employers should follow existing guidance when considering reasonable adjustments and flexible working in order to support affected workers.

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Health & Wellbeing: CIPD publishes new Report for 2022

The CIPD has published a report on its Health and wellbeing at work survey 2022. Key findings include:

COVID-19 absence. COVID-19 is included among the top three causes of short-term absence for two-thirds (67%) of organisations and just over a quarter (26%) report long COVID among their top causes of long-term absence.
Long COVID. Nearly half (46%) of respondents reported having employees who have experienced long COVID. While most suggested only a small proportion of employees are affected, the report warns that this likely underestimates the real figure.
Absence management. While the majority of employers look to line managers to manage short-term and long-term absence and train them on this, only 38% agree that managers are confident to have sensitive discussions and signpost employees to expert support. Management style remains the most common cause of stress at work.
Health and wellbeing. Over half of employers (52%) undertook additional action around employee health and wellbeing in response to the pandemic. While figures suggest that there has been less focus on employee health and wellbeing than in the first year of the pandemic (70% of respondents agreed that employee wellbeing is on senior leaders’ agenda, a reduction of 5% since last year), the longer-term trend suggests it has been gradually rising up the corporate agenda. Half of organisations (51%) are taking a strategic approach to employee wellbeing and those organisations are much more likely to report positive outcomes. Mental health is the most common focus of wellbeing activities and the extent to which there is provision for specific groups or issues, such as for carers, bereavement, suicide risk or good sleep hygiene, is more variable. It may be of interest, amid the current cost-of-living crisis, that the most neglected area is financial wellbeing.
Homeworking. The survey found that almost three-quarters of employers (72%) are providing new or better support for people working from home. However, there is indication that presenteeism is more prevalent among homeworkers and the number of organisations taking steps to tackle the issue has grown over the past two years (53% in 2022, up from 45% in 2021 and 32% in 2020).

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Pay Disparity: End Salary History campaign launched to tackle pay disparity

A new End Salary History campaign to tackle pay disparity on the grounds of gender, race and disability has been launched by the Recruitment and Employment Confederation (REC) and the Fawcett Society. Fawcett Society polling has found that 58% of women and 53% of men feel that being asked about their earning history causes them to be offered a lower wage and affected their confidence when asking for better pay (61% of women and 53% of men). The campaign includes a guide for recruiters on ending the practice of asking job applicants about their salary history and an employer petition to bolster the Fawcett Society’s call on the government to ban the practice.

The government recently announced a pilot scheme which would see participants refrain from asking job applicants about salary history as well as including salary information in job advertisements. Further details of the government’s scheme are awaited.

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Ukraine: New guidance for businesses offering work to people from Ukraine

On 6 May 2022, the government published new guidance for businesses offering work to people from Ukraine. The guidance applies to businesses in England, Scotland and Wales.

While the guidance is not detailed, it provides the following:

Businesses offering employment opportunities to people arriving in the UK from Ukraine should complete a vacancy information questionnaire and return the completed questionnaire to a specified Home Office email address. After completion of the questionnaire, a business will be contacted by the National Employer and Partnership Team at the Department for Work and Pensions (DWP) within five working days. Job opportunities will then be shared across the DWP Jobcentre Plus network and with the Refugee Employment Network (REN).
Ukrainians who hold professional qualifications may need those qualifications to be recognised in the UK, if they work in a regulated profession. The UK Centre for Professional Qualifications provides a free service which explains whether a profession is regulated and any entry requirements.

There is an FAQ section at the end of the guidance which provides information on immigration status and additional support available to businesses. One of the FAQs addresses employment rights, noting that “the UK is proud to extend the same employment rights that everyone in the UK is entitled to, to people arriving in the UK from Ukraine“. Businesses are encouraged to understand these rights by reference to the employment status of a worker. The FAQ response directs businesses to GOV.UK guidance and ACAS for further information.

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Qualifications: Professional Qualifications Act 2022 receives Royal Assent

On 28 April 2022, the Professional Qualifications Act 2022 (PQA 2022) received Royal Assent. It will give UK regulators the power to make mutual recognition agreements with their counterparts in other countries where there is a UK shortage of qualified professionals.

The PQA 2022 revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 (SI 2015/2059) which implemented a reciprocal framework for the recognition of professional qualifications, enabling nationals from the European Economic Area (EEA) and Switzerland to have their professional qualifications recognised and gain access to the regulated profession in which they are qualified in another EEA member state or Switzerland. Any sector-specific legislation that established a similar interim system following the UK’s exit from the EU will also be revoked.

Under the PQA 2022, the government and, where applicable, devolved administrations, will identify and specify in regulations a priority list of professions where there is demand for skills from overseas. Considerations for those priority professions will include whether the profession is on the shortage occupation list, vacancy levels, workforce modelling and skills forecasting, and whether there are other ways that professions might address shortages, such as arrangements already in place to recognise qualifications from other countries. The government has stated that the key provisions of the PQA 2022 will come into force by autumn 2022 and that it will work closely with regulators and other stakeholders on how to prepare for the new regime.

In May 2021, the government published guidance to assist regulators in negotiating and entering into mutual recognition agreements with foreign counterparts.

Further Information:

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

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Employment News – Case Update May 2022

Employment,
19th May 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month largely centred around dismissal. We have a harassment case that looks at how employers should provide for breastfeeding mothers returning to work, and some interesting cases of dismissals showing that common sense ultimately steers the tribunals.

Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues

Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets

In the case of Mellor v The MFG Academies Trust [2022] ET/1802133/2021, the tribunal had to consider the effect of how a teacher had been treated in respect of expressing breastmilk while at school. Ms Mellor had been a teacher of Citizenship at Mirfield Free Grammar School. In July 2020, she returned to work from maternity leave and before returning to work, made a flexible working request and informed her employer she required a room in which to she would be able to express milk or possibly feed her baby during lunchtimes while at school. Having been told that due to COVID-19 restrictions, her partner was not allowed onto school premises to bring the baby to her to breastfeed, Ms Mellor again requested somewhere to express. Having had nowhere suitable she raised the matter with her line manager, as her breasts were becoming uncomfortable from being prevented from expressing the milk and she was afraid of developing mastitis again. Through a series of requests which were not followed up properly, Ms Mellor ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets, and trying to eat her lunch at the same time.

Judge Miller found that Ms Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and had made the school aware on numerous occasions but not only was no suitable room provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” Judge Miller explained. “It is obvious that this is unacceptable.” Ms Mellor was also keen to avoid developing mastitis again and was under the impression this would be avoided by expressing during the day.

Judge Miller therefore found in favour of Ms Mellor, expressing the sentiment that the conduct did have the effect of creating a degrading or humiliating environment for the claimant on the basis that “a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.” The judge also concluded that “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so”, therefore interpreting the meaning of ‘forcing’ to include leaving someone with no realistic choice but to take a particular course of action and must be read in conjunction with ‘unwanted’ – such as expressing milk in the toilets while eating lunch and /or in the claimant’s car with the risk of being seen by pupils and others.

The claim of harassment succeeded, but the claim of direct discrimination was dismissed as the failure to provide a suitable room was more due to administrative incompetence rather than on the basis of her sex, and in any event, the same detriment could not be relied upon to make out both claims. The claim of indirect discrimination failed because the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.

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Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair

In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 63 the EAT considered the question of if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?

At first instance, the Employment Tribunal found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee on grounds of capability in that it had not allowed her an extension of time to lodge an appeal against her dismissal. It therefore upheld her claim under section 20 of the Equality Act 2010 (duty to make reasonable adjustments). However, it found that her dismissal was fair and proportionate, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 of the Equality Act 2010.

The employee’s appeal was on the basis that the Tribunal’s finding, for the purposes of the duty to make reasonable adjustments, that the employee was unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding and/or that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding and/or that the Tribunal had wrongly relied on its finding that the employee’s appeal would not have been successful in any event and had thereby committed the Polkey heresy. The ‘Polkey Deduction’ is a very well established principle that, if a dismissal is unfair on procedural grounds, the fact that the employee would have been dismissed in any event, even if a fairer procedure was followed, only impacts the remedy rather than the question of liability.

The EAT dismissed the appeal, noting that it was obvious that the legal tests involved in the three claims before the tribunal were different, and just because an employer might fail on one of the claims does not mean that the others will also fail. What matters to the tribunal is drawing conclusions under each test from the facts which the tribunal has found. The legal principles applicable to each claim should be separately applied to the findings of fact because the elements of each part of the Act are different. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.

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Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children

In Rodgers v Leeds Laser Cutting Ltd [2002] EAT 69 the EAT considered the case of Mr Rodgers who had refused to go into work during the first national lockdown, despite his work remaining open, because he was concerned that if his children caught COVID-19 they would become very ill. As a result of this refusal, Mr Rodgers was dismissed. He claimed unfair dismissal on the basis that he had exercised his right not to return to work in order to protect himself from circumstances of danger, which he had reasonably believed to be a serious and imminent threat, and which he could not have been expected to avoid (section 100(1)(d) or (e) Employment Rights Act 1999).

However, the EAT found that the employment judge had accepted that the Coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but this case failed on the facts. The circumstances of the workplace (it was large and few people worked in it, he could generally maintain social distance at work, masks were available, the tribunal rejected the claimant’s contention that he was forced to go out on deliveries) combined with Mr Rodgers’ actions (he had remained at work from the date of the announcement of the lockdown on 24 March 2020 until he left at his normal time on 27 March 2020, he had not asked for a mask, he did not say that he would not be returning when he left on 27 March 2020, he drove his friend to hospital while he was meant to be self-isolating, he worked in a pub during the lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.

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Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues

The case of Keating v WH Smith Retail Holdings Ltd ET/2300631/2019 has recently been published, which relates to a single mother working at the large retail chain. Following a drop in sales and the reduction of Saturday staff, the manager instated a rota for Saturday working – where sales assistants would have to work 1 in every 4 Saturdays. Although Ms Keating’s contract stated she would work 20 hours a week, flexible to the needs of the business, and could be required to work up to eight hours extra per week where trading patterns required it, and further, she may be required to work Saturdays. Sundays or bank holidays. Ms Keating did not normally work weekends and explained she was unable to work Saturdays as she had no childcare for her eight year old daughter. The manager, Mr Cruikshank, told her she should arrange to swap with one of her colleagues. He also admitted to saying to Ms Keating that if he permitted her not to work the Saturday rota, everyone else would want the same. Otherwise he had not dealt with the issue nor discussed it further with her. On the first Saturday Ms Keating was rostered to work, she had to bring her daughter to work with her. She was then off sick for four weeks and resigned, giving four weeks’ notice.

Ms Keating claimed indirect sex discrimination and constructive unfair dismissal. Ms Keating was put at a disadvantage: as a woman, with a dependent child, as a single mother and who could not afford childcare and had no family or other network she could call upon. The Judge found that while there was a legitimate business aim to introduce the Saturday rota, there was ‘no consideration’ by Mr Cruikshank of any less discriminatory ways to carry out his legitimate aim (i.e. to meet weekend staffing needs). Ms Keating was found to have resigned in response to this breach of the implied term of trust and confidence, and no potentially fair reason was advanced by the employer. The Judge held both claims to be well founded and both claims succeeded.

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Employment News – April 2022

Employment,
27th April 2022

Employment Law

This month the news is full of diversity and equality – calls to support and engage on a wide range of matters such as neurodiversity, LGBTQ+ and race and ethnicity. There is also a focus on health – with updates on fit notes to calls for action on mental health and menopause.

Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
Equality: Government publishes response to Commission on Race and Ethnic Disparities report
Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
Mental Health: DHSC publishes discussion paper and call for evidence
Menopause: Workplace pledge signed by over 600 employers

Diversity: Neurodiversity in Business forum launched to support neurodiverse employees

On 21 March 2022, Neurodiversity in Business (NiB) was launched at the Houses of Parliament to support neurodiverse employees in the workplace. Between 15% and 20% of the population are estimated to be neurodivergent. Dan Harris, Chief executive of NiB, states that although employers increasingly recognise the benefits of a neurodiverse workforce, neurodivergent employees need improved support. NiB and founding members, such as Accenture, AstraZeneca, Bank of England, Capita, Network Rail, Sky and Unilever, recognise that reasonable modifications can enable more neurodiversity in the workplace and also benefit sustainability. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.

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Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage

On 18 March 2022, the government’s LGBT+ Business Champion, Iain Anderson, issued a call to engage to employers, staff networks, trade unions and civil society organisations with practical experience of creating LGBT+ inclusive workplaces, supporting LGBT+ inclusion and improving outcomes and experiences for LGBT+ people. He is looking for practical examples that work of what businesses are doing to improve LGBT+ outcomes and experiences in the workplace. The call to engage is not for personal experiences or views.

The questions ask for information on the following issues:

The collection of LGBT+ diversity and inclusion data and how effective this has been.
How organisations have been able to improve the outcomes and experiences of LGBT+ employees in the workplace and how effective this has been. Where possible, respondents are asked to disaggregate measures taken in support of lesbian, gay, bisexual and trans employees.
In countries where LGBT+ people routinely experience discrimination, what organisations are doing to support the safety and advocacy of LGBT+ staff.
How organisations can have a positive social and economic impact on LGBT+ equality, including in countries where LGBT+ people routinely experience discrimination. In particular, comments are welcomed on impacts outside the organisation, for example, having a positive influence through supply chains, distributors and customers.

The consultation closes on 28 April 2022.

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Equality: Government publishes response to Commission on Race and Ethnic Disparities report

On 17 March, the government has published its response to the report of the Commission on Race and Ethnic Disparities made a number of recommendations to address ethnic and racial disparities across society. The response confirms that mandatory ethnicity pay gap reporting will not be introduced. However, organisations who choose to publish their figures will be required to publish a “diagnosis and action plan“, setting out reasons why disparities exist and what will be done to address them. Guidance on voluntary ethnicity pay gap reporting, to be published in summer 2022, will be designed to help employers address some of the challenges around ethnicity pay gap reporting. It will include case studies drawn from organisations which have already chosen to report on their ethnicity pay, setting a benchmark for what a good action plan might cover.

The report also tackles the use of artificial intelligence in recruitment processes and automated decision-making. A white paper, to be published later in the year, will deal with how to address potential racial bias in algorithmic decision-making. To ensure technological advances do not have a disproportionate impact on ethnic minority groups, the EHRC will advise on the safeguards needed and issue guidance that explains how to apply the Equality Act 2010 to algorithmic decision-making.

The government has accepted the Commission’s recommendation that the acronym BAME (Black, Asian and minority ethnic) is unhelpful, and it has stopped using the term in its own communications. It is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups. Where it is absolutely necessary to draw a binary distinction between the ethnic majority and ethnic minorities, the government will use the term “people from ethnic minority backgrounds“. The response also states that terms such as “white privilege” can be seen as stigmatising and potentially divisive, as they have the unintended consequence of pitting groups against each other.

The response includes a package of other measures designed to improve diversity and inclusion, including additional funding for the EHRC, an “Inclusion at Work Panel” which will disseminate diversity resources to employers, and updated guidance for employers on positive action, to be published by the end of the year.

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Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022

In its July 2021 response to the 2019 consultation document “Health is everyone’s business: proposals to reduce ill health-related job loss“, the government committed to removing the statutory obstacles to the digital issuing of fit notes. Currently, fit notes must be signed in ink by the issuing doctor, although given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided digitally.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. They amend the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604). The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.

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Mental Health: DHSC publishes discussion paper and call for evidence

The Department for Health and Social Care has published a discussion paper and call for evidence on improving mental health and wellbeing, which includes the development of a ten-year plan to reduce the prevalence, incidence and recurrence of mental ill-health.

The discussion paper suggests compassionate employers are needed, who will protect and promote positive mental wellbeing by understanding and meeting physical and mental needs in the workplace. Two key challenges that were identified through the Thriving at Work are reiterated in the document:

the need for a clear role for employers to prevent the onset of mental health conditions and mental ill-health, and
wider implementation of workplace interventions to support mental health.

The role for employers to support mental wellbeing is further highlighted in the discussion around early intervention. Employers are identified as an important source of support for employees who may not need “clinical” early interventions. This section also highlights that in those instances, employers may need support and information to provide support for a distressed employee.

The consultation is open to all, and responses will be collected through an online survey until 11.45 pm on 5 July 2022.

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Menopause: Workplace pledge signed by over 600 employers

More than 600 employers have signed the Menopause Workplace Pledge, which is part of a campaign by Wellbeing of Women. In signing the pledge, employers recognise that the menopause can be a workplace issue for which employees need support. Signatories commit to open, positive and respectful workplace dialogue about the menopause and to taking active steps to support employees affected by the menopause and informing them of the support offered. Active measures have already been undertaken by some signatories: the Royal Mail has run an internal campaign to normalise conversations about the menopause, Tesco plans to incorporate a breathable fabric into its uniform to help with hot flushes, and News UK has said it will cover the cost of NHS HRT prescriptions and provide desk fans.

Last week, a survey of 1,000 HR professionals, (conducted by YouGov on behalf of Irwin Mitchell) revealed almost three-quarters of employers (72%) do not have a menopause policy and that only 16% of employers train line-managers on the menopause. The CIPD has reminded employers that positive action, such as engaging with this pledge and having a policy that outlines available support, must be “underpinned by a culture where people are actively encouraged to have open and supportive conversations“. It has its own Guidance for employers on how to better manage those affected by menopause at work, which can be accessed here.

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Employment News – Case Update April 2022

Employment,
27th April 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including more definitions between workers and self-employed contractors, indirect discrimination and harassment, unfair dismissal and TUPE.

Worker Status: Ryanair pilot was a worker and an agency worker, not a self-employed contractor
Indirect Discrimination: Comparison pool for claims must relate to precise PCP pleaded by claimant
Harassment: When does perception turn conduct into harassment?
Unfair Dismissal: Tribunal erred when striking out unfair dismissal claim by employee who volunteered for redundancy
TUPE: ACAS settlement was wide enough to cover transferee’s failure to provide information to transferor

Worker Status: Ryanair pilot was a worker and an agency worker, not a self-employed contractor

In Lutz v (1) Ryanair DAC and (2) MCG Aviation Ltd (2022) ET/3201452/2020, an employment tribunal has held that a pilot placed with Ryanair by MCG Aviation Ltd (MCG) was a worker of MCG and an agency worker for the purposes of the Agency Workers Regulations 2010 (SI 2010/93).

Mr Lutz applied to be a pilot for Ryanair, was successful and was then passed to MCG, which managed Ryanair’s pool of “contracted pilots” who work alongside their employed pilots. MCG organised the setting up of a service company, so that Mr Lutz could operate as self-employed. MCG entered into a five-year fixed-term contract with the service company, under which all work was exclusively for Ryanair, and Mr Lutz “or an agreed acceptable and qualified nominated substitute” would perform the work.

The tribunal held that Mr Lutz was not a self-employed pilot with Ryanair as a customer of his service company. Mr Lutz was never a shareholder, director or employee of the service company, into which MCG had installed him, and Ryanair had no dealings with the service company. Nor was he an employee of Ryanair as there was no contract of employment between them. Since he was not in business on his own account and MCG were the intermediary through which Ryanair dealt with its contracted pilots, the tribunal concluded that MCG supplied Mr Lutz to Ryanair as an agency worker. To be an agency worker, the work must be temporary. The tribunal held that the five-year fixed-term contract between the service company and MCG was not indefinite and was therefore temporary.

In deciding that Mr Lutz was an agency worker, the tribunal found that he had a contract with MCG to supply his services personally and not though the service company. The tribunal’s view was that his ability to swap shifts was not substitution but a rearrangement of the day and time when personal service was required. In any event, there was no unfettered right of substitution. Only another Ryanair pilot could take the shift and permission from Ryanair was required. The contractual documentation purporting to show that it was not a contract for personal service was a sham. Every aspect of the engagement was structured as Ryanair dictated and Mr Lutz’s independence was entirely notional, with Ryanair rostering his flights and requiring him to wear their uniform.

As the tribunal noted, this case has wide implications due to the many purportedly self-employed pilots in the aviation industry engaged under similar arrangements.

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Indirect Discrimination: Comparison pool for claims must relate to precise PCP pleaded by claimant

In Allen v Primark Stores Ltd [2022] EAT 57, the EAT has confirmed that the comparison pool for an indirect discrimination claim must be constructed by accurate reference to the precise provision, criterion or practice (PCP) pleaded by the claimant.

Ms Allen worked for Primark Stores Ltd as a department manager in the Bury store. Following her return from maternity leave, she requested flexible working for childcare reasons. Primark considered her request and offered some accommodation for it. However, it refused to agree that she would not have to work Thursday late shifts.

Ms Allen brought a claim for indirect sex discrimination. She argued that Primark applied a PCP that department managers had to guarantee their availability to work Thursday late shifts, that this PCP put women at a disadvantage because of childcare responsibilities, and that she had been put at this disadvantage. To assess the discriminatory impact of the PCP, the employment tribunal constructed a comparison pool which included all department managers in the Bury store who might be asked to work Thursday late shifts. Amongst others, this pool included two department managers, Zee and Imran, who it was accepted had an implied contractual right not to work Thursday late shifts but did so in emergencies. Having considered the pool, the tribunal concluded that the PCP affected two men (Zee and Imran) and one woman (Ms Allen) and therefore did not put women at a disadvantage. Ms Allen’s claim was rejected. She appealed to the EAT.

The EAT upheld the appeal. It found that, in constructing the pool, the tribunal had redefined Ms Allen’s complaint. The PCP she had identified was not simply that she was being “asked” to work Thursday late shifts, but that she was being required to guarantee her availability to do so. Zee and Imran were not subject to this availability requirement and therefore were in a materially different situation to Ms Allen. By failing to properly engage with the PCP, the tribunal had allowed itself to include within the comparison pool two individuals to whom the disadvantage to which the PCP gave rise did not apply. It was insufficient for the tribunal to consider whether individuals might be “asked” to work the late shift without going on to determine whether there was an element of compulsion in the making of such a request. The tribunal’s decision was set aside and the case remitted.

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Harassment: When does perception turn conduct into harassment?

In Ali v Heathrow Express and Redline Assured Security Ltd [2022] EAT 54 Mr Ali was working for Heathrow Express, and Redline Assured Security Ltd (Redline) was responsible for carrying out security checks at the airport and the stations. Part of this was to leave suspicious objects around to see how security officers responded to them. One such object was a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. Mr Ali, who is a Muslim, was among a group of Heathrow Express’s employees who were circulated with an email reporting on the results of the test and including images of the bag and the note.

Mr Ali complained to the employment tribunal that Redline’s conduct amounted to either direct discrimination against him or harassment of him, as defined in the Equality Act 2010, by reference to his religion, that Redline had acted as Heathrow Express’s agent, and that, accordingly, both parties were liable to him in that respect.

The tribunal concluded that the conduct amounted neither to direct discrimination nor to harassment by effect. As to harassment, this was because, applying section 26(4) of the 2010 Act (i.e. in deciding whether conduct has the effect of harassment each of the following must be taken into account: (a) his perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect) it was not, in all the circumstances, reasonable for Mr Ali to perceive the conduct as having an effect falling within section 26(1)(b) (i.e. that the conduct has the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him).

In particular, the tribunal considered that Mr Ali should have understood that, in using this phrase, Redline was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it in order to produce a suspicious item based on possible threats to the airport. The tribunal decided that it therefore did not need to determine the agency point, nor a defence which invoked section 192 (national security).

Mr Ali appealed against the decision on the harassment complaint on the grounds that it was either perverse or insufficiently reasoned. The appeal on both grounds was dismissed on the basis that a person’s perception is just one of the issues for the tribunal to consider when looking at whether conduct amounted to harassment as defined by s.26 of the Equality Act 2010.

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Unfair Dismissal: Tribunal erred when striking out unfair dismissal claim by employee who volunteered for redundancy

In White v HC-One Oval Ltd [2022] EAT 56, the EAT has held that an employment tribunal was wrong to strike out a claim for unfair dismissal on the basis that it had no reasonable prospect of success because the claimant had requested redundancy.

In September 2018, care home operator HC-One Oval Ltd announced it was reducing the number of employees carrying out reception and administrative work. Ms White was provisionally selected for redundancy. Subsequently, she requested voluntary redundancy, which was accepted.

After termination of her employment, Ms White submitted a claim for unfair dismissal. She alleged that:

In July 2018, she had raised a grievance about having to cover the duties of an absent colleague as well as her own, without extra pay.
During the redundancy process, an administrative role had become available. This should have been offered to her but was not.
The outcome of the redundancy process was that a receptionist recruited just before it began, who had no childcare responsibilities, had been offered a full-time role while the two part-time receptionists had been dismissed. The process had been manufactured to achieve this.

For these reasons, Ms White argued that the redundancy process was not genuine and that she had been targeted for dismissal. The employer disputed Ms White’s allegations. It contended that she had been fairly dismissed for redundancy at her own request and therefore that her claim should be struck out because it had no reasonable prospect of success.

The employment tribunal struck out the claim. It held that, because Ms White had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal. However, the EAT found that the tribunal had erred in law. Had the tribunal engaged with Ms White’s case at its highest, as required, it could not have found that there was no reasonable prospect of success. If Ms White’s account of the background to the redundancy was accepted, the facts known to the decision maker might well be found to include matters other than just Ms White’s redundancy request. In addition, Ms White alleged that the redundancy process was a sham. Even if the tribunal was satisfied with the reason for dismissal, it would still need to consider the fairness of the process. There was a factual dispute here which was not suitable for summary determination. The case was remitted to the tribunal for consideration by a different judge.

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TUPE: ACAS settlement was wide enough to cover transferee’s failure to provide information to transferor

In Clark v Middleton and another [2022] EAT 31, the EAT has held that an employment tribunal was correct to find that, in a claim for a failure to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006, no award could be made against the transferee for its failure to provide information to the transferor about measures it proposed to take in connection with the transfer, under regulation 13(4). This was because of an earlier withdrawal of claims against the transferee following an ACAS-conciliated settlement between the claimant and the transferee, which the EAT considered was wide enough to encompass the transferee’s liability for failure to provide that information.

However, the tribunal had erred in making a zero award in respect of the transferor’s failure to notify the transferring employee of the identity of the transferee company on the basis that this was merely a “technical breach”. It matters to know the name and identity of the unique legal person who will be the employer, and the tribunal should not have viewed this as a mere technicality. The EAT remitted the claim to a fresh tribunal to decide the remedy.

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Employment News – Case Update March 2022

Employment,
22nd March 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.

Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?

Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status

In, Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, the Court of Appeal has confirmed that an “irreducible minimum of obligation” is not needed to establish worker status under the Working Time Regulations 1998 (WTR 1998). Mr Somerville, a panel member chair of the Nursing and Midwifery Council’s Fitness to Practice Committee, worked under an overarching contract. This contract did not oblige the Nursing and Midwifery Council (the Council) to offer hearing dates to him, and he was under no obligation to accept any dates offered to him. Applying Uber BV and others v Aslam and others [2021] UKSC 5, the court found that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he was a worker when he was actually working.

In addition, the fact that Mr Somerville could withdraw from an individual agreement to attend a hearing even after he had accepted a particular date did not change the Court of Appeal’s view. He entered into an individual contract for an individual assignment which existed until terminated and had to be read alongside the overarching contract. If an individual contract was not terminated and he chaired a hearing, he would, in the language of section 2(1)(b) of the WTR 1998, have worked under a contract personally to perform services. There is no indication that there must be a distinct, super-added obligation to provide services independent from the provision of the services on a particular occasion. When deciding whether a specific agreement to provide services on a particular occasion amounted to a worker’s contract, the fact that the parties were not obliged to offer, or accept, any future work was irrelevant.

The Court of Appeal’s decision confirms what was previously understood to be the position, that an “irreducible minimum of obligation” is not an essential requirement for worker status. The analysis of the Uber Supreme Court decision also adds to the often-fraught discussion of what it means to be a worker. That said, the Court of Appeal’s decision is clear: where an individual is, in fact, working or providing services personally under a contract, a finding of worker status can be made even where no overarching contract imposing an obligation to provide and accept work exists.

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Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date

In Fentem v Outform EMEA Ltd [2022] EAT 36, the EAT has held that is bound by the decision in Marshall (Cambridge) v Hamblin [1994] ICR 362. Accordingly, where an employer invokes a clause in an employee’s contract enabling it, following the employee’s resignation, to terminate their employment immediately by making a prescribed payment calculated by reference to the unexpired period of the employee’s notice, there is no dismissal under section 95(1)(a) of the Employment Rights Act 1996.

Despite reaching this conclusion, the EAT expressed misgivings about the decision in Marshall. It was strongly inclined to view Marshall as wrong and could see nothing in the reasoning that supported the conclusion that there was no dismissal in that case.

However, the EAT could only depart from its own decisions in the narrow circumstances set out in British Gas Trading v Lock [2016] ICR 503. These include where the earlier decision was not merely wrong, but manifestly wrong. It was the outcome or proposition of law for which the decision stood that had to be the focus of consideration. If there is an argument that can reasonably be advanced in defence of the outcome that is itself not manifestly wrong, then the legal outcome could not be said to be manifestly wrong.

In this case, the employer relied on authorities concerning a scenario in which an employee’s termination date was brought forward with their agreement following their dismissal. The employee argued that these were not relevant because he had not agreed to his termination date being brought forward. The EAT accepted that these authorities may not inform the approach to the issue, but it could not say that they obviously would not. Further, it might be arguable that a contractual provision could have the legal effect that, following a resignation, the employer could cause the employment to end sooner than the date given by the employee, even without the employee’s agreement, by making a contractually-prescribed payment by reference to the unexpired notice period, in a way that only alters how and when the resignation takes effect.

Since these points could not be said to be obviously unarguable, the decision in Marshall could not be said to be manifestly wrong. Therefore, the EAT could not depart from it.

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Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential

In Brake and another v Guy and others [2022] EWCA Civ 235, the Court of Appeal has dismissed an appeal in unsuccessful proceedings for misuse of private information and breach of confidence which arose in relation to a former employee’s personal emails that were sent from a business email account. The email account was used to receive enquiries about the employer’s services.

Baker LJ’s leading judgment emphasised that the success of privacy and confidentiality claims turned on the specific facts, and considered that it had been open to the judge at first instance, HHJ Paul Matthews, to find as he did. In particular, he said that it was telling that the former employee (who was the claimant in the proceedings) had shared access to the email account with two colleagues, and that her employer had set up personal accounts in the names of each of the employees at the same time as it created the business account. Baker LJ also agreed with the first instance judge that, had there been a reasonable expectation of privacy or circumstances of confidence, disclosure of the emails by the defendants for the purpose of obtaining professional advice would not have breached privacy or confidence and, even if it had, damages would have been limited.

The only point of disagreement with the earlier judgments related to HHJ Paul Matthews’ decision to split out the issue of the “iniquity defence” (that is, the public interest defence, which the judge had held was available in relation to privacy and breach of confidence claims where the defendant accessed the information unlawfully), leaving it until after his trial of other matters. Baker LJ considered that any fraudulent conduct on the part of the claimant was likely to be relevant to whether there was a reasonable expectation of privacy or duty of confidence and, if there was, whether they had been breached. He concluded, however, that this had not been determinative in the present case.

This judgment provides some guidance on ensuring that an employer will have full access to emails sent via a business account. In particular, it may be advisable to create individual email accounts for each employee who operates from the central business email address and to require them to limit private emails to the account set up in their name.

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Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?

In Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42, the EAT was had to consider whether the tribunal had asked itself the correct question when deciding whether or not the claimant had suffered a detriment, and if not, which was the correct test to use.

The claimant had applied to be a police officer with the Northamptonshire Police force. In his application email he referred to what was accepted as being a protected act, namely, proceedings he was bringing in another employment tribunal against another police force (Hertfordshire Constabulary) alleging unlawful discrimination on the grounds of disability. He had made an application to join that force, which resulted in an offer which was subsequently withdrawn. The claimant was later told by the respondent that his application form had not been accepted.

The claimant pursued a claim for victimisation. The respondent’s argument for why the claimant’s application had not been successful was not due to the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed. The tribunal found in favour of the respondent and the claimant appealed.

The appeal was predicated on the basis that the employment tribunal had erred in law by misstating the test for victimisation, and the four other claims flowed from this.

The EAT held that the tribunal had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is from the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] ICR 337: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” The EAT concluded that detriment is to be interpreted widely in this context and it is what a reasonable worker might think, not just the view of a tribunal, to satisfy the test. Therefore, it was not particularly difficult to establish a detriment for these purposes and but the EAT also found that the tribunal had also not applied the correct legal test to the causation or “reason why” question. The appeal was allowed and the victimisation claim was remitted for rehearing.

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Employment News – March 2022

Employment,
22nd March 2022

Employment Law

This month the news raises some really interesting issues: the CIPD is providing advice on supporting employees with links to Ukraine, the EHRC has advised how to deal with employees suffering with long-covid and the Minister for Women has launched two schemes to promote women. Some eye opening reports have also been published this month: workforce reporting for FTSE 100 firms is inadequate and IPSOS finds two thirds of UK adults want a “right to disconnect” from work.

Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine
Covid-19: EHRC suggests employers should treat long COVID as a disability
Reporting: Inadequate quality of workforce reporting among FTSE 100 firms
Women: Government launches pay transparency and STEM returners pilot schemes
Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law

Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine

On 4 March 2022, Personnel Today reported the CIPD has asked employers to treat all employees affected by the conflict in Ukraine with compassion, especially those who are Ukrainian or have links to the country. Indeed, many Russians living in this country will also find themselves in an unnerving time, with many having close family and friend links with Ukraine, or receiving unwanted attention simply as a result of where they were born, so should also be handled sensitively. More flexible work hours to help manage stress and anxiety, wellbeing checks, and bereavement leave are the types of support employees may require. This is most likely to be necessary for employees with relatives or close contacts in the country. The CIPD also suggests that managers should check in on colleagues who may be affected and could signpost them to wellbeing and mental health support. More resources from CIPD, including a video exploring how people professionals can best support their people through the crisis, can be found here.

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Covid-19: EHRC suggests employers should treat long COVID as a disability

According to Personnel Today, (1 March 2022), the head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long COVID-19 symptoms as if they have a disability for the purposes of the Equality Act 2010. The advice is to avoid employers falling foul of equality law, in the absence of clear legislative protections for people with long COVID. Lingering symptoms, which can include cognitive difficulties and fatigue, may affect employees’ performance at work. However, because symptoms vary and can fluctuate, it is not yet certain whether all cases of long COVID will meet the legal definition of disability. The TUC and other bodies have asked the government to classify the condition as a disability. The EHRC indicates that the short amount of time that long COVID has been a condition, and the fluctuating nature of symptoms, may be a barrier to the government doing so.

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Reporting: Inadequate quality of workforce reporting among FTSE 100 firms

The CIPD’s most recent analysis of annual reports shows “inadequate” quality of workforce reporting by FTSE 100 firms: CIPD: Report, How do companies report on their “most important asset”? Only one-third of firms have reported recruitment data and just nine companies reported their ethnicity pay gap. Reporting on the cost of hiring contingent workers was identified as a key gap by the study as only 6% of FTSE 100 firms reported such data. The age of employees, the proportion who identify as LGBT+ and the number of disabled employees was reported by 10%, 5% and 4% of firms respectively. Almost all companies reported investment in skills or training, but a lack of concrete data was identified as fewer firms disclosed the hours (35%) and costs (16%) of training. To address low quality of reporting, the CIPD recommends that the Financial Reporting Council should establish a framework for workforce reporting in collaboration with stakeholders. The framework should set out a baseline of minimum standards.

Despite the inadequacy of reporting in some areas, the results of a snapshot survey of governance professionals have shown that nearly 50% of UK companies and not-for-profits have reported plans to reach gender parity at board level in the next three years. This survey was conducted by the Chartered Governance Institute for UK & Ireland in association with The Core Partnership.

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Women: Government launches pay transparency and STEM returners pilot schemes

On 8 March 2022, the government announced that the Minister for Women, Baroness Stedman-Scott, has launched two new pilot schemes to mark International Women’s Day. The first seeks to improve pay transparency by requiring participating employers to include information about salary details in their job adverts and refrain from asking candidates to disclose salary history during the recruitment process. Further details about how the pilot scheme will work and how many employers will be involved are awaited.

The second pilot scheme aims to help women return to careers in science, technology, engineering and maths (STEM). Organisations participating in the scheme will be helped to recruit and retrain candidates who may be overlooked because of a CV gap. Again, further details are awaited.

The launch comes at a time when new research published by the Chartered Management Institute (CMI) has shown a gap between “the rhetoric” employers promote about supporting gender equality and “the reality”. The CMI research found that less than two thirds of employers (61%) try to ensure that women and men receive an equal voice in meetings and decision-making, and only 41% of management positions are held by women.

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Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law

On 11 March 2022, IPSOS published the results of new research which shows that a majority of UK adults aged 16-75 are in favour of introducing a law giving employees the right to ignore work-related communications, such as emails, texts and instant messages, outside of their official working/on-call hours. Sixty per cent would support the Government introducing such a law, including 34% who would strongly support it. Only around 1 in 10 (11%) would be against it.

There is little difference in the views of workers and non-workers, nor between Conservative and Labour 2019 voters, although graduates are more in favour than non-graduates, and 16-24 year olds are also less strongly in support.

Currently, two-thirds of UK workers say they participate in work-related communications outside of their working hours (67%). Four in 10 (43%) check work-related communications while a similar proportion (40%) reply to them. A third (34%) proactively send work-related communications. Only 3 in 10 (30%) do not communicate with work outside of their official working hours. Website, People

Management, questioned Ben Willmott, head of public policy at the CIPD, who warned that a legal right to disconnect would have a limited impact, and alone would not address why people feel they cannot switch off.

He cited issues such as heavy workloads, a lack of support and unreasonable management expectations as causes for the inability to disconnect. “Simply giving [staff] the legal right to choose not to respond to calls, emails or other digital communication outside of working hours won’t resolve these issues or necessarily improve wellbeing,” he said.

“Employers should make it clear that employees don’t have to respond to digital communications outside working hours unless it suits them,” Willmott added, highlighting that managers needed to provide staff with achievable objectives and maximise flexible working opportunities to help staff balance competing work and home pressures.

Those earning upwards of £55,000 a year are more likely to be checking, replying to and sending work-related communications outside of working hours, 82% say they do this compared with 65% of workers earning up to £54,999.

More than half of UK adults say it is not acceptable for employers to expect their employees to participate in work-related communications outside of official working/on-call hours. Fifty-five per cent say it is unacceptable for employers to expect their employees to check for work-related communications, while 58% say the same for responding to them and 57% for sending them. Younger people tend to be most likely to believe such expectations are acceptable – for example, 56% of 16-34 year olds believe it is acceptable for employers to expect their employees to check work-related communications out of hours, compared with 34% of 35-75 year olds.

Opinion is split as to whether priority should be given to the right to disconnect or flexible working. A third (32%) say it is more important to give employees the right to disconnect than it is to give them more flexibility around the time that they work. However, a quarter (24%) believe it’s more important to give employees a degree of choice over the times they work. But more, almost 4 in 10 (37%), say both are equally important.

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Employment Law General Update – February 2022

Employment,
24th February 2022

Employment Law

This month the news highlights the following areas in need of support and reform: Levelling Up the UK, ethnicity pay reporting, sick pay disparity, unused apprenticeship levy funds and new flexi-job apprenticeship plus a spotlight on endometriosis affecting working women.

Progress: Levelling Up the UK – white paper
Pay Disparity: Women and Equalities Committee recommends mandatory ethnicity pay gap reporting
Sick Pay: Think tank report reveals significant age and race disparity in access to sick pay
Apprenticeships: Nearly half of firms returned unspent apprenticeship levy funds
Apprenticeships: New Regulations for “flexi-job” alternative apprenticeships
Women’s Health: Workplace awareness and support needed for endometriosis

Progress: Levelling Up the UK – white paper

The White Paper ‘Levelling Up the United Kingdom’ was published on 2 February 2022 and describes the steps the government will take to achieve its objective of “Levelling Up” the UK. This will involve taking steps to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back communities and to encourage private sector investment across the UK.

The new policy regime in the White Paper comprises four key objectives and 12 UK-wide missions in a change programme to be delivered by 2030. In outline, this includes:

Increasing productivity, pay, jobs and living standards by growing the private sector. This is allied to maximising investment from the private sector and public investment in research and development. Other related goals include renters having a secure path to ownership, a reduction in the number of non-decent homes, improving transport connections and maximising the uptake of high-quality skills training.
The highest level of devolution for all parts of England that request it. This is linked to people taking pride in their areas, an increase in well-being and life expectancy and a reduction in crime.
The number of primary school children achieving the expected standard in reading, writing and maths significantly increasing.

The White Paper also contains a detailed policy programme which addresses the practical delivery of the objectives and missions. This is followed by a section setting out the next steps for implementation.

Although the White Paper is intended to set out the practical steps intended to achieve the goal of Levelling Up, it is predominately written at a high and aspirational level and contains more detail regarding context and the status quo than it does hard detail about what is actually going to be done (including how many of the proposals are likely to be funded). However, it is certainly arguable that the mission (to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back people and communities and to encourage private sector investment across the UK) is both positive and desirable.

Pay Disparity: Women and Equalities Committee recommends mandatory ethnicity pay gap reporting

The House of Common’s Women and Equalities Committee examined the case for mandatory ethnicity pay gap reporting in a one-off evidence session on 12 January 2022. In the report of the session, the committee recommends that the government should make ethnicity pay gap reporting mandatory by April 2023. While the report acknowledges the challenges of collecting ethnicity data, such as concerns over the data protection implications of small sample sizes, it states that businesses are ready for the government to act. The government consultation, which stated that it was “time to move on ethnicity pay reporting”, closed in January 2019 but a response has not yet been published.

The Committee’s chair, the Rt Hon Caroline Nokes MP, said,

“The Government’s failure to move forwards on ethnicity pay gap reporting is perplexing. We already have the systems and structures in place to start reporting on the ethnicity pay gap, as well as a clear impetus- tackling inequality benefits not only marginalised groups, but the whole economy. The Government has no excuse. All that is lacking, it seems, is the will and attention of the current administration.

“Last week, the Government made bold promises to ‘Level Up’ geographically. Time and again it proves itself to be blind to the importance of levelling up within our communities and address long-standing disparities along the lines of protected characteristics. By taking this small step, the Government would demonstrate its commitment to working with business to reduce inequality.”

Sick Pay: Think tank report reveals significant age and race disparity in access to sick pay

On 4 February 2022, the Institute for Public Policy Research (IPPR) and University College London (UCL) published a report entitled ‘A Healthy Labour Market: Creating a post-pandemic world of healthier work’ highlighting the disparity in access to sick pay among different groups of workers in the UK. The report revealed that:

Older employees above age 65 are five times more likely to lack access to sick pay compared to younger workers aged 25 to 44.
South Asian workers are around 40% more likely to lack access to sick pay than white British workers. The report suggested that this could in part be caused by institutional racism, as income, occupation and employment status differences do not explain the disparity.

The report also calls for statutory sick pay (SSP) to be reformed, including the abolition of the lower earnings limit threshold, increasing the rate of SSP to 80% of earnings (up to a maximum of £2,500 per month), providing for access to SSP from day one of illness and improving enforcement against employers who do not comply with their obligations.

Apprenticeships: Nearly half of firms returned unspent apprenticeship levy funds

A new poll of more than 500 HR professionals (conducted by Survation on behalf of London First) has found that 48% of firms have returned unspent apprenticeship levy funding and only 17% of employers think the levy system is working well. This has prompted renewed calls for the system to be reformed and made more flexible to allow employers to use it to reskill and upskill employees. The poll also gathered employers’ perspectives on how the levy could be improved.

Increasing the spending deadline from two to three years, using some of the levy to contribute towards the wage cost of new apprentices and incentivising employers to convert Kickstart placements into apprenticeships were each agreed to be potential improvements by 35% of employers. A quarter of employers thought the levy would be improved if larger employers could transfer more funds to SMEs and 41% said they would be more likely to transfer more funds if they were allowed to.

Apprenticeships: New Regulations for “flexi-job” alternative apprenticeships

On 26 January 2022, the Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022 (SI 2022/86) were made, enabling a pilot scheme of “flexi-job” apprenticeships to commence in England. The Regulations come into force on 6 April 2022.

A flexi-job apprenticeship is a new type of alternative English apprenticeship. The Regulations will allow employers taking on a flexi-job apprentice to only give a three-month commitment, instead of the usual 12-month minimum commitment under an approved English apprenticeship agreement. This will allow flexi-job apprentices to complete discrete blocks of employment with training, with different employers, throughout the course of their apprenticeship. A key barrier to taking on apprentices in certain sectors is the need for varied and flexible employment patterns, particularly in the creative and construction sectors, where employment may be short-term or project-based.

After the minimum three-month arrangement with one employer, the apprentice can either begin a new arrangement with the same employer or move to continue their apprenticeship with a new employer. Flexi-job apprenticeships may only be carried out for a limited number of approved apprenticeship standards, in the creative and construction sectors.

The flexi-job apprenticeship pilot scheme will begin in April 2022 and is intended to last for 18 to 24 months. It will be reviewed after nine, 12 and 18 months. The government will publish guidance ahead of the pilot start date. If the pilot is successful, the flexi-job scheme may be made available to other apprenticeship standards.

Women’s Health: Workplace awareness and support needed for endometriosis

On 9 February 2022, workplace support for people with endometriosis was debated in the House of Commons. Alec Shelbrooke MP, gave a particularly good description of the huge impact and variety of ways it can affect sufferers in his speech to the Commons. His main concerns being that employers need to understand the condition better to enable them to support their employees appropriately and reduce discrimination for women, and girls, suffering from this. Alex Davies-Jones MP, went on to say,

“Some 1.5 million women are dealing with symptoms ranging from chronic pain and fatigue to infertility, and the research, awareness and support for those suffering from what—as we have heard —can be an extremely debilitating condition is still lagging far behind, and is lacklustre at best.”

Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that the government’s women’s health strategy, to be published later this year, will focus on workplace health as one of its six priority areas. It will include a chapter on “Menstrual health and gynaecological conditions” which will explore ways to improve awareness, care and treatment of those suffering from endometriosis and other similar conditions. Given that a taskforce was set up this month to tackle Menopause we are hopeful that endometriosis will be properly tackled so that women suffering with endometriosis can fulfil their potential in the workplace in a way that suits them best.

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Disability: New online service to help employers support disabled employees

Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss

Data Protection: ICO consults on monitoring at work draft guidance

Working Practices: One third of employers expect a four-day week to be a reality within ten years

IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules

Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022

Discrimination: Research finds intent to be an ally often does not translate into action

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Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets

Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair

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Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues

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Menopause: Workplace pledge signed by over 600 employers