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Employment Law Newsletter – July 2021
Cases:
- Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
- Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
- COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
- Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
- COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
- Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
- Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
Other news:
- Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
- Data Protection: European Commission adopts UK adequacy decisions
- Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
- Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
- COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
- ACAS: New guidance published on hybrid working
- Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Cases:
Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
In Driscoll (née Cobbing) v V & P Global Ltd and another EA-2020-000876, the EAT has held that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (the Act), departing from its earlier contrary decision, Timothy James Consulting Ltd v Wilton [2015] ICR 764.
The harassment provisions in the Act must be construed purposively, so as to conform with all relevant EU directives, on which the original legislative wording was based. However, in Wilton, the EAT had not referred to the European law, simply holding that harassment in the context of employment, as prohibited by section 40 of the Act, did not expressly include resignation amounting to constructive dismissal. Having examined the relevant directives, the EAT was satisfied that each of them proscribes harassment on the grounds of their respective protected characteristics, including in relation to dismissals. It was notable that, under the directives, harassment is expressly deemed to be a form of direct or indirect discrimination, and should be treated as such. Further, the ECJ has long held that the term “dismissal” is to be construed widely to include, for example, termination as part of a voluntary redundancy scheme and reaching an age limit under an employer’s general retirement policy. There was therefore no principled basis for excluding constructive dismissal from the scope of the applicable directives.
The EAT also drew support from domestic case law, namely Meikle v Nottinghamshire County Council [2005] ICR 1, where the Court of Appeal held that a constructive dismissal could amount to a discriminatory act for the purpose of a disability discrimination claim.
In light of its analysis, the EAT held that Wilton was not correctly decided. As the decision was “manifestly wrong”, it was appropriate for the EAT to depart from its earlier decision. Accordingly, where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment related to a protected characteristic, the constructive dismissal is itself capable of constituting “unwanted conduct” for the purpose of section 26 of the Act.
Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
In IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594, the ECJ has bolstered existing case law on religious dress bans in the workplace, holding that an employer’s policy of political, philosophical and religious neutrality may justify indirect discrimination on the grounds of religion or belief caused by a rule prohibiting the wearing of any visible sign of such beliefs. An employer’s aim of preventing social conflicts may also be a legitimate aim.
However, a dress ban limited to conspicuous, large-sized signs of political, philosophical and religious belief is likely to be directly discriminatory, which cannot be justified. As such, an employer’s ban must apply to all such signs if its indirectly discriminatory effects are to be capable of objective justification.
To objectively justify indirect discrimination on the ground of religion or belief caused by an employer’s dress code, it is necessary for the employer to show that the rule meets a genuine need, taking account of the rights and legitimate wishes of customers or users as well as the adverse impact to the employer in the absence of such a policy. The aim must be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary. In the context of a policy of neutrality, this requires it to be applied in a consistent and systematic manner, to include all visible signs of political, philosophical or religious beliefs and to be limited in application to only those workers who come into contact with customers or users.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is objectively justified, the rights and freedoms recognised by the Charter of Fundamental Rights and the European Convention on Human Rights must be taken into account. In addition, a national rule that lays down an additional requirement for justifying an employer’s rule must also be considered.
COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
The employment tribunal in Montanaro v Lansafe Ltd ET/2203148/2020 held that an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger (section 100(1)(e), Employment Rights Act 1996).
Mr Montanaro (M) was employed by Lansafe Ltd (L) Ltd from 17 February 2020 and provided services to L’s client, B. M believed he had permission to take holiday on 9 and 10 March for his sister’s wedding in Italy. On 9 March, Italy went into lockdown and UK government guidance stipulated 14 days’ isolation on return from Italy. On 10 March, M was told to keep his mobile and laptop on and wait for instructions. On 11 March, L sent a letter to M in London (despite knowing he was in Italy) advising that he had been dismissed with effect from 6 March for failing to follow company procedures and taking unauthorised leave. In absence of communication from L, M was told by B to continue working remotely and M sent information to L about travel restrictions in Italy. On 1 April, L sent M’s P45 and final payslip by email. M successfully claimed automatic unfair dismissal under section 100(1)(e).
The tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that M reasonably believed the danger was serious and imminent. M had taken appropriate steps to protect himself and others. He had asked L for advice, instructions and assistance with documentation had L initially wanted him to fly to London. He had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop. When he didn’t hear from L he communicated direct with B and continued his work on a day-to-day basis. The purported dismissal letter had not been relevant to M’s circumstances and L’s evidence as to the reason for dismissal had not been credible. M had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
The Court of Appeal in Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 952 has unanimously held that Deliveroo riders do not fall within the scope of the trade union freedom right under Article 11 of the European Convention on Human Rights because they are not “in an employment relationship” with Deliveroo. The Central Arbitration Committee had been entitled to reach the conclusion it did given that Deliveroo riders are, genuinely, not under an obligation to provide their services personally and have a “virtually unlimited” right of substitution.
In reaching its decision, the court confirmed that the question of whether Article 11 is engaged in respect of the right to form and join trade unions should be determined having regard to the International Labour Organisation Recommendation 198 (2006). This broadly reflects the position taken in domestic law in identifying the characteristics not only of a contract of service but also a “worker contract”. In particular, it refers to the fact that work “must be carried out personally by the worker”. The absence of such an obligation, as in the case of Deliveroo riders, must therefore point away from worker status and an employment relationship. The decision reiterates the importance of personal service and the value of genuine and unfettered rights of substitution when seeking to argue that an individual is neither an employee nor a worker.
COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
If a respondent wishes to defend an employment tribunal claim, it must present its response (using the prescribed ET3 form) to the tribunal office within 28 days of the date on which it was sent a copy of the claim by the tribunal. If the 28-day deadline has expired the respondent must make a written application for an extension of time, copied to the claimant, setting out the reason why the extension is sought and stating whether it requests a hearing. The application must be accompanied by either a draft of the response, or an explanation of why it is not possible to attach a draft.
In Fyfe v Arcadis Human Resources Ltd ET/4102033/2020 Mr Fyfe submitted an ET1, claiming breach of contract and age discrimination, during the initial phase of the first COVID-19 lockdown. The tribunal’s notification of the claim was not received by Arcadis Human Resources Ltd despite it having an operational post room with skeleton staff throughout lockdown. On 15 July 2020, Mr Fyfe sent Arcadis an email attaching his evidence prior to a final hearing on 17 July 2020. Arcadis immediately instructed a solicitor who contacted the tribunal to put himself on the record, request copies of the ET1 and indicate that Arcadis wished to defend the claim and apply for an extension of time to do so. On 16 July 2020, a written application and draft ET3 were sent to the tribunal. The hearing on 17 July 2020 was converted to a preliminary hearing to hear the application.
The tribunal accepted that these events occurred at an unprecedented time, when many individuals and organisations were adjusting to new working practices, and that Arcadis had not received notification of the claim. It noted the guidance on the exercise of discretion given by the EAT in Kwik Save Stores Ltd v Swain [1997] ICR 49. Arcadis had acted swiftly once it knew of the claim. Considering the balance of prejudice, while Mr Fyfe would not now succeed on a “default judgment” basis, he might still prove his case. By contrast, if Arcadis was precluded from participating, it might have judgment against it in relation to serious matters. Given the overriding objective and interests of justice, the extension of time was allowed and the ET3 was accepted.
Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
The EAT, in Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20, has upheld an employment tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career-long loss. The employee suffered from PTSD, depression and symptoms of paranoia, as well as other functional impairments, and his conditions were likely to be life-long. His case was one of the rare cases where a career-long basis for assessment of financial loss was appropriate.
However, the EAT allowed appeals against various other aspects of the calculation, including the employment tribunal’s decision to apply only a 5% discount to reflect the possibility of employment being cut short for another reason (for example, due to early death, disability or other unforeseen circumstances) and its award of a 20% uplift for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The EAT accepted that the employment tribunal had not demonstrated that it had considered the absolute financial value of the award it was making, despite having evidence that would have given it a clear indication of the probable level of award in issue (likely to be over £2 million).
The case is a rare example of an individual being treated so badly in their employment that the resulting injury was likely to be permanent, meaning that it was very unlikely that they would be able to return to any work before retirement age and therefore justifying compensation on a career-long basis.
Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
In Brightman v TIAA Limited [2021] UKEAT/0318/19 the EAT has held that a tribunal erred in law by failing to consider a claimant’s challenge to her employer’s justification defence in respect of her discrimination arising from disability claim.
Mrs Brightman had various long-term conditions and was disabled for the purpose of the Equality Act 2010. This was not in dispute. On 11 January 2017, she was dismissed by reason of capability on the basis of the available medical evidence, the fact that no further adjustments were possible, her unacceptable level of attendance (which her employer concluded was likely to continue) and the lack of alternative roles. She unsuccessfully appealed and brought various claims, including unfair dismissal and discrimination arising from disability. The tribunal dismissed her claims. She appealed to the EAT.
The EAT noted the following:
- Mrs Brightman’s last day of sickness absence was 24 October 2016 (two and a half months before her dismissal was confirmed), and she attended work throughout the dismissal and appeal processes.
- By the date of her dismissal, her GP report was over a year old and her OH report was based on a consultation from six months earlier (the referral being to assess her fitness to work).
- At the time of dismissal, she had a new central line, was under the care of a new medical team and was optimistic about the future.
The case was not about dismissing an employee on long-term sickness absence but dismissing a working employee because of the risk that she would have further periods of sickness absence in the future. The EAT concluded that the tribunal had impermissibly relied on employer medical evidence that post-dated the dismissal, which it had allowed to be introduced to fill the evidential “gap” and was irrelevant to the liability hearing. Regarding the discrimination arising from disability claim, Mrs Brightman’s absence record was the “something arising“. Her employer’s legitimate aim seemingly concerned the “unpredictable nature” of her absence and the need for other employees to provide cover. However, the tribunal erred by not adequately engaging with her arguments on justification (notably, in circumstances where her employer had been sustaining her absence levels for years). Employers must tread carefully before dismissing, even where an employee has had multiple periods of prolonged absence. Medical evidence relied on should be current, and the employee’s condition and prognosis at the time of dismissal considered.
Other News:
Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
The Guardian reports that in a letter addressed to Cabinet Office minister Michael Gove, the Confederation of British Industry (CBI), the Trades Union Congress (TUC) and the Equality and Human Rights Commission (EHRC) have called for a clear timetable for the introduction of mandatory ethnic pay gap reporting. Citing the potential of data collection to solve racial inequality in the workplace, the signatories argue that mandatory reporting would highlight pay disparities and the lack of minority representation in senior positions with the hope that this would push employers towards action.
A government spokesperson indicated that the findings of the Commission on Race and Ethnic Disparities were still being considered and that the government would respond in due course. The Commission’s report did not recommend mandatory reporting.
Data Protection: European Commission adopts UK adequacy decisions
On 28 June 2021, the European Commission adopted the two UK adequacy decisions under the General Data Protection Regulation ((EU) 2016/679) and the Law Enforcement Directive. This means that personal data can now flow freely from the EU to the UK as the UK offers an equivalent level of protection to personal data as under EU law. The Department for Digital, Culture, Media and Sport has updated its guidance to confirm the decisions.
The decisions include sunset clauses that limit the decisions to four years, after which they will be reviewed.
The Information Commissioner, Elizabeth Denham, has welcomed the decisions as a positive result for UK businesses and organisations and a testament to the strength of the UK’s data protection regime, noting that “adequacy is the best outcome as it means organisations can carry on with data protection as usual“.
Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
Website, People Management, has reported on a league table prepared by the CIPD over access to flexible working using analysis by the HR body of the Office for National Statistics’ Labour Force Survey data. It reports that “the UK is at risk of becoming a two-tier workforce when it comes to who has access to flexibility with some regions of the country already becoming flexible ‘notspots’”, because some areas of the country have much better access to flexible working than others.
Flexibility was measured by looking at 1) where employees were permitted to work, 2) how informally flexible working policies were operated, including how start and end times were determined and 3) whether employees were able to take leave on short notice.
It turns out employees in the south-east of England have the best access to flexible working options, followed by the east of England and Northern Ireland, which the CIPD states reflects the predominance of certain sectors in different parts of the country, as well as areas with a higher concentration of higher-skilled and higher-paid jobs, which are concentrated in London and the south east.
Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
On 12 October 2020, the Department for Work and Pensions (DWP) launched a call for evidence seeking views on challenges to progression in low-pay sectors, benefits of progression to employers and localities, and examples of good practice across the country. On 1 July 2021, the DWP published the In-Work Progression Commission’s report ‘Supporting progression out of low pay: a call to action’. The report notes that people in low-pay sectors find it very hard to progress to, and stay in, higher earning work. The reasons for this include a lack of skills, logistical challenges, such as a lack of suitable transport or childcare arrangements, as well as confidence and motivational barriers. It recommends that employers play their role in minimising and removing these barriers and in establishing a culture of lifelong learning to support their workforces. Developing skills and an understanding of the value of continual learning is essential to help people in low pay sustainably progress in work.
Employers should adopt the “5-point progression checklist“:
- an individualised progression and learning plan,
- mentoring,
- flexibility,
- shadowing and work experience, and
- supporting professional development.
They should also develop transparent progression pathways to ensure that entry-level jobs are a stepping-stone. An appropriate senior leader should be responsible for embedding support for progression into management practice. Employers should know about the transport and childcare options available to their staff and use this to inform business practice.
The report recommends that the government works with employers to consider how employers can be supported to accurately monitor individual progression over time, increasing transparency around in-work progression, with particular focus on those in the lowest-skilled roles. This could include developing an appropriate metric to track individual progression and looking at whether, in the longer term, pay reporting data should be part of annual company reports. The report recommends that care workers in England should be registered under a central body (as in the Devolved Administrations) which can manage and certify their registration, training and ongoing professional and skills development.
COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
On 6 July 2021, HM Treasury issued a further Treasury direction under sections 71 and 76 of the Coronavirus Act 2020, modifying and extending the terms of the Self-Employment Income Support Scheme (SEISS) to cover the period beginning on 1 May 2021 and ending on 30 September 2021. In particular, the Treasury direction provides for claims for the fifth SEISS grant (SEISS 5) to be submitted on or before 30 September 2021 in respect of that period. A claim cannot be amended after 30 September 2021. Applications for SEISS 5 will open from late July 2021.
The amount of the grant will be determined by a turnover test. Individuals whose turnover has fallen by 30% or more will receive 80% of three months’ average trading profits, capped at £7,500. However, individuals whose turnover has fallen by less than 30% will receive a 30% grant, capped at £2,850.
ACAS: New guidance published on hybrid working
On 13 July 2021, ACAS published new guidance on hybrid working to help employers consider whether it could be an option for their workplace and how to fairly introduce it. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working. The advice includes tips for employers on how to:
- Consult with staff on the practical considerations regarding introducing hybrid working.
- Support and manage staff who are hybrid working and ensure all hybrid workers are treated fairly.
- Create a hybrid working policy.
- Handle hybrid working requests from staff.
It advises employers to consider whether technology could assist hybrid working, and issues such as health and safety, data privacy, cybersecurity, onboarding new joiners, and how teams will communicate remotely.
The guidance was developed after consultation with the government’s Flexible Working Taskforce which previously recommended that flexible working should be the default position for all workers.
Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Personnel Today reports that a briefing paper published by the Social Market Foundation (SMF) records that 80% of workers surveyed would not be in favour of a four-day working week, if it meant that they earned less. While workers in banking (14%), energy & water (13%), manufacturing (13%), transport & communication (13%), and construction (12%) were most likely to say they wanted to work less, those working in the hospitality (14%), other services (12%), and public administration sectors (8%) were most likely to say they wanted to work more hours.
The survey also found that the workers who stood to benefit most from a four-day week were more likely to be higher earners, those in higher occupational classes, and men.
The introduction of a four-day working week is one of the proposals currently being considered by the government’s flexible working taskforce following a call from cross-party MPs.
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 Newsletter – March 2021
Cases:
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
Other news:
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
Cases:
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd [2021] UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority [2021] EWCA Civ 255 and Page v Lord Chancellor and another [2021] EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson [2021] UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Other News:
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
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 Newsletter – December 2020
Cases:
- Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
- Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
Other news:
- COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
- DBS Checks: New filtering rules for Standard and Enhanced DBS checks
- ACAS: Change to Early Conciliation Rules
- Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
- Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
- Minimum Wage: Just Eat couriers to receive NMW and other benefits
- Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
- Human Rights: Government launches independent review of Human Rights Act 1998
Cases:
Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
In Berkeley Catering Limited v Jackson [2020] UKEAT/0074/20/LA(V) the EAT looked at the effect of how the redundancy situation arises on whether a redundancy situation exists or not. In this case, the owner manager of a company named himself CEO and took over management decision-making and operations. As there was already a Managing Director (the claimant), it undermined her position, and the company claimed it no longer had a requirement for her and therefore the need to carry out work of that particular kind had diminished, and she was made redundant. As a result, Mrs Jackson claimed unfair dismissal.
The tribunal found that, as a matter of law and fact, there was no redundancy, and also that there was no business reorganisation constituting some other substantial reason for dismissal. The EAT disagreed and instead held that the tribunal erred in finding that there was no “genuine redundancy” where the employer had arranged matters so that its Director took over the claimant’s duties in addition to his own duties, because those facts established a redundancy situation under section 139(1)(b) Employment Rights Act 1996. The test was whether “one employee was now doing the work formerly done by two, [then] the statutory test of redundancy had been satisfied”, even where the amount of work to be done was unchanged. There was no error in the tribunal’s rejection of the employer’s alternative case of some other substantial reason, holding that if there was a business reorganisation it was not the employer’s true reason for dismissing the claimant. Justice Bourne said “A redundancy situation under section 139(1)(b) either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists.” (p.8 para E) He went on to say that even where a redundancy situation exists, it does not necessarily follow that the redundancy was the reason for the dismissal. Additionally, even if the employer proves that the reason was a potentially fair reason such as redundancy, section 98(4) ERA requires the tribunal to decide whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. A claim may succeed on the basis of substantive and/or procedural unfairness.
In this case, Berkeley arranged its affairs so that Mr Patel took over the work of the MD, there was a diminution in the requirement for employees to carry out work of that kind, ergo, a redundancy situation. That part of the appeal failed. The next question was whether the dismissal had been fair. A redundancy or some other substantial reason (such as business re-organisation) can be fair, however, the tribunal had not properly considered the unfair dismissal elements of this case because it had found no redundancy so the EAT remitted the questions regarding the fairness of the dismissal back to a new tribunal to be considered.
Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
In Kol v Information Commissioner and another (EA/2020/0017P) (6 October 2020) the applicant asked Reigate and Banstead Borough Council (council), the second respondent, for information concerning four specified council officers (including its Head of Planning, a Conservation Officer, a Senior Enforcement Officer and a Graduate Planning Officer). This included their relevant professional qualifications, recent professional development training and training attendance record.
The council withheld the information under section 40(2) (with section 40(3A)(a)) of the Freedom of Information Act 2000 (FOIA) (the personal data exemption). The relevant academic qualifications of two of the officers were already in the public domain. The Information Commissioner (IC) rejected the applicant’s complaint.
On appeal, the First-tier Tribunal (Information Rights) (FTT(IR)) upheld the IC’s decision, holding that the council had been permitted to withhold the information. Disclosure was not necessary to meet the applicant’s (undisputed) legitimate interest in ensuring that council officers were appropriately qualified. Without satisfying the lawful basis in Article 6(1)(f) of the GDPR, disclosure would have breached the first data protection principle of lawful, fair and transparent processing (Article 5(1)(a), GDPR). The FTT(IR) considered that:
- If the applicant’s legitimate aim could be achieved “by something less” than disclosure, disclosure was not necessary. The IC had correctly adopted this approach and was not required to consider Article 8 of the European Convention on Human Rights (right to respect for private and family life).
- When considering the alternatives available, however, the IC was wrong to place much weight on the council’s complaints procedure for challenging the actions of individual officers. This was not a forum for challenging officers’ qualifications or training.
- Together with the publicly available information on two of the officers, the fact that the council required proof of qualifications from would-be employees as part of its recruitment process and that training was provided to officers as required, meant that the applicant’s legitimate interests were met (“by something less”).
The FTT(IR) also held that the IC had been permitted to take a different approach than in Decision notice FS50146907, in which section 40(2) did not prevent disclosure of the professional qualification details, among other information, of all lawyers in the Treasury Solicitor’s Department.
Employee information is commonly requested under FOIA and this decision presents a straightforward but relevant analysis of the framework under section 40 and the GDPR.
Other News:
COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
Researchers at the St John’s Institute of Dermatology at Guy’s Hospital in London have written an article published in the Occupational Health Medical Journal which suggests that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of COVID-19.
In response to the data, the researchers recommend that employers and occupational health teams consider working in cold environments to be an independent occupational risk factor for developing COVID-19. Employers are advised to conduct risk assessments and individual health risk appraisals to identify staff who have pre-existing health conditions and may be predisposed to developing infections. They also noted that additional interventions should be implemented to protect against the cold and that airborne transmission can be reduced by improving ventilation.
DBS Checks: New filtering rules for Standard and Enhanced DBS checks
With effect from 28 November 2020, the criminal records disclosure regime has been amended by the catchily named ‘The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020’ (SI 2020/1364) (the Order). The changes were brought about following the decision by the Supreme Court in R (on the application of P) v Secretary of State for the Home Department 2019 UKSC 3. The Supreme Court identified that some elements of the existing filtering rules were disproportionate: the multiple conviction rule, and the warnings and reprimands given to young offenders.
A Disclosure Barring Service (DBS) check enables employers to check the criminal records of current and potential employees in order to ascertain whether or not they are suitable to work with vulnerable adults and children based on the applicant’s criminal record history. For certain positions, a valid DBS disclosure is a legislative requirement. The information disclosed by the DBS check is governed by Part V of the Police Act 1997 (in England and Wales), which sets out when a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) must be issued. Both certificates must include any ‘relevant matter’ recorded on the Police National Computer as defined in S.113A(6) of the 1997 Act. The Order has narrowed the definition of ‘relevant matter’ by removing youth cautions (including youth warnings and reprimands) from the scope of the definition, as well as the ‘multiple conviction rule’, which provided that where a person had more than one conviction all their convictions (regardless of their nature) had to be disclosed. Neither of these two matters are now subject to mandatory disclosure.
This means that certificates produced after 28 November will be processed under the new filtering rules, and those issued prior to that date will be in line with the previous rules.
You can read the updated DBS guidance here: https://www.gov.uk/government/news/new-filtering-rules.
ACAS: Change to Early Conciliation Rules
The ACAS Early Conciliation Rules have been updated from 1 December to allow for a standard six weeks for the early conciliation talks. Prior to this, the provisions were one month with a possible extension of a further two weeks.
Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
In a poll recently published by Milkround, 66% of 1,000 students and graduates revealed that they do not believe that employers recruit a truly diverse workforce. Interestingly, the majority stated that, from their perspective, recruitment decisions are based largely on physical appearance (58%), ethnicity (52%) and nationality (52%). These figures are a stark contrast with the fact that 59% of employers see their efforts to recruit a diverse workforce as sufficient.
Looking forward, 62% of students and graduates agreed that the introduction of blind recruitment practices could be effective in reducing unconscious bias. Although the poll revealed that only 14% of employers currently practice blind recruitment, 37% were planning to do so in the near future. For more information on how the blind recruitment process works, read the Milkround blog here.
Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
Unilever is the first employer to sign up to the Halo Collective’s new pledge and code of practice to end race-based hair discrimination in schools and the workplace. It is hoped that the new Halo Code will tackle statistics which reveal that one in five Black women feel societal pressure to straighten their hair for work even though race-based hair discrimination is illegal under the Equality Act 2010.
Minimum Wage: Just Eat couriers to receive NMW and other benefits
Food delivery company, Just Eat, has announced that it will be introducing a range of measures designed to support its couriers and ensure that they receive the national minimum wage. This has been an ongoing issue with rival companies such as Uber and Deliveroo, whose drivers have been found to be workers, rather than self-employed contractors, by the courts. Just Eat will start its new policy in London, with a nationwide roll out in 2021, paying couriers by the hour rather than by the job. It will also pay pension contributions, holiday pay, sick pay and maternity and paternity pay. The move is intended to create a thousand jobs including full-time, part-time and zero-hour work, with couriers being given the choice to opt-in or out of the scheme.
Just Eat’s initiative follows a series of recent cases that have considered the employment status of drivers, couriers and other gig economy workers. The decision of the Supreme Court in Uber v Aslam, which was heard in June 2020, is awaited.
Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
On 4 December 2020, BEIS opened two consultations: one on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week, and the other on measures to reform post-termination non-compete clauses in employment contracts.
The extension of the ban on exclusivity clauses in contracts would prevent employers from contractually restricting low earning employees from working for other employers. The government previously consulted on this proposal but decided to only introduce a ban on exclusivity clauses in zero hours contracts in 2015. It is revisiting the measure again as it is mindful that low earners have been particularly adversely affected by the COVID-19 pandemic, and many employers are currently unable to offer their employees sufficient hours for them to make ends meet.
The consultation on reform of post-termination non-compete clauses in employment contracts seeks views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The consultation follows a call for evidence on the use of non-compete clauses in 2016 which found that they worked well and were a valuable and necessary tool for employers in protecting their business interests.
Both consultations close on 26 February 2021.
Human Rights: Government launches independent review of Human Rights Act 1998
On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998) and whether it requires reform.
The review will be undertaken by a panel headed by Sir Peter Gross (a former Court of Appeal judge) and will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR), including how the duty to take account of ECtHR case law has been applied in practice, and whether dialogue between domestic courts and the ECtHR works effectively.
- The impact of the HRA 1998 on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the HRA 1998 applies outside the territory of the UK and whether there is a case for change.
The government states that the UK remains committed to the European Convention on Human Rights (ECHR) and the review is limited to examining the structural framework of the HRA 1998, rather than the rights themselves.
The review is expected to report its recommendations in summer 2021. It runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts. Ultimately the reviews of the HRA 1998 and judicial review (alongside other workstreams) will deliver their findings to the Constitution, Democracy and Rights Commission.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
