Employment Law Newsletter – July 2020
A review of July’s employment law cases and other important news, including variousemployment-related Covid-19 updates.
Employment Law Newsletter – July 2019
- Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
- Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
- Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
- Disability Discrimination: Employers should make enquiries about an employee’s difficulties to avoid constructive knowledge
- Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
- TUPE: Obligation on transferee to keep and produce wage records for transferring employees
- Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
- ACAS: 2018-19 Annual Report Published
- Equality: Gender Equality Roadmap published
- Health at Work: Joint government consultation to reduce job losses
- Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
In Commerzbank AG v Rajput UKEAT/0164/18/RN the Claimant brought claims of direct sex discrimination, harassment (s.26 Equality Act 2010) and maternity leave discrimination. The ET upheld the claims. In its conclusion it held that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave. The Respondent appealed against the sex discrimination/harassment decisions because these stereotypical assumptions had not formed part of the Claimant’s case; nor had the tribunal made any suggestion to the Respondent or its witnesses that it had considered such matters when drawing inferences about the reasons for the conduct of which the complaint was made. The reference to stereotypical assumptions had appeared for the first time in the judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions or their application to the conduct of the decision-makers. This therefore constituted unfairness.
The Respondent challenged one of the two findings of maternity leave discrimination on the basis that the tribunal had wrongly substituted a ‘but for’ test of causation for the subjective test required by s.18(4) of the Equality Act.
The EAT dismissed the appeal on maternity leave discrimination, holding that on a fair reading of the judgment the tribunal had applied the correct test of causation. However, it upheld the appeal on sex discrimination/harassment. The EAT held that it was unfair of the tribunal to not give the Respondent and its witnesses prior notice and the chance to respond to the suggestion that they had acted on the basis of stereotypical assumptions. The claims were remitted to be heard before a new tribunal.
Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
In Tillman v Egon Zehnder Limited  UKSC 32 the Supreme Court was asked to consider an interesting contract drafting point. Ms Tillman worked for Egon Zehnder Limited, an executive search firm. When she left them, she sought to get out of her contractual six-month non-compete clause by arguing that the words “directly or indirectly engage or be concerned or interested in” any competing business was unenforceable as a restraint of trade because it had the effect of restraining her from even holding any shareholding in a competitor and was thus far too wide. The Supreme Court agreed with the finding of the Court of Appeal that the words “interested in” were unreasonably wide, but found that it had been wrong to conclude that the offending words could not be severed from the remaining, reasonable parts of the covenant, thus rendering the remainder enforceable. This decision by the Supreme Court reversed a Court of Appeal authority (Attwood v Lamont  3 KB 571) which had been in place for 99 years.The Supreme Court instead preferred the threefold approach laid down by the Court of Appeal in Beckett Investment Management Group Ltd v Hall  EWCA Civ 613:
- application of the blue pencil test – there can only be removal of words if upon removal there is no need to add to or to modify the wording that remains in order for it to remain enforceable;
- the remaining terms must continue to be supported by adequate consideration (i.e. payment or something of value); and
- the removal of the offending provision must not generate any major change in the overall effect of all the post-employment restraints in the contract.
Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
In Forbes v LHR Airport Limited  UKEAT 0174_18_2802 an employee (DS) posted a picture of a golliwog on her Facebook page with the caption “Let’s see how far we can make him travel before Facebook takes him off”. Her friends list included some of her colleagues, but not the Claimant. One colleague (BW) showed it to the Claimant who found it offensive and raised a grievance at work. DS was disciplined. When the Claimant was rostered to be working with DS he complained to his union representative because his grievance had been upheld, and was moved to another location without explanation.
The Claimant brought claims against the employer for harassment, victimisation and discrimination on the grounds of race because he felt it was vicariously liable. The tribunal found differently, and dismissed the claims on the basis that DS had not been acting ‘in the course of her employment’. She had not posted the image while at work, had not used work equipment to do it, the image had been shared amongst a private group (of which the Claimant had not been part) and had made no reference to the employer. The Claimant appealed on the grounds that 1) the image had been shared in the workplace, 2) the tribunal had been swayed by DS’s motive and whether she intended to cause offence, rather than the effect of the conduct, and that 3) the Respondent did not take all reasonable steps to prevent the discriminatory act from occurring.
The EAT found that DS had not acted in the course of her employment and the fact that they acted to discipline her for it, whilst not being an act carried out at work, was entirely appropriate and reasonable for them to do. Since the act was not done ‘in the course of employment’, the Respondent employer could not be held vicariously responsible and it renders the other arguments academic. However, the EAT went on to hold that there was no error by the tribunal as it took into account all the matters it was required to do, and that the Respondent had taken DS’s conduct seriously and given her a final written warning to prevent further discriminatory behaviour. The appeal was dismissed.
Disability Discrimination: Employers should make enquiries of an employee’s difficulties to avoid constructive knowledge
In A Ltd v Z  UKEAT/0273/18/BA the Claimant suffered from mental and psychological problems – stress, depression, low mood and schizophrenia, but she had not disclosed these to her employer as reasons for her absences from work, instead citing other health related reasons. At tribunal it was accepted that the Claimant was disabled for the purposes of the Equality Act 2010. The employer had dismissed her due to poor attendance and time-keeping, and whilst the tribunal found that the employer had no actual knowledge of her disability, it found that the employer should have made further enquiries into the reasons for her problems at work. The Claimant had not been forthcoming about her real problems and the employer had therefore not known anything more than she was having personal problems, from which she also suffered stress as a result. The Claimant’s s.15 Equality Act claim (i.e. discrimination because she was treated unfavourably due to her disability) succeeded on the basis that the employer had constructive knowledge of her disability.
The employer appealed. The EAT held that the tribunal had erred in only asking itself what process the employer might have been expected to follow, but then failed to address the critical issue of what the employer ought to have known. It reasoned that if the tribunal found that if the employer had made further enquiries the claimant would probably have continued to hide her real condition and refused a referral to Occupational Health, therefore the EAT held that making further enquiries would not have produced any further information and so the case for constructive knowledge was not made. The EAT upheld this part of the claim.
Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
In Kocur v Angard Staffing Solutions Ltd and another  EWCA Civ 1185 the Claimant was an agency worker at Royal Mail’s Leeds Mail Centre where there was a core of permanent staff supplemented by agency staff. He alleged he did not receive the same rest breaks or hours of work as the permanent employees. The tribunal dismissed these claims but on appeal, the EAT allowed the claim regarding breaks but dismissed the claim regarding equivalent hours. The claimant took the matter to the Court of Appeal.
In making its decision, the Court of Appeal looked at the statutory language and underlying purpose of the Agency Workers Regulations 2010 and the Agency Workers Directive. It found there was nothing in the legislation to suggest that they were meant to regulate the amount of work that employers are to provide to agency workers, specifically drawing attention to regulation 6(1)(b) of the Agency Workers Regulations 2010 which includes the duration of working time as a relevant term and condition which it found was intended to refer to terms which set a maximum length for any such periods. Accordingly, the Court held that the legislation entitle agency workers to the same working conditions as directly-recruited comparators, but does not entitle them to the same number of hours.
TUPE: Obligation on transferee to keep and produce wage records for transferring employees
S.9 of the National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records, including where an employee’s employment has ceased. In Mears Homecare Limited v Bradburn and others  UKEAT 0170_18_0205 the Claimants served 10 production notices under s.10 of the National Minimum Wage Act 1998 requesting wage information from the Respondent for the preceding 12 months. Out of that 12 months, 9 were spent with the Respondent as the employer and 3 months where the transferee was the employer because a TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006 – “TUPE”) transfer had taken place. The Respondent (the transferor) failed to produce the information within the 14 days required and therefore the Claimants brought their claims before the tribunal, as they were entitled to do so. The tribunal upheld their complaints and awarded them each the sum of £600, payable by the Respondent because where there has been a relevant transfer under TUPE, the duty to maintain wage records stays with the transferor. The Respondent appealed.
The EAT overturned the decision. A transferor was not required to maintain such age records and therefore did not need to comply with the s.10 production notices. The EAT held that because under TUPE a person’s employment does not cease for the purposes of the NMWA. Their employment continues with the transferee. The liability transfers as well, therefore it is incumbent upon transferees to insist that, as part of the transfer agreement, pay records are also delivered by the transferor.
Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
In BC and others v Chief Constable Police Service of Scotland and others  CSOH 2019, 28 June 2019 the Outer House of the Court of Session (Scotland) considered whether or not WhatsApp messages were capable of being used as evidence in misconduct proceedings. An officer, during a criminal investigation into sexual offences, had his smartphone confiscated and examined. Certain WhatsApp messages were discovered between a group of police officers. The messages were not used in that investigation but were subsequently used by the Police Service of Scotland (i.e. their employer) as a legal basis for bringing separate misconduct proceedings against a group of officers who were members of the chat group. The officers argued that it was a breach of their right to privacy under common law and Article 8 of the European Convention on Human Rights to use messages for a purpose collateral to the original investigation.
The court held that in normal circumstances there would be an expectation of privacy of individuals for any messages sent via WhatsApp. However, the police are subject to high professional standards which apply both when they are on and off duty. Thus, their expectation of privacy is limited. Failure to meet and comply with those standards would be likely to interfere with the impartial discharge of that officer’s duties or at least give that impression to the public, and this was the case here.
This is the first time that a Scottish court has expressly declared that there is a common law right to privacy in Scotland (in England the courts recognised and developed the concept of a common law right to privacy – this was most clearly seen in Campbell v MGN Ltd  2 AC 457), though this is a decision of the Outer House and therefore only of persuasive authority in the Court of Session and lower courts. It does not apply in England but it is useful to see how technology is permeating the law as its influence and reach grows, and this issue may yet be considered before the English courts.
ACAS: 2018-19 Annual Report Published
ACAS has recently published its latest Annual Report and Accounts for 2018-19. It discusses ACAS’s three strategic aims (below), how it has managed these over the last year and its plans to develop them more in the future.
- To advise on good practice in everyday working life
- To resolve disputes and manage conflict
- To influence employment policy and debate
There are also performance indicators showing how they have delivered against target over the last two years. It also includes figures showing where matters have been referred to ACAS for early conciliation from the tribunals, which are increasing year on year.
Equality: Gender Equality Roadmap published
On 3 July, Penny Mordaunt (Minister for Women and Equalities) launched the Government Equalities Office’s Roadmap for change: “Gender equality at every stage: a roadmap for change”. The plan is to financially empower women from school to retirement, by including measure such as a review of enforcement of equal pay legislation, and improved information for parents around family friendly entitlements. At the same time, the Women’s Business Council is to be refreshed. There will be a new chair – Fiona Dawson, the Global President of Mars Food, Multi-sales and Global Customers . The aim will be tackling individual sectors to ensure they are closing their gender pay gaps and at the same time that female staff have the same opportunities as their male counterparts.
Some of the proposals of the roadmap include:
- a consultation on strengthening measures to tackle sexual harassment (including clarifying the rules on third party harassment, exploring whether protections need to be extended to interns and volunteers,and considering whether to extend the three-month time limit for bringing discrimination and harassment claims)
- consulting on a new right to carers’ leave
- reviewing the enforcement of equal pay legislation
- assessing the effectiveness of gender pay gap reporting and consulting on any changes by 2021
- completing the government’s evaluation of the shared parental leave and pay scheme by the end of 2019, after which it will consider whether to modernise the existing system.
Health at Work: Joint government consultation to reduce job losses
This month, the Department for Work and Pensions and the Department of Health and Social Care launched a joint consultation: Health is everyone’s business: proposals for reducing ill health-related job loss. It sets out proposals which aim to reduce ill health-related job loss. Whilst the government sees that there is much more employers can do to support employees who are managing health conditions, or who are experiencing a period of sickness absence, it recognises that it can and should provide more help for employers, recognising the differences in employers’ capacity and capability to act.
Key proposals include:
- Improving the information and advice the government provides to employers.
- Improving the occupational health market and look at what financial support the government could provide to improve access to occupational health for smaller businesses.
- Encouraging early and supportive action by employers for their employees with health conditions.
- A new right for non-disabled employees to request workplace modifications to assist their return from sick leave, supported by a new Code of Practice and enforceable in the employment tribunal.
- Reforms to the statutory sick pay system, including pro rata payments for phased return to work after sickness absence, changing eligibility requirements.
The consultation seeks views on measures to reduce ill health-related job loss with the emphasis on employers taking more responsibility and having more involvement. You can submit your views online, without having to answer all the questions, here: https://getinvolved.dwp.gov.uk/work-and-health/consultation/. The consultation closes on 7 October 2019.
Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
On 16 July 2019, BEIS published a consultation (‘Good Work Plan: establishing a new Single Enforcement Body for employment rights’) on its proposal to change the way employment rights are enforced and therefore protected by creating a single enforcement body. At the moment, the enforcement of employment rights are carried out by the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, HM Revenue and Customs and the Health and Safety Executive. The Director of Labour Market Enforcement oversees the enforcement priorities of the first three, but not the HSE.There are also other areas, such as umbrella companies and holiday pay for vulnerable workers which it would seek to enforce.
The government recognises that moving to a single body risks losing the benefits of specialisation and expertise built up in existing bodies. There would therefore be a transitional period while the new body becomes fully operational. It also cites the examples of other bodies which have combined to produce more powerful single entities: the National Crime Agency and the Competition and Markets Authority.
Among other things, the consultation also seeks views on:
- should the single body have a role in enforcing rights in relation to statutory sick pay, supporting the Equality and Human Rights Commission and a role in enforcing unpaid tribunal awards;
- extending the civil penalties regime used to enforce payment of the national minimum wage;
- transparency in supply chains;
- enforcing joint responsibility for labour market breaches.
You can respond online or by contacting BEIS. See the link here: https://www.gov.uk/government/consultations/good-work-plan-establishing-a-new-single-enforcement-body-for-employment-rights. The consultation closes on 6 October 2019.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org