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Employment Law Newsletter – May 2021
Cases:
- Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
- Worker Status: Does worker status require a minimum degree of obligation or commitment?
- Disability Discrimination: Mental health of gym trainer not properly accounted for
- Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
- Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
- COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
Other news:
- COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
- COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
- COVID-19: Adjusted right to work check measures extended to 20 June 2021
- National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
- National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
- Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
Cases:
Worker Status: Does worker status require a minimum degree of obligation or commitment?
In Nursing & Midwifery Council v Somerville [2021] UKEAT 0258_20_0505 the EAT has dismissed the Nursing & Midwifery Council’s (NMC) appeal against a tribunal’s finding that Mr Somerville was a worker. Somerville was a panel member chair of its Fitness to Practice Committee, and he made a claim against the NMC for unpaid statutory holiday pay, contending that he was either an employee or worker.
At first instance, the tribunal judge found that:
- there were a series of individual contracts between the parties each time Mr Somerville agreed to sit on a hearing, for which the NMC agreed to pay him a fee, and also an overarching contract between them in relation to the provision of his services as a panel member chair;
- these written materials correctly represented the parties’ true agreement;
- there was no contractual obligation on Mr Somerville to offer / accept a minimum amount of sitting dates and he was free to withdraw from dates he had accepted;
- Mr Somerville agreed to provide his services personally to the NMC and there was no right of substitution;
- the NMC was not a client or customer of a profession or business carried on by Mr Somerville.
Accordingly, there was insufficient mutuality of obligation to give rise to an overarching employment contract or an employment contract in relation to individual assignments that he accepted. Therefore, in rejecting this alternative contention that he was an employee, the tribunal decided that there was no irreducible minimum of obligation, as Mr Somerville was not obliged to offer a minimum amount of sitting dates and he was free to withdraw from dates he had accepted. In light of the contract that existed between the parties, the personal service involved and the client/customer finding, the tribunal instead found Mr Somerville to be a worker within the meaning of section 230 Employment Rights Act 1996 (ERA) and regulation 2(1) Working Time Regulations 1998 (WTR).
The NMC appealed this conclusion on the basis that: (i) the tribunal had misdirected itself in law, since an absence of mutuality of obligation in the sense of an absence of an irreducible minimum of obligation as identified in the employee caselaw was incompatible with a finding of worker status; and (ii) in finding the NMC was not a client or customer of a business carried on by Mr Somerville, the tribunal had failed to consider relevant factors and had taken into account irrelevant considerations.
The EAT dismissed the appeal holding thata review of the authorities (including the Supreme Court’s decision in the recent Uber case) and the statutory language indicated that an irreducible minimum of obligation in the sense relied upon by the NMC was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as here, an overarching contract existed between the parties under which the individual agreed to perform services personally to the NMC and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client/customer exception applied, but it was not necessarily fatal to a conclusion of worker status. Further, that in considering the client/customer exception in this case, the tribunal had made no error of law; the weight that it attached to particular factors was a matter for its evaluation.
Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
The Court of Appeal has refused permission to appeal from the EAT (Addison Lee Ltd v Lange and others [2021] EWCA Civ 594) against a finding that Addison Lee minicab drivers were “limb (b)” workers*, and that time in which drivers were logged onto the Addison Lee portal, and had not notified the company that they were taking a rest break, was working time under the Working Time Regulations 1998 (WTR 1998). The court had previously given permission on the papers, but had stayed the appeal pending the Supreme Court’s decision in Uber BV and others v Aslam and others [2019] ICR 845. Following the Uber decision, the court had set aside its original grant of permission and held an oral hearing to re-consider the matter. It held, in the light of Uber, that the appeal in this case has no reasonable prospect of success.
The employer sought to distinguish Uber on the basis of differences in the contractual documentation (specifically, that there was an express contract between Addison Lee and its drivers that negated any mutuality of obligation). However, the Supreme Court in Uber had re-affirmed the principle in Autoclenz Ltd v Belcher and others [2011] IRLR 820 (SC) that, in deciding limb (b) worker status, the tribunal is interpreting the statute rather than interpreting the contract, and should disregard any contractual provisions that do not reflect reality. The tribunal’s factual finding that, when a driver was logged on, they were undertaking to accept jobs allocated to them, was, in the court’s view, “unappealable”.
The court also held that, following Uber, there was no arguable error of law in the employment tribunal’s conclusion that when drivers were logged on, this satisfied the definition of working time as they were at the employer’s disposal.
(* “Limb b” means working under any other contract (other than a contract of employment) where the person agrees to do the work personally, and the relationship between the parties to the contract is not akin to a client or customer of any profession or business relationship.)
Disability Discrimination: Mental health of gym trainer not properly accounted for
A case from London South employment tribunal (Burton v Nuffield Health V 2300147/2019) has recently hit the headlines because the judge found in favour of the claimant, Ali Burton, who claimed disability discrimination and victimisation against her employer Nuffield Health. Burton worked at a branch of the fitness chain Nuffield Health.
The tribunal heard that Burton disclosed her mental health condition (generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids) at the interview stage, and again to Nuffield’s in-house occupational health team during her induction. Occupational health passed her as fit to do the job with agreed modifications (such as avoiding hygiene-related tasks which could trigger her GAD; exempt from undertaking health appointments involving blood tests; and that her shift hours should be reduced and consecutive to ensure “ample time off” to manage her condition).
It began with a senior general manager who, unaware of Burton’s condition, asked her to pick up used towels from the floor in the gym. She refused, explaining it was due to her mental health, and was told “we all have to do things that are unpleasant” and advised to use gloves. The manager apparently made mocking remarks and questioned how this might affect her working in the gym, making her feel pressured and embarrassed.
What followed was a series of different managers, who clearly demonstrated they had been given no training in how to either have appropriate discussions with her or simply be able to deal with such a condition, treating her in such a way as to upset her to the point where she raised a grievance. She was questioned over her reduced hours, asked to explain her condition, and asked to provide her medical notes to show her latest diagnosis. Following a meeting, the grievance was not upheld and again she was asked to provide her GP notes and medical history. Following a protracted process of trying to challenge the grievance, it was still not upheld and so Burton lodged a tribunal claim alleging direct discrimination and victimisation.
Her claim of victimisation was not successful but the complaint of direct discrimination succeeded in part, as did her complaint of discrimination because of something arising in consequence of disability; of harassment; and of failure to make reasonable adjustments. The tribunal found Nuffield Health lacked “adequate arrangements” for communicating important information about Burton’s condition, and that this formed part of an “ongoing discriminatory state of affairs”. There was clearly a limited understanding of her condition and a failure to appropriately train managers to deal with such conditions.
Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
In Hamilton v Fife Council UKEATS/0006/20/SS (V) the claimant was a teacher whose department had surplus staff. She was told that as the member of staff with the shortest length of service she could be transferred to another school as a result of a collective agreement, meanwhile the school advertised a vacancy for a full-time position in her department. The relevant term of the collective agreement said that where a teacher has been designated surplus, a permanent post would not be advertised. The claimant resigned, claiming (among other things) constructive unfair dismissal on the basis that the school was in repudiatory breach of this term. The tribunal disagreed, finding on the facts that the events said to constitute breaches of the underlying contract either had not been proved to have happened or, to the extent that they had been proved to have happened, did not constitute breaches of the contract. Where there had been one single breach the tribunal found, however, that such breach had not caused the her resignation. The claimant appealed.
The EAT dismissed the appeal. It held that whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether“any particular part of the collective agreement founded upon is apt to be a part of an individual contract of employment or whether, alternatively, it is essentially collective in nature between the employer and the relevant union”.
(para. 28)The judge went on to say that collectively agreed terms incorporated into individual contracts which regulate certain matters such as pay, holiday entitlement and hours of work, etc, are all capable, of giving rise to enforceable individual rights on the part of employees. On the other hand, collectively agreed terms which are truly collective in their nature are not (e.g. redundancy procedures). The term in question was vague and lacked specification as to when it could be invoked demonstrating that it was not intended to confer individual rights, but simply a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract and the appeal failed.
Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
The High Court in Antuzis and others v DJ Houghton Catching Services Ltd and others [2021] EWHC 971 (QB) has ordered two company directors to pay aggravated damages to a group of exploited migrant workers whose employer failed to pay them overtime, holiday pay and the applicable minimum wage under the Agricultural Wages Act 1948 and associated Orders.
The claimants had been employed as chicken catchers by DJ Houghton Catching Services Ltd. They brought High Court claims against the company for breach of contract relating to unpaid wages, unlawful deductions from wages and unpaid holiday pay. They also claimed against the company directors for the tort of inducing the breaches of their employment contracts by the company. In 2019, the court upheld the claims and ordered the assessment of damages at a separate quantum trial.
Following the quantum trial, the court awarded damages of the full amounts claimed by the employees for wages, overtime and holiday pay. However, since the claims against the directors were based in tort, the employees also asked the court to award aggravated and exemplary damages.
The court noted that aggravated damages are compensatory in nature. In this case, the court accepted that recovery of the monies due under the employment contracts would not compensate the employees for the exploitation, manipulation and abuse carried out by the employer and its directors that had been inflicted by the systematic denial of the employees’ statutory righ
ts. In respect of aggregated damages, the court therefore uplifted by 20% the damages awarded to the employees. Conversely, the court noted that exemplary damages are punitive in nature. Given the substantial aggravated damages already awarded and the lack of evidence that the profit made by the directors had exceeded this sum, the court declined to award exemplary damages.
This case is an interesting example of how employees could use tort claims to seek redress for breach of contract or certain statutory rights from the directors of their employer and to achieve compensation exceeding their actual financial loss. However, the underlying facts of this case are extreme and the circumstances in which such a claim may be brought are therefore likely to be limited.
COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
In Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, an employment tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.
An employment tribunal has considered a COVID-19 related claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.
Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular:
- Despite Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- Mr Rodgers’ message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.
Other News:
COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) (Week’s Pay Regulations) came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee’s normal week’s pay.
The Week’s Pay Regulations were amended in November 2020 and February 2021 to extend their duration to reflect subsequent extensions of the Coronavirus Job Retention Scheme.
On 20 April 2021, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) (No 2) Regulations 2021 (SI 2021/487) were made. They came into force on 30 April 2021 and ensure that the Week’s Pay Regulations will continue to operate until 30 September 2021, reflecting the further extension of the CJRS announced in the Spring 2021 Budget.
COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
HMRC has updated various guidance notes, in particular in relation to the calculation of furlough pay for non-fixed rate employees with a relevant reference day of 2 March 2021.
On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.
The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
COVID-19: Adjusted right to work check measures extended to 20 June 2021
The temporary COVID-19 adjusted right to work check measures will now end on 20 June 2021, not 16 May 2021 as previously announced by the Home Office (Home Office and Immigration Enforcement: Coronavirus (COVID-19): right to work checks (updated 12 May 2021).) This new date is the planned date for bringing in step four of the government’s roadmap out of lockdown and allows employers to continue with digital right to work checks while social distancing is still in place.
The temporary changes, in place since 30 March 2020, have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.
From 21 June 2021, employers must once again either:
- Check the applicant’s original documents.
- Check the applicant’s right to work online, if they have provided the employer with their share code.
Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.
National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
The Low Pay Commission (LPC) has published its fourth standalone report, Non-compliance and enforcement of the National Minimum Wage 2021. The LPC has adapted its approach to reflect the existence of the Coronavirus Job Retention Scheme (CJRS), which has prevented it from carrying out its usual analysis. In addition, the data it would normally consider only covers the period up to April 2020. Rather than looking at flawed data, the report attempts to assess the immediate challenges for National Minimum Wage (NMW) enforcement. It also considers the likely challenges that will affect enforcement over the coming year.
The report does not, on the whole, make new recommendations. It instead reviews progress in key areas identified in previous years. The following points may be of particular interest:
- The LPC notes that the government consulted in 2019 on proposals to create a single enforcement body. While the report mentions that legislation is expected to be brought forward in an Employment Bill, there is no current timetable for this. The Queen’s Speech of 11 May 2021 did not mention an Employment Bill.
- The LPC will continue to monitor emerging case law (noting, in particular, the Supreme Court’s decisions in Uber and Mencap) and their implications for NMW enforcement.
- As the CJRS is phased out, the LPC anticipates that shifts in the economy and labour market will make it more important than ever to ensure NMW compliance. The report notes that the complexity of the CJRS, coupled with a refocusing of HMRC’s targeted enforcement regime, is likely to have increased the risk of underpayment. HMRC has advised the LPC that complaints from workers have declined since April 2020, although the precise reasons for this are unknown.
The LPC anticipates that the impact of the CJRS on workers’ hours and pay will be a recurring feature for many years, noting that the low volume of complaints represents a serious barrier to an effective enforcement system. Consequently, it recommends a pro-active approach from the government to build confidence in the complaints process. It also considers that HMRC’s limited resources must be targeted effectively.
National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
On 23 April 2021, the Department for Business, Energy and Industrial Strategy (BEIS) updated its guidance on calculating the national minimum wage (NMW) to clarify the position for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others [2021] UKSC 8.
The revised guidance on ‘Sleep-in’ shifts (which appears under the heading Special situations in the section entitled Working hours for which the minimum wage must be paid) confirms that, following Royal Mencap, sleep-in workers are only entitled to the NMW when they are awake for the purposes of working and not when they are permitted to sleep. However, the guidance explains that the position is different for workers who are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible. In such cases, it is likely that the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time. The guidance also confirms that the NMW will be payable for time spent asleep if the employer does not provide workers with suitable sleeping facilities.
To illustrate how the principles outlined by the Supreme Court in Royal Mencap may apply to particular scenarios, the guidance now includes five short examples which explain whether a worker would be entitled to the NMW if:
- They spend time awake but are woken only occasionally to perform tasks.
- They take night calls on a nightshift.
- They are permitted to nap during a work shift.
- They are woken to deal with an emergency but not required.
- They are woken frequently, contrary to original expectation.
The updated guidance and examples are a helpful starting point for employers grappling with the recent changes to this complex area of law. Nevertheless, as the guidance itself reiterates, to determine whether the NMW should be paid to sleep-in workers, employers will need to apply the relevant principles to the specific facts of the situation they are dealing with.
Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
The Guardian reports that campaign groups including the TUC, Maternity Action and the Fawcett Society have joined forces in a bid for governmental reform of the “deeply flawed” and underused shared parental leave (SPL) scheme introduced in 2015. The campaigners are urging the government to reform SPL in its long-awaited Employment Bill, and to replace it with a new model of parental leave which would give both parents non-transferable paid leave to care for their child, encouraging fathers to share the burden of childcare which still falls largely on new mothers.
The groups also pushed for the publication of the government’s evaluation of the SPL scheme, which was due in 2019 and is now scheduled to be published in late 2021.
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 – April 2021
Cases:
- Equal pay: Retail employees can compare themselves to distribution employees working at different establishments
- Sex Discrimination: An employer who pays a man on shared parental leave less than a woman on statutory adoption leave is not discriminating
- Equality Act: How to determine substantial adverse effect of disability using Equality Act 2010 definition
- COVID-19: Calculation of a Week’s Pay Regulations do not have retrospective effect
- Unfair Dismissal: Failing to receive ACAS early conciliation certificate did not mean time limit should have been extended
Other news:
- COVID-19: Government launches four roadmap reviews including consultation on workplace social distancing measures
- COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
- COVID-19: TUC survey reveals that employers are failing to follow COVID-secure rules
- Racial Equality: Commission on Race and Ethnic Disparities publishes its first report
- Racial Equality: Competition and Markets Authority publishes ethnicity pay gap data for 2019-2020
- Discrimination: Number of trans people hiding identity at work rises to 65%, survey says
- Discrimination: Dress code prohibiting large-scale signs of political, philosophical or religious belief indirectly discriminatory but allowing small-scale signs can be justified
- Technology: TUC pushes for restrictions on use of artificial intelligence in workplace
Cases:
Equal pay: Retail employees can compare themselves to distribution employees working at different establishments
The Supreme Court has upheld the decisions of the tribunal, the EAT and the Court of Appeal in Asda Stores Ltd v Brierley and others [2021] UKSC 10 that a group of predominantly female retail employees could compare themselves to a group of mainly male distribution employees for the purposes of an equal pay claim.
Even though the two groups worked at completely separate establishments, such that no distribution worker would have done distribution work at a retail site, and no retail worker would have done retail work at a distribution depot, a comparison could be made because the employer observed broadly common terms and conditions for the relevant groups across its sites.
When claimants and comparators are based at different establishments, determining whether the statutory requirement for common terms is satisfied boils down to asking a single question: would the comparator have been employed on the same or substantially the same terms if they had been employed in the same role at the claimants’ establishment? Cases that do not pass this threshold test will likely be exceptional.
For the benefit of future cases, the court provided a comprehensive summary of the current law relating to the common terms requirement under section 79(4)(c) of the Equality Act 2010. The court also provided guidance for future equal pay cases involving similar preliminary issues over the common terms requirement, confirming that:
- It is a threshold test only. Tribunals should not tolerate a prolonged enquiry into it and appeals are to be discouraged.
- Inference from the facts and circumstances may more readily provide an answer to the test than the opinions of individuals employed in the business. There is no requirement for any form of line-by-line comparison of different sets of terms and conditions.
- The threshold test should not be elevated into a major hurdle nor used as a proxy for other elements of an equal pay claim.
The case can now proceed to the next stage to determine whether the work of the two groups was of equal value.
Sex Discrimination: An employer who pays a man on shared parental leave less than a woman on statutory adoption leave is not discriminating
In Price v Powys County Council UKEAT/0133/20/LA (V), the EAT has upheld the decision of an employment tribunal that it is not discriminatory for an employer to provide enhanced adoption pay but no enhanced shared parental pay.
The claimant, a man, alleged that such a policy was direct discrimination on the grounds of sex, since a man on shared parental leave (SPL) would receive less pay than a woman on statutory adoption leave (SAL).
However, the EAT found that the underlying purpose of SPL and SAL is materially different. SPL is aimed at the facilitation of childcare and giving parents greater choice, whereas the purpose of SAL goes well beyond childcare alone and includes matters such as encouraging the formation of a parental bond and the taking of steps to prepare and maintain a safe environment for the child.
In addition, the EAT held that the tribunal had been correct to find that SPL and SAL operated in materially different ways. For example, SAL could only be taken in one continuous period, could begin before the placement of a child and was an immediate entitlement on the placement of a child, all of which contrasted with the regime for SPL.
Taking all the above into account, the EAT concluded that the tribunal had been right to determine that a woman on SAL was not an appropriate comparator for a man on SPL. The correct comparator was a woman on SPL. Since a woman on SPL would have received the same pay as a man on SPL under the employer’s policy, there was no sex discrimination.
Equality Act: How to determine substantial adverse effect of disability using Equality Act 2010 definition
In Elliott v Dorset County Council [2021] UKEAT/0197/20, the EAT has allowed an appeal against an employment tribunal’s finding that a claimant was not disabled, holding that the tribunal had failed to adopt the correct approach to determining whether the admitted impairment had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities.
Section 6(1) of the Equality Act 2010 sets out the statutory definition of disability:
“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
The EAT held that the statutory definition of “substantial” meaning “more than minor or trivial”, as set out in section 212 of the Equality Act 2010, prevails over any guidance. If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day to day activities, the definition is met. A tribunal should only consider the guidance in the Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”) and the EHRC Employment Statutory Code of Practice (“the Code”) if the statutory definition fails to provide a conclusive answer.
If it is necessary for the tribunal to take into account the Guidance or the Code, the suggestion they contain that “substantial” means that an impairment has a greater effect than the “normal differences in ability which might exist among people” requires a comparison with people who are broadly similar to the claimant, other than not having the alleged disability.
The EAT encouraged consideration of the context of the whole provision, and statute, in order to properly analyse and apply individual sections. The focus of the test of whether an impairment has a “substantial” adverse impact is to look at what a person cannot do, or can do only with difficulty, rather than on the things that the person can do. To assess whether an impairment has a substantial adverse effect on day-to-day activities, the employment judge must first determine what the day-to-day activities are.
The EAT remitted the question of whether the claimant was disabled to a new tribunal.
COVID-19: Calculation of a Week’s Pay Regulations do not have retrospective effect
An employment tribunal in Bayliff v Fileturn Ltd ET/2304837/20 has held that the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) did not apply retrospectively to the calculation of an employee’s notice pay for the period before the regulations came into force. Where an employee was given notice before the regulations came into force on 31 July 2020, and their notice continued after that date, their notice pay only had to be calculated in accordance with the regulations after that date.
We believe that this is the first available decision on this issue. Although the decision will not be binding on other employment tribunals, it provides some helpful clarification for employers who only had one day’s notice of the regulations coming into force, and had to quickly determine how to calculate employees’ notice pay in the light of them.
Unfair Dismissal: Failing to receive ACAS early conciliation certificate did not mean time limit should have been extended
In Stratford on Avon District Council v Hughes [2020] UKEAT/0163/20, the EAT has allowed an appeal against an employment tribunal’s finding that it was not reasonably practicable for a claimant to have presented his claim in time, where he had not received the early conciliation certificate by the expiry of the relevant limitation period.
The claimant was dismissed on 29 March 2019 and contacted ACAS on 25 June 2019. ACAS informed him on 2 August 2019 that the employer did not wish to continue with the conciliation process and emailed him a certificate that day. However, the claimant did not receive the certificate. Under section 207B(4) of the Employment Rights Act 1996, the primary limitation period expired on 2 September 2019, that is “one month after day B”. By the time the claimant had obtained a copy of the certificate and presented his claim, on 5 September 2019, it was three days out of time.
An employment tribunal extended time on the basis that it had not been reasonably practicable for the claimant to have presented his claim in time because he needed the early conciliation certificate in order to lodge the claim. The EAT found that this reasoning was flawed. The question which the tribunal should have asked was whether, in all the circumstances, it would have been reasonably practicable for the claimant to have obtained the early conciliation certificate sooner, not whether he behaved reasonably in waiting until after the expiry of the primary limitation period to contact ACAS. The concept of “reasonable practicability” involves a heavier onus than just behaving reasonably, but is not to be equated with what is physically possible.
Other News:
COVID-19: Government launches four roadmap reviews including consultation on workplace social distancing measures
On 5 April 2021, the government updated its Roadmap Reviews policy paper to provide clarity on how the COVID-19 pandemic will be managed after the final step of the government’s roadmap out of lockdown is reached on 21 June 2021. The four roadmap reviews are as follows:
- The COVID-Status Certification Review will consider the possibility of COVID-status certification as a way of reopening the economy and reducing social distancing restrictions.
- The Global Travel Taskforce will explore how and when the re-opening of non-essential international travel will take place.
- The Events Research Programme will work with national and local public health authorities to develop approaches to social distancing, ventilation, test-on-entry protocols and COVID-status certification in different venues.
- The Social Distancing Review will establish how social distancing measures can be reduced in different settings, including the workplace. The government’s ability to relax social distancing measures will be tied to decisions made by the COVID-Status Certification Review, particularly whether COVID-status certification could enable changes to social distancing.
As part of the Social Distancing Review, a spokesperson for the Department for Business, Enterprise and Industrial Strategy (BEIS) has announced that it is consulting with businesses about the introduction of long-term social distancing measures to bring workers back into the office. Possible strategies include the implementation of six months of social distancing each year and the longer-term use of masks and see-through plastic screens. On 8 April 2021, business department officials hosted a conversation with professional services to discuss potential strategies.
COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.
The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
A further Treasury Direction in respect of the extension of the CJRS from 1 May to 30 September 2021 dated 15 April 2021 was published on 19 April 2021 and can be found here.
See the updated guidance for more information:
- HMRC: Guidance, Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme (updated 8 April 2021);
- Calculate how much you can claim using the Coronavirus Job Retention Scheme (updated 8 April 2021);
- Steps to take before calculating your claim under the Coronavirus Job Retention Scheme (updated 8 April 2021).
COVID-19: TUC survey reveals that employers are failing to follow COVID-secure rules
The TUC’s biennial survey of over 2,100 workplace safety representatives has revealed that workers are being placed at risk by employers who are failing to meet COVID-secure rules.
Despite there being a legal obligation for employers to consult with safety representatives, more than a quarter (27%) of those surveyed were not involved at all in their employer’s risk assessments. In relation to COVID-19 risk assessments in particular, 34% of representatives said that neither they nor other safety representatives were consulted.
The survey also revealed that only 31% of representatives believe that social distancing rules and physical barriers between colleagues in the workplace were being implemented by their employer all of the time. Only 29% said that their employers were implementing appropriate distancing measures between employees and customers, clients or patients all of the time. 40% of representatives said that adequate PPE was either not always provided or not provided at all to workers.
Alarmingly, the survey states that 65% of workplace safety representatives have had to respond to growing numbers of mental health concerns since the pandemic began, with70% citing stress as a workplace hazard.
Racial Equality: Commission on Race and Ethnic Disparities publishes its first report
On 31 March 2021, The report of the Commission on Race and Ethnic Disparities was published. The Commission was set up by the Prime Minister in 2020 to identify racial disparities and inequalities in Britain and ways to address them. A number of its recommendations will have a direct impact on the work of employment lawyers. These include:
- Recommendation 1: challenge racist and discriminatory actions by funding the Equality and Human Rights Commission (EHRC) to use its compliance, enforcement and litigation powers to address policies or practices which cause racial disadvantage or are produced by racial discrimination.
- Recommendation 3: improve the transparency and use of artificial intelligence by publishing guidance on applying the Equality Act 2010 to algorithmic decision-making and requiring transparency from public sector bodies when it is used.
- Recommendation 8: advance fairness in the workplace by developing resources and evidence-based approaches readily available to employers.
- Recommendation 9: investigate what causes existing ethnic pay disparities by requiring the publication of a diagnosis and action plan for organisations who voluntarily publish ethnicity pay figures. The Department for Business, Energy and Industrial Strategy (BEIS) has been tasked with producing guidance for employers to draw on. The government’s response to its consultation on introducing mandatory ethnicity pay gap reporting is still awaited. It had been expected that the Commission would call for mandatory ethnicity pay gap reporting to be introduced.
- Recommendation 16: open up access to apprenticeships by creating a targeted apprenticeships campaign to inform marginalised young people of the career pathways open to them.
- Recommendation 17: encourage innovation by creating an enterprise programme for entrepreneurs from underrepresented and low-income backgrounds across the UK.
The report also flagged the term BAME as “unhelpful”, stating that it is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups.
The EHRC has recognised the report as a step towards targeting Britain’s “sources of inequality” and has welcomed the prospect of additional funding. However, the report has also been widely criticised for downplaying institutional racism in the UK.
Racial Equality: Competition and Markets Authority publishes ethnicity pay gap data for 2019-2020
The Competition and Markets Authority (CMA) has voluntarily published its Competition and Markets Authority: Ethnicity Pay Gap Report: 1 April 2019 to 31 March 2020, using the same principles that apply to statutory gender pay gap reporting. The report, which contains data recorded as at 31 March 2020, shows that the ethnicity profile of CMA staff was 22% BAME (Black, Asian and Minority Ethnic) and 69% non-BAME. Acknowledging that there are too few BAME employees in senior roles, the median pay gap (difference between the midpoints of the average hourly pay of BAME and non-BAME staff) was reported as 34.8%. By contrast, the equivalent gender pay gap figure reported for the same snapshot date was 2.9%
The CMA’s ethnicity bonus gap (calculated using the median average) was 44.2%. By contrast, the gender bonus gap calculated using the median average was -2.5%. The high ethnicity bonus gap can be explained by a number of factors, including the lack of BAME employees in senior roles. In addition, a number of key individuals attracted pivotal role allowances during the year, and all recipients of such allowances were non-BAME.
The report sets out a number of action points to close the ethnicity pay gap at the CMA, which include the creation of an internal development programme for under-represented groups, using data to challenge and check progress on improving diversity in recruitment, and the creation of a Positive Action Steering Group. This group will oversee the implementation of the CMA’s Race Action Plan.
The government consultation on introducing mandatory ethnicity pay gap reporting was launched in 2018. The consultation closed on 11 January 2019 and a response has yet to be issued. However, it is expected that the Commission on Race and Ethnic Disparities, which was set up by the Prime Minister in 2020, will shortly call for annual ethnicity pay reporting to be made mandatory for larger employers.
Discrimination: Number of trans people hiding identity at work rises to 65%, survey says
65% of trans employees feel they need to hide their trans status at work according to a survey published by YouGov on behalf of Totaljobs. The figure, which represents a pool of 410 people, signals a 13% increase compared with statistics published in 2016, and corresponds with a 7% rise in the number of trans employees who quit their jobs as a result of an unwelcoming work environment in the same period, reaching 43% this year.
Katie Budd, head of indices and resources at LGBT+ charity Stonewall, has urged employers to take a zero-tolerance approach to trans exclusion, recommending the development of transitioning at work policies, as well as ensuring that organisations become public trans allies.
Discrimination: Dress code prohibiting large-scale signs of political, philosophical or religious belief indirectly discriminatory but allowing small-scale signs can be justified
Advocate General Rantos has given an Opinion in IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:144 that a German employer’s rule prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace is not direct discrimination based on religion or belief. Direct discrimination cannot occur where all religions or beliefs are covered in the same way by the rule.
Indirect discrimination caused by such a rule can be justified by the employer’s intention to pursue a policy of political, philosophical and religious neutrality in the workplace in order to take account of the wishes of its customers. This is distinguished from the situation where an employer imposes such a rule in direct response to a request from a customer.
The potential to justify indirect discrimination is not limited to rules prohibiting the wearing of any visible sign of political, philosophical or religious belief; a rule limited to the prohibition of wearing conspicuous, large-scale signs of political, philosophical or religious beliefs can also be justified if it is implemented in a consistent and systematic manner.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is appropriate and necessary, the right to freedom of thought, conscience and religion recognised by the Charter of Fundamental Rights and the European Convention on Human Rights may not be taken into account. However, a national court may apply national constitutional provisions that protect the freedom of religion which, in effect, lay down an additional requirement for justifying an employer’s rule, provided those provisions do not undermine the principle of non-discrimination laid down in the Equal Treatment Framework Directive (2007/78/EC).
Technology: TUC pushes for restrictions on use of artificial intelligence in workplace
On 25 March 2021, the TUC published a report urging the government to introduce new legal protections for workers exposed to the use of artificial intelligence (AI) in the workplace. The report, based on a study by the AI Law Consultancy, claims that workers are currently at risk of being “hired and fired” by potentially discriminatory algorithms. Indeed, the TUC’s general secretary Frances O’Grady has warned that algorithms, which have been used more widely since the start of the COVID-19 pandemic, could lead to “widespread discrimination and unfair treatment”, particularly for gig economy workers and those in insecure work.
This issue was highlighted recently when Uber was criticised after its AI software for facial identification reportedly failed to accurately identify dark-skinned faces, resulting in many workers being unable to access its app and find jobs. The software uses a photo comparison tool to compare pictures of drivers with photos held on its database when the contractors open the app, to prove they are the person who has logged on. Tests have shown that the software used by Uber has a failure rate of 20.8% for darker-skinned female faces and 6% for males.
Further Information:
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