Employment Law Newsletter – September 2021
- COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
- COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
- Contract: Employer liable to pay income protection payments not covered by insurance
- Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
- COVID-19: Adjusted Right to Work checks extended until April 2022
- COVID-19: Government publishes Autumn and Winter Plan: employment aspects
- National Insurance: Increase to pay for health and social care
- Immigration: Changes to UK Immigration Rules announced
- Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
- Flexible Working: Consultation published on making flexible working a “day one” right for employees
- Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
An employment tribunal has allowed an employee’s victimisation claim that his employer subjected him to a detriment contrary to section 27 of the Equality Act 2010 (EqA 2010) by not furloughing him under the Coronavirus Job Retention Scheme (CJRS) to proceed, as amended. The employee’s other claims and proposed amendments were struck out or not allowed.
In Jimenez v Firmdale Hotels Plc ET/2203194/2020 (12 February 2021) Mr Jimenez had previously brought various claims against his employer, Firmdale Hotels Plc (Firmdale). These claims were dismissed following a final hearing in March 2021. The outcome of that hearing was unknown at the time that the preliminary judgment in the present case was handed down. However, it was not disputed that presentation of the earlier claims was a protected act within the meaning of section 27 EqA 2010. It was also not disputed that Mr Jimenez was excluded from the group of employees furloughed by Firmdale under the CJRS, whether in late March 2020 or subsequently. His exclusion was because he was on long-term sick leave and not in receipt of Statutory Sick Pay, meaning that Firmdale considered him “ineligible” under the CJRS. It subsequently considered it too late to furlough him because he had not been furloughed before June 2020.
Without purporting to make a judicial determination of the point, the employment judge at the preliminary hearing considered that Firmdale was mistaken in its understanding of the CJRS and could have furloughed Mr Jimenez. In addition, despite his requests, it had not explained to him in sufficient detail why it considered him ineligible for furlough. Firmdale submitted that other employees on long-term sick leave were treated in the same way as Mr Jimenez. The judge noted that if this was correct and there was no other indication of differential treatment, it would be compelling evidence that Mr Jimenez had not been subjected to a material detriment because of the protected act. However, with sufficient evidence to shift the burden of proof to Firmdale, his claim could proceed given that he had also attempted to present it in time. The judge advised Mr Jimenez to consider any comparator documents disclosed by Firmdale, as they were likely to inform his decision on whether to pursue his claim to a final hearing or apply to amend it to a discrimination arising from disability claim.
COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
Two non-binding employment tribunal decisions have provided guidance on how measures taken to protect pregnant workers during the height of the pandemic might be viewed and when dismissing an employee who refuses to obey a management instruction due to COVID-related risks might be automatically unfair.
In Prosser v Community Gateway Association Ltd ET/2413672/2020 (13 May 2021), Ms Prosser, a pregnant zero hours worker, was sent home at the start of the pandemic because her employer viewed her as clinically vulnerable. Her return to work was delayed following a risk assessment and while her employer implemented social distancing measures (spacing of desks and Perspex screens). She was advised that she would not be asked to undertake night shifts, which involved lone working, unaccompanied travelling to tenants’ homes and the provision of physical support. This was deemed unsafe for her as a pregnant worker. During her absence, she was paid “generously” in excess of her contractual entitlement and was not left out of pocket. A payment was mistakenly made late but not because of her pregnancy. A tribunal dismissed her discrimination and victimisation claims, noting that her treatment was appropriately informed by the available public health advice and relevant COVID regulations. A formal risk assessment had been completed and the employer’s motive was to protect her and her unborn baby.
In Ham v Esl Bbsw Ltd ET/1601260/2020 (14 April 2021), Mr Ham was dismissed from his cleaning service job when he refused to deliver equipment to his self-isolating manager’s home, who had COVID-19 symptoms and was unvaccinated because it was the start of the pandemic. He offered to bring the equipment to another location, where it could be stored securely. In his internal appeal against his dismissal, he expressed concern for his and his family’s health. A tribunal concluded that his dismissal was for the principal reason that he had raised health and safety concerns, making it automatically unfair contrary to section 100(1)(c) and (e) of the Employment Rights Act 1996. While his inexperienced manager was dealing with huge uncertainty at the start of the first lockdown, when a lot was unknown, her reaction to his legitimate concerns was not excusable. It was inconceivable that an employee being instructed to go to the home of two self-isolating individuals (his manager and her daughter) during late March 2020 was not raising legitimate health and safety concerns or taking appropriate steps to protect himself.
Contract: Employer liable to pay income protection payments not covered by insurance
In Amdocs Systems Group v Langton UKEAT/0093/20 and UKEAT/0210/20 (24 August 2021), the EAT has held that an employer was liable to pay an employee the level of income protection payments (IPP) set out in an offer letter and summary of benefits provided by his original employer prior to a TUPE transfer. The EAT held that those documents had contractual force as they contained clear and certain terms and were intended to be incorporated. The employer was bound to pay the additional “escalator” payment of 5% per annum that they referred to, regardless of the fact that this was not covered by its insurance. From a review of the relevant authorities the EAT held that it was clear that, if there was any ambiguity or uncertainty as to whether an employer’s obligation to provide benefits was limited by reference to the specific terms of its insurance cover, any such ambiguity would be resolved against the employer and in favour of the employee. To be effective, any limitation of the employer’s exposure should have been unambiguously and expressly communicated to the employee. However, the employee had not been given, nor given access to, the insurance policy terms, or any other document setting out the specifics of what those terms were.
This case is a reminder to transferee employers on a TUPE transfer to carefully check the level of permanent health insurance benefits provided by the transferor to any transferring employee, and whether this will be fully covered by their existing insurance policy.
Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
In Kong v Gulf International Bank (UK) Ltd  EA-2020-000357-JOJ and EA-2020-000438-JOJ (10 September 2021) the EAT has clarified that, when determining the reason for dismissal in an unfair dismissal claim, it will rarely be possible to attribute to the employer the motivation of any person other than the one who decided to dismiss.
Ms Kong was employed by Gulf International Bank (UK) Limited (GIB) as Head of Audit. She raised several concerns with GIB’s Head of Legal, Ms Harding, about an agreement relating to one of GIB’s financial products. It was accepted that these concerns were protected disclosures. Ms Harding disagreed with Ms Kong and confronted her. During this conversation, Ms Kong questioned Ms Harding’s legal awareness. Ms Harding was upset and complained to GIB’s Head of HR and CEO that Ms Kong had questioned her “integrity“. She subsequently limited interaction with Ms Kong. The Head of HR and CEO informed the Group Chief Auditor of the incident. The three managers collectively decided that Ms Kong should be dismissed because her manner meant that colleagues did not want to work with her.
Ms Kong brought claims for unlawful detriment and automatic unfair dismissal for having raised protected disclosures. The claim for unlawful detriment as a result of Ms Harding’s treatment would have succeeded, but was out of time. The claim for automatic unfair dismissal failed: the tribunal found that the decision makers dismissed Ms Kong because of her conduct, not her protected disclosures.
Ms Kong appealed to the EAT in relation to the automatic unfair dismissal claim. She argued that Ms Harding had sought her dismissal because of the protected disclosures, and that Ms Harding’s motivation should therefore be attributed to GIB pursuant to Royal Mail Group Ltd v Jhuti  UKSC 55.
The EAT held that:
- The tribunal had been right not to attribute Ms Harding’s motivation to GIB. The principle in Jhuti will rarely apply. Ms Harding’s complaint that Ms Kong had criticised her integrity, as opposed to her legal awareness, was not sufficient manipulation for Jhuti purposes. Further, there was no finding that Ms Harding had sought Ms Kong’s dismissal.
- The tribunal was clear that what motivated the decision makers was not the content or fact of Ms Kong’s disclosures, but the way in which she conveyed her personal criticisms to Ms Harding. The former was properly separable from the latter.
COVID-19: Adjusted Right to Work checks extended until April 2022
The government announced at the end of August that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. Given positive feedback on the ability to carry out checks remotely, the government has decided to continue using the following temporary changes (originally introduced on 30 March 2020) until 5 April 2022 (inclusive):
- checks can currently be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
You can be fined up to £20,000 for employing illegal workers so this is very important to get right.
See our Immigration note for more information on this: Checking a job applicant’s right to work.
COVID-19: Government publishes Autumn and Winter Plan: employment aspects
On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan. The Plan sets out how the government intends to address the challenges that may be posed by COVID-19 through autumn and winter while ensuring that the National Health Service is not put under unsustainable pressure.
Plan A is described as a comprehensive, five-point approach designed to steer the country through autumn and winter. In addition to continued use of pharmaceutical interventions (including further vaccine deployment), managing pressures on the NHS and social care and managing risks at the border, the government intends to continue with Test, Trace and Isolate and to provide guidance on how people can protect themselves. Existing requirements and support for self-isolation will remain in place. The government intends to review these by the end of March 2022. Guidance on how employers can reduce risks in their workplaces will be kept up to date.
Plan B is provided in outline and will only be enacted if the data suggests further measures are necessary to protect the NHS. The steps anticipated here involve advising the public of the need to behave more cautiously given an increased level of risk, introducing mandatory vaccine-only COVID-status certification in certain settings, legally mandating face coverings in certain settings (which would be determined at the time) and instructing those who can to work from home. The Plan concludes that beyond Plan B “more harmful economic and social restrictions would only be considered as a last resort“.
National Insurance: Increase to pay for health and social care
Prime Minister Boris Johnson announced on 7 September 2021 a new UK wide ‘health and social care levy’ to address the funding crisis in this sector. See our full article on this for more detail: National Insurance increase to pay for health and social care.
Immigration: Changes to UK Immigration Rules announced
On 10 September 2021, the government published Statement of changes to the Immigration Rules: HC617, most of which comes into force on 1 October 2021. The statement:
- Introduces coronavirus (COVID-19) concessions on Tier 1 (Entrepreneur), the EU Settlement Scheme (EUSS), Skilled Worker and Tier 2 Sportsperson routes into the Immigration Rules.
- Extends the Youth Mobility Scheme to include nationals of Iceland and India.
- Introduces a dedicated International Sportsperson route to replace the T2 and T5 Temporary Worker routes for professional sporting workers.
- Expands the list of eligible prizes under the Global Talent route.
- Makes changes to the EUSS to allow a joining family member to apply to the EUSS while in the UK as a Visitor.
Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
People Management has reported how the Equality and Human Rights Commission (EHRC) is preparing to restart “enforcing gender pay gap reporting requirements again next month as a temporary suspension of enforcement, put in place to help employers through the coronavirus crisis, comes to an end”. With this in mind, the Chartered Management Institute (CMI) has partnered with the EHRC to create a practical toolkit to support organisations drive action in tackling their gender pay gap. The publication of practical guidance follows a warning from the ECHR that the gender pay gap disparity has widened during the pandemic, and that employers risk de-prioritising the issue close to the extended deadline of pay gap reporting of 5 October 2021. Government figures indicate that currently, only 5,000 employers of around 12,500 that meet the reporting requirements have filed figures for the year.
The toolkit itself contains case studies, recommended actions for employers, and tried and tested “how to” guides from the Behavioural Insights team.
Flexible Working: Consultation published on making flexible working a “day one” right for employees
The government has published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during the COVID-19 pandemic.
The proposals do not introduce an automatic right for employees to work flexibly. Instead, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs. The main change would be making the right a “day one” right, removing the requirement for 26 weeks’ qualifying service. The consultation also considers:
- Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.
- Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
- Changing the administrative process underpinning the right to request flexible working. In particular, the government wants to explore whether to allow employees to make more than one statutory request each year.
- Raising awareness of the existing right of employees to request a temporary flexible working arrangement.
The government has decided not to proceed with the proposal, put forward in an earlier consultation, to introduce a requirement for large employers to publish their flexible working policies.
You can complete the online survey here. The consultation will remain open until 1 December 2021.
Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
Website, peoplemanagement.co.uk, reported on 31 August 2021 that figures released by the Office for National Statistics (ONS) show how working from home has affected the older generation. For example, in June and July 2020, workers aged 50 and over who worked from home during the COVID-19 pandemic instead of in their usual workplace were more than twice as likely to say they planned to retire later (11%) than those in the same age category who did not work from home (5%). Similarly, the statistics show that workers with a long-standing illness, disability or infirmity who work from home are nearly twice as likely to say they plan to retire later (10.9%) than those who do not work from home (5.9%). Jonathan Boys, labour market economist at the CIPD, suggested that working from home could extend working lives and may be appreciated more by older workers than younger ones.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – May 2021
- 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
- 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
Worker Status: Does worker status require a minimum degree of obligation or commitment?
In Nursing & Midwifery Council v Somerville  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  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  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  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  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.
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  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.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – November 2020
- Health & Safety: UK government in breach of EU law to protect workers, not just employees
- Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
- Indirect Discrimination: The ‘costs-plus’ rule justification
- Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
- Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
- COVID-19: New government guidance on using volunteers during the pandemic
- COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
- COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
- Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
- Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
Health & Safety: UK government in breach of EU law to protect workers, not just employees
In The Independent Workers’ Union of Great Britain v The Secretary of State for Work & Pensions and others  EWHC 3050 (Admin) the Independent Workers’ Union of Great Britain (IWUGB) brought an application for judicial review on behalf of its members, against the UK government. The union, whose membership largely comprises low-paid, migrant workers and workers in the “gig economy”, brought this case because many of these workers are taxi, private hire, bus and coach drivers, who are at increased risk due to Covid-19, and the case highlights this.
The IWUGB’s claim sought declarations that the UK government failed properly to transpose into domestic law two EU Directives (Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (aka “the Framework Directive”) and another made under powers conferred by the Framework Directive – Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (aka “the PPE Directive”)) on the basis that the UK legislation, when transposed, protected only ’employees’ rather than the broader category of ‘workers’, thus leaving workers without the protection the EU law guarantees.
The Framework Directive sets out to protect employees and workers and is the source of the protections in s.44 of the Employment Rights Act 1996, for employees who leave their workplace or take action in circumstances of serious and imminent danger. The PPE Directive is the source of the rules in Regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 that an employer must provide PPE if the risks of an activity cannot otherwise be avoided. The gap has existed in law since 1992 but it was not until the Covid pandemic that the risks it produced had been significantly highlighted.
The High Court considered other Directives and cases, and concluded that the definition of worker for the purposes of these Directives should be the same as used in other Directives, such as those on free movement, equal pay, and working time. Therefore, the legislation did not give the same level of protection to workers as employees, and the court granted a declaration to that effect. This is a significant judgment. The government now has to choose whether to appeal this decision, or if not, legislation will be required to extend the scope of the protections to include the broader category of workers. A formal response from the government is due shortly.
Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
In Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust  UKEAT 0100_19_2810 the EAT had to consider whether the fact that the same lay member sat concurrently on two separate tribunal panels considering claims which involved the same parties gave rise to apparent bias and thus unfairness? And, if so, had the Appellant waived the right to take the point?
The Claimant had brought two claims against her employer. One, for direct race discrimination on the grounds of race and victimisation was heard before EJ Bryant QC, and the other, brought a few months later for unfair dismissal, was heard before EJ Baron. Tribunal panels usually consist of an employment judge and two lay people, who are not legally qualified. One of the lay members (Ms Campbell) sat in both cases. In addition, an overlap arose because both tribunals were adjudicating upon issues which either referenced or related to the decision made by a Ms Cashman (chair of the disciplinary meeting).
In dismissing both appeals, the judge, Lord Fairley, clearly found little overlap, commenting that a “fair minded and informed observer…” would not have seen a real possibility of bias in the circumstances, but would have concluded that the tribunals were properly trying to determine the issues before them. Nothing that Ms Campbell learned about Ms Cashman’s decision in the first tribunal could have affected her decision making in the second.
Indirect Discrimination: The ‘costs-plus’ rule justification
In Heskett v Secretary of State for Justice  EWCA Civ 1487, a probation officer brought a claim against the MoJ for indirect age discrimination because the Ministry changed its pay structure resulting in employees taking a longer time to make their way up the pay scale. This meant, effectively, that Mr Heskett, over the long term, earnt less than his longer serving (and therefore typically older) colleagues. The MoJ had made this change in order to meet a cap on increases in public sector pay.
In Cross v British Airways  IRLR 423 it was held that cost grounds can properly be a factor for an employer objectively justifying indirect discrimination, if combined with other reasons. Cost considerations alone are not sufficient to justify a discriminatory provision, criterion or practice for indirect discrimination. This became known as the “costs-plus” rule, which was broadened in Woodcock v Cumbria Primary Care Trust  EWCA Civ 330 by focusing on the issue of how the employer’s “legitimate aim” is identified. The Claimant, Mr Heskett, argued in this case, however, that the MoJ’s aim to save costs could not amount to a legitimate aim, and therefore the discriminatory effect of the new pay structure was unjustifiable. The tribunal found that the pay progression policy was prima facie discriminatory, but that it was a proportionate means of achieving a legitimate aim and therefore justified, and the EAT agreed, so Mr Heskett appealed to the Court of Appeal.
After much consideration, the Court of Appeal found that cost alone is not sufficient to justify some action or rule which would otherwise amount to indirect discrimination on the grounds of age, but it can be a legitimate aim for the purpose of a justification defence if the employer uses it combined with something else such as the “need to reduce its expenditure, and specifically its staff costs, in order to balance its books” – Lord Justice Underhill at para.98. Mr Heskett’s appeal was therefore dismissed on all grounds. The decision established that the need to operate within a budget or balance the books should be treated as a legitimate aim that is more than just saving cost.
Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
In Palmeri & Others v Charles Stanley and Co Ltd  EWHC 2934 (QB) the High Court has held that a firm was entitled to rely on a stockbroker’s repudiatory conduct to justify the summary termination of his contract, despite the firm itself being in repudiatory breach. Mr Palmeri was a self-employed investment manager contracted to Charles Stanley & Co Ltd, with a three-month notice period and no PILON clause (pay in lieu of notice). The firm decided to change its operating model to take a larger portion of Mr Palmeri’s revenues. This was resisted by Mr Palmeri. At a meeting on 21 April 2017, the firm offered him an ultimatum: sign the new terms there and then, or leave immediately with pay in lieu of notice. Mr Palmeri reacted furiously and verbally abused the managers present, as well as the firm generally. He then said that he would accept the new terms under protest, for the duration of his notice period. However, his abusive rhetoric escalated and the firm withdrew the offer of new terms and summarily terminated his contract.
Mr Palmeri issued a claim for breach of contract in relation to the summary termination. He also alleged that the failure to allow him the opportunity for an orderly transition of his clients’ business was a breach of the implied term of mutual trust and confidence. The firm sought to rely on Mr Palmeri’s repudiatory conduct at the meeting, as well as several serious regulatory compliance failures during his engagement, which were only discovered after termination.
The High Court found that the firm had had no contractual right to present Mr Palmeri with the ultimatum in April 2017, since it had no right to make a payment in lieu of notice. However, Mr Palmeri’s conduct as a whole, including his outburst at the meeting and the history of regulatory issues, amounted to serious misconduct and a breach of the implied duty of mutual trust and confidence, justifying summary termination. The fact that the firm had been poised to deny Mr Palmeri his notice period did not affect its entitlement to rely on the repudiatory conduct that ensued or was later discovered. The court therefore did not need to consider Mr Palmeri’s claim to an implied right to an “orderly transition” of business.
Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
Pregnant Then Screwed, a charity that supports, promotes and protects the employment rights of pregnant women and mothers, announced on 6 November 2020 that it has been granted permission for judicial review against the Chancellor of the Exchequer.
The charity will argue that the Chancellor’s Self-Employment Income Support Scheme (SEISS), introduced in April 2020, indirectly discriminates against self-employed women who took maternity leave between 2016 and 2019. It argues that, because the SEISS does not account for the subsequent reduction in self-employed women’s average income, they are entitled to smaller grants than their peers. The charity has devised three grounds to its challenge:
- That the SEISS calculation clause violates Article 14 (the right to protection from discrimination) read in conjunction with Article 1 of Protocol No.1 (the right to property) of the European Convention on Human Rights.
- The SEISS calculation clause is indirectly discriminatory, breaching section 19 of the Equality Act 2010.
- The SEISS scheme does not comply with the public sector equality duty under section 149 of the Equality Act 2010.
The application for judicial review followed the charity’s decision to send a pre-action protocol letter to the Chancellor, whose legal team responded by correlating maternity leave to a sabbatical or any other type of leave. It is estimated that as many as 75,000 women may have been affected by the alleged discrimination.
COVID-19: New government guidance on using volunteers during the pandemic
On 13 November 2020, the Department for Digital, Culture, Media and Sport (DCMS) published new guidance for organisations and groups in England on how to safely and effectively involve volunteers in their work during the COVID-19 pandemic. The guidance, which reflects current lockdown restrictions:
- Encourages those who can volunteer from home to do so. It then says that people can volunteer outside their home (including within a workplace, unless it has been ordered to close) if they are unable to volunteer from home, don’t need to self-isolate, are not clinically extremely vulnerable, and follow social distancing or (if volunteering in a workplace) COVID-secure guidance.
While this also applies to those who are clinically vulnerable, including those aged 70 and over, the guidance warns that such volunteers may require additional support to follow social distancing rules and minimise contact with others, and should be especially careful. Clinically extremely vulnerable people are advised not to volunteer outside their home.
- Warns that no one should be compelled by their organisation or group to volunteer outside their home. Volunteering is a personal choice.
- Says that, while volunteering, people can meet in groups of any size from different households, indoors or outdoors, but must follow social distancing guidance and observe the three key behaviours (hand washing, wearing face coverings and giving space).
- Reminds employees furloughed through the Coronavirus Job Retention Scheme that they can, during the hours they are on furlough, volunteer for another employer or organisation, but that they are not permitted to volunteer for their own employer or an organisation linked to, or associated with, it. These rules have not changed, despite calls from the sector for the employees furloughed by charities to be allowed to perform voluntary work for them.
- Reminds those using volunteers of their duty of care to ensure, as far as reasonably practicable, that volunteers are not exposed to risks to their health and safety.
Separate guidance has been issued on volunteering in Wales, Scotland and Northern Ireland.
COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
With thousands of people still unwell months after contracting coronavirus, People Management asked HR experts, wellbeing specialists and employment lawyers how organisations can support employees suffering from the condition now termed ‘Long Covid’. The main advice is that the situation should be discussed openly with employees, who should be treated on a case-by-case basis as with any other medical condition, and use occupational health as a guide to accommodate adjustments. However, it is too soon to be labelling coronavirus as a disability.
COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
The Office for National Statistics (ONS) has revealed that employers prioritised paying full pay to top earners during the COVID-19 pandemic in contrast with the UK’s lowest paid workers who were five times more likely to be furloughed with reduced pay.
The data collected covered a range of demographic indicators; almost a quarter of 18 to 21 year olds were furloughed on reduced wages compared with only 9% of 40 to 59 year olds and 39% of hospitality workers were furloughed on reduced pay compared with 3% in professional jobs. It also found that there were 2,043,000 jobs where employees aged 16 or over were paid below the legal minimum in April 2020, more than four times the 409,000 jobs a year earlier.
Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
Figures published by the Office of National Statistics (ONS) have revealed that the UK’s gender pay gap, calculated using the median hourly earnings of full-time employees, has fallen to 7.4% from 9% in 2019. This means that, as of April 2020, female workers earned 92.6% of male employees’ hourly pay. This reduction was reflected across age groups, with the gender pay gap for full-time workers under-40 particularly low at “close to zero”. Interestingly, the most significant reduction in the gender pay gap occurred among managers, directors and senior officials, falling from 16.3% in 2019 to 9.9% in 2020. The ONS highlighted the fact that “this occupation group has the highest median pay of any occupation … and therefore has a strong impact on the gender pay gap” overall.
The Government Equalities Office and the Equalities and Human Rights Commission suspended gender pay gap reporting regulations back in March 2020 as a result of disruption caused by the COVID-19 pandemic. Although this data takes furloughed workers’ pay into account, the ONS warned that the impact of the pandemic may not be fully reflected.
Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
The Information Commissioner’s Office (ICO) has issued a monetary penalty notice fining Marriott International Inc (Marriott) £18.4 million for breaching its data security obligations under the General Data Protection Regulation (GDPR), leaving about 339 million guest records worldwide exposed to a cyber-attack on Starwood Hotels and Resorts Worldwide Inc’s (Starwood) reservation database in 2014. Marriott acquired Starwood in 2016, but the exposure of customer data was only discovered in 2018, at which time Marriott notified the ICO and updated its systems.
The ICO traced the cyber-attack back to 2014, but the penalty only relates to the breach from 25 May 2018, when the GDPR became applicable. As the breach occurred before the UK left the EU, the ICO investigated this on behalf of all of the EU authorities as a lead supervisory authority under the GDPR.
The amount imposed is a significant reduction on the £99,200,96 million the ICO announced it intended to fine Marriott in July 2019. As part of the regulatory process, the ICO considered representations from Marriott, the steps Marriott took to mitigate the effects of the incident and the economic impact of COVID-19 on their business before setting a final penalty.
This fine illustrates the importance of carrying out thorough due diligence when making a corporate acquisition and, as part of this, to assess how personal data is protected. It follows hot on the heels of the ICO fining British Airways £20 million earlier this month for failing to protect the personal and financial details of more than 400,000 of its customers in a cyber-breach, the largest fine imposed to date for a breach of the GDPR. An ICO investigation found the airline was processing a significant amount of personal data without adequate security measures in place. This failure broke data protection law and, subsequently, BA was the subject of a cyber-attack during 2018, which it did not detect for more than two months. ICO investigators found BA ought to have identified weaknesses in its security and resolved them with security measures that were available at the time.
On 18 August 2020, Martin Bryant filed a representative class action in the High Court (Bryant v Marriott International Inc and others, case number QB-2020-002882). The claim for compensation is being brought on an opt-out basis by automatically including guests who made a reservation at one of the former Starwood hotels before 10 September 2018.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – April 2019
- Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
- Contract of Employment: Variation of a discretionary bonus
- Vicarious liability: Employer not liable for Christmas party injury
- Tribunal Procedure: List of issues not pursued by claimant
- Long-term disability: Employee PHI benefits apply to returning to same job
- Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
- TUC Survey: Britons work longer than rest of Europe
- HMRC: New guidance published regarding change to IR35 rules
- Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
- Tribunals: Modernisation plan from 2019-20 to reform tribunals
- Equality: New GPG figures show gap is actually widening in favour of men
Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
This was the question before the EAT in Frudd & Frudd v The Partington Group Ltd UKEAT/0240/18/OO. The Claimants, Mr and Mrs Frudd, were a warden/receptionist team who worked at a caravan site. During the open season they worked shifts which finished between 4.30pm and 8pm and were expected to be on-call afterwards on two or three nights a week until 8am the following morning. The Claimants argued that whilst on-call they were working on “time work” and so entitled to be paid the National Minimum Wage. According to the legislation, workers paid according to the number of hours they are at work are classed as doing ‘time work’. For these workers, the average hourly pay has to be at least the National Minimum Wage, worked out over the period each pay packet covers – so for a worker who gets paid once a month, this period will be 1 month. (The sleep-in exception in the Mencap case did not apply because this was not a sleep-in situation.)
Although the Claimants had sought a finding in respect of the whole time on call, the Employment Judge made a distinction. He found that the night period (10pm – 7am) was not time work. The Claimants appealed the rest of the time (from the end of the shift until 10pm). The Employment Judge found that for this period they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period.
The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out, and so were merely available for work, and were not entitled to be paid whilst merely on-call.
Contract of Employment: Variation of a discretionary bonus
In Bluestones Medical Recruitment Ltd v Swinnerton UKEAT/0197/18/BA Mr Swinnerton made a claim for unlawful deduction from wages after he was not paid a bonus he claimed was due to him. His contract stated any bonus was discretionary but he claimed that when he had been promoted to General Manager there had been a further agreement. He was to be paid a monthly bonus based on the company’s profits and he would become a shareholder. Bluestones argued that the bonus remained discretionary as once Mr Swinnerton became a shareholding director he was to be paid the money by way of a dividend. This had not yet occurred and so the money was to be advanced by way of Director’s loan, which he was to repay from his dividends. However, Mr Swinnerton was suspended, Bluestones stopped paying his bonuses and he was then dismissed, all prior to him becoming a shareholder.
At first instance the tribunal concluded this was an unlawful deduction of wages. However, the EAT found the tribunal hadn’t adequately identified the legal mechanism through which the contract was changed or what the new contract required. This failure also meant it was not possible to conclude whether the payments should be classified as loans rather than deductions from wages. The EAT therefore remitted the case to a fresh tribunal.
Vicarious liability: Employer not liable for Christmas party injury
In Shelbourne v Cancer Research UK  EWHC 842 (QB), whilst at a work Christmas party, one attendee had attempted to lift another (the Claimant, an employee) on the dance floor but dropped her, causing her a serious back injury. The Claimant took the matter to the County Court, claiming the employer (CRUK) was vicariously liable for the actions of the attendee (Robert Beilik, a visiting scientist)because it was a work event. The person who had organised the event for the employer was Mr Hadfield, and he had carried out a risk assessment to cover all the foreseeable hazards of holding an event at the premises (which included laboratories). Mr Beilik had picked up several women that night, prior to this incident, but had put them down again straight away and no one had reported any concerns about him.
The County Court held that the employer was not negligent and not vicariously liable for the actions of Mr Beilik. The Claimant appealed. The High Court considered the nature of the occasion and agreed with the County Court Recorder. It was not wrong to find that CRUK took reasonable steps in the planning and operation of the party. No duty of care was breached. The claim for negligence was, accordingly, not made out. Furthermore, he was right to find that Mr Beilik’s field of activities was his research work at CRUK and that this field was not sufficiently connected with what happened at the party as to give rise to vicarious liability.
Tribunal Procedure: List of issues not pursued by claimant
In Kouchalieva v London Borough of Tower Hamlets UKEAT/0188/18/JOJ the EAT had to consider whether the tribunal had made an error or not. The Claimant, representing herself, had brought claims against her former employers, the London Borough of Tower Hamlets, of unfair dismissal and disability discrimination. In some cases, the employment tribunal will order that a preliminary hearing takes place before the main employment tribunal hearing, as a way of helping the judge understand the case and make arrangements for the main hearing. These are usually used when the case is complicated or involves discrimination, as it was here. At the Preliminary Hearing a list of issues was agreed between the parties but, at the final hearing, the unrepresented Claimant did not lead any evidence in relation to a number of issues in that list. In the judgment, the tribunal noted that they had not been pursued, and on finding they were now out of time, declined to extend time.
At appeal, the Claimant’s counsel argued that the tribunal erred in law in failing to address the agreed list of issues because the tribunal has as its overriding objective to ensure that the parties were on an equal footing, so far as is practicable. He suggested that if the tribunal realises that an unrepresented Claimant has failed to address a particular issue, the ET should raise the matter with the Claimant and ask them whether they intend to abandon the claim. He also suggested that if the unrepresented Claimant has failed to address a particular issue then the Respondent should also bring the matter to the Claimant’s attention, and to the ET’s if the matter has not been remedied satisfactorily.However, the Respondent argued that the list of issues is a case management tool, not a pleading, and the tribunal was under no duty to raise specifically with a litigant every issue which the litigant has not pursued during the hearing.
The EAT concluded that the tribunal was not under a duty to draw the neglected issues to the Claimant’s attention. It could not treat the issues as having been withdrawn, but it could take the failure to actively pursue the issues into account in exercising its discretion as to whether to extend the time limit. It found the issues the Claimant had not actively pursued to have been out of time.
Long-term disability: Employee PHI benefits apply to returning to same job
In ICTS (UK) Limited v Visram UKEAT/0133/18 Mr Visram worked as an International Security Co-ordinator but went on sick leave with work-related stress and depression. The Claimant became entitled to Long Term Disability Benefit (“LTDB” aka permanent health insurance) under his employment after 26 weeks absence. The term of the insurance booklet stated the LTDB would be paid “…until the earlier date of your return to work, death or retirement”. After being absent from work for nearly two years the Respondent dismissed him with pay in lieu of notice, and continued to pay the LTDB until the situation had been clarified.
The issue at hand was whether construction of the phrase “return to work” meant return to work in the Claimant’s former role with the Respondent or whether it meant any suitable work which the Claimant was able to carry out whether for the Respondent or otherwise. The EAT ruled that the words “return to work” in the policy did not mean return to full-time work with any employer, but specifically the employer that he had worked for prior to going on sick leave and doing the same work. Had he not been dismissed he would have continued to be entitled to receive the benefits since he was unable to return to the same work he had been doing when he became unwell. It also upheld the tribunal’s finding that the dismissal constituted discrimination arising from disability and was unfair. Therefore he was entitled to be compensated for loss of benefits until death or retirement. The claim remitted to the tribunal for determining compensation for loss of long term and associated benefits and the issue of mitigation. (His claim for aggravated damages also remitted for determination.)
Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
In Radia v Jeffries International Ltd UKEAT/0123/18/JOJ, a Managing Director of a FCA-regulated financial services company had taken his employer to tribunal over two claims – one for disability discrimination and a later claim of victimisation. The first tribunal found that “in several areas of his evidence the Claimant had not told the truth or had misled the tribunal and had given untrue evidence”, and additionally, they had also noted that “the Claimant’s behaviour as a regulated person would be a matter of grave concern”. Furthermore they found the employer’s witnesses credible but did not think the same of the Claimant. On receiving the judgment, the employer suspended him on full pay pending a disciplinary, but without holding an investigation. The Claimant did not appeal this judgment.At the disciplinary meeting, the Claimant disputed the tribunal’s findings against him but did not deal with the allegations themselves. For all these reasons, combined with his behaviour being “not compatible with his being a fit and proper person for the purposes of the FCA rules”, the Respondent dismissed the Claimant.
The second tribunal found in favour of the employer – it had acted reasonably in treating the findings of the first tribunal as a starting point without further investigation at that stage and then seeking the Claimant’s representations about those findings.
The Claimant issued his third claim to the tribunal complaining that his suspension, dismissal, and the Respondent’s refusal to hold the hearing of his appeal against his dismissal amounted to whistleblowing detriment, victimisation and unfair dismissal. The tribunal found in favour of the employer, that the dismissal had been fair.
On appeal, the EAT held that there was no error of law in the tribunal finding the dismissal fair – for dismissing him without holding an investigation meeting. The question was whether the decision was within the range of reasonable responses. The two stages of investigation and disciplinary meetings are not required by statute or even the ACAS Code, and therefore the tribunal was entitled to reach this conclusion in this case. However, the employer not offering him an appeal did make the dismissal unfair – the tribunal had not made sufficient findings to justify its decision that having no appeal would have made no difference.
TUC Survey: Britons work longer than rest of Europe
The TUC has recently published results of a survey they have conducted into working hours in 2018. The interesting results are that the British work an average of 42 hours a week (which equates to two and half weeks a year), and this is almost two hours longer than the European average (40.2) and five hours more than the Danes, who racked up a mere 37.7 hours a week.
Britain’s “long-hours culture” is not having a positive impact on productivity. In similar economies to ours, workers are much more productive for each hour they work.” And that “the long hours worked by Britons are depriving them of a fulfilled personal life,says the TUC.
Can this be true? With the Danes dominating the World Happiness Report rankings year after year, perhaps this is food for thought?
HMRC: New guidance published regarding change to IR35 rules
IR35 is the name given to tax legislation that is aimed at identifying individuals who supply services to clients via their own company and who are avoiding paying the full amount of tax that they should be. The rules have been changing for a while, with the most recent changes concerning those working in the public sector, but new rules regarding off-payroll working in the private sector are due to come into effect on 6 April 2020.
HMRC has published new guidance, which contains four key steps, to assist organisations in dealing with this as it will be responsibility of the organisations receiving the individual’s services to decide whether the amended off-payroll working rules apply or not.
Tribunals: Modernisation plan from 2019-20 to reform tribunals
In January 2019, Sir Ernest Ryder, Senior President of the Tribunals, published a report entitled ‘The Modernisation of Tribunals 2018’ setting out his proposed strategy for the reform of the whole tribunal system, including the immigration and employment tribunals. Following on from that, he has now published his Innovation Plan for 2019-2020, which sets out various aims and objectives to reform the employment tribunals. It includes the introduction of digital case management, recording of hearings and digital evidence presentation and the ability to use live video evidence.
Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
The CIPD and Simplyhealth recently published the results of their nineteenth annual survey which shows that nearly two-fifths of UK businesses (37%) have seen an increase in stress-related absence over the last year. The survey is designed to explore the trends and practices in health, well-being and absence management in UK workplaces. The survey was completed in November 2018 by more than 1,000 professionals, covering 3.2 million employees across the UK. According to the report, heavy workloads and poor management style are to blame.
Overall, the findings reflect employers’ growing recognition of their critical role in improving the health of the workforce. But the survey highlights some cause for concern, including an increase in stress-related absence and a lack of support for managers, who are increasingly expected to take responsibility for their team’s well-beingreports the CIPD.
CIPD are trying to bring this to the attention of employers so that they invest in more training and development for managers. To this end they have published some top tips to support managers to minimise stress in their teams and also have a useful management development factsheet for developing people management skills.
Equality: New GPG figures show gap is actually widening in favour of men
The deadline for large private sector organisations to publish their gender pay gap figures recently passed and it seems that producing this information is, so far, not having the desired effect. Nearly ten and a half thousand companies filed their data on time, but a worrying 45% of these show an increase in the gap between the pay of men and women in the last year.
The way the figures are reported is important to understand – the median pay gap and mean pay gap are ways of expressing two different data sets. The median pay gap is the difference in pay between the middle-ranking woman and the middle-ranking man whereas the mean pay gap is the difference between a company’s total wage spend-per-woman and its total spend-per-man. Whilst gender pay gap (GPG) is not the same as unequal pay (which is illegal) this is certainly a matter of inequality. There are other matters which influence the GPG such as having fewer women in senior or highly paid roles, more women in part-time jobs or lower paid roles, fewer women generally in certain industries (particularly where STEM subjects are necessary).
Some of the biggest offenders where the women’s median hourly wage was lower than the men’s were Easyjet (47.9 %) and Independent Vetcare (48.3%), whilst Kwik Fit, Interserve FS and car retailer Inchape showed the biggest increases in their pay gaps. Overall, the figures tells us that the median GPG has reduced marginally by 0.1% to 9.6% in favour of men. There is clearly plenty more to be done. Frances O’Grady, General Secretary of the TUC, said that employers are not making significant changes to tackle the disparity that exists. Indeed, there is concern about the attitude of employers who may be treating the government’s requirement to publish gender pay gap figures as an exercise in compliance, or even as a marketing strategy. There has been a suggestion that employers should publish action plans meaning they will have to explain their figures and examine and target where the inequalities exist in order to make meaningful change.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – March 2019
- TUPE: Dismissal due to difficult working relationship may be automatically unfair
- Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
- Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
- Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
- Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
- Indirect Discrimination: Justification of rule more important than application of rule to individual
- Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
- BREXIT: ICO website contains SME Brexit preparation tools
- Data Protection: Vote Leave Ltd fined £40,000 by ICO
- Immigration: Seasonal workers pilot opens
- Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
- Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
- Wages: National Minimum Wage and National Living Wage set to increase from 1 April
TUPE: Can a dismissal due to difficult working relationship be automatically unfair?
In Hare Wines Ltd v Kaur  EWCA Civ 216 the question before the Court of Appeal was whether the Claimant’s dismissal for purely ‘personal reasons’, was a sufficient reason to prevent the dismissal from being automatically unfair as it related to a TUPE transfer. In this case, Mrs Kaur was a cashier for a wine wholesaler, which had been run by several different businesses during the time she had worked there, with common directors/shareholders. In 2014, the business was transferred under TUPE to Hare Wines Ltd. Mrs Kaur and Mr Chatha were colleagues with a strained working relationship. Mr Chatha became a director of Hare Wines Ltd. On the day of the transfer, Mrs Kaur was dismissed, and all the rest of the employees transferred under TUPE to Hare Wines Ltd. Mrs Kaur claimed this was automatically unfair as it was related to the transfer, and the tribunal agreed.
Hare Wines Ltd argued that Mrs Kaur had objected to the transfer because she did not wish to work with Mr Chatha, who was to become a director. However, the tribunal held that this was not the case, and that the real reason was that the business did not want her because it may have continuing difficulties between the individuals. On appeal to the EAT and then the Court of Appeal, the tribunal’s finding that she had not objected was upheld and that the reason for the dismissal was not that she had been dismissed because of her difficulties with Mr Chatha with the transfer being coincidental, it was that the employer did not want her because she and Mr Chatha did not get on. This was the principal reason. The relationship had been strained for some time and she had not been dismissed until the transfer was to happen, therefore the two were linked. The Court of Appeal noted that dismissals for economic, technical or organisational (aka ‘ETO’) reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as preventing a transfer-related dismissal from being automatically unfair.
Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
In Nosworthy v Instinctif Partners Ltd UKEAT/0100/18, Miss Nosworthy had entered in to a Share Purchase Agreement and Articles of Association with the company, which contained some common bad leaver conditions. The conditions meant that a shareholder who is also an employee who voluntarily resigns is considered to be a bad leaver . In this case, the bad leaver provisions meant that when Miss Nosworthy resigned she was forced to forfeit deferred earn-out shares and loan notes – i.e. transfer her shares – with the value of the shares being determined at the acquisition cost (which was £143 for her 2% share). Miss Nosworthy claimed this forced transfer was a contract connected with employment and therefore could be considered to be unconscionable, a penalty or an unlawful deduction from wages
The tribunal disagreed, and this finding was upheld by the EAT. The criteria for setting aside an agreement as unconscionable were not satisfied – there had been no serious disadvantage. It was not a penalty as a result of a breach of contract, because it was a term of the Articles of Association which applied to any bad leaver, regardless of breach, and was not a breach of contract. Furthermore, the company’s remuneration committee, which had the power to reclassify her as a good leaver, had not failed to exercise its discretion in good faith because there were no exceptional circumstances for it to take into account. Lastly, it was not an unlawful deduction from wages, because the definition only covers payments made in respect of her capacity as a worker, whereas the shares were provided to her as a shareholder.
Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
In Exmoor Ales Ltd & Another v Herriot UKEAT/0075/18/RN theEAT Mrs Herriot had provided accountancy services for Exmoor Ales, a brewery, for nearly three decades, submitting invoices from her partnership. Since 2011, the brewery had paid her £1,000 each quarter, which Mrs Herriot claimed was an exclusivity payment, but which the respondents denied. In 2017 Mrs Herriot brought claims against the brewery just before her work relationship with it ended. The claims were for unfair dismissal, age discrimination, holiday pay, failure to provide a statement of written particulars of employment, harassment and victimisation.
The tribunal found, on the evidence, that the quarterly payment did indeed change the nature of the relationship from that point onwards and that she did in fact, stop working for other clients. The brewery had also given her allocated seating in their premises, she was fully integrated into their business, and exercised a high level of control over her whilst at work. It was also noted that there was mutuality of obligations between the parties from April 2011 onwards, and she had no right to appoint a substitute. The tribunal therefore held that until that time, Mrs Herriot had been an independent contractor providing accountancy services to the brewery but after the quarterly payments started, she was in actual fact an employee.
The brewery appealed arguing that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. These were rejected by the EAT, however, because the tribunal had considered these elements but found the factors highlighted by it had overridden those identified by the Respondents. In this instance, the quarterly exclusivity payment had been an influencing factor although in reality it was the effect it had on their respective behaviours that led the tribunal and EAT to find her to be a de facto employee.
Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
Last year the Supreme Court ruled in Pimlico Plumbers Ltd & Another v Smith that the plumbers had been employed by Pimlico Plumbers as workers rather than being hired as independent contractors. As workers, this meant they were entitled to some basic employment rights such as the right to be paid the national minimum wage and holiday pay. At the end of his successful seven year battle with Pimlico Plumbers, Mr Smith began proceedings in the Croydon employment tribunal for backdated holiday pay. However, the tribunal ruled that he had not filed his claim quickly enough – the regulations state that claims for missed pay should be filed within 3 months of each holiday period, dating back to 2005. His claim amounted to £74,000. He is going to appeal this decision because he did not know he was entitled to paid leave while he was employed by Pimlico Plumbers so did not bring a claim until after his contract was terminated in May 2011.
Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
In South West Yorkshire Partnership NHS Foundation Trust v Jackson UKEAT/0090/18/BA the claimant was on maternity leave when she became part of a number of staff at risk of redundancy who were then sent an email by the HR department to their work email addresses, which the claimant could not access, setting out redeployment opportunities. She was not able to open the email for several days but this in itself did not cause her substantial harm. However, it raised a legitimate concern that such behaviour was unfavourable treatment (s.18(4) of the Equality Act) because she was exercising her right to take maternity leave, and it is on this ground that she made a claim.
The tribunal upheld her claim. However, the EAT found that the tribunal had erred in its approach to the causation test. Although the unfavourable treatment would not have happened “but for” the fact that the Claimant was on maternity leave, the tribunal had not considered whether this was the “reason why” she had been treated unfavourably. There was no finding by the tribunal as to why the Claimant was not able to access her emails, as she had in fact attended a meeting a few days before despite being on maternity leave.
Mr Justice Shanks said, the “ET must ask itself the standard “reason why” question in relation to why the unfavourable treatment took place and that it is not sufficient for the “but for” test to be satisfied for there to be a finding of discrimination under section 18.” He went on to say that it did not seem as if the tribunal had found that the characteristic of being on maternity leave had been on anyone’s mind, nor had the tribunal decided that an inherently discriminatory rule had been applied in this case. It seems to have been pure administrative error and therefore the test used by the tribunal was that ‘but for being on maternity leave, the Claimant would not have been disadvantaged’, which was not sufficient for a finding of discrimination. As a result the case was remitted back to the tribunal for further findings.
Contract: Suspending an employee does not always breach the implied term of trust and confidence
In The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322 a primary school teacher was accused of using excessive force with two pupils with special educational needs, and suspended pending investigation as a result. The teacher, Ms Agoreyo, resigned the same day. She claimed that the suspension had been a knee-jerk reaction and that an investigation did not require suspension. The suspension was a repudiatory breach of contract – a breach of the implied term of mutual trust and confidence between them, and she was entitled to resign and claim constructive dismissal.
At first instance, the County Court found that the school had reasonable and proper cause for her suspension. The claim was dismissed. Ms Agoreyo appealed. The High Court allowed the appeal on the basis that suspension should not be the default option – an individual should be suspended only if there is no reasonable alternative. The school had said the suspension was a neutral act but the High Court disagreed and said that it is never a neutral act. Ms Agoreyo’s resignation letter neither negated nor undermined the case on breach of the implied term as to trust and confidence.
On further appeal however, the Court of Appeal agreed with the County Court, and held there was no breach of trust and confidence. It found the High Court had erred in its test of whether it was necessaryto suspend was setting the bar too high and the correct legal test was whether the school had had reasonable and proper cause to suspend Ms Agoreyo. The County Court judge was entitled to hold that it did and Ms Agoreyo’s claim that her suspension was a breach of contract failed.
Indirect Discrimination: Justification of rule more important than application of rule to individual
In The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey UKEAT/0171/18/JOJ a bus company had instituted a rule in the rostering system that bus drivers had to work 5 out of 7 days, including Saturdays or Sundays. Mr Harvey was a Seventh Day Adventist who asked not to work between sunset on Friday and sunset on Saturday so that he could observe the Sabbath. The bus company had given him a service that was able to take this into account but it was not a permanent arrangement and so he subsequently had to swap shifts or call in absent from work on the days when he was required to work a shift on Friday evening or Saturday daytime. They had also offered him flexible working but in the meantime he had brought a claim of indirect discrimination on the grounds of religion or belief.
The bus company argued that it feared that if it agreed to this as a permanent arrangement, more drivers would ask for time off for other religious reasons, particularly events and festivals, and this might result in industrial unrest. At tribunal it was accepted that the bus company’s working arrangements imposed a ‘provision, criterion or practice’ (“PCP”) that placed Mr Harvey at a disadvantage. So, the question then was, whether the PCP was a proportionate means of achieving a legitimate aim. The tribunal found that the bus company had established legitimate aims of ensuring efficiency, fairness to all staff, and recruitment and retention. In upholding Mr Harvey’s claim, however, the tribunal ruled that the PCP was not justified becausethere was insufficient evidence to support one of the legitimate aims – maintaining a ‘harmonious workforce’.
On appeal to the EAT the decision was overturned the decision. It was incorrect of the tribunal to focus on the particular application of the rule on the claimant rather than the general justification for the rule. The tribunal had recognised that the bus company’s problems arose not from granting the Mr Harvey’s request, but from granting many such requests, and in doing so meant it had failed to balance the general aims of the bus company with the potentially discriminatory impact of the rule. The judge remitted the case back to the original tribunal to reconsider this issue.
Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
The Information Commissioner’s Office (ICO) has carried out investigations into nuisance marketing which, by working with the Insolvency Service, has led to 16 company directors being banned from running a company for more than 100 years in total. One of the worst offenders was Richard Jones who has been barred from being a company director for eight years after his two companies, Your Money Rights Ltd and Miss-Sold Products UK Ltd were responsible for 220 million automated nuisance calls, most of which were in respect of PPI claims. The companies’ breaches resulted in total fines of £700,000 in 2017, which Mr Jones then tried to avoid by applying to wind up the companies. This was blocked by the ICO which then referred the case on to the Insolvency Service.
New legislation which came into force in December 2018 means that the ICO now has powers to make company directors and other company officers personally liable for the fines imposed for illegal marketing.
BREXIT: ICO website contains SME Brexit preparation tools
Who knows what the next few weeks have in store, but that’s not very helpful for businesses. Whilst most businesses may well be more prepared than the government, the ICO has produced guidance and practical tools to help organisations prepare in terms of their data, including: Data Protection and Brexit Law enforcement processing: Five steps to take, Data protection in the event of a no-deal Brexit, aimed at UK based businesses or organisations to which the GDPR or Part 3 of the Data Protection Act 2018 currently applies to their processing of personal data.
Data Protection: Vote Leave Ltd fined £40,000 by ICO
Vote Leave Limited has recently been fined £40,000 by the Information Commissioner’s Office (ICO) for sending out thousands of unsolicited text messages run up to the 2016 EU referendum. An ICO investigation found that Vote Leave sent 196,154 text messages promoting the aims of the Leave campaign with the majority containing a link to its website. Vote Leave claimed the contact information it had used to message people was obtained from enquiries which had come through their website; from individuals who had responded via text to promotional leaflets; and from entrants to a football competition. However, the organisation said that following the conclusion of the referendum campaign it had deleted evidence of the consent relied upon to send the messages. Also deleted were details of the phone numbers the messages were sent from, the volume of messages sent, and the volume of messages received. Being unable to provide evidence that the people who received the messages had given their consent (a key requirement of electronic marketing law) made them liable for this fine.
This latest fine is part of the ICO’s ongoing investigation into the use of data in political campaigns. As a result of the investigation the ICO has taken action against a number of different organisations engaged in campaigning for breaches of direct marketing and data protection laws.
Immigration: Seasonal workers’ pilot opens
In September 2018, the Home Secretary and Environment Secretary announced that, having listened to farmers, they were introducing a nationwide pilot scheme seasonal workers to bring seasonal migrant workers to UK farms. The pilot opened on 6 March meaning that UK fruit and vegetable farmers will be able to employ migrant workers for seasonal work for up to 6 months. Subject to recruitment and visa application processes, the pilot, which runs until the end of December 2020, will allow up to 2,500 workers from outside the EU into the UK each year. Concordia and Pro-Force are the two scheme operators who have been licensed to manage the pilot. It is their responsibility to identify suitable workers who they will then match to UK farmers, as well as ensuring the welfare of the workers whilst they are in the UK.
The aim is to test the effectiveness of the immigration system at alleviating labour shortages during peak production periods.The pilot will be reviewed before any decisions are taken on running a future scheme.
Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
In October 2018, the Home Office was moved to action following pressure from numerous groups frustrated by what they see as ‘blatant compliance failures’. It began with the Home Office writing directly to the chief executives of 17,000 businesses telling them to open up about modern slavery in their supply chains, or risk being named as in breach of the Modern Slavery Act. The letter gave the companies a grace period to comply – which ends on 31 March 2019.
Those businesses which do not comply by the deadline date will be “named and shamed” in a public report. The ‘naming and shaming’ is seen as a prelude to strengthening the reporting requirements under the legislation and, possibly, introducing sanctions for non-compliance.
The government reports that:
Businesses with a turnover of more than £36 million must publish annual transparency statements, known as a Modern Slavery Statement, setting out what they are doing to stop modern slavery and forced labour practices occurring in their business and supply chains. At the moment, it is estimated that 60% of companies in scope have published a statement. Whilst there are many examples of good practice, some of these statements are poor in quality or fail to even meet the basic legal requirements.
Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
The Department for Business, Energy and Industrial Strategy (BEIS) has published guidance and an online calculator on how to calculate holiday pay for workers whose hours or pay are not fixed. This guidance is intended to help employers pay the correct amount of holiday pay for all their workers.
In simple terms, the Working Time Regulations 1998 mean that almost all workers are legally entitled to 5.6 weeks’ paid holiday per year, with the pay being calculated based on the amount of hours they work and how they are paid for those hours. For workers who do not work fixed or regular hours, and therefore do not receive the same amount of pay each week, month or other pay period, it can be more complicated. This guidance helps employers calculate holiday for such workers, using the holiday pay reference period (a worker’s previous 12 week paid period) and gives examples of what to do if you don’t have 12 weeks of data, when the reference period starts, what the definition of week is, etc.
Wages: National Minimum Wage and National Living Wage set to increase from 1 April
In the Budget 2018, in response to the Low Pay Commission’s recommendations the Chancellor, Philip Hammond, announced new National Minimum/Living Wageincreases from 1 April 2019 as follows:
- from £7.83 to £8.21 for workers aged 25 and over (the National Living Wage)
- from £7.38 to £7.70 for 21-24 year olds
- from £5.90 to £6.15 for 18-20 year olds
- from £4.20 to £4.35 for 16-17 year olds
- from £3.70 to £3.90 for apprentices aged under 19 or in the first year of their apprenticeship.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.