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Employment Law Case Update – January 2025

  • Anne-Marie Pavitt,

  • 24th January 2025

Employment Law

A range of decisions from across the spectrum of employment jurisdiction this month as we take a look at some of the most recent cases. A tribunal determined that a consultant contracted through a service company was a worker, making deductions for employer NICs unlawful. The EAT overturned a re-engagement order for an unfairly dismissed employee due to errors in assessing contributory conduct and the issue of the employer’s lost trust. The EAT also found that a tribunal failed to address key issues in a race discrimination claim where an employee alleged her job re-evaluation requests were mishandled due to her ethnicity. And the Court of Appeal upheld that a tribunal erred in determining the timing of a discrimination claim where it was based on delayed knowledge of key facts.

  • Workers: Consultant engaged by recruitment agency via service company was a worker
  • Remedies: EAT declared tribunal erred in ordering re-engagement of employee
  • List of Issues: Tribunal erred in failing to address race discrimination allegation not pleaded but included in list of issues
  • Discrimination: Tribunal erred in determining claimant’s date of knowledge of claims

Workers: Consultant engaged by recruitment agency via service company was a worker

In Appiah v Tripod Partners Ltd ET/2302929/202, an employment tribunal has found that a consultant who contracted with a recruitment agency through a service company was a worker of the agency under the Employment Rights Act 1996 (ERA 1996).

Ms Appiah was an independent social worker. Tripod Partners Ltd, a social care recruitment agency, placed her on an assignment to the Home Office. The Home Office assessed Ms Appiah using HMRC’s CEST tool. It decided she fell inside IR35 and should therefore be taxed as an employee.

Ms Appiah had previously contracted with Tripod through an umbrella company. However, following the Home Office assessment, Tripod gave her the additional options of an arrangement within PAYE or of contracting via a service company. Tripod explained that there were “small differences” in these options. It also confirmed that if she opted for a service company, it would deduct income tax and employee national insurance contributions (NICs) from her hourly pay. She decided to contract via a service company.

Once the contract had been finalised, Tripod made deductions from Ms Appiah’s pay for income tax, employee NICs and employer NICs. Ms Appiah accepted that Tripod was entitled to make deductions for income tax and employee NICs. However, she brought a claim alleging that the deductions for employer NICs were unlawful under the ERA 1996. Tripod argued that Ms Appiah was not a worker, so could not bring a claim for unlawful deductions.

The tribunal noted that the relevant contract was between two limited companies. However, this was not determinative. The efficacy of statutory protections would be eroded if everyone working through a service company was excluded from the rights afforded by ERA 1996.

It was evident that Ms Appiah was a worker. She sent timesheets to Tripod, not invoices. The contract said she was not a worker, but this did not reflect the reality. She worked full-time on her assignment, performing services personally. There was no difference in substance between the contractual arrangements she had been offered; they were simply different ways in which her payment could be channelled to her. She was not in business on her own account and neither the Home Office nor Tripod were her client. There was no route by which the contractual arrangement could genuinely be said to be between two businesses.

The tribunal went on to uphold Ms Appiah’s claim for unlawful deductions from wages in respect of Tripod’s deductions for employer NICs.

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Remedies: EAT declared tribunal erred in ordering re-engagement of employee

In British Council v Sellers [2025] EAT 1, the EAT has held that a tribunal erred in ordering the re-engagement of an employee who had been unfairly dismissed following an allegation of sexual misconduct.

Before ordering re-engagement, a tribunal must consider the employee’s wishes, whether it is practicable for the employer to comply with a re-engagement order and, where the employee caused or contributed to their dismissal, whether ordering re-engagement would be just (section 116(3), Employment Rights Act 1996).

In this case, the tribunal found that, while the relevant decision-taker genuinely believed the employee had committed the alleged misconduct, their belief was unreasonably derived from a flawed investigation which the appeal process had failed to rectify. Following this decision, but before the remedy hearing, the employer instructed an independent investigator to undertake a fresh investigation. The investigator concluded that the accuser had been truthful. The employer upheld its gross misconduct finding.

At the remedy hearing, the employer did not argue that the employee had caused or contributed to his dismissal. Instead, it argued that its genuine and rational concerns about his conduct made it impracticable to re-employ him. The tribunal considered itself bound to address the issue of contributory conduct and found that, on the balance of probabilities, the alleged sexual assault did not occur. It held that it was irrational for the employer to have concerns about the employee’s conduct based on the independent investigation which it considered to be flawed in several respects. The tribunal ordered re-engagement. The employer appealed.

The EAT held that the tribunal erred in determining whether the employee had committed the alleged misconduct. Section 116(3) does not mandate the tribunal to make a finding on contributory conduct. Only where the tribunal has made such a finding (at the liability stage or because it was raised on remedy) would it need to consider whether it would be just to order re-engagement.

The tribunal had also erred by losing sight of the fact that practicability had to be determined from the employer’s perspective. It had considered the reasonableness of the independent investigation when it should have considered whether re-engaging the employee was likely to be practicable in circumstances in which the employer had accepted the investigation’s finding that he had committed a sexual assault and considered that he could no longer be trusted. The re-engagement order was set aside.

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List of Issues: Tribunal erred in failing to address race discrimination allegation not pleaded but included in list of issues

In Bogdan v The Cabinet Office: Government Digital Services [2024] EAT 177, the EAT has allowed an appeal where an employment tribunal either failed to address, or failed to give adequate reasons for rejecting, a direct race discrimination claim in which the claimant, Ms Bogdan, alleged that her requests to re-evaluate her job grade were not adequately addressed by her employer, and this was less favourable treatment because she is a Romany Gypsy.

Ms Bogdan was a litigant in person when she issued her claim. In the claim form, there was no hint of any suggestion that she had made several job re-evaluation requests or been subjected to race discrimination by having such requests ignored, mishandled or refused. However, an employment judge subsequently conducted case management, which resulted in a list of issues. This stated that the allegation of direct race discrimination included that, from the beginning of her employment, she had made several job re-evaluation requests to her line manager. The thrust of her case, as set out in the list of issues, was that her employer had failed to deal with those requests, which had left her job wrongly graded.

An employment tribunal dismissed all of Ms Bogdan’s claims. She appealed on the basis that the tribunal failed to adequately deal with her direct race discrimination claim, as there was material evidence to which no reference was made and about which no adequate reasons appeared in the judgment.

The EAT allowed part of the appeal relating to the issues contained in the list of issues concerning her repeated job re-evaluation requests. It concluded that the list of issues effectively operated as substantial amendments to the originally pleaded claims in a way that neither Ms Bogdan’s employer nor the employment tribunal had fully appreciated. Despite the fact that her case, as presented at the tribunal, was not her pleaded case, the EAT concluded that the issues contained in the list of issues were squarely before the tribunal, yet it had fundamentally omitted to deal with them. It was therefore not apparent from its reasoning why she was not successful on those issues. This was a serious procedural irregularity, and the EAT remitted those issues to a new tribunal.

The case is a reminder of the importance of the parties and the tribunal being alive to the issues contained in the list of issues and ensuring that these are adequately dealt with in the reasons contained in the tribunal’s judgment.

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Discrimination: Tribunal erred in determining claimant’s date of knowledge of claims

In HSBC Bank plc v Chavalier-Firescu [2024] EWCA Civ 155, the Court of Appeal has upheld the EAT’s decision that a tribunal erred in determining the date on which a claimant had sufficient knowledge to bring her discrimination claims.

In July 2018, the claimant learned that her application to join HSBC Bank plc had been unsuccessful and that someone from her previous employer, Barclays, had given her a bad reference. She had ongoing sex discrimination proceedings against Barclays at that time, but only suspected that this was the reason for the bad reference. However, in August and September 2020, information disclosed following her data subject access request led the claimant to believe that she had been considered a very strong candidate by HSBC, but that a senior manager, on learning of her sex discrimination claim against Barclays, had provided negative feedback to her interviewer, leading to HSBC’s decision not to hire her.

The claimant presented claims against HSBC in November 2020 and May 2021. A tribunal struck out the claims, holding that they were presented out of time as the decision not to appoint her was made in July 2018, there was no continuing act, and it was not just and equitable to extend time.

The court held that the EAT had correctly found that the tribunal had erred in striking out the claims. It had failed to explain its reasoning that the claimant was fully aware of the elements of her claim in July 2018 or show that it had taken proper account of the fact that she had only learned information to support her claims in 2020.

Underhill LJ held that where, as in this case, a claimant seeks an extension of time on the basis that they were unaware of important facts material to the viability of their claim, it is necessary for the tribunal to consider the extent of their knowledge, or grounds for suspicion, at the relevant time to assess what justice and equity require. Following Barnes v Metropolitan Police Commissioner UKEAT/0474/05, it will also be relevant to consider whether they should have known or suspected and, if they did, whether it was nevertheless reasonable for them to delay issuing proceedings. The claims were remitted to a different tribunal to consider whether it would be just and equitable to extend time.

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Further Information

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

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

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Employment Law Case Update – September 2024

  • Employment,

  • 27th September 2024

Employment Law

This month our employment law case updates contain some key issues in employment law: discrimination protections, and the balance between the rights and freedoms of individuals and the effect their words or acts may have on those around them.

  • Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms
  • Unfair Dismissal: Dismissal based on capability and performance is fair
  • Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination
  • Equality Act: English Nationalist loses appeal for protection of his views

Collective Agreements: Supreme Court restrains Tesco from ‘firing and rehiring’ employees on less favourable terms

In Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers (USDAW) [2024] UKSC 28, in a unanimous decision in which Lord Burrows and Lady Simler delivered the leading judgment, the Supreme Court agreed with the previous High Court decision and restored the injunction restraining Tesco from terminating employment contracts for the specific purpose of depriving employees of their ‘permanent’ contractual right to retained pay and offering re-engagement without this inclusion. It was held that the employment contracts contained an implied term which prevented Tesco from exercising dismissal rights for this purpose.

The Supreme Court allowed the appellant employees’ (and their union’s) appeal, concerning whether the Court of Appeal, Civil Division, had erred in finding that the respondent company (Tesco) had been entitled to terminate its employees’ employment contracts for the specific purpose of depriving them of ‘retained pay’ (RP) (a financial contractual entitlement which was described as a ‘permanent’ benefit), and to offer re-engagement on terms without RP (the ‘fire and re-hire’ mechanism). The High Court had granted an injunction to restrain Tesco from terminating the employees’ employment to remove the RP term. The Court of Appeal had allowed Tesco’s appeal. The court ruled among other things, that: (i) on the true construction of the express RP term in the relevant employment contracts, the word ‘permanent’ conveyed that the right to RP was not time-limited in any way and would continue to be paid to employees for as long as their employment in the same role continued, subject only to the other two qualifications set out in the RP term; (ii) however, applying the test of business efficacy (or obviousness), Tesco was precluded by an implied term from exercising the contractual right to dismiss the claimants on notice for the purpose of removing or diminishing their right to receive permanent RP; (iii) the exception to the general rule that a contract of employment was not specifically enforceable was engaged, in circumstances where there had been no breakdown of mutual trust and confidence (Tesco was prepared to re-engage the relevant employees), and where damages would be inadequate; and (iv) accordingly, the injunction which the High Court had granted in favour of the employees would be reinstated.

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Unfair Dismissal: Dismissal based on capability and performance is fair

In Kikwera-Akaka v Salvation Army Trading Company Ltd [2024] EAT 49, the EAT found the Employment Tribunal did not err in concluding that the Claimant had been fairly dismissed for capability and performance. The Claimant worked for the Respondent in one of its charity shops. Many of the staff who work in those shops are volunteers and some have additional vulnerabilities. An incident occurred between the Claimant and a vulnerable volunteer, as a result of which he received a final written warning. That stated that further misconduct may result in dismissal. In addition, he was placed on a personal improvement plan (PIP). The Tribunal found that this was specifically linked to the incident with the volunteer: one aspect of his performance which the Respondent made clear needed to improve through that PIP was his interaction with volunteers. The Claimant did not consider that there was anything which he needed to address in that regard. The PIP ended a few days earlier than planned. The Claimant was invited to a performance capability meeting to discuss the PIP. He was expressly warned that dismissal may result. The Claimant’s position regarding his interaction with volunteers did not change: he rejected the suggestion that he needed to improve or that he required further training. He was dismissed.

The Claimant’s appeal against dismissal, in which he maintained his previous stance, was unsuccessful. On the facts the Tribunal concluded that the Claimant had been given a fair opportunity to improve his performance: his interaction with volunteers was a significant and important part of his performance, and was also linked to the misconduct which led to the final written warning. The Tribunal did not err in its approach or in its application of relevant legal principles. Observations upon the differences, and similarities, in a fair approach when an employer considers dismissal for capability compared to misconduct.

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Equality Act: Complaint by LGBT charity about ‘gender critical’ tweets did not induce or cause discrimination

In Bailey v Stonewall Equality Ltd [2024] EAT 119, the EAT held that an Employment Tribunal did not err in rejecting a claim, by a barrister who holds gender critical beliefs, that Stonewall, an LGBT campaign charity, caused or induced her chambers to discriminate against her on the grounds of her protected belief, contrary to section 111 of Equality Act 2010 (i.e. relating to instructing, causing or inducing another person to contravene the Act). The tribunal’s finding that the charity’s complaint was a ‘protest’, without any specific aim in mind except perhaps a public denial of the chambers’ association with the barrister’s views and contained no element of threat, did not satisfy a finding of inducing or causing an act of discrimination.

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Equality Act: English Nationalist loses appeal for protection of his views

In Thomas v Surrey and Borders Partnership NHS Foundation Trust (1) and Brett (2) [2024] EAT 141, the EAT ruled that English nationalism is not a legally protected philosophical belief under the Equality Act 2010 (EqA 2010). The Claimant, Steven Thomas, a health worker, has lost his appeal against an employment tribunal’s decision that his belief in English nationalism, which included anti-Islamic views, was not one which was protected under the EqA 2010. This original decision was reached at a preliminary hearing in the claim he brought against a National Health Service (NHS) trust after it ended his employment after three months.

Judge Clive Sheldon KC wrote in the judgment of the EAT:  ‘The Claimant’s views are of an English nationalism which believes that there is no place in British society for Muslims or Islam itself… The Claimant is not prevented from holding his views. But he is outside of the right to complain that he has been discriminated against in relation to those beliefs.’

‘English Nationalism can be a legally protected philosophical belief, but the Claimant’s specific views, which included that Muslims should be forcibly deported from the UK, did not merit protection under free expression rights enshrined in the European Convention of Human Rights,’ he added.

This was because his expressed beliefs violated another right in the doctrine—that no one can perform acts ‘aimed at the destruction of any of the rights and freedoms’ of others, and, added the judge, he cannot also claim protection from discrimination under the EqA 2010 because his views are not worthy of respect in a democratic society.

Thomas’ solicitor, Robin Tilbrook of Tilbrook Solicitors, said that his client will take his case to the Court of Appeal, or to the European Court of Human Rights if necessary. Tilbrook said he believed the judgment misinterpreted the European Convention article that limits Thomas’ free speech rights as binding on the employer, rather than on the state. He likened Thomas’ case to Redfearn v United Kingdom [2013] IRLR 51, where another English Nationalist won his European human rights case despite losing his employment claim in the UK.

His past political affiliation to the English Democrats, a minor far-right party, meant that Thomas was sanctioned because his beliefs were ‘unacceptable to the woke view of the world’, Tilbrook added. Tilbrook is the current national chair of the English Democrats.

‘In this case, there are comments about Islam that have taken my client’s views out of that protection’, Tilbrook said. ‘They have put my client in a position where he’s always in danger of being fired by an employer.’

The case is part of a surge in claims about protected beliefs that lawyers say are incrementally blurring the lines between unconventional but legally valid views and politicised public debates.

The trust argued in June that Thomas’ views were ‘akin to Nazism‘, which British courts have ruled is not protected. They also defended the employment tribunal claim on the basis that he was actually dismissed because he lied in his résumé about an unspent conviction.

Thomas had either posted himself, or reposted, on social media platform X, comments such as ‘Ethnic cleansing…always happens to Muslims…wonder why?‘ and used the hashtag ‘#RemoveAllMuslims’, according to the judgment of the employment tribunal.

Oscar Davies of Garden Court Chambers, counsel for Thomas, argued in written submissions in the appeal case that the views of the claimant ‘might well be considered offensive and abhorrent to some’—but did not seek to destroy the rights of anyone.

As such, they did not violate the European Convention on Human Rights, Davies added.

But Sheldon J upheld the employment tribunal’s reasoning for dismissing the case.

‘A finding that the claimant’s beliefs included the banning of Islam or the forcible removal of Muslims from the United Kingdom is only consistent with an infringement—and in fact the destruction—of rights of others’, he ruled.

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Further Information:

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

Back

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

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Employment Law Case Update – July 2023

  • Employment,

  • 25th July 2023

Employment Law

A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.

  • Injunctions: Witnesses and disclosure of documents at disciplinary hearings
  • Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
  • Worker Status: Can a person have two different employers at the same time for the same work?
  • Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
  • Tribunals: Apparent bias in case of lay member posting on social media

Injunctions: Witnesses and disclosure of documents at disciplinary hearings

In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.

This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.

In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.

On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).

In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.

The Claimant sent a letter before claim setting out:

1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].

2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.

3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.

4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.

The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.

In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.

The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.

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Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?

In R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.

In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.

Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:

  1. that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
  2. it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).

The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).

The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.

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Worker Status: Can a person have two different employers at the same time for the same work?

In United Taxis Ltd v Comolly [2023] EAT 93,  the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi.  After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi.  After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.

The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment.  United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly. 

However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it.  There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise.  The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.

The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.

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Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair

In Charalambous v National Bank of Greece [2023] EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas [1976] ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.

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Tribunals: Apparent bias in case of lay member posting on social media

In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie) [2023] EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.

The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter [2001] UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.

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Further Information:

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

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

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Employment Law Case Update – June 2023

  • Employment,

  • 27th June 2023

Employment Law

This month we look at several aspects of the Equality Act through the lens of religious discrimination, race discrimination and harassment. We also take a look at how one should properly calculate holiday pay so as not to fall foul of the Working Time Regulations.

  • Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
  • Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
  • Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
  • Holiday Pay: How to calculate holiday pay on termination of employment

 

Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment

In Higgs v Farmor’s School [2023] EAT 89, the EAT held that in dismissing a direct religion or belief discrimination claim brought by a Christian employee following complaints relating to her social media posts which criticised the nature of sex education in schools (including gender fluidity and same sex marriage) the employment tribunal had erred in that it failed to:

  • conclude that there was a close or direct nexus between the employee’s Facebook posts and her protected beliefs
  • determine the reason why the employer acted as it had, and
  • assess whether the employer’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others

The proportionality assessment, which the tribunal had not carried out, was necessary to determine whether the employer’s actions were because of, or related to, the manifestation of the employee’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation.

The EAT also set out basic principles that underpin the approach adopted when assessing proportionality of any interference with rights to freedom of religion and freedom of expression to assist tribunals and to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.

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Race Discrimination: Judgment against qualifications body held not to be Meek-compliant

The case of General Medical Council v Karim [2023] EAT 87 concerned a claimant doctor who was subject to an investigation by his employer. That led to a referral to the General Medical Council (GMC). The employment side of things was settled when he resigned and a settlement agreement was entered into. However the GMC matter continued. The claimant then made a claim of discrimination by the GMC as a qualifications body, making various complaints in relation to its handling of the matter.

The employment tribunal upheld some (but not all) of the complaints of direct race discrimination on the basis that the burden of proof had passed but not been satisfied.

The GMC appealed to the EAT.

Allowing the GMC’s appeal, the EAT held, in summary, that the tribunal had failed to engage with key aspects of its case, and so produced a decision which was not Meek-compliant; and reached some findings and conclusions at different points that were conflicting or contradictory.

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Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment

In Greasley-Adams v Royal Mail Group Ltd [2023] EAT 86 the EAT had to consider (amongst other grounds of appeal) whether an employment tribunal had failed in its analysis of the claimant’s claims of harassment under section 26 of the Equality Act 2020 by not having regard to conduct of which he was not aware.

The EAT, dismissing the appeal, held that only conduct of which the claimant was aware could amount to harassment. This was because:

  • the perception of the person claiming harassment was a key and indeed mandatory component in determining whether harassment had occurred
  • as confirmed by the relevant authorities, if there was no awareness, there could be no perception.

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Holiday Pay: How to calculate holiday pay on termination of employment

In Connor v Chief Constable of West Yorkshire Police [2023] EAT 42 the EAT considered the provisions of a ‘relevant agreement’ reached in relation to holiday pay on termination of employment and how these compared to the calculations provided for by the Working Time Regulations 1998 (‘WTR’) and found it not to be compatible.

In this case the Claimant’s employment contract stated that holiday pay on termination of employment would be calculated based on 1/365th annual salary. This meant, on that upon his termination, he received a lower payment for accrued holiday than that which he would have received using the calculation set-out in the WTR.

The tribunal held that the 1/365th calculation was a valid ‘relevant agreement’ under Regulation 14(3) (which states that the amount of holiday pay due on termination of employment is either that which would be prescribed if the formula set out in the WTR were applied or such other sum which is stated to be payable on termination of employment pursuant to a ‘relevant agreement’) and that therefore there had been no unlawful deduction from the claimant’s wages.

The EAT disagreed. They held that a ‘relevant agreement’ under Regulation 14(3) on the payment of holiday on termination of employment cannot result in a payment which is lower than that which would be calculated using the method set out in the WTR. The Claimant was entitled to the higher amount. . Regulation 14 provides a method of calculation for the purposes of regulations 13 and 13A for an incomplete leave year. The entitlement to annual leave, and payment, are not modified by regulation 14. The regulation provides a formula of calculation which promotes the right to annual leave and the attendant payment for holiday. The phrase “such sum as may be provided for the purposes of this regulation in a relevant agreement” refers to any agreement that provides a formula which is in keeping with the rights provided for in the regulations.

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

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

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Employment Law Case Update – April 2023

  • Employment,

  • 25th April 2023

Employment Law

The devil is in the detail. This month’s case updates include recusing an EAT member for apparent bias to ensure impartiality, upholding a procedural system so that mass litigants could not be removed from an equal pay case, and taking a look at the detail of restrictive covenants, to reduce the effect where it was too fantastical to be valid.

  • Tribunals: EAT lay member recused due to appearance of bias
  • Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim
  • Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

Tribunals: EAT lay member recused due to appearance of bias

In Higgs v Farmor’s School and the Archbishops’ Council of the Church of England [2023] EAT 45, the EAT allowed the appellant’s application for the recusal of a lay member from hearing the instant appeal against the respondent. The appellant had filed for an application for the recusal of the lay member, AM, from the hearing of the appeal based on apparent bias. It was alleged that AM’s former position as Assistant General Secretary of the National Education Union (NEU), when that entity was campaigning on matters of educational policy, had publicly expressed clear views, on the opposite side of a heated debate to the position of the appellant. The respondent did not consent to the application for recusal.

The court held, among other things, that a reasonable and well-informed observer would not see AM as an impartial judge for the appeal. Accordingly, applying the test of the fair-minded and informed observer (Porter v Magill), there was an appearance of bias such that the lay member should be recused from hearing the appeal.

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Equal Pay: 700 Sainsbury’s staff to remain in equal pay claim

In Sainsbury’s Supermarkets Ltd v Clark [2023] EWCA Civ 386 the Court of Appeal, Civil Division, dismissed the appeal brought by the appellant, a supermarket company, from a decision which had allowed the respondents’ appeal and reinstated their claims. In 2015 and 2016 a large number of employees working in supermarkets brought equal pay claims against their employers, who included the appellant and other well-known retailers. The case involves two separate but related equal pay claims against Sainsbury’s Supermarkets Ltd and Lloyds. One was brought by women seeking equal pay to male staff and another that would ensure men’s pay does not fall below the women’s if the first claim succeeds.

The claims had generally been brought on a multiple claim form, a type of document expressly permitted by rule 9 of the Employment Tribunals Rules of Procedure. The appellant alleged that the judge had erred in law in interpreting rules 10 and 12 of the Employment Tribunals Rules of Procedure 2013. It added that the employment tribunal should have rejected large numbers of those claims on the grounds that the claim forms did not contain the reference number of a certificate issued by the Advisory, Conciliation, and Arbitration Service relating to early conciliation (EC) of their claims.

The court held, among other things, that the judge’s construction of rule 10 was the correct one. A panel of three judges in the Court of Appeal unanimously ruled that the attempt by Sainsbury’s to remove the majority of claimants in the 865-person lawsuit because their names were not listed in early-stage paperwork was “highly technical” and lacked “any substantive merit”. While a claim form should contain the name and address of each claimant and each respondent, it was sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared. There was no suggestion the 700 workers had failed to follow the correct procedure, Lord Justice Bean held.

“It has been repeatedly stated that employment tribunals should do their best not to place artificial barriers in the way of genuine claim”’, Lord Justice Bean wrote. “The complaint is no more and no less than that the employment tribunal claim form did not give the appropriate certificate number”.

Tribunal rules requiring claimants to provide this information are a “preliminary filter” rather than an opportunity to strike out a claim, he added. “I do not accept…that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the star”’, Lord Justice Bean ruled.

Accordingly, the Court upheld the EAT’s decision in the respondents’ favour for a more fundamental reason relating to the structure and wording of the Rules of Procedure.

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Restrictive Covenants: Is a restrictive covenant still valid if it unintentionally covers “fantastical” areas which were not contemplated, as well as what it set out to do?

The Court of Appeal in Boydell v (1) NZP Limited and (2) AI ICE (Luxembourg) Midco S.A.R.L. [2023] EWCA Civ 373, was tasked with considering whether a restrictive covenant that covered what it needed to and what had been contemplated by the parties, but also unintentionally covered other areas (described as “fantastical”) and which had not been contemplated, can it still be valid?

Dr Boydell worked for NZP Ltd, a specialist pharmaceutical business covering a niche area of the pharmaceutical industry described in summary as the development, production and sale of bile acid derivatives for sale to pharmaceutical companies for use by them in their products and is part of the ICE Pharma Group of companies (the second defendant being the ultimate holding company). His contract of employment included a non-competition covenant preventing him from working in any capacity for any competing businesses of either NZP or any of its group companies.

NZP and ICE sought to enforce two sets of restrictive covenants. One set, contained in a variation to the Appellant’s employment contract, ran for one year from the termination of his employment. The other set, contained in a shareholder’s agreement ran for two years. The judge granted an interim injunction enforcing the one year covenants in the employment contract until the trial, with some modifications but refused to enforce the two year restrictions in the shareholder’s agreement (which the companies did not seek to appeal). In doing so, the Judge severed certain parts of the clause, including removing the reference to other group companies. This decision was appealed by NZP who argued that the Judge could not use severance to significantly change the effect of the restraints.

The Court of Appeal disagreed and held that if a clause covers what it needs to and what was contemplated but also unintentionally covers areas which are “fantastical” (Home Counties Dairies Ltd v Skilton) then it may still be valid. If there are two realistic constructions then the court should rely on the one which would result in a valid clause. This meant that, by severing the references to group companies (which were “fantastical”), the Judge had not significantly changed the overall effect of the clause.

Lord Justice Bean (at para.30) said, “The whole burden of the clause is directed to the specialist activities of NZP, which it lists at some length. The judge was entitled, at least at the interim injunction stage, to sever the words from the clause and grant an injunction on a more limited basis. There is a serious question to be tried as to whether other group companies have significant areas of business which are wholly distinct from the activities carried out by NZP. I would, however, refuse Ms Stone’s application for permission to cross-appeal against the judge’s decision to sever the relevant words from clause 3.1.”

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

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

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Employment Law Case Update – February 2023

  • Employment,

  • 27th February 2023

Employment Law

This month’s review covers a range of issues. We look at sex discrimination involving a lack of a private toilet for a female employee, how an employee who worked term time should have had her holiday pay calculated to take account of the national minimum wage, a potential revision of couriers’ holiday pay following the Pimlico Plumbers case, how not to deal with a flexible working request, and an appeal to reconsider a dismissal related to the pandemic.

  • Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
  • Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
  • Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
  • Indirect Discrimination: Rejection of flexible working request is application of PCP
  • COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working

Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination

In Earl Shilton Town Council v Miller [2023] EAT 5, the EAT has rejected Earl Shilton Town Council’s case that it did not treat ex-clerk Karen Miller worse than men in its shared toilet arrangement. The council launched its appeal after the employment tribunal ruled in 2020 it failed to provide appropriate toilet facilities to ex-clerk Karen Miller for almost two years between 2016 and 2018. The tribunal concluded that Ms Miller had been treated less favourably because she ran the risk of seeing men using the urinal. The council argued in its appeal that Ms Miller was not treated less favourably than men because they were just as much at risk of being seen at the urinal as she was of seeing them. The Judge Tayler rejected its case, concluding that Ms Miller’s sex discrimination claim did not fall apart just because a man could also make a similar complaint. It was enough to establish that Ms Miller had a worse experience than a man would seeing another man at the urinal, he said.

‘Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals’, Judge Tayler said. ‘While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourably.’

The judgment details how the council, which was based in a Methodist Church that it shared with a playschool, only had access to a female toilet that was in the school’s half of the building. Female staff would have to check with playschool workers that no children were using the toilet first because of child safety concerns, according to the judgment. The toilets were not always immediately accessible as a result. The council offered her the use of the men’s toilet, which has a single cubicle and a multi-person urinal. But there was no lock on the external door, creating the risk that a woman might walk in on a man using the urinal or leave the cubicle to find a man using it. The council also contended in its appeal that the sharing arrangements could not be discriminatory because they were caused by child safety concerns.

Judge Taylor ruled that the arrangements were not good enough, citing the lack of a sanitary bin and suggesting that installing a lock on the toilet door may have made it compliant.

‘The facilities were inadequate for the claimant because she is a woman’, he said. ‘Accordingly, the safeguarding issue could only go to motive and could not prevent direct discrimination being established.’

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Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year

In Lloyd v Elmhurst School Limited [2002] EAT 169, the claimant was employed by the respondent, a private school, as a teaching assistant. She initially worked two days a week and then this was increased to three days a week (21 hours per week). She was paid monthly in equal instalments. The claimant’s contract did not set out hours of work. However, it stated that during term time she would work as directed by the Head Teacher and be entitled to the usual school holidays as holidays with pay. The respondent calculated the claimant’s salary based on 40 weeks of the year. The claimant brought a claim in the employment tribunal for unlawful deduction from wages based on an underpayment of the National Minimum Wage (NMW). She argued that her hours over the year should be calculated as 52 weeks x 21 hours, and not 40 weeks x 21 hours. If her method of calculation was accepted as correct there was an underpayment of the NMW.

A salaried worker is entitled to receive the NMW for their ‘basic hours’ which, by virtue of regulations 3, 21(3), 22(5) of the NMW Regulations 2015 (NMWR 2015), are determined by the terms of their contract of employment, even if those basic hours are greater than the hours actually worked. On the facts of this case, even though the claimant only worked term-time as a teaching assistant, she was entitled to the NMW for 52 weeks of the year rather than just her working weeks plus statutory holiday, because her contract provided that ‘… she was entitled to the usual school holidays as holiday with pay’, according to the EAT.

The employment tribunal dismissed the claimant’s claim. It found that the claimant worked term-time only; when the claimant accepted her job it was on her and the school’s understanding that she would work term time only; the contract did not explicitly set this out but this was consistent with clause 3(b) of the contract; the wording of clause 4 of the contract did not mean that these hours were deemed to be working hours for the purposes of the NMW legislation; the wording ‘the usual school holidays as holidays with pay’ did not mean that the 12 weeks of school holiday should be paid at the same rate as when the claimant was working/on statutory leave and included in her basic hours worked calculation for NMW purposes.

The claimant appealed to the EAT. In relation to the construction of ‘basic hours’ in NMWR 2015, it was not in dispute that the claimant was a permanent employee, who was employed throughout the school year and who was engaged in ‘salaried hours work’ for the purpose of NMWR 2015, nor that the claimant met the four conditions in regulation 21, including the second condition in regulation 21(3) that she was entitled to be paid in respect of a number of hours in a year and that those hours necessarily could be ascertained from her contract.

The principal point of dispute on statutory interpretation was which non-working hours of absence or holiday count towards basic hours. The claimant argued that, while it depends on the individual contract, basic hours include all the hours which are paid as contractual holiday. While the respondent argued that the only periods of absence which count towards basic hours are those which are absences from days when the worker would otherwise be working.

The EAT allowed the appeal. It agreed with the claimant on the issue of statutory interpretation and held that the code, Act and regulations were a poor guide to what hours are to be treated as basic hours, and the ascertainment of the claimant’s ‘basic hours’ depended on the meaning of her contract: the statutory question was not answered by looking at the hours which she in fact worked. Her annual basic hours, as ascertained from her contract, would then fall to be divided by 12 to give the hours of salaried work for each one-month pay reference period. It held that as a matter of general principle, some periods of fully paid absence count towards the ‘basic hours’ of salaried hours work, e.g. if the worker’s contract said they were entitled to a salary of £400 a week for a 40-hour week and to seven weeks’ holiday at full pay their annual basic hours would be based on a multiplier of 52 weeks.

In relation to the individual grounds of appeal, the EAT held that the tribunal erred in examining the hours the claimant in fact worked, to which it added her statutory entitlement to paid annual leave; failing to ascertain the number of hours in the year for which the claimant was entitled to salary in accordance with her contract, as to which the meaning of clause 4 of her contract was of central importance; examining whether the claimant was engaged in ‘working activity’ outside term-time, rather than asking whether those periods of contractual holiday could form part of her basic hours; inconsistently including statutory leave but excluding contractual leave; and relying regulation 27 (whether a worker is ‘available at or near a place of work’ for the purpose of doing work) and not to regulation 21(3), and, in doing, so wrongly focused on when the claimant was in fact engaged in working or working activity.

The EAT remitted the matter to a freshly constituted employment tribunal for the determination, in light of its judgment, of all the issues relevant to the claimant’s claim of unlawful deduction from wages.

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Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers

In Alston and 44 Ors v The Doctors Laboratory Ltd and Ors [2023] EAT 13 a group of couriers have successfully applied to the EAT to set aside by consent an employment tribunal decision on an application of time limits in holiday pay claims under the Working Time Regulations 1998 (WTR 1998) which had ruled that they could carry over paid holidays between years only if they had not already taken unpaid leave, after arguing that a Court of Appeal decision voided the employment tribunal judgment on this point.

Forty-five claimants, 38 of them represented by trade union Independent Workers of Great Britain (IWGB), argued before the EAT that the Court of Appeal’s decision in Smith v Pimlico Plumbers Ltd in February 2022 removed restrictions on how much paid leave they are due. The Honourable Mrs Justice Eady, current President of the EAT, agreed, saying that an employment tribunal’s 2020 decision in the couriers’ case ‘cannot stand and must be set aside’. The couriers ‘were and remain entitled to carry over any untaken paid annual leave’ until their contracts end or the employer, The Doctors Laboratory Ltd, allows them to take the paid holidays they have accrued, Mrs Justice Eady ruled.

It is one of the first cases to rely on the Pimlico Plumbers precedent, which allows people who were wrongly denied paid holiday to claim up to 5.6 weeks’ worth of pay—the equivalent of statutory annual leave—for each year of their employment. For people who have been misclassified as self-employed rather than workers, the precedent removed a previous two-year limit to compensation claims—now, they can stretch back as far as 1996.

The Doctors Laboratory, the UK’s largest independent clinical lab, did not give its couriers paid holiday until 2018, when it conceded they were entitled to up to four weeks a year as ‘limb (b) workers’, a legal category of worker under section 230(3) of the Employment Rights Act 1996.

The company argued before the employment tribunal in 2020 that unpaid leave the couriers had taken before 2018 should be subtracted from their holiday entitlement going forward.

The tribunal agreed the couriers’ right to carry over leave year-on-year ‘exists subject to qualification’.

Employment Judge Elliott ruled that unpaid leave was ‘capable of amounting to annual leave’ because it fulfils the health and safety objective of the European Working Time Directive, which is the root of UK working time law. But the couriers’ counsel argued before the EAT that Pimlico Plumbers allows workers to accumulate paid holiday if they have taken unpaid leave for reasons beyond their control.

The couriers and The Doctors Laboratory remain at odds over whether the couriers count as workers. If so, they could be entitled to the full 5.6 weeks’ statutory annual leave. Judge Eady remitted the matter to the employment tribunal for further directions.

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Indirect Discrimination: Rejection of flexible working request is application of PCP

In Glover v (1) Lacoste UK Ltd (2) Harmon [2023] EAT 4 the EAT dealt with the question of when a provision, criterion or practice (PCP) can be said to have been ‘applied’ to an employee, for the purposes of a claim of indirect discrimination under section 19 of Equality Act 2010. The EAT held that once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the PCP (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application.

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COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working

The EAT has agreed to hear arguments from a salesman fired after asking to work from home or be granted a leave of absence during the COVID-19 lockdown, that the employment tribunal failed to consider his belief that these were reasonable steps to avoid infection. The EAT granted Francesco Accattatis permission to challenge a decision in favour of his former employer Fortuna Group, which sells protective medical equipment like face masks and gloves. The company said Accattatis had failed to ‘support and fully comply with company policies’, which included working from its office in Enfield, North London, when it fired him in April 2020, approximately a month into the first national coronavirus lockdown. But Accattatis argued a 2021 employment tribunal ruling only considered the company’s belief that it was not possible for him to work from home or be placed on furlough. ‘To focus exclusively on the respondent’s view of the situation was an error’, his counsel, told the EAT. ‘I don’t see that the respondent’s view of whether something is feasible, or whether it was feasible, was a relevant matter’.

Under the Employment Rights Act 1996 (ERA 1996), it is unlawful to fire an employee for refusing to return to a workplace because they believed there was a ‘serious and imminent danger’ they couldn’t reasonably avoid. Whether the steps the employee took were appropriate to avoid that danger must be judged ‘by reference to all the circumstances, including, in particular, his knowledge and the facilities and advice available to him at the time’.

The employment tribunal ruled Accattatis’ requests were not appropriate steps because the company ‘reasonably and justifiably concluded’ that he could not work from home or claim furlough.

But Judge James Tayler agreed at a hearing on 9 February 2023 that it is arguable the tribunal misinterpreted the law and allowed the appeal to proceed. Accattatis will also be able to argue that the reason Fortuna gave for his dismissal was not properly distinguished from managers’ low opinion of him.

He had asked his bosses several times about working from home, which he felt was possible. Fortuna and the tribunal disagreed that Accattatis was needed in the office to manage deliveries of equipment and use specialist software, the 2021 judgment noted. He sent several emails throughout April 2020 while on sick leave for a suspected case of Covid-19 urging managers to place him on furlough. ‘I can assure you I already received confirmation from several sources that [the] coronavirus job retention scheme is easily accessible, by any company still actively trading during this time of emergency, without any downside to it’, one email reads. His counsel said this demonstrated Accattatis’ belief that furlough was possible and that urging Fortuna to reconsider was an appropriate step. ‘It’s the manner of the demands, that they were impertinent, that was the reason for the dismissal’, he said.

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Further Information:

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

Back

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

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Employment Law General Update – July 2022

  • Employment,

  • 27th July 2022

Employment Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Further Information:

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

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

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