Employment Law Case Update – February 2023
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  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.’
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
In Lloyd v Elmhurst School Limited  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.
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  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.
Indirect Discrimination: Rejection of flexible working request is application of PCP
In Glover v (1) Lacoste UK Ltd (2) Harmon  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.
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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Employment Law Case Update – January 2023
We start off the new year with a Court of Appeal decision on whether a worker who declined to go back to work for fear of COVID-19 was unfairly dismissed or not, the first of its kind at this level. We also take a look at two discrimination cases, a Court of Justice of the European Union case about requirements on employers to provide ‘special corrective appliances’ (such as glasses), and a claim for misuse of private information concerning the reasonable expectation of privacy in private WhatsApp messages.
- COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
- Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
- Discrimination: Narrow test for marital status discrimination confirmed
- Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
- Data Protection: Misuse of private information and abuse of process
COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
In Rodgers v Leeds Laser Cutting  EWCA Civ 1659, the claimant worked for the respondent as a laser operative in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working. Following the first national ‘lockdown’ on 23 March 2020, the respondent told employees that the business would remain open, asked staff to work as normally as possible and stated ‘we are putting measures in place to allow us to work as normal’. Recommendations were made by an external risk assessment covering most of the things which were already in place before it was undertaken. The claimant left work as usual on 27 March 2020, having not made any complaint about his conditions at work. He obtained a self-isolation note until 3 April 2020 due to having a cough. On 29 March 2020, the claimant told his line manager he had to self-isolate because one child was high risk with sicklecell and a 7 month old baby. His manager agreed. Unfortunately, during this period he drove a friend who had broken his leg to hospital and at some point worked in a pub during the lockdown. On 24 April 2020 he found out he’d been dismissed and was sent his P45.
The claimant made a claim for unfair dismissal on the grounds of health and safety. Under the Employment Rights Act 1996 (ERA 1996), s.100(1)(d), any dismissal of an employee will be automatically unfair, if the reason (or, if more than one, the principal reason) for the dismissal is that, in circumstances of danger which the worker/employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee:
- left or proposed to leave, or
- (while the danger persisted) refused to return to
their place of work or any dangerous part of their place of work. ‘Dangers’ in this context are not limited to dangers arising out of the workplace itself, but also cover dangers caused by the behaviour of fellow employees.
The questions that the employment tribunal has to decide in a case under ERA 1996, s.100(1)(d) are:
- Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
- Was that belief reasonable? If so:
- Could they reasonably have averted that danger? If not:
- Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
- Was that the reason (or principal reason) for the dismissal?
The tribunal rejected the claim for a number of reasons, including that his evidence was inconsistent, his beliefs of serious imminent danger were not supported by his actions (driving his friend to hospital and working in a pub) and not related to his workplace but to the world at large, he had made no complaint about his specific working conditions, and the measures put in place by the employer (if followed) would make the business as safe as possible from infection.
The claimant appealed, arguing that the tribunal had erred in law by concluding that because his belief was one of a serious and imminent danger at large (i.e. in the whole community), his belief that his workplace presented a serious and imminent danger was not objectively reasonable. The Court of Appeal, like the EAT before it, dismissed the appeal because the claimant’s case failed on its own facts. While the coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, this was not the situation in this particular claimant’s case in respect of his workplace.
The Court of Appeal has confirmed that, on the particular facts of this case, where the employee refused to return to work during the coronavirus (COVID-19) pandemic in circumstances where the employer had put in place social distancing in the workplace and other measures like handwashing and face masks, the employment tribunal did not err in law in concluding that the claimant had not reasonably believed that there were circumstances of danger which were serious and imminent, or which could not be reasonably averted, and as result the dismissal was not automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996).
Guidance was given on the interpretation of ERA 1996, s 100(1)(d) including that:
- it is sufficient that the employee had a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. They do not also have to prove that objectively such circumstances of danger did in fact exist;
- the subsection does not apply where the perceived danger arose on the employee’s journey to work. The perceived danger must arise at the workplace. However it does not follow that the danger need be present only at the workplace;
- while the paradigm case under ERA 1996, s 100 (1)(d) is where a danger arises by reason of some problem with the premises or equipment, there is nothing about the risk of employees infecting each other with a disease that takes it outside the scope of the subsection: the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.
While the outcome of this case ultimately turned on its own particular facts, the judgment is nonetheless of interest because it is the first appeal to reach the Court of Appeal on the application of ERA 1996, s 100(1) to dismissals related to the coronavirus (COVID-19) pandemic.
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
In Davies v EE Ltd  EAT 191, the EAT considered what amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim relating to an alleged failure to make reasonable adjustments.
The employee, who was employed full-time, relied on two PCPs, which she contended had left her at a substantial disadvantage: (i) a requirement for employees to complete a full-time working pattern of 40 hours per week, with each shift approximately 9½ hours in length, and (ii) a requirement for employees to complete the shifts without agreeing any reduction in hours. The employment tribunal held that because the respondent employed some employees on a part-time basis and had allowed the claimant a phased return to work, neither PCP had been made out on the facts.
The EAT held that the tribunal had erred in law in concluding that the fact that the employer had other staff who worked part-time had meant that a PCP of requiring the employee to work her contracted hours of 40 per week had not been applied to her. Also, the fact that a temporary adjustment had been made during the employee’s phased return to work did not mean that the PCP had ceased to exist.
Discrimination: Narrow test for marital status discrimination confirmed
In Ellis v Bacon  EAT 188, the EAT considered a matter of two married director/shareholders whose messy divorce impacted the divorcing wife’s income from the company. Another director, Mr Ellis, sided with the husband, Mr Bacon, in relation to the marital dispute and was compliant with him in removing the Mrs Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The employment tribunal held that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as a wife to Mr Bacon. Mr Ellis appealed.
The EAT held that in a claim of direct discrimination because of the protected characteristic of marriage, the employment tribunal must consider whether it was the claimant’s marital status which was the cause of the less favourable treatment and not the fact that they were married to a particular person. Further, an appropriate hypothetical comparator is someone in a close relationship but not married, and the tribunal must consider whether such a person would have been treated differently.
A person directly discriminates against another person where they treat them less favourably than they treat or would treat others, and they do so because of a protected characteristic. Marriage and civil partnership are protected characteristics. A person has the protected characteristic of marriage if the person is married (which includes a person who is married to a person of the same sex); of civil partnership if the person is a civil partner. Note that people who are not married, or not civil partners, do not have this protected characteristic.
Cases on discrimination because of marriage are very rare. This judgment confirms that the test is to be narrowly construed, with the causative reason for the less favourable treatment being the marital status and not:
- the identity of the spouse, or
- the closeness of the relationship.
As a result, there seems very limited scope for claimants to bring successful claims in the context of modern society and the legal concept of protection on grounds of marital status looks increasingly like an outdated concept.
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
In TJ v Inspectoratul General pentru Imigrări, C-392/21, the Court of Justice of the European Union held that Article 9 of Council Directive 90/270/EEC, on the minimum safety and health requirements for work with display screen equipment, which is implemented in the UK by regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992, must be interpreted as follows:
- there is no requirement for a causal link between display screen work and potential visual difficulties;
- ‘special corrective appliances’ include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment;
- those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes, i.e. they may be used at other times too; and
- the employer’s obligation to provide the workers concerned with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.
Data Protection: Misuse of private information and abuse of process
In FKJ v RVT  EWHC 3 (KB), which concerned a claim for misuse of private information, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ’s private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were ‘of the most intimate kind’. FKJ brought a claim for misuse of private information.
While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants’ grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT’s conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court.
RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.
The court gave short shrift to the defendants’ applications, reaching the ‘clear conclusion that they are without merit’. Parts of the applications were ‘not worthy of serious consideration’ and appeared to be ‘an attempt to stifle a claim that the defendants would prefer not to contest on its merits’. Both the strike out and summary judgment applications were dismissed.
[Written by Charlotte Clayson, partner at Trowers & Hamlins LLP, for Lexis+.]
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Employment Law Case Update – September 2022
Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.
- Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
- COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
- COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
- Equality Act: Supporting a football club is not a protected philosophical belief
- Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
- Fraud: A confiscation order should strip the profit from fraudulently obtained employment
Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.
Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.
On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.
A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.
Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.
Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.
An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:
- At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
- While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
- The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.
Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
In Cowie and others v Scottish Fire and Rescue Service  EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.
Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.
The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.
The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.
The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.
The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:
- To show group disadvantage in the section 19 claims.
- To justify an award of compensation for injury to feelings in the section 15 claims.
Equality Act: Supporting a football club is not a protected philosophical belief
At a preliminary hearing in McClung v Doosan Babcock Ltd and others  UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).
Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.
The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:
- The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
- Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
- There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
- Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
In Piepenbrock v London School of Economics and Political Science  EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.
HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.
The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.
Fraud: A confiscation order should strip the profit from fraudulently obtained employment
In R v Andrewes  UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.
In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.
Appeal allowed, and confiscation order restored, albeit for different reasons:
- It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
- The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
- When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
- The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.
This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.
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Employment News – May 2022
This month the news contains the employment highlights of the Queen’s speech, how Long COVID is affecting people, a new Health & Wellbeing report from the CIPD, a new campaign to help tackle pay disparity, government guidance for businesses employing Ukrainian refugees and new legislation covering foreign professional qualifications.
- Queen’s Speech 2022: Implications for employment
- COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
- Health & Wellbeing: CIPD publishes new report for 2022
- Pay Disparity: End Salary History campaign launched to tackle pay disparity
- Ukraine: New guidance for businesses offering work to people from Ukraine
- Qualifications: Professional Qualifications Act 2022 receives Royal Assent
Queen’s Speech 2022: Implications for employment
On 10 May 2022, the Queen’s Speech was delivered at the opening of Parliament. A key point of interest was the notable exclusion of the long-awaited Employment Bill. Although its omission was expected (after a government official suggested it was unlikely to be included in the Queen’s speech), the TUC pointed out that the government had promised the Employment Bill to enhance workers’ rights 20 times since first announcing it in the 2019 Queen’s Speech. The head of the TUC, Frances O’Grady, said that the failure to bring forward the legislation “sent a signal that [the government is] happy for rogue employers to ride roughshod over workers’ rights“. The Employment Bill had been expected to contain measures in relation to tips, additional rights for zero hours workers and pregnant women, neonatal and paid carers’ leave and default flexible working.
The Queen’s Speech announced a new Harbours (Seafarers’ Remuneration) Bill, following the recent mass redundancies at P&O. The Bill is intended to protect seafarers working on vessels regularly visiting UK ports by giving ports the power to refuse access to ferry services that do not pay the equivalent to the national minimum wage (NMW) to seafarers while in UK waters, although no changes will be made to the NMW legislation itself. A consultation has been launched, closing on 7 June 2022. However, the British Ports Association (BPA) has already said that it has concerns about ports being made to regulate ships and that ports do not “have a core competency” in enforcing the minimum wage. The government also hopes to secure bilateral agreements on “minimum wage corridors” with France, the Netherlands, Spain, Germany, Ireland and Denmark, where seafarers on routes between either country must be paid at least the equivalent of the NMW.
In briefing notes, the government has also stated its aim to encourage greater private sector investment in employee training, including apprentices. The government will consider whether the current tax system, including the apprenticeship levy, is sufficient to incentivise businesses to invest in high-quality employee training.
Despite the absence of the anticipated Employment Bill in the Queen’s Speech, BEIS has issued a press release highlighting the actions it says the government has taken “to support workers and build a high skilled, high productivity, high wage economy“. The key measures highlighted were:
- The increase of the national minimum wage (NMW) and national living wage (NLW) in April 2022. The government also named and shamed 208 employers in December 2021 who failed to pay the NMW.
- An extension of the ban on exclusivity clauses for all workers whose guaranteed weekly income is below the Lower Earnings Limit.
- A commitment to produce a statutory code of practice on fire and rehire.
- The abolition of the Swedish derogation which had allowed agency workers to be paid less than permanent staff in certain circumstances and the introduction of the right to receive a written statement of terms on day one for all workers.
- Recognising the importance of flexible working, including a consultation on making flexible working the default that closed on 1 December 2021 and to which the government response is awaited.
- The introduction of a legal right to two weeks’ paid bereavement leave for those who have lost a child.
- Support for employees during the COVID-19 pandemic, including protecting wages through the furlough scheme.
COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
An estimated 1.8 million people in the UK are experiencing long COVID symptoms, according to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms. Long COVID is the term used to describe COVID-19 symptoms that persist for more than four weeks, but 44% of people self-reporting long COVID had been affected for at least a year and 13% for at least two years. 67% of those with self-reported long COVID say that their day-to-day activities are adversely affected by their symptoms, amounting to 1.2 million people, and 19% report that their ability to undertake day-to-day activities has been “limited a lot“. Long COVID is most prevalent in people aged between 35 and 49, females, people living in more deprived areas and people working in social care, teaching, education or health care. There is also increased prevalence in people who already have another activity-limiting health condition or disability.
In a tweet posted on 7 May, the EHRC stated that “without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability“. COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement. It said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010, if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way. Employers should follow existing guidance when considering reasonable adjustments and flexible working in order to support affected workers.
Health & Wellbeing: CIPD publishes new Report for 2022
The CIPD has published a report on its Health and wellbeing at work survey 2022. Key findings include:
- COVID-19 absence. COVID-19 is included among the top three causes of short-term absence for two-thirds (67%) of organisations and just over a quarter (26%) report long COVID among their top causes of long-term absence.
- Long COVID. Nearly half (46%) of respondents reported having employees who have experienced long COVID. While most suggested only a small proportion of employees are affected, the report warns that this likely underestimates the real figure.
- Absence management. While the majority of employers look to line managers to manage short-term and long-term absence and train them on this, only 38% agree that managers are confident to have sensitive discussions and signpost employees to expert support. Management style remains the most common cause of stress at work.
- Health and wellbeing. Over half of employers (52%) undertook additional action around employee health and wellbeing in response to the pandemic. While figures suggest that there has been less focus on employee health and wellbeing than in the first year of the pandemic (70% of respondents agreed that employee wellbeing is on senior leaders’ agenda, a reduction of 5% since last year), the longer-term trend suggests it has been gradually rising up the corporate agenda. Half of organisations (51%) are taking a strategic approach to employee wellbeing and those organisations are much more likely to report positive outcomes. Mental health is the most common focus of wellbeing activities and the extent to which there is provision for specific groups or issues, such as for carers, bereavement, suicide risk or good sleep hygiene, is more variable. It may be of interest, amid the current cost-of-living crisis, that the most neglected area is financial wellbeing.
- Homeworking. The survey found that almost three-quarters of employers (72%) are providing new or better support for people working from home. However, there is indication that presenteeism is more prevalent among homeworkers and the number of organisations taking steps to tackle the issue has grown over the past two years (53% in 2022, up from 45% in 2021 and 32% in 2020).
Pay Disparity: End Salary History campaign launched to tackle pay disparity
A new End Salary History campaign to tackle pay disparity on the grounds of gender, race and disability has been launched by the Recruitment and Employment Confederation (REC) and the Fawcett Society. Fawcett Society polling has found that 58% of women and 53% of men feel that being asked about their earning history causes them to be offered a lower wage and affected their confidence when asking for better pay (61% of women and 53% of men). The campaign includes a guide for recruiters on ending the practice of asking job applicants about their salary history and an employer petition to bolster the Fawcett Society’s call on the government to ban the practice.
The government recently announced a pilot scheme which would see participants refrain from asking job applicants about salary history as well as including salary information in job advertisements. Further details of the government’s scheme are awaited.
Ukraine: New guidance for businesses offering work to people from Ukraine
On 6 May 2022, the government published new guidance for businesses offering work to people from Ukraine. The guidance applies to businesses in England, Scotland and Wales.
While the guidance is not detailed, it provides the following:
- Businesses offering employment opportunities to people arriving in the UK from Ukraine should complete a vacancy information questionnaire and return the completed questionnaire to a specified Home Office email address. After completion of the questionnaire, a business will be contacted by the National Employer and Partnership Team at the Department for Work and Pensions (DWP) within five working days. Job opportunities will then be shared across the DWP Jobcentre Plus network and with the Refugee Employment Network (REN).
- Ukrainians who hold professional qualifications may need those qualifications to be recognised in the UK, if they work in a regulated profession. The UK Centre for Professional Qualifications provides a free service which explains whether a profession is regulated and any entry requirements.
There is an FAQ section at the end of the guidance which provides information on immigration status and additional support available to businesses. One of the FAQs addresses employment rights, noting that “the UK is proud to extend the same employment rights that everyone in the UK is entitled to, to people arriving in the UK from Ukraine“. Businesses are encouraged to understand these rights by reference to the employment status of a worker. The FAQ response directs businesses to GOV.UK guidance and ACAS for further information.
Qualifications: Professional Qualifications Act 2022 receives Royal Assent
On 28 April 2022, the Professional Qualifications Act 2022 (PQA 2022) received Royal Assent. It will give UK regulators the power to make mutual recognition agreements with their counterparts in other countries where there is a UK shortage of qualified professionals.
The PQA 2022 revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 (SI 2015/2059) which implemented a reciprocal framework for the recognition of professional qualifications, enabling nationals from the European Economic Area (EEA) and Switzerland to have their professional qualifications recognised and gain access to the regulated profession in which they are qualified in another EEA member state or Switzerland. Any sector-specific legislation that established a similar interim system following the UK’s exit from the EU will also be revoked.
Under the PQA 2022, the government and, where applicable, devolved administrations, will identify and specify in regulations a priority list of professions where there is demand for skills from overseas. Considerations for those priority professions will include whether the profession is on the shortage occupation list, vacancy levels, workforce modelling and skills forecasting, and whether there are other ways that professions might address shortages, such as arrangements already in place to recognise qualifications from other countries. The government has stated that the key provisions of the PQA 2022 will come into force by autumn 2022 and that it will work closely with regulators and other stakeholders on how to prepare for the new regime.
In May 2021, the government published guidance to assist regulators in negotiating and entering into mutual recognition agreements with foreign counterparts.
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