Employment Law General Update – July 2022
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.
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.
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“.
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.
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.
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.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – January 2022
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
Employment Law Newsletter – November 2021
- Disability Discrimination: Dismissal for poor performance was not disability discrimination
- Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
- Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
- Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
- Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
- Autumn Budget: Key employment law points
- Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
- Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
- Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
- Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
- Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Disability Discrimination: Dismissal for poor performance is not disability discrimination
In Stott v Ralli Ltd  UKEAT 2019-000772, the EAT has upheld a tribunal’s decision that the dismissal of a paralegal for poor performance was not an act of discrimination arising from disability (a mental health impairment) contrary to section 15 of the Equality Act 2010 (EqA 2010).
The claim had been brought solely in relation to the claimant’s dismissal and the tribunal had been entitled to find that the respondent did not have knowledge (actual or constructive) of the claimant’s disability before the dismissal. Further, the tribunal had correctly directed itself in relation to the justification defence and had made sufficient findings of fact to support its conclusion that the defence had been made out.
In relation to knowledge, the claimant argued that the tribunal should have regarded the grievance she brought after her dismi ssal, and her appeal from the outcome of the grievance, as an integral part of the dismissal process. She submitted that the tribunal should have found that, by the end of that process, the respondent had knowledge of her disability. She relied on the EAT’s decision in Baldeh v Churches Housing Association of Dudley and District Ltd UKEAT/0290/18, which held that, where an employer had not known about an employee’s disability at the time of their dismissal but had been told about it at an appeal hearing, the dismissal could be discriminatory under section 15 of the EqA 2010.
The EAT noted that, for the purposes of an unfair dismissal claim, dismissal is regarded as a process which includes the appeal stage. It held that Baldeh does not establish any legal principle to the effect that the same approach universally applies in a discrimination claim. The approach in Baldeh was in fact similar to that in CLFIS (UK) Ltd v Reynolds  ICR 1010 in which it was held that a claim that a decision to dismiss was discriminatory, and a claim that a decision on appeal was discriminatory, were distinct claims which must be raised and considered separately. The claimant in this case had not brought a claim of disability discrimination in relation to her grievance; her claim was limited to the respondent’s dismissal decision.
Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
In Secure Care UK Limited v Mott  EA-2019-000977-AT, the EAT had to consider whether a dismissal by reason of redundancy (carried out after the employee had made protected disclosures) would be automatically unfair if the decision to dismiss had been ‘materially influenced’ by such disclosures. The EAT held that it would not.
The claimant was employed by the respondent as a logistics manager, providing transport services for NHS patients with mental health issues, including those detained under the Mental Health Act. He made nine protected disclosures about his employer (including insufficient staffing levels), who subsequently made him redundant. The claimant claimed under section 103A Employment Rights Act 1996 that he had been unfairly dismissed by reason of making protected disclosures. The tribunal, finding that three of the nine communications relied upon by the claimant were protected disclosures, upheld his claim, stating that while there was a genuine redundancy situation, the disclosures made by the claimant had had a material impact on his selection.
At appeal the case was remitted on the issue of causation as the EAT found that the tribunal had erred in two respects. Firstly, in applying the wrong causation test, namely the ‘materially influences’ test applicable to section 47B claims for detriment by reason of making a protected disclosure (Fecitt v NHS Manchester  ICR 372), rather than the ‘sole or principal reason’ test required by the terms of section 103A. Secondly, in failing to distinguish the impact of the three protected disclosures, from the impact of all nine of the claimant’s communications about staffing levels, when considering the reason for the dismissal.
Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
In London Borough of Hammersmith and Fulham v Keable  UKEAT 2019-000733 the EAT had to consider a Council employee who had been dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament in his time off. The employee was pulled into a disciplinary process because, although his role at the Council was non-political, the conversation had been about events around the time of the Haavara Agreement of 1933 prior to WWII. Not only had the words spoken included reference to anti-Semitism, Nazis and the Holocaust, but it had been filmed and made its way around social media, resulting in an MP tweeting about it and identifying the claimant as a Labour Party member and Momentum organiser. Once identified as a Council employee, the MP caused the respondent to investigate and a disciplinary process was begun, following which, the claimant was dismissed for serious misconduct. The claimant had never known about the video or been told which specific allegation had led to his dismissal. He brought a claim of unfair dismissal.
At tribunal, the judge determined that the dismissal was both procedurally and substantively unfair. She made an order for reinstatement. The respondent employer appealed.
In dismissing the appeals, the EAT found that the tribunal judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him. In reaching her conclusions the Judge did not substitute her own views for that of the employer. Whilst the Judge should have raised a relevant authority with the parties, on the facts of this case, that did not vitiate the decision. As to remedy, on the evidence before her, the Judge was entitled to conclude that reinstatement was practicable and to make the order she did. It was noted that in conduct cases, re-instatement can be ordered even if the dismissing manager genuinely believed misconduct had occurred; a conduct dismissal does not automatically mean that re-instatement is impracticable.
Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
In Stone v Burflex (Scaffolding) Ltd  UKEAT 2019 001183 the appellant raised a grievance about his level of pay; following a meeting with the respondent’s management he was summarily dismissed. The appellant brought a claim for unfair dismissal under s.104 of the Employment Rights Act 1996 (ERA). The respondent’s primary case had been that he was not dismissed but had resigned. The employment judge found that the appellant had been dismissed. The employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.
The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and so it substituted a finding to the contrary. The finding as to the reason for dismissal involved errors of law in that (a) the employment judge had not asked himself why the respondent had decided to withdraw the concession, and (b) the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, when there were a number of submissions the appellant might have made if the matter had been raised (in particular relating to s.105 ERA).
Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
In Ameyaw v PricewaterhouseCoopers Services Ltd  UKEAT 2019-000480, the EAT held that a tribunal had not erred in law by refusing a claimant’s application for an anonymity or restriction order under rule 50 of the Employment Tribunal Rules of Procedure 2013 (ET Rules) and had correctly held that her rights under Article 8 of the European Convention on Human Rights (ECHR) were not engaged.
The claimant had previously brought another rule 50 application as part of wide-ranging litigation against her former employer. This appeal concerned her application for an order that her identity be anonymised or that the contents of the reasons for an order made by an employment judge at a private preliminary hearing not be disclosed to the public. The reasons recorded the disruptive behaviour of her and her mother, and she was concerned about harm to her reputation. The EAT agreed with the tribunal that the claimant’s Article 8 rights were not engaged, for the following reasons:
- The claimant was not relying on conduct external to the legal proceedings and forming part of her private life, but conduct at a hearing recorded in writen reasons issued by the tribunal.
- Conduct at a tribunal hearing must not be taken to form part of a claimant’s private life protected by Article 8, even if members of the public are excluded from the hearing. A private hearing should not be conflated with the sphere of a claimant’s private life; the two are not the same.
- The claimant had no reasonable expectation of privacy in relation to her conduct at the hearing. A reasonable person of oridnary sensibilities would not consider the public disclosure of the nature of their conduct at a hearing, even a private one, to be offensive. It was a foreseeable conseuqence that a claimant who misconducts themselves at a hearing will have the nature andextent of their misconduct set out in the tribunal’s decision.
The EAT concluded that, even if Article 8 were engaged, the tribunal was correct to find that the balancing exercise was against the making of an order under rule 50 and in favour of the open justice principle.
Autumn Budget: Key employment law points
On 27 October 2021, the Chancellor, Rishi Sunak, delivered the Autumn 2021 Budget. The government has wound down much of the emergency support it put in place to deal with the COVID-19 pandemic and the budget announcements address the government’s shift in focus to economic recovery. We set out below the salient points in relation to employment.
Ongoing risks from COVID-19
It is noted that risks remain from COVID-19, especially through the coming months. On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan which sets out how, through use of Plans A and B, it intends to address the challenges that may be posed by COVID-19 over the autumn and winter period. It is suggested that the government is monitoring the data closely and will only introduce further measures if needed.
Skills and apprenticeships
On 4 October 2021, the Chancellor announced a £500 million expansion of the government’s Plan for Jobs initiative which would target support to workers leaving the furlough scheme, the unemployed aged over 50, the lowest paid and young people. The Chancellor announced further investment intended to boost opportunities for people to upskill and retrain, and an increase in apprenticeships funding. In particular, there will be increased funding for the National Skills Fund to expand the Lifetime Skills Guarantee so more adults in England can access funding for in-demand Level 3 courses and Skills Bootcamps will be scaled up.
As a result of increased apprenticeships funding, the government will continue to meet 95% of the apprenticeship training cost for employers who do not pay the apprenticeship levy and will deliver apprenticeship system improvements for all employers. These include:
- An enhanced recruitment service by May 2022 for small and medium-sized enterprises (SMEs), helping them hire new apprentices.
- Supporting flexible apprenticeship training models to ensure that apprenticeship training continues to meet employers’ needs. By April 2022, the government will consider changes to the provider payment profiles aimed at giving employers more choice over how the apprenticeship training is delivered and explore the streamlining of existing additional employer support payments so that they go directly to employers.
- Introducing a return-on-investment tool in October 2022 to ensure employers can see the benefits apprentices create in their business.
The Chancellor confirmed the extension of the £3,000 apprentice hiring incentive for employers until 31 January 2022 and announced investment in the Sector Based Work Academy Programme (SWAPs) which give unemployed people the opportunity to undertake work experience, learn new skills and retrain into high-demand sectors in their local area.
National minimum wage
On 3 March 2021, the government published its remit for the Low Pay Commission (LPC) for 2021. The remit asks the LPC to make recommendations for the National Living Wage (NLW) and National Minimum Wage (NMW) rates that should apply from April 2022. The LPC submitted its recommendations on 22 October 2021 and these were accepted by the government.
The Chancellor announced that the following rates (per hour) will apply from 1 April 2022:
- NLW for those over 23: from £8.91 to £9.50.
- NMW for those aged 21 to 22: from £8.36 to £9.18.
- NMW for those aged 18 to 20: from £6.56 to £6.83.
- NMW for those aged under 18: from £4.62 to £4.81.
- Apprentice Rate: from £4.30 to £4.81.
- Accommodation offset rate: from £8.36 to £8.70.
Workers who live in their employer’s family home, are treated as a member of the family and are not charged for food or accommodation do not qualify for the NMW (regulation 57, National Minimum Wage Regulations 2015 (SI 2015/621)). In submitting its recommendations, the LPC noted that this exemption, which was introduced to facilitate au pair placements, has given rise to longstanding concerns that it has provided a loophole for the exploitation of migrant domestic workers. The LPC recommends that the exemption is removed.
Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
The BBC reported on 22 October that the government has blocked a Private Member’s Bill which aimed to curb the practice of “fire and rehire” that has been the subject of recent high-profile disputes. Employers who wish to make detrimental changes to employees’ terms and conditions will, in the absence of employees agreeing to those changes, dismiss them and offer to re-engage them on the detrimental terms.
On 8 June 2021, responding to a report published by ACAS, the government stated that it would not yet legislate to prevent this practice but had requested that ACAS prepare more detailed guidance on how and when dismissal and re-engagement should be used.
Labour MP Barry Gardiner sponsored the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill which would discourage the use of fire and rehire practices and grant additional protection to those affected by it. The government ordered Conservative MPs to oppose the Bill at its second reading on 22 October 2021, as reported in Hansard. While it regards the practice as “unacceptable as a negotiating tactic“, the government intends to await the ACAS guidance. ACAS duly obliged by publishing this new guidance on 11 November 2021.
Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
On 5 November 2021, the BBC reported how some employers are monitoring their employees at home. The trade union, Prospect, has called for the regulation of employer’s use of technology to monitor employees to be strengthened. This comes as new polling suggests that nearly a third (32%) of employees working from home are being monitored by their employers, rising to nearly half (48%) for younger employees aged 18 to 34. The poll also shows that monitoring of homeworkers by camera has more than doubled since April 2021, from 5% to 13%. In addition to strengthened regulation, Prospect has called for the monitoring of employees through webcams to be made illegal, except during calls and meetings. This follows a recent consultation by the Information Commissioner’s Office (ICO) for views to inform new data protection and employee practices guidance, including to reflect changes in the way employers use technology, which will replace the existing Employment Practices Code.
Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
The All-Party Parliamentary Group (APPG) on the future of work published a report on 11 November 2021 that calls for an “Accountability for Algorithms Act (the AAA)” to curb employers’ use of technologies that monitor workers and setting performance targets determined by algorithms. The AAA is proposed to counter the negative impacts of the use of surveillance technologies which has increased significantly during the COVID-19 pandemic.
The report found that workers’ experience of these technologies amounts to “extreme pressure of constant, real-time micro-management and automated assessment“, and the APPG is particularly concerned about the impact this has on workers’ mental health and wellbeing. The report suggests the AAA would create a new corporate and public duty to undertake an “Algorithmic Impact Assessment“. It would also update digital protection for workers, offer additional collective rights for unions and specialist third sector organisations, and extend enforcement powers to the joint Digital Regulation Cooperation Forum (DRCF).
On 19 November 2021, People Management published its exploration of the contents of the proposed Accountability for Algorithms Act, and what it might mean for employers. For a more in depth review, read the full article here: How new artificial intelligence legislation affects businesses.
Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
On 15 November Personnel Today reported that PwC’s analysis of the most recent gender pay gap statistics shows a minimal decline of the gap from 13.3% in 2019/2020 to 13.1% in 2020/2021. According to PwC, the changes to the reporting deadline, due to the COVID-19 pandemic, impacted the disclosure rate significantly. Only a quarter of the employers that reported this year did so by the original reporting deadline of 5 April 2021. Analysis of those figures showed a decrease in the gender pay gap to 12.5%. By the extended deadline of 5 October 2021, 80% of the employers that reported in 2018/2019 had submitted their figures and the gap had risen to 13.1%. When the figures were released by ONS they noted comparisons ought be treated delicately due to the impact the pandemic had on wages and hours worked. PwC repeated this concern and added that the slight decrease in the gap, while positive, may be “masking other workforce patterns that are detrimental to gender diversity and inclusion in the workplace“.
Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Research carried out by Dr Deng at Durham Business School, and colleagues from other universities around the world, has found that parents who feel ashamed when something at work calls into question their parenting role, are less productive than those who do not feel ashamed. It also showed that staff struggling to balance work and parental responsibilities inevitably prioritise family commitments, at the expense of their work commitments. Those parents who already had lower levels of emotional stability were more likely to feel that their identity as a parent was under threat.
“Working parents not only experience pressure to exemplify an ‘ideal’ worker role, but they are also expected to engage in intensive parenting practices to raise successful children. Although the roles can complement each other, many find achieving this balance challenging, and therefore end up prioritising childcare as it is deemed more important.”Dr Deng
Dr Deng and colleagues explained that in today’s remote working world, the lines between professional and personal responsibilities are becoming blurred. More often than not, working parents are struggling to cope with the pressure of juggling the two, something which has been highlighted by the pandemic.
All is not lost though, as more and more organisations are finding out, good mental health is the cornerstone to a healthy and productive workforce. To help working parents tackle this imbalance, Dr Deng suggests organisations can, and should, be doing more to help their workers balance both their working role and their parental role too, saying:
“Organisations can train managers to recognise when employees are struggling with these issues, and work through those vulnerabilities by helping them to identify ways to proactively bounce back from their self-despair without withdrawing from their work roles.”Dr Deng
Dr Deng also suggests employers can also help employees further by giving them more flexibility to attend to their children’s needs, in exchange for employers gaining more focused and hardworking employees whilst on the job.
Speaking to People Management, Simon Kelleher, head of policy and influencing at Working Families said that flexible working practices are often beneficial for productivity and talent retention, but called on the government to deliver on the recent flexible working consultation.
“We continually hear from working parents and carers who are denied even modest flexible working requests and are having to make unenviable trade-offs to manage from going into debt to pay for childcare or leaving careers they had worked hard to build due to inflexibility,” he said.Simon Kelleher, Working Families
Currently, the law only allows for employees to take a ‘reasonable’ (which is undefined) amount of unpaid time off for unexpected events involving dependents. Some employers may provide further contractual benefits but this is entirely at the employer’s discretion.Simon
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Employment Law Newsletter – September 2020
- Breach of Contract: £1 damages for copyright infringement and breach of contract by former consultant
- Unfair Dismissal: Teacher suspected of possession of indecent images of children but not prosecuted was unfairly dismissed
- Unfair Dismissal: Lack of trust and confidence may be relevant to practicability of re-engagement
- Unfair Dismissal: No procedure, no problem – where the working relationship has broken down
- Disability Discrimination: Paranoid delusions not sufficient for definition of disability under Equality Act
- Equal Pay: Material factor needs to explain but not justify pay disparity
- COVID-19: HMRC publishes updates to CJRS guidance and template for large employers
- COVID-19: DHSC publishes new guidance for employers on COVID-19 testing
- COVID-19: Amended guidance on working safely, including mandatory Test and Trace
- COVID-19: New HMRC guidance on calculating furlough pay for employees who come off furlough partway through a claim period
- COVID-19: Pandemic leads to backlog of 45,000 employment tribunal cases
- ACAS: Updated ‘Guidance on Managing Staff Redundancies’ published
- Data Protection: ICO launches accountability framework
Breach of Contract: £1 damages for copyright infringement and breach of contract by former consultant
In DPA (London) Ltd v D’Aguanno and others  EWHC 2374 (IPEC) the Intellectual Property Enterprise Court (IPEC) has ruled against the claimant in proceedings for copyright infringement and breach of contract in relation to all but one head of claim, which the defendant admitted. It awarded a nominal sum of £1 in damages.
The claim was brought by a firm of architects against three defendants: two individuals who had worked for it as self-employed contractors, and the company those individuals set up after they stopped working for the claimant. The judge found that the pair had worked for the claimant as consultants rather than employees under a verbal agreement containing certain implied terms.
The first defendant admitted that he had copied and stored three three-dimensional models from the claimant’s projects onto his laptop in order to use them in his portfolio to show the quality of work he had carried out for the claimant. His actions amounted to a breach of the claimant’s requirements to return all copies of the claimant’s works to it when he stopped working for the claimant, and not to remove documents from the claimant’s possession. However, as the models were specific to the sites and jobs done for the claimant, and at least two of the three were from completed projects, it was hard to see what other use the defendant could have made of them, and the judge accepted that he did not in fact put them to any use other than moving them from his laptop to a storage device (which he had since surrendered to the claimant). The evidence did not convince the judge that the defendants had infringed any other copyright works belonging to the claimant, nor was there any evidence that the other defendants had authorised the infringement relating to the models.
Due to the limited scope of the infringement, the judge considered that it would be disproportionate to have a full quantum trial, so he went on to assess damages. The defendant’s actions had not given rise to any need to re-create the models, and as he had not put the material to commercial use, his retention of the material had not caused the claimant any commercial loss either. Since no loss had been suffered, the judge awarded nominal damages of £1 for copyright infringement and breach of contract.
Unfair Dismissal: Teacher suspected of possession of indecent images of children but not prosecuted was unfairly dismissed
In K v L  UKEAT 0014_18_2404 the EAT has held that a teacher was unfairly dismissed for misconduct after he was charged with possession of indecent images of children, but not prosecuted. The teacher admitted that a computer in his home was found to contain indecent images but denied that he was responsible for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but decided that he should be dismissed in any event because allowing the teacher to return to his post would pose an unacceptable risk to children. In its dismissal letter, the school also referred to the “serious reputational damage” which would be caused if the teacher was subsequently found guilty of this kind of offence and the school had been aware of the allegations.
Allowing an appeal, the EAT held that the complaint as set out in the disciplinary invitation was based solely on misconduct and gave no notice that reputational damage was a potential ground of dismissal. In these circumstances, the employer was bound to make a decision on whether the misconduct had been established. Had it done so, it would have been bound to conclude that misconduct had not been established. The EAT could not accept that an employee could be dismissed on the basis of a matter that was only mentioned in an investigatory report, not in the actual complaint. Although reputational damage may be regarded as a separate ground of dismissal (that is, dismissal for ‘some other substantial reason’), it raises separate considerations to those in a misconduct dismissal, and this must be made clear from the outset. In this case, the teacher had not been given an opportunity to address the reputational issue in any detail at the disciplinary hearing.
Considering whether a fair dismissal would have been possible, had the school referred to reputational damage in the original complaint as set out in the disciplinary invitation, the EAT found that the scant evidence available meant that the teacher was dismissed in the absence of any information about the nature or seriousness of the images, or the reasons why no prosecution was brought. In the EAT’s view, the evidence was insufficient to support a dismissal based on reputational damage.
Unfair Dismissal: Lack of trust and confidence may be relevant to practicability of re-engagement
In Kelly v PGA European Tour  UKEAT 0285_18_2608 the EAT has held that a tribunal erred in ordering re-engagement to a position for which an employee did not meet an essential requirement of the role and had impermissibly reached its own view on whether concerns about the employee’s capability and integrity had undermined trust and confidence.
Mr Kelly began employment with PGA in 1989 as Marketing Director, eventually becoming Group Marketing Director. A new Chief Executive was appointed in 2015. Within two months, he decided to dismiss Mr Kelly over concerns about his performance and willingness to “buy in” to his ideas. Exit terms could not be agreed. Mr Kelly was dismissed, subsequently bringing an unfair dismissal claim (among other claims). PGA conceded that the dismissal was unfair as a fair procedure had not been followed. When considering remedy, the tribunal decided that Mr Kelly should be re-engaged to the role of Commercial Director, China PGA European Tour. It considered that, while speaking Mandarin was an essential requirement of the role, Mr Kelly’s willingness to learn Mandarin and his proficiency in languages meant that re-engagement was practicable. Moreover, any trust and confidence issues arising from doubts about Mr Kelly’s capability and integrity (he had covertly recorded several meetings) were not so significant as to make re-engagement impracticable.
PGA appealed, arguing that the tribunal had impermissibly considered for itself whether trust and confidence had been damaged instead of asking whether PGA had a rational basis for believing that it had. The EAT allowed the appeal. The question for the tribunal was whether it was practicable to order PGA to re-engage Mr Kelly. It is the employer’s view of trust and confidence, tested by the tribunal as to its genuineness and rational foundation, that matters. The tribunal had therefore erred in reaching its own view. The EAT rejected the argument that trust and confidence is only relevant to practicability where dismissal is based on an employee’s conduct, not capability. The EAT also held that the tribunal had erred in substituting its own view on whether the ability to speak Mandarin was an essential requirement of the role. Requiring PGA to engage someone in a role for which they did not meet one of the essential requirements (genuinely and cogently determined by them and accepted by the tribunal) overstepped the mark and failed to give weight to the employer’s commercial judgment.
Unfair Dismissal: No procedure, no problem – where the working relationship has broken down
In Gallacher v Abellio Scotrail Limited  UKEATS/0027/19/SS the ETA has upheld a decision of a tribunal that, in rather unusual circumstances, an employee can be fairly dismissed without any procedure (including an appeal), after a breakdown in working relations.
The Claimant was a senior manager in the Respondent’s business. Her relationship with her line manager deteriorated at a critical juncture for the business of the Respondent. The Claimant’s manager decided, after consulting with HR, to dismiss her at an appraisal meeting with no procedure, forewarning or right of appeal as the reason for her dismissal was “some other substantial reason” (namely a breakdown of working relations between the two of them). The tribunal found the dismissal was not unfair and also that the Respondent did not know (and could not reasonably have been expected to have known) of her disability (symptoms related to the menopause and depression). The Claimant appealed.
The EAT dismissed the appeal, holding that although any contention by an employer that following a procedure would be futile would be approached with caution, this was one of those rare cases where it was open to the tribunal to conclude that dismissal without any procedure was within the band of reasonable responses. The Claimant was a senior manager whose continued good working relationship with her manager was critical during a difficult period for the Respondent’s business. Moreover, the evidence was that the Claimant recognised the breakdown in relations herself and was not inclined to retrieve the situation. The tribunal found that any procedures at this time would not only have served no purpose but would in fact have worsened the situation.
Disability Discrimination: Paranoid delusions not sufficient for definition of disability under Equality Act
In Sullivan v Bury Street Capital Limited  UKEAT 0317_19_0909 the EAT has upheld a tribunal decision that the Claimant’s disability of paranoid delusions was not sufficiently within the ‘long-term’ definition of disability under the Equality Act 2010 as it was not likely to recur, and therefore his claim for disability discrimination failed.
The Claimant was a sales executive with a small finance company. From about July 2013, following a split with a Ukrainian girlfriend, the Claimant suffered paranoid delusions that he was being followed and stalked by a Russian gang. These delusions affected his timekeeping, attendance and record-keeping (which were already a matter of concern even before 2013). However, things improved after September 2013. Whilst there were sporadic references to the Claimant’s poor attitude in that period, it was not until April 2017 that there was a worsening of the effect of the paranoid delusions on his day-to-day activities. The Claimant’s employment was terminated on 8 September 2017, ostensibly for reasons to do with capability and attitude. The Claimant lodged a claim complaining of unfair dismissal, disability discrimination and deduction of wages (amongst others). The tribunal held that he did not have a disability within the meaning of the Equality Act 2010. However, his claim of unfair dismissal was upheld.
In dismissing the appeal, the EAT held that the tribunal did not err in concluding that the long-term requirement in the definition of disability was not met. It found that the tribunal was entitled to conclude on the evidence that, although there was a substantial adverse effect in 2013 and again in 2017, in neither case was it likely that the adverse effect would last for 12 months or that it would recur. The tribunal had correctly applied “likely” as if it meant “could well happen”, and had approached the question of the likelihood of recurrence correctly. The tribunal also did not err in deciding that the Respondent did not know and could not reasonably be expected to know of the disability.
Equal Pay: Material factor needs to explain but not justify pay disparity
In Walker v Co-Operative Group and another  EWCA Civ 1075 the Court of Appeal has held that an employment tribunal adopted the wrong test when deciding whether an employer could establish a material factor defence to a pay differential between a female HR executive and other male executives. In this case, the tribunal had found that explanations for the differential were no longer material when a job evaluation study was carried out 12 months after their pay had been set and which determined that, at some point during that period, the value of the HR executive’s work had become equal to that of her comparators. This lack of materiality, in the tribunal’s view, led it to conclude that the pay differential could no longer be justified and that the employer could not establish a material factor defence.
However, the test is not whether the employer can prove that the pay disparity is justified, but whether the reason for the difference is causative and whether it is material. The court said that the tribunal’s conclusion overlooked the fact that in respect of each of the comparators there was at least one material factor which remained causative of or which explained the difference in pay at the end of the period in question. Whether the factor justified the difference was not a question for the tribunal.
The court also criticised the tribunal’s decision to leave the exact point at which the claimant’s work became equal to that of her comparators to be determined at the remedy hearing. This was unsatisfactory since it left the starting point of the claim unresolved. The tribunal should either have made a finding as to the date as from which the claimant was doing equal work or found that she had failed to prove this at any stage before February 2015.
Government guidance is being updated frequently and so we would strongly recommend that you check the current guidance at the point when you are making decisions on such guidance.
COVID-19: HMRC publishes updates to CJRS guidance and template for large employers
HM Revenue and Customs has further updated its guidance, Claim for wages through the Coronavirus Job Retention Scheme, and the accompanying claims form template for employers claiming through the Coronavirus Job Retention Scheme (CJRS) for 100 or more employees. The guidance and the “Details” section of the template now require employers to state whether an employee has returned from statutory leave before being put on furlough.
COVID-19: DHSC publishes new guidance for employers on COVID-19 testing
On 10 September 2020, the Department of Health and Social Care (DHSC) published Guidance for employers and third-party healthcare providers on COVID-19 testing and contact tracing. The guidance advises employers wanting to test non-symptomatic staff against using NHS Test and Trace, and to consider private alternatives. However, there is no obligation on employers to run testing programmes.
The guidance provides information about the types of testing available, as well as summarising relevant legal obligations (including when using apps) in Annex A. The following sections will be of particular interest to employers:
- Before deciding to test staff. Employers are advised, among other things, to consider the scope of any testing programme (for example, whether contractors will be tested), the frequency of testing, arrangements for individuals who refuse to be tested and how test results will be used.
- Communicating the intention to test staff. Employers are advised that any communications should be transparent and outline how any testing programme will operate in practice. Employers are “strongly advised” to consult with staff associations or unions before implementing any policy. They are also reminded of the need to comply with the GDPR and the Data Protection Act 2018, by ensuring that all data is processed lawfully, fairly and transparently and that staff are aware of how their personal data will be used, shared and kept.
- Contact tracing staff. The guidance anticipates that, although not compulsory, employers may want to introduce internal tracing systems alongside testing programmes. It states that any individual who has been identified as a contact by an internal tracing system, but not by NHS Test and Trace, will not qualify for Statutory Sick Pay (SSP). Provision should be made for them to work from home where possible. If this is not possible, the guidance advises that the individual may remain entitled to full pay unless their employment contract provides otherwise. Individuals do not have to self-isolate unless they are contacted by NHS Test and Trace but are advised to avoid contact with those at “high increased risk” of severe illness resulting from COVID-19.
The guidance also provides information on how to communicate test results and with whom, and what employers can and cannot do with the results. It encourages employers to keep staff informed about potential or confirmed COVID-19 cases but advises that individuals should not be named. The guidance applies to England only, but it states that “equivalent guidance” will be published for Scotland, Wales and Northern Ireland.
COVID-19: Amended Government guidance on working safely, including mandatory Test and Trace
The government has recently made several updates to its guidance on ‘Working safely during corona virus (COVID-19)’ for different types of workplace. The guidance applies to businesses in England.
The key changes address the following:
- The rule of six. New regulations restricting indoor or outdoor gatherings of more than six people (with some exceptions, including where the gathering is “reasonably necessary” for work or education) came into force on Monday 14 September.
- Test and Trace. The guidance on NHS Test and Trace has been strengthened. Whereas it previously advised that employers “should” keep records of staff working patterns for a period of 21 days, it now mandates that employers “must” do so. Some employers whose customers attend their premises, such as restaurants, hair salons, sports clubs and heritage locations (but not shops or banks), must now ask at least one member of each customer party visiting the site to provide contact details, “to ensure that businesses are able to remain open“.
- Priority actions. Each guidance document now starts with a list of “priority actions” and further key points to be aware of. Priority actions cover such things as risk assessments, cleaning, face coverings, social distancing, ventilation, Test and Trace records, and turning away anyone with symptoms of COVID-19.
Importantly, the guidance refers to “new regulations” on Test and Trace, with financial penalties for non-compliance, which came into force on 18 September 2020, as set out in a Press release on 10 September.
COVID-19: New HMRC guidance on calculating furlough pay for employees who come off furlough partway through a claim period
On 11 September 2020, HMRC amended its guidance on how employers should calculate the amount of a claim under the Coronavirus Job Retention Scheme (CJRS) to include a new method of calculation for employees whose furlough or flexible furlough ceases partway through a claim period.
To calculate how many furloughed hours they can claim for in respect of each employee, an employer must work out the employee’s usual working hours in the claim period as well as the number of these hours that the employee has worked and has not worked.
The guidance now states that, when claiming in respect of an employee who comes off furlough or flexible furlough partway through a claim period, an employer should:
- Only calculate the employee’s usual hours up to the last day of furlough, instead of to the end of the claim period.
- Not include any working hours after the last day of furlough.
This applies even if the claim period includes days after the employee’s last day of furlough (for example, because the employer is claiming for multiple employees and some of them stay on furlough).
The amended calculation should be used from 14 September 2020 but employers do not need to amend claims submitted prior to this date.
HMRC’s worked example of how to calculate 80% of wages for a fixed-rate employee who returns to working their usual hours during the claim period (set out in a document containing multiple worked examples based on different scenarios) has been updated to reflect the new method of calculation.
COVID-19: Pandemic leads to backlog of 45,000 employment tribunal cases
According to the Law Society Gazette, Ministry of Justice data shows a backlog of cases waiting to be heard at employment tribunal level that reached 45,000 in August 2020. This represents a 26% increase from the start of March. The Office for National Statistics revealed that the UK’s unemployment rate also rose during this period from 3.9% to 4.1% from April to July 2020. The growing tribunal backlog may be due in part to the increase in redundancies, and in part due to listing difficulties during the COVID-19 pandemic.
ACAS: Updated ‘Guidance on Managing Staff Redundancies’ published
ACAS has updated its ‘Guidance on Managing Staff Redundancies’. It covers matter such as how to make a redundancy plan, avoiding compulsory redundancies, carrying out consultations, how to select employees for redundancy and given them notice, and working out redundancy pay. It also includes a section on supporting your staff and planning for the future.
Data Protection: ICO launches accountability framework
On 10 September 2020 the Information Commissioner’s Office (ICO) published its accountability framework, designed as a practical tool to help organisations of every size understand what good accountability looks like. It has been launched in beta with the ICO keen to hear feedback on the tool.
The framework includes expectations and examples of how to demonstrate accountability. It also includes an accountability self-assessment tool. It is divided into ten categories which cover topics such as leadership and oversight, policies and procedures, training and awareness, individuals’ rights, transparency, record keeping, contracts and data sharing, risk assessments, record management and security, and breach response and monitoring.
The ICO notes that embedding accountability in an organisation will help to enhance its reputation as a business that can be trusted with personal data.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – September 2019
- Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
- Holiday pay: Part-year workers not subject to pro rata reduction
- Worker status: Out of hours GP is a worker despite using limited company
- Disability Discrimination: Tribunal must address all four limbs of the definition of disability
- Harassment: Conduct that creates an offensive or humiliating environment
- Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
- Information Commissioner’s Office: Brexit hub
- Data Protection: Subject Access Requests and Individual Rights – timescales changed
- Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
- Non-Disclosure Agreements: Law Society publishes new guidance
- Upskilling: Give me the chance to save my job
Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
In Barrasso v New Look Retailers Limited UKEAT/0079/19 the EAT had to consider how ‘employee shareholder status’ is terminated, as it is not provided for under the Employment Rights Act 1996 (‘ERA’). The concept of ‘employee shareholder status’ was introduced in 2013. It applies to those who are employed by a company in which they are issued £2,000 worth of fully paid up shares, having first agreed to be an employee shareholder and received information about the status, its rights and independent legal advice. Having the status means they retain some key employment rights but give up others (in return for the shares), such as the right to claim unfair dismissal or receive a statutory redundancy payment. S.205A of the ERA prescribes how one achieves this status but it silent on how it is terminated.
Mr Barrasso was employed as UK Managing Director by New Look until it was sold to another company and he was offered 7,000 shares in the parent company if he signed an Employee Shareholder Agreement (and met the criteria under the ERA), which he did. He was reassured by side letter (signed as a deed between the parties) that he would receive contractual benefits equal to the statutory employment rights he was giving up. He subsequently signed a new director’s service agreement (to standardise terms for all the directors) as a deed. This agreement contained a ‘complete agreement clause’ which purported to preserve the effect of the side letter (not mentioning the Employee shareholder agreement), whilst superseding all other agreements.
Believing that his employee shareholder status had been terminated by the service agreement when Mr Barrasso’s employment was terminated he brought a claim for unfair dismissal. The tribunal dismissed his claim on the basis that the service agreement made no reference to the employee shareholder status – therefore did not supersede it – and the side letter meant the statutory rights had been removed in favour of his contractual rights. He appealed to the EAT, who agreed with the tribunal’s findings. They also looked at how the status could have been terminated practically-speaking, given that the ERA is silent on this, citing examples such as: a new contradictory contract, or an agreement to sell back the shares. It was clear to the EAT however, that the intention of the parties was not to alter Mr Basrrasso’s employee shareholder status by signing his service agreement.
Holiday pay: Part-year workers not subject to pro rata reduction
The Court of Appeal has overturned the decision of an employment tribunal (Harpur Trust v Brazel  EWCA Civ 1402), finding that it should not have read words into reg.16 of the Working Time Regulations 1998. The tribunal had been wrong to read it as if it meant the annual leave entitlement of ‘part-year workers’ (people who work only part of the year) on permanent contracts should be capped at 12.07% of the annualised hours. The Court accepted that ECJ rulings may allow employers to use the Working Time Directive to pro rate the annual leave entitlements of part-year workers to that of full-year workers, but member states may implement better arrangements. There is no requirement in the Working Time Regulations to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably, it is simply a protection for part-time workers to not to be treated less favourably than full-time workers.
There is a lesson here: employers who employ the 12.07% approach to pay holiday to staff on zero hours permanent contracts should consider their potential exposure and their options. The calculation exercise required by regulation 16 of the WTR 1998, which involves identifying a week’s pay and multiplying it by 5.6 weeks, is straightforward and should be followed, even if it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay (in this case, 17.5%). How the 5.6 weeks’ holiday entitlement itself should be calculated for part-year workers remains unclear, however. As a direct result of this case, BEIS has removed its holiday pay calculator from its holiday pay guidance for workers without fixed hours or pay. BEIS are currently reviewing this.
Worker status: Out of hours GP is a worker despite using limited company
In Community Based Care Health Ltd v Narayan UKEAT/0162/18, Community Based Care Health Ltd (‘CBCH’) provided out of hours GPs to the NHS (each of whom had to be fully qualified and competent), and Dr Narayan provided her services as a GP through CBCH for a number of years. She worked a regular shift pattern but did not need CBCH’s permission to take leave or work elsewhere so there was no mutuality of obligation. She did provide her own equipment and indemnity insurance, and had to work personally for the company and could not send a preferred substitute instead. CBCH audited the services of the GPs it provided to comply with its NHS contracts. Dr Narayan began to use a limited company of her own to receive her payments but never informed CBCH of this fact, merely updated her bank details.
Following an issue with some telephone advice Dr Narayan had provided and a claim that she had unjustifiably swapped duties on short notice, CBCH decided it was no longer going to offer her work. Dr Narayan brought claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. CBCH claimed she was self-employed and neither an employee nor a “worker”. The tribunal disagreed.
The judge found that Dr Narayan was a worker under s.230(3)(b) of the Employment Rights Act 1996, despite the fact that she had used a limited company to receive payments for over a year without CBCH’s knowledge. CBCH had tried to argue that this had led it to unwittingly become one Dr Narayan’s company’s clients under the ‘undisclosed principal’ doctrine (i.e. if A makes a contract with Z in A’s own name, it is open to B at a later date to assert that the contract was made by A on B’s behalf and that B is the contracting party. This means that the resulting contract is between B and Z.) CBCH claimed that therefore it was contracting with Dr Narayan’s company, and not her. This was dismissed from the appeal because it had not been argued at first hand, but in any event the fact that the contract required a competent and suitably qualified doctor precluded a company from being the contracting party. Further, the judge found that the decision in Suhail v Herts Urgent Care UKEAT/0416/11 was not a good precedent he was bound to follow in this case, distinguishing it on the basis that Dr Suhail positively marketed his services to other clients. Dr Narayan, on the other hand, worked for one provider for a number of years on a regular shift pattern. The judge also found the evidence suggested Dr Narayan had been integrated into CBCH’s business. The EAT upheld the tribunal judge’s decisions and found no error of law.
Disability Discrimination: Tribunal must address all four limbs of the definition of disability
In Parnaby v Leicester City Council UKEAT/0025/19/BA Mr Parnaby suffered depression brought about by work-related stress and was dismissed because of his long-term sickness absence due to work related stress (a capability issue). Mr Parnaby claimed this dismissal was in fact disability discrimination and/or potentially unfair. The tribunal found him not to be a disabled person for the purposes of the Equality Act 2010 (“the Act”) though it did accept that he suffered an impairment that had a substantial adverse effect on his ability to carry out normal day to day activities but held this was not long-term. In particular, the tribunal noted that Mr Parnaby had suffered work related stress for six months, but that it had ceased following his dismissal, therefore the effect was not ‘long-term’ (i.e. 12 months or more) for the purposes of paragraph 2 Schedule 1 of the Act. Mr Parnaby appealed.
The EAT allowed the appeal. It held that the tribunal had erred in not addressed all four limbs of the definition of disability contained in the Act. Mr Parnaby had suffered depression brought about by work-related stress which affected his ability to carry out his day-to-day activities – his impairment. The act of discrimination claimed was the dismissal. At that time, his impairment had not lasted for 12 months (s.2(1)(a) of Sch1 to the Act) and was therefore not ‘long-term’. However, the tribunal considered that by removing the source of his impairment (his job) then the likely future impairment and its impacts would cease. The EAT held that the tribunal should have looked at whether it was likely to last twelve months or might recur in the future (i.e. could well happen = more probable than not). It was not for the tribunal to make assumptions about the time-limited nature of his impairment. On this basis the claim was remitted back to tribunal to be reheard.
Harassment: Conduct that creates an offensive or humiliating environment
In Raj v Capita Business Services Limited & Ward EAT0074/19/LA the EAT considered the first tribunal’s dismissal of Mr Raj’s claims of unwanted conduct either of a sexual nature or unwanted conduct relating to his sex, pursuant to s.26 of the Equality Act 2010 (the “Act”). The issue was that the claimant had felt uncomfortable when his female manager massaged his shoulders in their open plan office. Whilst the tribunal found this to be unwanted conduct which created an offensive environment for him, it found that on balance, the evidence provided brought them to the conclusion that whilst the conduct was unwise and uncomfortable but not related to gender, but more likely due to misguided encouragement. This part of the claim failed.
On appeal, the EAT considered the two-stage burden of proof test set out by s.136 of the Act and explained in Igen v Wong  ICR 931. The first stage is that the claimant prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent committed an unlawful act of discrimination. The second part is only applicable if the first stage is met, and then puts the burden of proof onto the respondent who must prove he/she did not commit that unlawful act. The EAT agreed with the tribunal’s finding that in this case, the claimant fulfilled stage one – it was agreed that there was conduct that was unwanted, thereby producing “an intimidating, hostile, degrading, humiliating, or offensive environment for him”. However, the remaining issue for stage two was whether this conduct related to the claimant’s gender. The tribunal found the evidence to show a prima facie case that this conduct related to his gender to be very limited. The appeal was on the basis that the tribunal had erred in law by not approaching the test properly but the EAT did not agree; the burden of proof had not shifted to the respondent and, in any event, the explanation given by the respondent had been accepted.
Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
This is a warning case to employers involved in litigation. In Kasongo v Humanscale UK Ltd UKEAT/0129/19 the claimant brought claims of unfair dismissal and discrimination related to pregnancy and maternity. Part of the employer’s strategy was to waive its legal advice privilege (i.e. communications between a client and their solicitor which are confidential and come into existence for the purpose or giving or receiving advice about what should prudently or sensibly be done in the relevant legal context) because certain documents arguably demonstrated that it did not know about the claimant’s pregnancy at the time it was considering dismissing her. The documents comprised a draft dismissal letter prepared by the solicitors from which the solicitors notes and comments had been redacted (it was agreed that the letter itself was not legally privileged, but the redacted parts were) and two earlier documents. The issue was whether the disclosure of the two earlier documents meant that the redacted parts were no longer protected by privilege, and therefore if the tribunal had erred in its decision as to which documents were protected by legal advice privilege.
The EAT held that the tribunal had erred in failing to address or rule on one of the three documents. All three documents were part of the same transaction of providing legal advice about the dismissal of the claimant and, given the nature and purpose of the disclosure, the EAT held that fairness required that the redacted part of the letter concerning the reason for the claimant’s dismissal also be disclosed. The reason being that it would be unfair to allow the respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. Cherry-picking the parts one discloses is therefore impermissible. The appeal was allowed and the EAT ordered that the redactions be removed and the full letter be included in the trial bundle for evidence at the hearing.
Information Commissioner’s Office: Brexit hub
The ICO has put together a ‘Brexit hub’ containing checklists, FAQs and guidance to help organisations of every size in case prepare for a no-deal Brexit. A good place to stay up to date with how your business manages its data protection duties. You can also sign up to their service to receive regular emails which will let you know about any updates to the guidance.
Data Protection: Subject Access Requests and Individual Rights – timescales changed
In August, the Court of Justice of the European Union ruled on a Dutch case which considered timescales under Regulation No 1182/71. Following this ruling, the Information Commissioner’s Office has updated their guidance on timescales for responding to subject access requests (SAR), and other individual rights requests.
The effect of the ruling is that the timescale has now changed to reflect the day of receipt as ‘day one’, as opposed to the day after receipt. For example, a SAR received on 3 September should be responded to by 3 October.
Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
Following recent reforms made to the National Referral Mechanism (NRM) (a government framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support), the Home Office issued new Modern slavery victims: referral and assessment forms. The forms allow staff at designated First Responders Organisations to refer potential victims of modern slavery or human trafficking to the NRM.
The recent reforms to the NRM include:
- The Home Office created a single, expert unit to handle all cases referred to it to handle decision making about whether somebody is a victim of modern slavery. This replaces (and is completely separate from) the case management units in the National Crime Agency and UK Visas and Immigration.
- All negative Conclusive Grounds decisions will now be reviewed by an independent panel of experts, to increase the scrutiny such cases receive.
- The NRM process will be supported by a new digital system, enabling easier referrals, data capture and analysis, aimed at improving prevention and law enforcement.
For more details on which organisations form part of the First Responders list, see the government website.
Non-Disclosure Agreements: Law Society publishes new guidance
Following our reporting of the Women and Equalities Committee’s review of the use of Non-Disclosure Agreements in discrimination cases, the Law Society has now published a brief guidance leaflet called ‘Non-disclosure agreements: what you need to know as a worker’. This is just as helpful to employers as it summarises both the things employers cannot stop workers from doing and explains the restrictions commonly imposed on workers prior to signing the NDA.
This has been published as part of the Law Society’s new legal education initiative to assist the public understand their rights.
Upskilling: Give me the chance to save my job
PwC has recently published a new study called ‘Upskilling Hopes and Fears’, based on a survey of 22,000 people globally, of whom 2,004 were UK adults in the age range 18-65 (retirees were not included). Their findings show that 73% of workers would welcome the opportunity to expand their knowledge of new workplace technology while 54% of those questioned said they would be happy to learn new skills or completely retrain in order to improve their future employability. But many UK workers say their employers are not offering opportunities to upskill. People fear automation in a growing digital world will lead to fewer jobs and this lack of investment in the workforce is breeding mistrust of employers among workers.
The research also highlights disparities in upskilling opportunities by gender, education, and age:
- Over half (54%) of men surveyed say their employer is giving them the chance to learn new skills, as opposed to only 45% of women. Over half of women (55%) say they are offered no opportunities at all.
- 56% of university graduates say they are offered them, whereas only 41% of those educated to school leaver level say the same.
- 64% of workers aged 18-34 say they are offered opportunities, compared with 48% of 35-54 year olds and 41% of ages 55 and over.
These results highlight the need for organisations to look seriously at offering upskilling opportunities for staff – particularly in the UK where three-quarters (73%) of workers would take the opportunity to better understand or use technology if they were given the option by their employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – April 2019
- Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
- Contract of Employment: Variation of a discretionary bonus
- Vicarious liability: Employer not liable for Christmas party injury
- Tribunal Procedure: List of issues not pursued by claimant
- Long-term disability: Employee PHI benefits apply to returning to same job
- Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
- TUC Survey: Britons work longer than rest of Europe
- HMRC: New guidance published regarding change to IR35 rules
- Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
- Tribunals: Modernisation plan from 2019-20 to reform tribunals
- Equality: New GPG figures show gap is actually widening in favour of men
Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
This was the question before the EAT in Frudd & Frudd v The Partington Group Ltd UKEAT/0240/18/OO. The Claimants, Mr and Mrs Frudd, were a warden/receptionist team who worked at a caravan site. During the open season they worked shifts which finished between 4.30pm and 8pm and were expected to be on-call afterwards on two or three nights a week until 8am the following morning. The Claimants argued that whilst on-call they were working on “time work” and so entitled to be paid the National Minimum Wage. According to the legislation, workers paid according to the number of hours they are at work are classed as doing ‘time work’. For these workers, the average hourly pay has to be at least the National Minimum Wage, worked out over the period each pay packet covers – so for a worker who gets paid once a month, this period will be 1 month. (The sleep-in exception in the Mencap case did not apply because this was not a sleep-in situation.)
Although the Claimants had sought a finding in respect of the whole time on call, the Employment Judge made a distinction. He found that the night period (10pm – 7am) was not time work. The Claimants appealed the rest of the time (from the end of the shift until 10pm). The Employment Judge found that for this period they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period.
The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out, and so were merely available for work, and were not entitled to be paid whilst merely on-call.
Contract of Employment: Variation of a discretionary bonus
In Bluestones Medical Recruitment Ltd v Swinnerton UKEAT/0197/18/BA Mr Swinnerton made a claim for unlawful deduction from wages after he was not paid a bonus he claimed was due to him. His contract stated any bonus was discretionary but he claimed that when he had been promoted to General Manager there had been a further agreement. He was to be paid a monthly bonus based on the company’s profits and he would become a shareholder. Bluestones argued that the bonus remained discretionary as once Mr Swinnerton became a shareholding director he was to be paid the money by way of a dividend. This had not yet occurred and so the money was to be advanced by way of Director’s loan, which he was to repay from his dividends. However, Mr Swinnerton was suspended, Bluestones stopped paying his bonuses and he was then dismissed, all prior to him becoming a shareholder.
At first instance the tribunal concluded this was an unlawful deduction of wages. However, the EAT found the tribunal hadn’t adequately identified the legal mechanism through which the contract was changed or what the new contract required. This failure also meant it was not possible to conclude whether the payments should be classified as loans rather than deductions from wages. The EAT therefore remitted the case to a fresh tribunal.
Vicarious liability: Employer not liable for Christmas party injury
In Shelbourne v Cancer Research UK  EWHC 842 (QB), whilst at a work Christmas party, one attendee had attempted to lift another (the Claimant, an employee) on the dance floor but dropped her, causing her a serious back injury. The Claimant took the matter to the County Court, claiming the employer (CRUK) was vicariously liable for the actions of the attendee (Robert Beilik, a visiting scientist)because it was a work event. The person who had organised the event for the employer was Mr Hadfield, and he had carried out a risk assessment to cover all the foreseeable hazards of holding an event at the premises (which included laboratories). Mr Beilik had picked up several women that night, prior to this incident, but had put them down again straight away and no one had reported any concerns about him.
The County Court held that the employer was not negligent and not vicariously liable for the actions of Mr Beilik. The Claimant appealed. The High Court considered the nature of the occasion and agreed with the County Court Recorder. It was not wrong to find that CRUK took reasonable steps in the planning and operation of the party. No duty of care was breached. The claim for negligence was, accordingly, not made out. Furthermore, he was right to find that Mr Beilik’s field of activities was his research work at CRUK and that this field was not sufficiently connected with what happened at the party as to give rise to vicarious liability.
Tribunal Procedure: List of issues not pursued by claimant
In Kouchalieva v London Borough of Tower Hamlets UKEAT/0188/18/JOJ the EAT had to consider whether the tribunal had made an error or not. The Claimant, representing herself, had brought claims against her former employers, the London Borough of Tower Hamlets, of unfair dismissal and disability discrimination. In some cases, the employment tribunal will order that a preliminary hearing takes place before the main employment tribunal hearing, as a way of helping the judge understand the case and make arrangements for the main hearing. These are usually used when the case is complicated or involves discrimination, as it was here. At the Preliminary Hearing a list of issues was agreed between the parties but, at the final hearing, the unrepresented Claimant did not lead any evidence in relation to a number of issues in that list. In the judgment, the tribunal noted that they had not been pursued, and on finding they were now out of time, declined to extend time.
At appeal, the Claimant’s counsel argued that the tribunal erred in law in failing to address the agreed list of issues because the tribunal has as its overriding objective to ensure that the parties were on an equal footing, so far as is practicable. He suggested that if the tribunal realises that an unrepresented Claimant has failed to address a particular issue, the ET should raise the matter with the Claimant and ask them whether they intend to abandon the claim. He also suggested that if the unrepresented Claimant has failed to address a particular issue then the Respondent should also bring the matter to the Claimant’s attention, and to the ET’s if the matter has not been remedied satisfactorily.However, the Respondent argued that the list of issues is a case management tool, not a pleading, and the tribunal was under no duty to raise specifically with a litigant every issue which the litigant has not pursued during the hearing.
The EAT concluded that the tribunal was not under a duty to draw the neglected issues to the Claimant’s attention. It could not treat the issues as having been withdrawn, but it could take the failure to actively pursue the issues into account in exercising its discretion as to whether to extend the time limit. It found the issues the Claimant had not actively pursued to have been out of time.
Long-term disability: Employee PHI benefits apply to returning to same job
In ICTS (UK) Limited v Visram UKEAT/0133/18 Mr Visram worked as an International Security Co-ordinator but went on sick leave with work-related stress and depression. The Claimant became entitled to Long Term Disability Benefit (“LTDB” aka permanent health insurance) under his employment after 26 weeks absence. The term of the insurance booklet stated the LTDB would be paid “…until the earlier date of your return to work, death or retirement”. After being absent from work for nearly two years the Respondent dismissed him with pay in lieu of notice, and continued to pay the LTDB until the situation had been clarified.
The issue at hand was whether construction of the phrase “return to work” meant return to work in the Claimant’s former role with the Respondent or whether it meant any suitable work which the Claimant was able to carry out whether for the Respondent or otherwise. The EAT ruled that the words “return to work” in the policy did not mean return to full-time work with any employer, but specifically the employer that he had worked for prior to going on sick leave and doing the same work. Had he not been dismissed he would have continued to be entitled to receive the benefits since he was unable to return to the same work he had been doing when he became unwell. It also upheld the tribunal’s finding that the dismissal constituted discrimination arising from disability and was unfair. Therefore he was entitled to be compensated for loss of benefits until death or retirement. The claim remitted to the tribunal for determining compensation for loss of long term and associated benefits and the issue of mitigation. (His claim for aggravated damages also remitted for determination.)
Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
In Radia v Jeffries International Ltd UKEAT/0123/18/JOJ, a Managing Director of a FCA-regulated financial services company had taken his employer to tribunal over two claims – one for disability discrimination and a later claim of victimisation. The first tribunal found that “in several areas of his evidence the Claimant had not told the truth or had misled the tribunal and had given untrue evidence”, and additionally, they had also noted that “the Claimant’s behaviour as a regulated person would be a matter of grave concern”. Furthermore they found the employer’s witnesses credible but did not think the same of the Claimant. On receiving the judgment, the employer suspended him on full pay pending a disciplinary, but without holding an investigation. The Claimant did not appeal this judgment.At the disciplinary meeting, the Claimant disputed the tribunal’s findings against him but did not deal with the allegations themselves. For all these reasons, combined with his behaviour being “not compatible with his being a fit and proper person for the purposes of the FCA rules”, the Respondent dismissed the Claimant.
The second tribunal found in favour of the employer – it had acted reasonably in treating the findings of the first tribunal as a starting point without further investigation at that stage and then seeking the Claimant’s representations about those findings.
The Claimant issued his third claim to the tribunal complaining that his suspension, dismissal, and the Respondent’s refusal to hold the hearing of his appeal against his dismissal amounted to whistleblowing detriment, victimisation and unfair dismissal. The tribunal found in favour of the employer, that the dismissal had been fair.
On appeal, the EAT held that there was no error of law in the tribunal finding the dismissal fair – for dismissing him without holding an investigation meeting. The question was whether the decision was within the range of reasonable responses. The two stages of investigation and disciplinary meetings are not required by statute or even the ACAS Code, and therefore the tribunal was entitled to reach this conclusion in this case. However, the employer not offering him an appeal did make the dismissal unfair – the tribunal had not made sufficient findings to justify its decision that having no appeal would have made no difference.
TUC Survey: Britons work longer than rest of Europe
The TUC has recently published results of a survey they have conducted into working hours in 2018. The interesting results are that the British work an average of 42 hours a week (which equates to two and half weeks a year), and this is almost two hours longer than the European average (40.2) and five hours more than the Danes, who racked up a mere 37.7 hours a week.
Britain’s “long-hours culture” is not having a positive impact on productivity. In similar economies to ours, workers are much more productive for each hour they work.” And that “the long hours worked by Britons are depriving them of a fulfilled personal life,says the TUC.
Can this be true? With the Danes dominating the World Happiness Report rankings year after year, perhaps this is food for thought?
HMRC: New guidance published regarding change to IR35 rules
IR35 is the name given to tax legislation that is aimed at identifying individuals who supply services to clients via their own company and who are avoiding paying the full amount of tax that they should be. The rules have been changing for a while, with the most recent changes concerning those working in the public sector, but new rules regarding off-payroll working in the private sector are due to come into effect on 6 April 2020.
HMRC has published new guidance, which contains four key steps, to assist organisations in dealing with this as it will be responsibility of the organisations receiving the individual’s services to decide whether the amended off-payroll working rules apply or not.
Tribunals: Modernisation plan from 2019-20 to reform tribunals
In January 2019, Sir Ernest Ryder, Senior President of the Tribunals, published a report entitled ‘The Modernisation of Tribunals 2018’ setting out his proposed strategy for the reform of the whole tribunal system, including the immigration and employment tribunals. Following on from that, he has now published his Innovation Plan for 2019-2020, which sets out various aims and objectives to reform the employment tribunals. It includes the introduction of digital case management, recording of hearings and digital evidence presentation and the ability to use live video evidence.
Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
The CIPD and Simplyhealth recently published the results of their nineteenth annual survey which shows that nearly two-fifths of UK businesses (37%) have seen an increase in stress-related absence over the last year. The survey is designed to explore the trends and practices in health, well-being and absence management in UK workplaces. The survey was completed in November 2018 by more than 1,000 professionals, covering 3.2 million employees across the UK. According to the report, heavy workloads and poor management style are to blame.
Overall, the findings reflect employers’ growing recognition of their critical role in improving the health of the workforce. But the survey highlights some cause for concern, including an increase in stress-related absence and a lack of support for managers, who are increasingly expected to take responsibility for their team’s well-beingreports the CIPD.
CIPD are trying to bring this to the attention of employers so that they invest in more training and development for managers. To this end they have published some top tips to support managers to minimise stress in their teams and also have a useful management development factsheet for developing people management skills.
Equality: New GPG figures show gap is actually widening in favour of men
The deadline for large private sector organisations to publish their gender pay gap figures recently passed and it seems that producing this information is, so far, not having the desired effect. Nearly ten and a half thousand companies filed their data on time, but a worrying 45% of these show an increase in the gap between the pay of men and women in the last year.
The way the figures are reported is important to understand – the median pay gap and mean pay gap are ways of expressing two different data sets. The median pay gap is the difference in pay between the middle-ranking woman and the middle-ranking man whereas the mean pay gap is the difference between a company’s total wage spend-per-woman and its total spend-per-man. Whilst gender pay gap (GPG) is not the same as unequal pay (which is illegal) this is certainly a matter of inequality. There are other matters which influence the GPG such as having fewer women in senior or highly paid roles, more women in part-time jobs or lower paid roles, fewer women generally in certain industries (particularly where STEM subjects are necessary).
Some of the biggest offenders where the women’s median hourly wage was lower than the men’s were Easyjet (47.9 %) and Independent Vetcare (48.3%), whilst Kwik Fit, Interserve FS and car retailer Inchape showed the biggest increases in their pay gaps. Overall, the figures tells us that the median GPG has reduced marginally by 0.1% to 9.6% in favour of men. There is clearly plenty more to be done. Frances O’Grady, General Secretary of the TUC, said that employers are not making significant changes to tackle the disparity that exists. Indeed, there is concern about the attitude of employers who may be treating the government’s requirement to publish gender pay gap figures as an exercise in compliance, or even as a marketing strategy. There has been a suggestion that employers should publish action plans meaning they will have to explain their figures and examine and target where the inequalities exist in order to make meaningful change.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org