This month’s summary includes a look at the pools used for comparison in discrimination cases, considering all the options before dismissing for redundancy, taking a look at the special circumstances where someone might be employed by two organisations and what caused a director to be disqualified for 9 years.
- Indirect Discrimination: What constitutes too narrow a pool for comparison?
- Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic
- Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes
- Directors: Disqualification order for director who failed to protect funds and keep proper accounting records
Indirect Discrimination: What constitutes too narrow a pool for comparison?
In Boohene and others v Royal Parks Ltd  EAT 69, the claimants were contract workers employed by a third party to work on its toilet and cleaning services contract with the respondent in London. Their minimum rates of pay were set below London Living Wage (“LLW”); this contrasted with the respondent’s direct employees, who were office-based and had a level of pay higher than LLW. The employment tribunal found that the respondent had committed to ensuring that the minimum pay of its direct employees would not fall below LLW but had decided not to accept the option of LLW as the minimum pay rate on the toilet and cleaning contract.
The claimants brought claims of indirect race discrimination in respect of their treatment as contract workers as compared to the respondent’s direct employees. The tribunal upheld these complaints as falling within the definition of indirect discrimination under section 19 Equality Act 2010, (“the EqA”), rendered unlawful by reason of section 41. The respondent appealed.
The EAT upheld the appeal, finding for the respondent. On its findings of fact in this case, the tribunal had been entitled to conclude that these claims fell within section 41(1) EqA, the respondent having exercised sufficient control as to minimum level of pay that was to be paid to workers on the toilet and cleaning contract. Although ostensibly set by the contractual term agreed between the claimants and the contractor, the tribunal permissibly found that the decision not to pay LLW was made by the respondent, the contractor had merely executed that decision; in this respect, it was the respondent that had determined the relevant term on which the claimants were to be allowed to do their work. For the purposes of section 19 EqA, the tribunal was similarly entitled to find that it was the respondent that had applied the relevant provision criterion or practice (“PCP”). The tribunal had, however, fallen into error in defining the PCP in this case and this had led it to adopt an indefensible pool for comparison. Although the claimants’ pleaded case had identified a PCP that distinguished between the respondent’s direct employees and its outsourced workers, the case at trial was put on the more limited comparison between the respondent’s direct employees and the workers on the toilets and cleaning contract. In accepting the latter case, the tribunal had improperly excluded from the pool for comparison all other outsourced workers undertaking work for the respondent. That was an error that undermined the tribunal’s approach to the comparative exercise it was required to undertake in this case. The appeal was allowed because the tribunal should have compared directly employed staff with all outsourced workers (and not just those on the cleaning contract). When analysing the impact of a PCP, the pool being considered should consist of the entire group it affects.
The respondent would not, however, have succeeded in its further challenge to the tribunal’s approach to comparability. In considering whether there were any material differences between the advantaged and disadvantaged groups, on the facts of this case, the tribunal had been entitled to find that the nature of the work and the identity of the employer were not relevant to the question whether the respondent had drawn a distinction between its directly employed staff and outsourced workers when committing to LLW as a minimum rate of pay. A further valid point of challenge had been raised in relation to the tribunal’s failure to address the case of the claimant, Mr Marro, who did not share the relevant protected characteristic. Had this point not been rendered academic by the EAT’s earlier conclusion, this final ground of appeal would also have been allowed and this question remitted to the tribunal for determination.
Unfair Dismissal: It was unfair to dismiss for redundancy instead of considering furlough during the coronavirus pandemic
In Lovingangels Care Ltd v Mhindurwa  EAT 65, the claimant was a live-in carer. The person for whom she cared went into hospital. In the normal course of events the claimant would have moved to care for another of the respondent’s clients. In the early stages of the Coronavirus pandemic there was limited scope for such movement. The respondent did not have another client for the claimant to move to because of the Coronavirus pandemic. The respondent dismissed the claimant by reason of redundancy. The employment tribunal held that her dismissal was unfair because the respondent did not consider the possibility of putting the claimant on furlough for a period while it ascertained whether the situation would improve and it would be able to place the claimant with another client; and also, because the appeal hearing was no more than a rubber-stamping exercise.
The respondent appealed against the finding of unfair dismissal. There was no error of law in the decision of the employment tribunal. Determining a claim of unfair dismissal in respect of a dismissal that occurred in circumstances related to the Coronavirus pandemic does not require any variation to the law of unfair dismissal, which is robust enough to deal with such exceptional circumstances.
Unfair Dismissal: A union official was not also an employee of the union for unfair dismissal purposes
In Fire Brigades Union v Embery  EAT 51, the EAT found that there is a broad principle that a person cannot simultaneously have two employers, subject to an exception for the case of a person having two ‘compatible’ employments. On the facts of this particular claim for unfair dismissal by a fire-fighter, the claimant was not employed by the union as well as by the fire brigade.
The question of whether a person can have two employers for the same job is an unusual one. It is often seen in the context of vicarious liability for torts but not in the context of employment rights, such as unfair dismissal, as here. This case concerned a fire brigade employee who was subsequently elected as a regional union official and was released from fire-fighting duties to work full-time on union duties. The EAT reviewed the case law on dual employment and identified a broad principle that a person cannot simultaneously have two employers for the same job. The EAT noted the exception to this principle identified by the EAT in Gough for the case of a person having two ‘compatible’ employments. It cast doubt on the reasoning in that judgment which relied on the vicarious liability case of Viasystems. The EAT in this case found that to be of ‘little assistance’ given the different policy context. It held that this was not an unusual or exceptional case in which the claimant could have been employed by the Fire Brigades Union (FBU) as well as by the London Fire Brigade (LFB).
The employment tribunal held that the claimant was an employee of the FBU and had been unfairly dismissed (but not discriminated against). In determining that the claimant was an employee the tribunal held that:
- he received substantial remuneration in the form of the ‘top up’ of around £7,000 ‘as no doubt a sweetener to encourage people into full time Union roles’ plus his LFB salary which was ‘covered by the Union’;
- the FBU had substantial control over his work. He could have been removed from office if his duties were not performed satisfactorily, he had to perform his work personally, he had to work full-time and only for the FBU and he was provided with equipment and expenses, and a car allowance;
- if he failed to abide by the FBU rules there was a process which could effectively lead to his dismissal, as in this case; and
- when working for the union he was not under the control and direction of LFB.
The union appealed on the basis that, in finding that the claimant was an employee of the FBU and not the London Fire Brigade, the employment tribunal had erred in that it:
- ignored and/or did not apply the material law;
- failed to explain its application of the law; and
- reached a decision which was not open to it on the facts, applying the material law (the ‘perversity’ ground).
The EAT dismissed the union’s appeal and substituted a decision dismissing the claim for unfair dismissal.
Directors: Disqualification order for director who failed to protect funds and keep proper accounting records
In Secretary of State for Business, Energy and Industrial Strategy v Joiner  EWHC 1032 (Ch) the Chancery Division ruled on the claimant Secretary of State’s application for a disqualification order under section 6 of the Company Directors Disqualification Act 1986 against the defendant. The claimant alleged that the defendant: (i) had failed to ring-fence and protect certain funds which were held by the company called Team Property Management Limited (Team) for the account of a major customer called the Quadrangle RTM Company Limited; and (ii) had failed to ensure that Team kept proper accounting records, or at least had failed to deliver them up to the official receiver. The court held, among other things, that the defendant had failed to appreciate and observe the duties attendant on the privilege of conducting business with limited liability, and he had demonstrated a serious lack of commercial probity and a lack of insight as to the unacceptability of his business practices. Accordingly, the court had agreed with the claimant’s assessment of the appropriate disqualification period, and it had decided that a nine-year period of disqualification should be made.
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A round-up of the most significant employment law cases to be published over the last month including more definitions between workers and self-employed contractors, indirect discrimination and harassment, unfair dismissal and TUPE.
- Contracts: Prior period of illegal performance did not prevent subsequent enforcement of contract
- Discrimination: Gender critical belief was a “philosophical belief” under the Equality Act 2020
- Discrimination: Absence of interim relief remedy for discrimination cases not incompatible with ECHR
- Vicarious Liability: Both original employer and company to whom employees loaned held vicariously liable for traders’ tortious acts
- Fiduciary Duties: No-conflict rule and fully informed consent
- COVID-19: Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic
- COVID-19: Dismissal of employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not automatically unfair
- COVID-19: Dismissal automatically unfair for raising concerns about lack of COVID-secure workplace measures
- Worker Status: Employment tribunal to decide whether postmasters are workers
- COVID-19: Employers join pledge to promote vaccine uptake amongst staff
- Gender Inequality: Government publishes response to Women and Equalities Committee report on gendered economic impact of COVID-19
- Flexible Working: Government to commence consultation on flexible working while National Rail catches up with the times
- Parental Leave: Maternity Action publishes proposals to reform shared parental leave and John Lewis leads the way
- Diversity: Report suggests firms with targeted support for ethnic minority workers have higher revenues
- Legislation: Skills and Post-16 Education Bill introduced in Parliament
- Employment Rights: Government publishes response to consultation on single enforcement body
- ACAS Update: In response to ACAS report, government confirms no current intention to ban “fire and rehire” practices
Contracts: Prior period of illegal performance did not prevent subsequent enforcement of contract
In Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi  EWCA Civ 862, the Court of Appeal has restated the correct approach for common law illegality as a defence to claims for unfair dismissal. This case arose out of a dispute as to who was responsible for paying tax and national insurance contributions. For seven years Ms Robinson had received an income from the Sheikh and neither party had paid the necessary taxes due. From 2014, the money was paid less deductions equal to what was due if Ms Robinson were self-employed but the parties continued to dispute the preceding seven years. This continued until 2017 when the Sheikh dismissed Ms Robinson for failing to account for her taxes (an illegal act). She brought claims for automatic unfair dismissal for making a protected disclosure, unfair dismissal and wrongful dismissal.
The law is that parties to an employment contract that is affected by illegality may be prevented from bringing claims in an employment tribunal or elsewhere. The effect of illegality on an employment contract will depend on the way in which the illegality arises. Where an employment contract is lawful when made but is illegally performed, the contract’s enforceability will depend on the knowledge and participation of the parties; this is referred to as “common law illegality”. “Statutory illegality” is where the employment contract has been expressly or impliedly prohibited by statute; it is void and unenforceable in line with the statutory prohibition, and the parties’ knowledge and intentions are not relevant.
The Court of Appeal relied upon the Supreme Court’s judgment in Patel v Mirza  UKSC 42, where it held that tribunals should have regard to the three considerations set out below and whether there was a sufficient causal link between the illegal conduct and the claim being made to the tribunal. The Supreme Court held that, to determine if the defence of illegality will succeed, a court should consider the policy factors involved and the nature and circumstances of the illegality:
- The underlying purpose of the prohibition which had been breached and whether the purpose would be enhanced by denial of the claim.
- Any other relevant public policy on which the denial of the claim may have an impact.
- Whether denial of the claim would be a proportionate response to the illegality.
The mere fact that one of the parties to the contract had performed it illegally was not a sufficient test for the doctrine of illegality to apply.
Discrimination: Gender critical belief was a “philosophical belief” under the Equality Act 2020
In Forstater v CGD Europe and others  UKEAT/0105/20, the EAT has overturned an employment tribunal’s decision that a gender critical belief (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men) was not a philosophical belief under the Equality Act 2010. The tribunal had held that the claimant’s belief failed the fifth criterion in Grainger v Nicholson  IRLR 4 (EAT) that the belief must be “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others“. In the EAT’s view, taking account of the European Convention on Human Rights, a belief would have to be akin to Nazism or totalitarianism, or espouse violence and hatred in the gravest of forms, to fall foul of that part of the test. It is only in extreme cases involving the “gravest violation of other Convention rights” that a belief would fail to qualify for protection at all. The claimant’s gender critical beliefs, which were widely shared in society and did not seek to destroy the rights of trans persons, clearly did not fall into that category.
The EAT also held that the tribunal had failed to follow the principle that courts and tribunals should not inquire into the validity of a belief and must remain neutral as between competing beliefs. Furthermore, the tribunal had been wrong to rely on the “absolutist” nature of the claimant’s belief. The firmness with which a belief is held (even if others might think it irrational or offensive) is not a reason to deny protection.
This appeal was only about the preliminary issue of whether the claimant’s belief qualified for protection. The merits of the claim (including the question of whether her treatment amounted to unlawful discrimination) remain to be determined. Mr Justice Choudhury was at pains to point out that the judgment was not to be taken as expressing any view as to the merits of the transgender debate. Nor did the judgment mean that trans individuals have no protection from discrimination or harassment, which may include misgendering.
Discrimination: Absence of interim relief remedy for discrimination cases not incompatible with ECHR
In Steer v Stormsure Ltd  EWCA Civ 887, the Court of Appeal has dismissed a claim that the lack of interim relief remedy for discrimination cases is incompatible with the right to a private life under Article 8 of the European Convention on Human Rights (ECHR) read with Article 14 of the ECHR (which prohibits discrimination). The court held that the claimant did not have the necessary status for protection under Article 14. The fact that interim relief is available to a dismissed whistleblower but not to a discrimination claimant who has been dismissed does not constitute discrimination on the ground of sex, and the status of being a litigant in a particular type of case is not a protected status. Even if that was not the case, the court found that the available remedies for discrimination cases, taken as a whole, are not any less favourable than those available to a dismissed whistleblower. Even if they were less favourable, the difference in treatment as regards the availability of interim relief is objectively justified.
Vicarious Liability: Both original employer and company to whom employees loaned held vicariously liable for traders’ tortious acts
In Natwest Markets Plc and another v Bilta (UK) Ltd and others  EWCA Civ 680, the Court of Appeal has held that, due to a 19 month delay in the giving of judgment at first instance, it could not be satisfied that the trial judge had reached the right conclusions. It allowed an appeal against the decision of Justice Snowden and ordered a re-trial. In this case, the claimants alleged that the defendants were liable for dishonestly assisting a large VAT fraud relating to the sale of carbon credits.
The second defendant (formerly RBS SEEL) also brought a discrete ground of appeal, arguing that the judge was wrong to find that it was vicariously liable for the wrongdoing of the individual traders, alongside the first defendant (formerly RBS). The traders were originally employed by RBS SEEL but had been loaned to RBS. The Court of Appeal dismissed this ground of appeal, on the basis that the traders were so much a part of the work, business and organisation of both companies that it was just to make both employers answer for their tortious acts and omissions in the course of their employment.
Regarding the test for “blind eye knowledge“, the Court of Appeal agreed, obiter, that it was not enough that the defendant merely suspected something to be the case, or that he negligently refrained from making further inquiries.
The re-trial is no surprise here, given the general rule that judgments should be delivered within three months of the hearing. More significant is the decision about vicarious liability, rejecting the bold argument that the shift to the organisation to whom the employee was loaned was so complete that the original employer should have no liability at all.
Fiduciary Duties: No-conflict rule and fully informed consent
In Reader v SPIE Ltd & another  EWHC 1221, the High Court has considered whether an employee director of a target company had breached his fiduciary duty when negotiating an enhanced bonus for a transferring employee when moving him onto the buyer’s standard employment terms.
G had sold his company, G&L, to S. Under the Share Purchase Agreement, G would be liable if a key employee, R, did not agree to S Group’s employment terms, including its less favourable bonus scheme. R moved onto S Group’s standard terms as part of a contract negotiated by G on behalf of G&L. A side letter enhanced R’s bonus for the relevant financial year. G&L did not pay the enhancement and R started proceedings in the County Court. S claimed that G would be liable to it in respect of any award in R’s favour. S settled R’s claim, but proceedings continued between S and G. Judgment was entered for S on the basis that, as part of his fiduciary duty not to act in a position of conflict of interest, G should have done more to draw the enhanced bonus to the attention of Y, the director of G&L making the decision. G appealed.
The High Court allowed G’s appeal holding, among other things, that:
- It is an inflexible rule of equity that a fiduciary must not act in a position where his interest and duty conflict, or may possibly, conflict. There are few exceptions, but one is that there can be no breach where there is fully informed consent. The burden of proving informed consent is on the fiduciary.
- The judge had erred in holding that, as part of the no-conflict<a id=”contract”></a>duty, G was obliged to explicitly invite Y’s attention to the enhanced bonus provision. No such obligation existed. Having decided that the enhanced bonus term was plainly disclosed by G, the correct conclusion was that there was no breach.
- The only thing Y needed to know from G, to make a fully informed decision, was the set of terms proposed for R (including the enhanced bonus). Y had been aware of the bonus due to R under his previous employment terms, and of G’s personal interest in getting R to accept the new terms. By authorising G to sign the documents on behalf of G&L, Y must be taken to have understood what they meant.
COVID-19: Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic
In Khatun v Winn Solicitors Ltd ET/2501492/2020 the employment tribunal has found that a solicitor was unfairly dismissed for refusing to agree to changes to her employment contract as part of the firm’s response to the COVID-19 pandemic. The firm had required all staff to agree to a variation giving it the freedom to place them on furlough or to unilaterally reduce their pay and hours to 80%, potentially for up to nine months. The claimant, who was not among the employees earmarked for immediate furlough, was the only one to refuse. She told the firm that, if it became necessary to furlough her or to reduce her hours at some point in the future, she would consider a variation then.
The tribunal accepted that the firm had “sound, good business reasons” for the variation, and therefore had the potentially fair “some other substantial reason” for dismissing an employee who would not agree to it. However, the tribunal considered the dismissal unfair in the circumstances of this case, due to lack of consultation and failure to reasonably consider solutions other than dismissal.
The firm’s directors had decided at the outset that the new terms were non-negotiable and that anyone refusing to sign would be dismissed. The claimant’s attempts to discuss the matter had not resulted in any meaningful discussion, simply a re-stating of the firm’s position. The firm had acted too quickly in dismissing the claimant only two days after sending her the new terms. It had also failed to offer any right of appeal, which might have provided an opportunity for both sides to cool off and reach an agreement.
COVID-19: Dismissal of employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not automatically unfair
In Accattatis v Fortuna Group (London) Ltd 3307587/2020 an employment tribunal has found that an employee who said he felt uncomfortable commuting and attending the office during lockdown and asked to be furloughed was not automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996).
Mr Accattatis worked for Fortuna Group (London) Ltd, a company which sells and distributes PPE. During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office. Fortuna told Mr Accattatis that his job could not be done from home, and that furlough was not possible because the business was so busy, but that he could instead take holiday or unpaid leave. Mr Accattatis declined and asked three more times to be furloughed. After the final request on 21 April 2020, he was dismissed by email the same day.
Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal. He instead alleged he had been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996 for having taken steps to protect himself from danger.
The tribunal observed that the government had announced on 14 February 2020 that COVID-19 posed a serious and imminent threat to public health. This, together with Mr Accattatis’ emails expressing concern about commuting and attending the office, showed he reasonably believed there were circumstances of serious and imminent danger.
However, it was a requirement under section 100(1)(e) for Mr Accattitis to have taken appropriate steps to protect himself from danger or to have communicated the circumstances of danger to Fortuna. Fortuna had reasonably concluded that Mr Accattatis’ job could not be done from home and that he did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis’ response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay). These demands were not appropriate steps to protect himself from danger, so his claim failed.
Although not binding, this case is a reminder that the pandemic may not on its own justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees’ concerns and reduce transmission risk.
COVID-19: Dismissal automatically unfair for raising concerns about lack of COVID-secure workplace measures
In the case of Gibson v Lothian Leisure ET/4105009/2020, the claimant, Mr Gibson, worked as a chef in a restaurant owned by Lothian Leisure. The restaurant closed temporarily in March 2020 due to the first COVID-19 lockdown, and Mr Gibson was furloughed. Before re-opening the restaurant, the employer asked Mr Gibson to come into work. Mr Gibson was concerned about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable. When Mr Gibson raised concerns about the lack of PPE or other COVID-secure workplace precautions, the employer’s response was robustly negative, and he was told to “shut up and get on with it“.
With no prior discussion, the employer dismissed Mr Gibson summarily by text message on 30 May 2020. It did not pay him any notice pay or accrued holiday pay. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown.
An employment tribunal held that Mr Gibson had been unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996) because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Alternatively, since the wording of the employer’s text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps. The circumstances of danger were the growing prevalence of COVID-19 and the potential significant harm to Mr Gibson’s father if he contracted the virus. Mr Gibson reasonably believed that this was a serious and imminent danger, leading him to raise concerns regarding the lack of PPE. Until Mr Gibson had raised those concerns, he had been a successful and valued member of staff.
The tribunal also awarded Mr Gibson pay in lieu of notice and untaken holiday, underpaid furlough pay, and pension contributions that had been deducted but not paid into the pension scheme. It dismissed his claim under the whistleblowing provisions of the ERA 1996. His concern had only been for the health of his father and the tribunal was not satisfied that this met the public interest test under section 43B, although the point was arguable.
Worker Status: Employment tribunal to decide whether postmasters are workers
Website Personnel Today, has revealed that over 100 postmasters and sub-postmasters are bringing an employment tribunal claim against the Post Office in a bid to be classified as workers under the Employment Rights Act 1996, entitling them to benefits including holiday and sick pay. The claimants, who run Post Office franchises, will deploy arguments based on the level of control exerted by the Post Office, in a similar vein to those raised in Uber and others v Aslam and others  UKSC 5.
The case will be heard at the London Central employment tribunal later this month and will have an impact on thousands of postmasters and sub-postmasters across the country.
COVID-19: Employers join pledge to promote vaccine uptake amongst staff
Employers of over one million workers have pledged to promote a positive safety message and signpost staff to NHS providers in a bid to improve the UK’s vaccine uptake. Nine of the UK’s biggest employers, including IKEA, Asda and Nationwide, have signed the pledge which will also mean that employees will be able to get their vaccines during working hours. Interestingly, this announcement follows the publication of a poll by the British Chambers of Commerce (BCC) which found that 78% of employers had no plans to implement “vaccine certification” for employees returning to the office.
Gender Inequality: Government publishes response to Women and Equalities Committee report on gendered economic impact of COVID-19
On 14 May 2021, the government published its response to the Women and Equalities Committee report ‘Unequal Impact? Coronavirus and the gendered economic impact’. The report found that government policies had consistently overlooked women’s caring responsibilities and the employment inequalities experienced by them and made wide-ranging recommendations.
The government’s response, however, rejects many of the recommendations, including a review of the adequacy of Statutory Sick Pay, amendments to Form HR1 to capture protected characteristic information, funding of training schemes aimed at women in certain fields and the publication of a gender equality plan for apprenticeships. However, it does state the following:
- Amendments to the Flexible Working Regulations 2014 (SI 2014/1398), removing the 26-week service requirement for making a flexible working request, will be considered. The government wants to make it easier for people to work flexibly and is committed to encouraging flexible working. It will consult on making flexible working the default position, with a consultation to be issued in due course.
- The government is committed to bringing forward an Employment Bill “when parliamentary time allows“. However, there was no mention of an Employment Bill in the Queen’s Speech of 11 May 2021. Consequently, the government will not publish the draft Employment Bill by the end of June 2021, as the report recommends.
- The government still intends to extend the redundancy protection period afforded to mothers on maternity leave. This protection will apply to pregnant women and for six months after a mother has returned to work, and will cover those taking adoption and shared parental leave. The measures will be brought forward “as soon as Parliamentary time allows“. No specific timeframe is provided. Notably, the measures were mentioned in the 2019 Queen’s Speech following a BEIS consultation in January 2019. The government is also considering proposals to require large employers to publish their parental leave and pay policies, with its formal response to a consultation from July 2019 awaited.
Finally, while calls for disability pay gap reporting are rejected, the government states that it is continuing to analyse relevant data and will respond to the ethnicity pay gap consultation in due course.
Flexible Working: Government to commence consultation on flexible working while National Rail catches up with the times
The Guardian reports that the government has confirmed it plans to commence a consultation which would consider whether flexible working would become the default option unless there are good reasons not to (a proposal originally set out in the Conservative Party’s 2019 election manifesto and subsequently included in the Employment Bill outlined in the Queen’s Speech). According to The Guardian, a government spokesperson has stated that this would not go as far as giving staff a legal right to work from home.
The government has stated on numerous occasions that it intended to consult on flexible working, including in its recent response to the Women and Equalities Committee report on gendered economic impact of COVID-19. A government advisory group, made up of business associations, charities and trade unions from ACAS to the CBI, has also recently recommended that flexible working should be the default position.
Following hot on the heels of this, National Rail recently announced a new ‘Flexi Season ticket’ which offers 8 days of peak time travel Monday to Fridayin a 28 day period, any time between two stations. The tickets will be on-sale from 21 June 2021, for use from 28 June 2021.
Parental Leave: Maternity Action publishes proposals to reform shared parental leave and John Lewis leads the way
Maternity Action has published a report recommending reform of shared parental leave (SPL). The report follows the campaign it started in April 2021 with other groups including the TUC and the Fawcett Society, and the government’s failure to include the long-awaited Employment Bill in the Queen’s Speech which could have included proposals for SPL reform (see our May newsletter).
Maternity Action considers that the current scheme is not fit for purpose. Data provided by business minister Paul Scully, in response to a parliamentary question in February 2021, indicated that take-up among eligible fathers was just 3.6% in 2019/20, well below the government’s 25% target, and only 2% of all new fathers took SPL in 2019. The pandemic has only increased the problem, with the Women and Equalities Committee February 2021 report on the gendered impact of COVID-19 finding that the gender childcare gap increased during the pandemic (see above).
The report proposes that a new system should be introduced that provides individual, non-transferable, rights for each parent, as sharing or transferring of leave between parents has not worked, being too complex and poorly understood by parents and employers. A “6+6+6” model is proposed, replacing both the existing statutory maternity leave and SPL schemes. The first six months of leave being reserved for the mother, and then six months of non-transferable parental leave for each parent. This could be taken concurrently or consecutively, all in one go, or in smaller blocks of weeks or months, up to 18 months after the birth.
The report also recommends that:
- Maternity, paternity and parental leave and pay should be day one rights for all working parents, regardless of employment status.
- The right to return to the same job after any period of leave should be strengthened.
- Statutory leave pay should be increased to at least the national minimum wage level, and should in time be increased to the real living wage level and then wage-replacement levels.
In autumn 2021, John Lewis will introduce what is thought to be the UK’s first equalised parental pay policy, offering 26 weeks’ paid leave to all employees who have been at the company for a year when they have a baby. This will constitute 14 weeks of full pay and 12 weeks of 50% contractual pay. Employees who lose pregnancies will also receive greater support; being granted two weeks of paid leave alongside emotional support provisions including free counselling and mental health services.
John Lewis’ new policies come as part of efforts to redefine its responsibilities towards equality, one of its founding principles.
Diversity: Report suggests firms with targeted support for ethnic minority workers have higher revenues
People Management reports that Henley Business School has published a report revealing that businesses with targeted measures to support their ethnic minority workers have an average revenue of £5.6 billion; 58% higher than the £3.6 billion made by firms that do not.
The report, which analysed the earnings of 100 firms in the FTSE 350, also found that the market capitalisation for companies who have targeted measures was an average of £4.3 billion higher than companies that have failed to introduce any. In the introduction to the report, lead researcher Dr Naeema Pasha suggests that the research demonstrates that adopting an inclusive culture can help organisations improve wellbeing, engagement, sustainability and innovation, leading to better outcomes for all employees.
Legislation: Skills and Post-16 Education Bill introduced in Parliament
On 18 May 2021, the Skills and Post-16 Education Bill 2021-22 (the Bill) was introduced in Parliament. It contains measures aimed at creating more routes into skilled employment and ensuring that the training on offer meets the needs of local areas.
The Bill provides the legislative underpinning for the reforms set out in the ‘Skills for Jobs White Paper’. It is intended to improve the functioning of the post-16 education system and support the introduction of the Lifetime Skills Guarantee, aimed at transforming the training and skills system to ensure more people gain skills to progress their employment prospects.
The following measures introduced by the Bill are likely to be of interest to employers:
- A power for the Secretary of State for Education to designate employer representative bodies to lead the development of local skills improvement plans.
- A duty for education and training providers to co-operate with employer representative bodies to develop and review local skills improvement plans, and to have regard to them when making decisions on the provision of post-16 education and training.
- Additional functions for the Institute for Apprenticeships and Technical Education in relation to new categories of technical qualifications that relate to employer-led standards and occupations.
The Bill is scheduled to have its second reading on 15 June 2021.
Employment Rights: Government publishes response to consultation on single enforcement body
On 8 June 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the government’s response on the proposal to create a single enforcement body for employment rights. The proposal was made in the government’s Good Work Plan policy paper published in December 2018 and consulted upon in the latter half of 2019.
As a result of the consultation responses received, the government proposes to create a single enforcement body which will bring three existing bodies into one organisation with a significant remit to enforce employment rights and improve employers’ compliance. The body will have an extensive remit to protect workers in relation to national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The government will legislate to implement the single enforcement body “when parliamentary time allows”.
ACAS Update: In response to ACAS report, government confirms no current intention to ban “fire and rehire” practices
On 8 June 2021, ACAS published its report into so-called “fire and rehire” practices. The report was commissioned by BEIS and delivered to minsters in February 2021.
Intended as a fact-finding exercise, rather than to recommend reforms to the practice, the report notes a wide range of opinions amongst participants over the use by employers of fire and rehire. Although use of the practice has increased during the COVID-19 pandemic, participants did not agree over whether this was because employers were using the pandemic opportunistically as a “smokescreen” to diminish employees’ rights or whether it was merely a response to the scale of the challenges faced by businesses during this time.
There was a similar divergence of views amongst participants over whether reform to the practice was needed and, if so, what these reforms should be. Some participants in the report felt that fire and rehire is never reasonable and should be outlawed by legislation. Others felt that the practice can be reasonable if used as a genuine and unavoidable last resort. Concerns were also expressed that any reform could lead to less flexibility for employers, resulting in more businesses failing, and consequently to more redundancies.
Responding to the report in the House of Commons, Paul Scully MP, Parliamentary Under-Secretary of State for BEIS, confirmed that the government does not propose to devise “heavy-handed legislation” to ban fire and rehire at this stage. Instead, Mr Scully confirmed that the government has instructed ACAS to prepare clearer guidance on when fire and rehire should be used and good practice for employers. However, Mr Scully said the government will continue to work with ACAS on this issue, and confirmed that “nothing is off the table“.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
- Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
- Worker Status: Does worker status require a minimum degree of obligation or commitment?
- Disability Discrimination: Mental health of gym trainer not properly accounted for
- Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
- Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
- COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
- COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
- COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
- COVID-19: Adjusted right to work check measures extended to 20 June 2021
- National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
- National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
- Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
Worker Status: Does worker status require a minimum degree of obligation or commitment?
In Nursing & Midwifery Council v Somerville  UKEAT 0258_20_0505 the EAT has dismissed the Nursing & Midwifery Council’s (NMC) appeal against a tribunal’s finding that Mr Somerville was a worker. Somerville was a panel member chair of its Fitness to Practice Committee, and he made a claim against the NMC for unpaid statutory holiday pay, contending that he was either an employee or worker.
At first instance, the tribunal judge found that:
- there were a series of individual contracts between the parties each time Mr Somerville agreed to sit on a hearing, for which the NMC agreed to pay him a fee, and also an overarching contract between them in relation to the provision of his services as a panel member chair;
- these written materials correctly represented the parties’ true agreement;
- there was no contractual obligation on Mr Somerville to offer / accept a minimum amount of sitting dates and he was free to withdraw from dates he had accepted;
- Mr Somerville agreed to provide his services personally to the NMC and there was no right of substitution;
- the NMC was not a client or customer of a profession or business carried on by Mr Somerville.
Accordingly, there was insufficient mutuality of obligation to give rise to an overarching employment contract or an employment contract in relation to individual assignments that he accepted. Therefore, in rejecting this alternative contention that he was an employee, the tribunal decided that there was no irreducible minimum of obligation, as Mr Somerville was not obliged to offer a minimum amount of sitting dates and he was free to withdraw from dates he had accepted. In light of the contract that existed between the parties, the personal service involved and the client/customer finding, the tribunal instead found Mr Somerville to be a worker within the meaning of section 230 Employment Rights Act 1996 (ERA) and regulation 2(1) Working Time Regulations 1998 (WTR).
The NMC appealed this conclusion on the basis that: (i) the tribunal had misdirected itself in law, since an absence of mutuality of obligation in the sense of an absence of an irreducible minimum of obligation as identified in the employee caselaw was incompatible with a finding of worker status; and (ii) in finding the NMC was not a client or customer of a business carried on by Mr Somerville, the tribunal had failed to consider relevant factors and had taken into account irrelevant considerations.
The EAT dismissed the appeal holding thata review of the authorities (including the Supreme Court’s decision in the recent Uber case) and the statutory language indicated that an irreducible minimum of obligation in the sense relied upon by the NMC was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as here, an overarching contract existed between the parties under which the individual agreed to perform services personally to the NMC and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client/customer exception applied, but it was not necessarily fatal to a conclusion of worker status. Further, that in considering the client/customer exception in this case, the tribunal had made no error of law; the weight that it attached to particular factors was a matter for its evaluation.
Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
The Court of Appeal has refused permission to appeal from the EAT (Addison Lee Ltd v Lange and others  EWCA Civ 594) against a finding that Addison Lee minicab drivers were “limb (b)” workers*, and that time in which drivers were logged onto the Addison Lee portal, and had not notified the company that they were taking a rest break, was working time under the Working Time Regulations 1998 (WTR 1998). The court had previously given permission on the papers, but had stayed the appeal pending the Supreme Court’s decision in Uber BV and others v Aslam and others  ICR 845. Following the Uber decision, the court had set aside its original grant of permission and held an oral hearing to re-consider the matter. It held, in the light of Uber, that the appeal in this case has no reasonable prospect of success.
The employer sought to distinguish Uber on the basis of differences in the contractual documentation (specifically, that there was an express contract between Addison Lee and its drivers that negated any mutuality of obligation). However, the Supreme Court in Uber had re-affirmed the principle in Autoclenz Ltd v Belcher and others  IRLR 820 (SC) that, in deciding limb (b) worker status, the tribunal is interpreting the statute rather than interpreting the contract, and should disregard any contractual provisions that do not reflect reality. The tribunal’s factual finding that, when a driver was logged on, they were undertaking to accept jobs allocated to them, was, in the court’s view, “unappealable”.
The court also held that, following Uber, there was no arguable error of law in the employment tribunal’s conclusion that when drivers were logged on, this satisfied the definition of working time as they were at the employer’s disposal.
(* “Limb b” means working under any other contract (other than a contract of employment) where the person agrees to do the work personally, and the relationship between the parties to the contract is not akin to a client or customer of any profession or business relationship.)
Disability Discrimination: Mental health of gym trainer not properly accounted for
A case from London South employment tribunal (Burton v Nuffield Health V 2300147/2019) has recently hit the headlines because the judge found in favour of the claimant, Ali Burton, who claimed disability discrimination and victimisation against her employer Nuffield Health. Burton worked at a branch of the fitness chain Nuffield Health.
The tribunal heard that Burton disclosed her mental health condition (generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids) at the interview stage, and again to Nuffield’s in-house occupational health team during her induction. Occupational health passed her as fit to do the job with agreed modifications (such as avoiding hygiene-related tasks which could trigger her GAD; exempt from undertaking health appointments involving blood tests; and that her shift hours should be reduced and consecutive to ensure “ample time off” to manage her condition).
It began with a senior general manager who, unaware of Burton’s condition, asked her to pick up used towels from the floor in the gym. She refused, explaining it was due to her mental health, and was told “we all have to do things that are unpleasant” and advised to use gloves. The manager apparently made mocking remarks and questioned how this might affect her working in the gym, making her feel pressured and embarrassed.
What followed was a series of different managers, who clearly demonstrated they had been given no training in how to either have appropriate discussions with her or simply be able to deal with such a condition, treating her in such a way as to upset her to the point where she raised a grievance. She was questioned over her reduced hours, asked to explain her condition, and asked to provide her medical notes to show her latest diagnosis. Following a meeting, the grievance was not upheld and again she was asked to provide her GP notes and medical history. Following a protracted process of trying to challenge the grievance, it was still not upheld and so Burton lodged a tribunal claim alleging direct discrimination and victimisation.
Her claim of victimisation was not successful but the complaint of direct discrimination succeeded in part, as did her complaint of discrimination because of something arising in consequence of disability; of harassment; and of failure to make reasonable adjustments. The tribunal found Nuffield Health lacked “adequate arrangements” for communicating important information about Burton’s condition, and that this formed part of an “ongoing discriminatory state of affairs”. There was clearly a limited understanding of her condition and a failure to appropriately train managers to deal with such conditions.
Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
In Hamilton v Fife Council UKEATS/0006/20/SS (V) the claimant was a teacher whose department had surplus staff. She was told that as the member of staff with the shortest length of service she could be transferred to another school as a result of a collective agreement, meanwhile the school advertised a vacancy for a full-time position in her department. The relevant term of the collective agreement said that where a teacher has been designated surplus, a permanent post would not be advertised. The claimant resigned, claiming (among other things) constructive unfair dismissal on the basis that the school was in repudiatory breach of this term. The tribunal disagreed, finding on the facts that the events said to constitute breaches of the underlying contract either had not been proved to have happened or, to the extent that they had been proved to have happened, did not constitute breaches of the contract. Where there had been one single breach the tribunal found, however, that such breach had not caused the her resignation. The claimant appealed.
The EAT dismissed the appeal. It held that whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether
“any particular part of the collective agreement founded upon is apt to be a part of an individual contract of employment or whether, alternatively, it is essentially collective in nature between the employer and the relevant union”.(para. 28)
The judge went on to say that collectively agreed terms incorporated into individual contracts which regulate certain matters such as pay, holiday entitlement and hours of work, etc, are all capable, of giving rise to enforceable individual rights on the part of employees. On the other hand, collectively agreed terms which are truly collective in their nature are not (e.g. redundancy procedures). The term in question was vague and lacked specification as to when it could be invoked demonstrating that it was not intended to confer individual rights, but simply a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract and the appeal failed.
Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
The High Court in Antuzis and others v DJ Houghton Catching Services Ltd and others  EWHC 971 (QB) has ordered two company directors to pay aggravated damages to a group of exploited migrant workers whose employer failed to pay them overtime, holiday pay and the applicable minimum wage under the Agricultural Wages Act 1948 and associated Orders.
The claimants had been employed as chicken catchers by DJ Houghton Catching Services Ltd. They brought High Court claims against the company for breach of contract relating to unpaid wages, unlawful deductions from wages and unpaid holiday pay. They also claimed against the company directors for the tort of inducing the breaches of their employment contracts by the company. In 2019, the court upheld the claims and ordered the assessment of damages at a separate quantum trial.
Following the quantum trial, the court awarded damages of the full amounts claimed by the employees for wages, overtime and holiday pay. However, since the claims against the directors were based in tort, the employees also asked the court to award aggravated and exemplary damages.
The court noted that aggravated damages are compensatory in nature. In this case, the court accepted that recovery of the monies due under the employment contracts would not compensate the employees for the exploitation, manipulation and abuse carried out by the employer and its directors that had been inflicted by the systematic denial of the employees’ statutory righ
ts. In respect of aggregated damages, the court therefore uplifted by 20% the damages awarded to the employees. Conversely, the court noted that exemplary damages are punitive in nature. Given the substantial aggravated damages already awarded and the lack of evidence that the profit made by the directors had exceeded this sum, the court declined to award exemplary damages.
This case is an interesting example of how employees could use tort claims to seek redress for breach of contract or certain statutory rights from the directors of their employer and to achieve compensation exceeding their actual financial loss. However, the underlying facts of this case are extreme and the circumstances in which such a claim may be brought are therefore likely to be limited.
COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
In Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, an employment tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.
An employment tribunal has considered a COVID-19 related claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.
Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular:
- Despite Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- Mr Rodgers’ message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.
COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) (Week’s Pay Regulations) came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee’s normal week’s pay.
The Week’s Pay Regulations were amended in November 2020 and February 2021 to extend their duration to reflect subsequent extensions of the Coronavirus Job Retention Scheme.
On 20 April 2021, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) (No 2) Regulations 2021 (SI 2021/487) were made. They came into force on 30 April 2021 and ensure that the Week’s Pay Regulations will continue to operate until 30 September 2021, reflecting the further extension of the CJRS announced in the Spring 2021 Budget.
COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
HMRC has updated various guidance notes, in particular in relation to the calculation of furlough pay for non-fixed rate employees with a relevant reference day of 2 March 2021.
On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.
The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
COVID-19: Adjusted right to work check measures extended to 20 June 2021
The temporary COVID-19 adjusted right to work check measures will now end on 20 June 2021, not 16 May 2021 as previously announced by the Home Office (Home Office and Immigration Enforcement: Coronavirus (COVID-19): right to work checks (updated 12 May 2021).) This new date is the planned date for bringing in step four of the government’s roadmap out of lockdown and allows employers to continue with digital right to work checks while social distancing is still in place.
The temporary changes, in place since 30 March 2020, have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.
From 21 June 2021, employers must once again either:
- Check the applicant’s original documents.
- Check the applicant’s right to work online, if they have provided the employer with their share code.
Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.
National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
The Low Pay Commission (LPC) has published its fourth standalone report, Non-compliance and enforcement of the National Minimum Wage 2021. The LPC has adapted its approach to reflect the existence of the Coronavirus Job Retention Scheme (CJRS), which has prevented it from carrying out its usual analysis. In addition, the data it would normally consider only covers the period up to April 2020. Rather than looking at flawed data, the report attempts to assess the immediate challenges for National Minimum Wage (NMW) enforcement. It also considers the likely challenges that will affect enforcement over the coming year.
The report does not, on the whole, make new recommendations. It instead reviews progress in key areas identified in previous years. The following points may be of particular interest:
- The LPC notes that the government consulted in 2019 on proposals to create a single enforcement body. While the report mentions that legislation is expected to be brought forward in an Employment Bill, there is no current timetable for this. The Queen’s Speech of 11 May 2021 did not mention an Employment Bill.
- The LPC will continue to monitor emerging case law (noting, in particular, the Supreme Court’s decisions in Uber and Mencap) and their implications for NMW enforcement.
- As the CJRS is phased out, the LPC anticipates that shifts in the economy and labour market will make it more important than ever to ensure NMW compliance. The report notes that the complexity of the CJRS, coupled with a refocusing of HMRC’s targeted enforcement regime, is likely to have increased the risk of underpayment. HMRC has advised the LPC that complaints from workers have declined since April 2020, although the precise reasons for this are unknown.
The LPC anticipates that the impact of the CJRS on workers’ hours and pay will be a recurring feature for many years, noting that the low volume of complaints represents a serious barrier to an effective enforcement system. Consequently, it recommends a pro-active approach from the government to build confidence in the complaints process. It also considers that HMRC’s limited resources must be targeted effectively.
National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
On 23 April 2021, the Department for Business, Energy and Industrial Strategy (BEIS) updated its guidance on calculating the national minimum wage (NMW) to clarify the position for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others  UKSC 8.
The revised guidance on ‘Sleep-in’ shifts (which appears under the heading Special situations in the section entitled Working hours for which the minimum wage must be paid) confirms that, following Royal Mencap, sleep-in workers are only entitled to the NMW when they are awake for the purposes of working and not when they are permitted to sleep. However, the guidance explains that the position is different for workers who are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible. In such cases, it is likely that the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time. The guidance also confirms that the NMW will be payable for time spent asleep if the employer does not provide workers with suitable sleeping facilities.
To illustrate how the principles outlined by the Supreme Court in Royal Mencap may apply to particular scenarios, the guidance now includes five short examples which explain whether a worker would be entitled to the NMW if:
- They spend time awake but are woken only occasionally to perform tasks.
- They take night calls on a nightshift.
- They are permitted to nap during a work shift.
- They are woken to deal with an emergency but not required.
- They are woken frequently, contrary to original expectation.
The updated guidance and examples are a helpful starting point for employers grappling with the recent changes to this complex area of law. Nevertheless, as the guidance itself reiterates, to determine whether the NMW should be paid to sleep-in workers, employers will need to apply the relevant principles to the specific facts of the situation they are dealing with.
Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
The Guardian reports that campaign groups including the TUC, Maternity Action and the Fawcett Society have joined forces in a bid for governmental reform of the “deeply flawed” and underused shared parental leave (SPL) scheme introduced in 2015. The campaigners are urging the government to reform SPL in its long-awaited Employment Bill, and to replace it with a new model of parental leave which would give both parents non-transferable paid leave to care for their child, encouraging fathers to share the burden of childcare which still falls largely on new mothers.
The groups also pushed for the publication of the government’s evaluation of the SPL scheme, which was due in 2019 and is now scheduled to be published in late 2021.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd  UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority  EWCA Civ 255 and Page v Lord Chancellor and another  EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson  UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
- Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
- Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
- COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
- DBS Checks: New filtering rules for Standard and Enhanced DBS checks
- ACAS: Change to Early Conciliation Rules
- Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
- Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
- Minimum Wage: Just Eat couriers to receive NMW and other benefits
- Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
- Human Rights: Government launches independent review of Human Rights Act 1998
Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
In Berkeley Catering Limited v Jackson  UKEAT/0074/20/LA(V) the EAT looked at the effect of how the redundancy situation arises on whether a redundancy situation exists or not. In this case, the owner manager of a company named himself CEO and took over management decision-making and operations. As there was already a Managing Director (the claimant), it undermined her position, and the company claimed it no longer had a requirement for her and therefore the need to carry out work of that particular kind had diminished, and she was made redundant. As a result, Mrs Jackson claimed unfair dismissal.
The tribunal found that, as a matter of law and fact, there was no redundancy, and also that there was no business reorganisation constituting some other substantial reason for dismissal. The EAT disagreed and instead held that the tribunal erred in finding that there was no “genuine redundancy” where the employer had arranged matters so that its Director took over the claimant’s duties in addition to his own duties, because those facts established a redundancy situation under section 139(1)(b) Employment Rights Act 1996. The test was whether “one employee was now doing the work formerly done by two, [then] the statutory test of redundancy had been satisfied”, even where the amount of work to be done was unchanged. There was no error in the tribunal’s rejection of the employer’s alternative case of some other substantial reason, holding that if there was a business reorganisation it was not the employer’s true reason for dismissing the claimant. Justice Bourne said “A redundancy situation under section 139(1)(b) either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists.” (p.8 para E) He went on to say that even where a redundancy situation exists, it does not necessarily follow that the redundancy was the reason for the dismissal. Additionally, even if the employer proves that the reason was a potentially fair reason such as redundancy, section 98(4) ERA requires the tribunal to decide whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. A claim may succeed on the basis of substantive and/or procedural unfairness.
In this case, Berkeley arranged its affairs so that Mr Patel took over the work of the MD, there was a diminution in the requirement for employees to carry out work of that kind, ergo, a redundancy situation. That part of the appeal failed. The next question was whether the dismissal had been fair. A redundancy or some other substantial reason (such as business re-organisation) can be fair, however, the tribunal had not properly considered the unfair dismissal elements of this case because it had found no redundancy so the EAT remitted the questions regarding the fairness of the dismissal back to a new tribunal to be considered.
Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
In Kol v Information Commissioner and another (EA/2020/0017P) (6 October 2020) the applicant asked Reigate and Banstead Borough Council (council), the second respondent, for information concerning four specified council officers (including its Head of Planning, a Conservation Officer, a Senior Enforcement Officer and a Graduate Planning Officer). This included their relevant professional qualifications, recent professional development training and training attendance record.
The council withheld the information under section 40(2) (with section 40(3A)(a)) of the Freedom of Information Act 2000 (FOIA) (the personal data exemption). The relevant academic qualifications of two of the officers were already in the public domain. The Information Commissioner (IC) rejected the applicant’s complaint.
On appeal, the First-tier Tribunal (Information Rights) (FTT(IR)) upheld the IC’s decision, holding that the council had been permitted to withhold the information. Disclosure was not necessary to meet the applicant’s (undisputed) legitimate interest in ensuring that council officers were appropriately qualified. Without satisfying the lawful basis in Article 6(1)(f) of the GDPR, disclosure would have breached the first data protection principle of lawful, fair and transparent processing (Article 5(1)(a), GDPR). The FTT(IR) considered that:
- If the applicant’s legitimate aim could be achieved “by something less” than disclosure, disclosure was not necessary. The IC had correctly adopted this approach and was not required to consider Article 8 of the European Convention on Human Rights (right to respect for private and family life).
- When considering the alternatives available, however, the IC was wrong to place much weight on the council’s complaints procedure for challenging the actions of individual officers. This was not a forum for challenging officers’ qualifications or training.
- Together with the publicly available information on two of the officers, the fact that the council required proof of qualifications from would-be employees as part of its recruitment process and that training was provided to officers as required, meant that the applicant’s legitimate interests were met (“by something less”).
The FTT(IR) also held that the IC had been permitted to take a different approach than in Decision notice FS50146907, in which section 40(2) did not prevent disclosure of the professional qualification details, among other information, of all lawyers in the Treasury Solicitor’s Department.
Employee information is commonly requested under FOIA and this decision presents a straightforward but relevant analysis of the framework under section 40 and the GDPR.
COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
Researchers at the St John’s Institute of Dermatology at Guy’s Hospital in London have written an article published in the Occupational Health Medical Journal which suggests that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of COVID-19.
In response to the data, the researchers recommend that employers and occupational health teams consider working in cold environments to be an independent occupational risk factor for developing COVID-19. Employers are advised to conduct risk assessments and individual health risk appraisals to identify staff who have pre-existing health conditions and may be predisposed to developing infections. They also noted that additional interventions should be implemented to protect against the cold and that airborne transmission can be reduced by improving ventilation.
DBS Checks: New filtering rules for Standard and Enhanced DBS checks
With effect from 28 November 2020, the criminal records disclosure regime has been amended by the catchily named ‘The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020’ (SI 2020/1364) (the Order). The changes were brought about following the decision by the Supreme Court in R (on the application of P) v Secretary of State for the Home Department 2019 UKSC 3. The Supreme Court identified that some elements of the existing filtering rules were disproportionate: the multiple conviction rule, and the warnings and reprimands given to young offenders.
A Disclosure Barring Service (DBS) check enables employers to check the criminal records of current and potential employees in order to ascertain whether or not they are suitable to work with vulnerable adults and children based on the applicant’s criminal record history. For certain positions, a valid DBS disclosure is a legislative requirement. The information disclosed by the DBS check is governed by Part V of the Police Act 1997 (in England and Wales), which sets out when a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) must be issued. Both certificates must include any ‘relevant matter’ recorded on the Police National Computer as defined in S.113A(6) of the 1997 Act. The Order has narrowed the definition of ‘relevant matter’ by removing youth cautions (including youth warnings and reprimands) from the scope of the definition, as well as the ‘multiple conviction rule’, which provided that where a person had more than one conviction all their convictions (regardless of their nature) had to be disclosed. Neither of these two matters are now subject to mandatory disclosure.
This means that certificates produced after 28 November will be processed under the new filtering rules, and those issued prior to that date will be in line with the previous rules.
You can read the updated DBS guidance here: https://www.gov.uk/government/news/new-filtering-rules.
ACAS: Change to Early Conciliation Rules
The ACAS Early Conciliation Rules have been updated from 1 December to allow for a standard six weeks for the early conciliation talks. Prior to this, the provisions were one month with a possible extension of a further two weeks.
Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
In a poll recently published by Milkround, 66% of 1,000 students and graduates revealed that they do not believe that employers recruit a truly diverse workforce. Interestingly, the majority stated that, from their perspective, recruitment decisions are based largely on physical appearance (58%), ethnicity (52%) and nationality (52%). These figures are a stark contrast with the fact that 59% of employers see their efforts to recruit a diverse workforce as sufficient.
Looking forward, 62% of students and graduates agreed that the introduction of blind recruitment practices could be effective in reducing unconscious bias. Although the poll revealed that only 14% of employers currently practice blind recruitment, 37% were planning to do so in the near future. For more information on how the blind recruitment process works, read the Milkround blog here.
Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
Unilever is the first employer to sign up to the Halo Collective’s new pledge and code of practice to end race-based hair discrimination in schools and the workplace. It is hoped that the new Halo Code will tackle statistics which reveal that one in five Black women feel societal pressure to straighten their hair for work even though race-based hair discrimination is illegal under the Equality Act 2010.
Minimum Wage: Just Eat couriers to receive NMW and other benefits
Food delivery company, Just Eat, has announced that it will be introducing a range of measures designed to support its couriers and ensure that they receive the national minimum wage. This has been an ongoing issue with rival companies such as Uber and Deliveroo, whose drivers have been found to be workers, rather than self-employed contractors, by the courts. Just Eat will start its new policy in London, with a nationwide roll out in 2021, paying couriers by the hour rather than by the job. It will also pay pension contributions, holiday pay, sick pay and maternity and paternity pay. The move is intended to create a thousand jobs including full-time, part-time and zero-hour work, with couriers being given the choice to opt-in or out of the scheme.
Just Eat’s initiative follows a series of recent cases that have considered the employment status of drivers, couriers and other gig economy workers. The decision of the Supreme Court in Uber v Aslam, which was heard in June 2020, is awaited.
Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
On 4 December 2020, BEIS opened two consultations: one 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, and the other on measures to reform post-termination non-compete clauses in employment contracts.
The extension of the ban on exclusivity clauses in contracts would prevent employers from contractually restricting low earning employees from working for other employers. The government previously consulted on this proposal but decided to only introduce a ban on exclusivity clauses in zero hours contracts in 2015. It is revisiting the measure again as it is mindful that low earners have been particularly adversely affected by the COVID-19 pandemic, and many employers are currently unable to offer their employees sufficient hours for them to make ends meet.
The consultation on reform of post-termination non-compete clauses in employment contracts seeks 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 consultation follows a call for evidence on the use of non-compete clauses in 2016 which found that they worked well and were a valuable and necessary tool for employers in protecting their business interests.
Both consultations close on 26 February 2021.
Human Rights: Government launches independent review of Human Rights Act 1998
On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998) and whether it requires reform.
The review will be undertaken by a panel headed by Sir Peter Gross (a former Court of Appeal judge) and will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR), including how the duty to take account of ECtHR case law has been applied in practice, and whether dialogue between domestic courts and the ECtHR works effectively.
- The impact of the HRA 1998 on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the HRA 1998 applies outside the territory of the UK and whether there is a case for change.
The government states that the UK remains committed to the European Convention on Human Rights (ECHR) and the review is limited to examining the structural framework of the HRA 1998, rather than the rights themselves.
The review is expected to report its recommendations in summer 2021. It runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts. Ultimately the reviews of the HRA 1998 and judicial review (alongside other workstreams) will deliver their findings to the Constitution, Democracy and Rights Commission.
- Health & Safety: UK government in breach of EU law to protect workers, not just employees
- Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
- Indirect Discrimination: The ‘costs-plus’ rule justification
- Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
- Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
- COVID-19: New government guidance on using volunteers during the pandemic
- COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
- COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
- Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
- Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
Health & Safety: UK government in breach of EU law to protect workers, not just employees
In The Independent Workers’ Union of Great Britain v The Secretary of State for Work & Pensions and others  EWHC 3050 (Admin) the Independent Workers’ Union of Great Britain (IWUGB) brought an application for judicial review on behalf of its members, against the UK government. The union, whose membership largely comprises low-paid, migrant workers and workers in the “gig economy”, brought this case because many of these workers are taxi, private hire, bus and coach drivers, who are at increased risk due to Covid-19, and the case highlights this.
The IWUGB’s claim sought declarations that the UK government failed properly to transpose into domestic law two EU Directives (Directive 89/391/EC on the introduction of measures to encourage improvements in the health and safety of workers at work (aka “the Framework Directive”) and another made under powers conferred by the Framework Directive – Directive 89/656/EC on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace (aka “the PPE Directive”)) on the basis that the UK legislation, when transposed, protected only ’employees’ rather than the broader category of ‘workers’, thus leaving workers without the protection the EU law guarantees.
The Framework Directive sets out to protect employees and workers and is the source of the protections in s.44 of the Employment Rights Act 1996, for employees who leave their workplace or take action in circumstances of serious and imminent danger. The PPE Directive is the source of the rules in Regulation 4(1) of the Personal Protective Equipment at Work Regulations 1992 that an employer must provide PPE if the risks of an activity cannot otherwise be avoided. The gap has existed in law since 1992 but it was not until the Covid pandemic that the risks it produced had been significantly highlighted.
The High Court considered other Directives and cases, and concluded that the definition of worker for the purposes of these Directives should be the same as used in other Directives, such as those on free movement, equal pay, and working time. Therefore, the legislation did not give the same level of protection to workers as employees, and the court granted a declaration to that effect. This is a significant judgment. The government now has to choose whether to appeal this decision, or if not, legislation will be required to extend the scope of the protections to include the broader category of workers. A formal response from the government is due shortly.
Tribunals: No apparent bias or unfairness where lay member sat on two related tribunals
In Lyfar-Cisse v Brighton And Sussex University Hospitals NHS Trust  UKEAT 0100_19_2810 the EAT had to consider whether the fact that the same lay member sat concurrently on two separate tribunal panels considering claims which involved the same parties gave rise to apparent bias and thus unfairness? And, if so, had the Appellant waived the right to take the point?
The Claimant had brought two claims against her employer. One, for direct race discrimination on the grounds of race and victimisation was heard before EJ Bryant QC, and the other, brought a few months later for unfair dismissal, was heard before EJ Baron. Tribunal panels usually consist of an employment judge and two lay people, who are not legally qualified. One of the lay members (Ms Campbell) sat in both cases. In addition, an overlap arose because both tribunals were adjudicating upon issues which either referenced or related to the decision made by a Ms Cashman (chair of the disciplinary meeting).
In dismissing both appeals, the judge, Lord Fairley, clearly found little overlap, commenting that a “fair minded and informed observer…” would not have seen a real possibility of bias in the circumstances, but would have concluded that the tribunals were properly trying to determine the issues before them. Nothing that Ms Campbell learned about Ms Cashman’s decision in the first tribunal could have affected her decision making in the second.
Indirect Discrimination: The ‘costs-plus’ rule justification
In Heskett v Secretary of State for Justice  EWCA Civ 1487, a probation officer brought a claim against the MoJ for indirect age discrimination because the Ministry changed its pay structure resulting in employees taking a longer time to make their way up the pay scale. This meant, effectively, that Mr Heskett, over the long term, earnt less than his longer serving (and therefore typically older) colleagues. The MoJ had made this change in order to meet a cap on increases in public sector pay.
In Cross v British Airways  IRLR 423 it was held that cost grounds can properly be a factor for an employer objectively justifying indirect discrimination, if combined with other reasons. Cost considerations alone are not sufficient to justify a discriminatory provision, criterion or practice for indirect discrimination. This became known as the “costs-plus” rule, which was broadened in Woodcock v Cumbria Primary Care Trust  EWCA Civ 330 by focusing on the issue of how the employer’s “legitimate aim” is identified. The Claimant, Mr Heskett, argued in this case, however, that the MoJ’s aim to save costs could not amount to a legitimate aim, and therefore the discriminatory effect of the new pay structure was unjustifiable. The tribunal found that the pay progression policy was prima facie discriminatory, but that it was a proportionate means of achieving a legitimate aim and therefore justified, and the EAT agreed, so Mr Heskett appealed to the Court of Appeal.
After much consideration, the Court of Appeal found that cost alone is not sufficient to justify some action or rule which would otherwise amount to indirect discrimination on the grounds of age, but it can be a legitimate aim for the purpose of a justification defence if the employer uses it combined with something else such as the “need to reduce its expenditure, and specifically its staff costs, in order to balance its books” – Lord Justice Underhill at para.98. Mr Heskett’s appeal was therefore dismissed on all grounds. The decision established that the need to operate within a budget or balance the books should be treated as a legitimate aim that is more than just saving cost.
Contract: Firm could rely on manager’s repudiatory conduct to justify summary termination despite itself being in breach of contract
In Palmeri & Others v Charles Stanley and Co Ltd  EWHC 2934 (QB) the High Court has held that a firm was entitled to rely on a stockbroker’s repudiatory conduct to justify the summary termination of his contract, despite the firm itself being in repudiatory breach. Mr Palmeri was a self-employed investment manager contracted to Charles Stanley & Co Ltd, with a three-month notice period and no PILON clause (pay in lieu of notice). The firm decided to change its operating model to take a larger portion of Mr Palmeri’s revenues. This was resisted by Mr Palmeri. At a meeting on 21 April 2017, the firm offered him an ultimatum: sign the new terms there and then, or leave immediately with pay in lieu of notice. Mr Palmeri reacted furiously and verbally abused the managers present, as well as the firm generally. He then said that he would accept the new terms under protest, for the duration of his notice period. However, his abusive rhetoric escalated and the firm withdrew the offer of new terms and summarily terminated his contract.
Mr Palmeri issued a claim for breach of contract in relation to the summary termination. He also alleged that the failure to allow him the opportunity for an orderly transition of his clients’ business was a breach of the implied term of mutual trust and confidence. The firm sought to rely on Mr Palmeri’s repudiatory conduct at the meeting, as well as several serious regulatory compliance failures during his engagement, which were only discovered after termination.
The High Court found that the firm had had no contractual right to present Mr Palmeri with the ultimatum in April 2017, since it had no right to make a payment in lieu of notice. However, Mr Palmeri’s conduct as a whole, including his outburst at the meeting and the history of regulatory issues, amounted to serious misconduct and a breach of the implied duty of mutual trust and confidence, justifying summary termination. The fact that the firm had been poised to deny Mr Palmeri his notice period did not affect its entitlement to rely on the repudiatory conduct that ensued or was later discovered. The court therefore did not need to consider Mr Palmeri’s claim to an implied right to an “orderly transition” of business.
Indirect Discrimination: Permission for judicial review granted in SEISS indirect sex discrimination case
Pregnant Then Screwed, a charity that supports, promotes and protects the employment rights of pregnant women and mothers, announced on 6 November 2020 that it has been granted permission for judicial review against the Chancellor of the Exchequer.
The charity will argue that the Chancellor’s Self-Employment Income Support Scheme (SEISS), introduced in April 2020, indirectly discriminates against self-employed women who took maternity leave between 2016 and 2019. It argues that, because the SEISS does not account for the subsequent reduction in self-employed women’s average income, they are entitled to smaller grants than their peers. The charity has devised three grounds to its challenge:
- That the SEISS calculation clause violates Article 14 (the right to protection from discrimination) read in conjunction with Article 1 of Protocol No.1 (the right to property) of the European Convention on Human Rights.
- The SEISS calculation clause is indirectly discriminatory, breaching section 19 of the Equality Act 2010.
- The SEISS scheme does not comply with the public sector equality duty under section 149 of the Equality Act 2010.
The application for judicial review followed the charity’s decision to send a pre-action protocol letter to the Chancellor, whose legal team responded by correlating maternity leave to a sabbatical or any other type of leave. It is estimated that as many as 75,000 women may have been affected by the alleged discrimination.
COVID-19: New government guidance on using volunteers during the pandemic
On 13 November 2020, the Department for Digital, Culture, Media and Sport (DCMS) published new guidance for organisations and groups in England on how to safely and effectively involve volunteers in their work during the COVID-19 pandemic. The guidance, which reflects current lockdown restrictions:
- Encourages those who can volunteer from home to do so. It then says that people can volunteer outside their home (including within a workplace, unless it has been ordered to close) if they are unable to volunteer from home, don’t need to self-isolate, are not clinically extremely vulnerable, and follow social distancing or (if volunteering in a workplace) COVID-secure guidance.
While this also applies to those who are clinically vulnerable, including those aged 70 and over, the guidance warns that such volunteers may require additional support to follow social distancing rules and minimise contact with others, and should be especially careful. Clinically extremely vulnerable people are advised not to volunteer outside their home.
- Warns that no one should be compelled by their organisation or group to volunteer outside their home. Volunteering is a personal choice.
- Says that, while volunteering, people can meet in groups of any size from different households, indoors or outdoors, but must follow social distancing guidance and observe the three key behaviours (hand washing, wearing face coverings and giving space).
- Reminds employees furloughed through the Coronavirus Job Retention Scheme that they can, during the hours they are on furlough, volunteer for another employer or organisation, but that they are not permitted to volunteer for their own employer or an organisation linked to, or associated with, it. These rules have not changed, despite calls from the sector for the employees furloughed by charities to be allowed to perform voluntary work for them.
- Reminds those using volunteers of their duty of care to ensure, as far as reasonably practicable, that volunteers are not exposed to risks to their health and safety.
COVID-19: Advice for employers on how to manage employees suffering from ‘Long Covid’
With thousands of people still unwell months after contracting coronavirus, People Management asked HR experts, wellbeing specialists and employment lawyers how organisations can support employees suffering from the condition now termed ‘Long Covid’. The main advice is that the situation should be discussed openly with employees, who should be treated on a case-by-case basis as with any other medical condition, and use occupational health as a guide to accommodate adjustments. However, it is too soon to be labelling coronavirus as a disability.
COVID-19: ONS finds employers prioritise highest paid furloughed workers for pay top up
The Office for National Statistics (ONS) has revealed that employers prioritised paying full pay to top earners during the COVID-19 pandemic in contrast with the UK’s lowest paid workers who were five times more likely to be furloughed with reduced pay.
The data collected covered a range of demographic indicators; almost a quarter of 18 to 21 year olds were furloughed on reduced wages compared with only 9% of 40 to 59 year olds and 39% of hospitality workers were furloughed on reduced pay compared with 3% in professional jobs. It also found that there were 2,043,000 jobs where employees aged 16 or over were paid below the legal minimum in April 2020, more than four times the 409,000 jobs a year earlier.
Gender Pay Gap: ONS data reveals gender pay gap reduction to 7.4%
Figures published by the Office of National Statistics (ONS) have revealed that the UK’s gender pay gap, calculated using the median hourly earnings of full-time employees, has fallen to 7.4% from 9% in 2019. This means that, as of April 2020, female workers earned 92.6% of male employees’ hourly pay. This reduction was reflected across age groups, with the gender pay gap for full-time workers under-40 particularly low at “close to zero”. Interestingly, the most significant reduction in the gender pay gap occurred among managers, directors and senior officials, falling from 16.3% in 2019 to 9.9% in 2020. The ONS highlighted the fact that “this occupation group has the highest median pay of any occupation … and therefore has a strong impact on the gender pay gap” overall.
The Government Equalities Office and the Equalities and Human Rights Commission suspended gender pay gap reporting regulations back in March 2020 as a result of disruption caused by the COVID-19 pandemic. Although this data takes furloughed workers’ pay into account, the ONS warned that the impact of the pandemic may not be fully reflected.
Data Protection: ICO fines Marriott International £18.4m and British Airways £20m
The Information Commissioner’s Office (ICO) has issued a monetary penalty notice fining Marriott International Inc (Marriott) £18.4 million for breaching its data security obligations under the General Data Protection Regulation (GDPR), leaving about 339 million guest records worldwide exposed to a cyber-attack on Starwood Hotels and Resorts Worldwide Inc’s (Starwood) reservation database in 2014. Marriott acquired Starwood in 2016, but the exposure of customer data was only discovered in 2018, at which time Marriott notified the ICO and updated its systems.
The ICO traced the cyber-attack back to 2014, but the penalty only relates to the breach from 25 May 2018, when the GDPR became applicable. As the breach occurred before the UK left the EU, the ICO investigated this on behalf of all of the EU authorities as a lead supervisory authority under the GDPR.
The amount imposed is a significant reduction on the £99,200,96 million the ICO announced it intended to fine Marriott in July 2019. As part of the regulatory process, the ICO considered representations from Marriott, the steps Marriott took to mitigate the effects of the incident and the economic impact of COVID-19 on their business before setting a final penalty.
This fine illustrates the importance of carrying out thorough due diligence when making a corporate acquisition and, as part of this, to assess how personal data is protected. It follows hot on the heels of the ICO fining British Airways £20 million earlier this month for failing to protect the personal and financial details of more than 400,000 of its customers in a cyber-breach, the largest fine imposed to date for a breach of the GDPR. An ICO investigation found the airline was processing a significant amount of personal data without adequate security measures in place. This failure broke data protection law and, subsequently, BA was the subject of a cyber-attack during 2018, which it did not detect for more than two months. ICO investigators found BA ought to have identified weaknesses in its security and resolved them with security measures that were available at the time.
On 18 August 2020, Martin Bryant filed a representative class action in the High Court (Bryant v Marriott International Inc and others, case number QB-2020-002882). The claim for compensation is being brought on an opt-out basis by automatically including guests who made a reservation at one of the former Starwood hotels before 10 September 2018.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
- Age discrimination: Establishing group and individual disadvantage for indirect discrimination
- Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
- Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
- Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
- Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
- COVID-19: New regulations make self-isolation legal requirement and introduce fines
- COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
- HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
- Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
- Equality: The number of executive positions occupied by women remains “stubbornly low”
- Anti-racism: MHFA England guidance on creating anti-racist workplaces published
- Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
- Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
Age discrimination: Establishing group and individual disadvantage for indirect discrimination
In Ryan v South West Ambulance Services NHS Trust  UKEAT/0213/19 the EAT has held that an employee was indirectly discriminated against on grounds of age on the basis that she was excluded from applying for a promotion because, while it was open to her to apply, she was not in the employer’s “talent pool“. The pool had been established as a quick way of finding talented employees to fill vacancies at short notice and without having to advertise externally.
The employee established that there had been a group disadvantage since there were statistics to show that there was a reduced likelihood, due to age, of employees aged 55 and above being in the pool. The EAT also held that she was personally disadvantaged because she was not considered for roles that she would otherwise have been considered for because the employer had looked to fill the vacancies from the pool. The employer argued that she had not tried to access the pool by all routes available to her, but having failed to adduce evidence of this, could not prove that the discriminatory effect of the rule was not at play in her particular case.
The EAT also reminded the parties of the importance of accuracy in how discrimination claims are articulated and of the need to identify group disadvantage before considering individual disadvantage. In this case, neither of the parties had identified in the case management summary or at any time after, that there was inconsistency between the group and the individual disadvantage which was the subject of the complaint.
Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
In Chell v Tarmac Cement and Lime Ltd  EWHC 2613 (QB) the High Court has upheld a county court decision that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. The court held that it was expecting too much of an employer to devise and implement a health and safety policy, or other policy or site rules, which descend to the level of horseplay or the playing of practical jokes. It accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site. However, there was no foreseeable risk of injury as tensions were not so serious as to suggest the threat of violence or confrontation. Increased supervision to prevent horseplay, ill-discipline or malice was therefore not a reasonable step to expect this employer to have identified and taken.
Following the Supreme Court’s decision in WM Morrison Supermarkets plc v Various Claimants  UKSC 12 (in which the Supreme Court held that Morrisons was not vicariously liable for the actions of an employee who, without authorisation and in a deliberate attempt to harm his employer, uploaded payroll data to the internet using personal equipment at home) the court held that, although the incident happened in the workplace, the employer was not vicariously liable for the employee’s actions. Those actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.
Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
In the case of Higgs v Farmor’s School ET/1401264/19 an employment tribunal has held that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. However, the tribunal held that the employee had not been directly discriminated against or harassed because of those protected beliefs. Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s School. She had been disciplined and dismissed for gross misconduct for breaching the school’s conduct policy because of the inflammatory language used in her Facebook posts which could have led readers to believe that she held homophobic and transphobic beliefs. Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her beliefs had resulted in her mistreatment.
The tribunal considered that it could distinguish this case from the earlier tribunal decisions of Forstater v CGD Europe and others ET/2200909/2019 and Mackereth v Department for Work and Pensions and another ET/1304602/18 because the employee’s beliefs in this case were not likely to result in discrimination against members of the trans community. In the Mackereth case, the tribunal held that a Christian doctor’s beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief that an individual can be trans, and his conscientious objection to the concept of trans people, were views incompatible with human dignity which conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the Equality Act 2010. In the Forstater case, the tribunal held that similar beliefs held by a consultant were not worthy of respect in a democratic society and therefore failed the test in Nicholson (i.e. guidance as to what beliefs should be protected, such as genuinely held, a belief not an opinion or viewpoint, weighty and substantial aspect of human life and behaviour, have a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others).
The tribunal noted that those decisions were not binding on it and considered that it was a major consideration of the tribunal in both of those cases that the belief held could result in the claimant unlawfully discriminating against a trans person. The tribunal held that it “could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her” and that “there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them”.
Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
In Taylor v Jaguar Land Rover Limited  UKET 1304471/2018, Ms Taylor was an engineer at Land Rover who underwent gender reassignment and became a gender fluid employee. Gender Reassignment is a protected characteristic under the Equality Act 2010. She was treated so badly as a result of this, she subsequently made claims of harassment, direct discrimination, victimisation, and constructive unfair dismissal against Land Rover.
In his judgment for the Claimant, Judge Hughes said it was appropriate
to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again. The claimant’s compensation shall be uplifted by 20% because of respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance about short term measures to assist her transitioning.Judge Hughes in Taylor v Jaguar Land Rover Limited  UKET 1304471/2018
On 2 October 2020, Ms Taylor was awarded £180,000 in compensation at a remedy hearing following the judgment where it was held that gender fluid and non-binary people were protected from discrimination in the workplace under the Equality Act 2010. Jaguar Land Rover has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.
Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
In Ikejiaku v British Institute of Technology Ltd  UKEAT/0243/19 the EAT has upheld a tribunal’s finding that imposing a new contract on a senior lecturer following a protected disclosure he had made about suspected tax evasion was a “one-off” act with continuing consequences, rather than an act extending over a period. This meant that time started to run on the whistleblowing detriment claim at the point when the contract was imposed, not when the lecturer was dismissed. The EAT considered the authorities on what constitutes a continuing act, which showed that a typical, but not exhaustive, example is where the employer’s act constitutes a policy or rule. It concluded that the “act” in the present case did not constitute a policy or rule, nor was there any basis for concluding that it was an act “extend[ing] over a period” under section 48(4)(a) of the Employment Rights Act 1996.
However, the EAT allowed an appeal against the tribunal’s finding that the lecturer was not entitled to an uplift on the compensatory award for an automatic unfair dismissal claim, because disciplinary procedures, both generally and those contained in the ACAS Code of Practice on Disciplinary and Grievance Procedures, have no application to a dismissal on the ground of a protected disclosure. While the tribunal had been correct insofar as the application for an uplift related to disciplinary procedures, on a fair reading the application also extended to the grievance section of the ACAS Code, which refers to “concerns, problems or complaints” raised by employees. The employer had accepted that a protected disclosure made the day before dismissal fell into this category and so potentially engaged the provisions of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.
COVID-19: New regulations make self-isolation legal requirement and introduce fines
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (SI 2020/1045) came into force on 28 September. The Regulations (which only apply in England) require anyone who has tested positive for COVID-19, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has, to self-isolate for ten or 14 days respectively.
Self-isolating workers (including agency workers) who are due to go into work must notify their employer (or the employment business or client in the case of an agency worker) that they are required to self-isolate, as soon as reasonably practicable and not later than their next working day. In the case of agency workers, the recipient of the notification must inform others in the agency chain.
Where an employer of a self-isolating worker or self-isolating agency worker is aware of the worker’s requirement to self-isolate, they must not knowingly allow them to come into work.
Anyone who unreasonably fails to self-isolate is liable to be fined between £1,000 and £10,000 for repeat offences and serious breaches. Employers also risk the same level of fines where they knowingly allow self-isolating staff to come to work without reasonable excuse.
COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
Two-thirds of employers have noticed a growing interest in flexible working from their male employees since the beginning of the COVID-19 pandemic. This is according to a poll conducted by Working Families, which collected data from a small sample of 26 UK employers in September 2020. Experts say that increased homeworking during the pandemic may have reduced the negative stigma sometimes associated with men requesting less conventional, flexible working arrangements.
The data also suggests a longer-term shift in working practices, with more employees likely to be working flexibly or remotely for at least part of their working week, even after the pandemic has ended. The vast majority of employers also found that productivity had either remained at the same level or even improved with employees working from home. All of the employers found that relationships had improved with employees following lockdown as they now had a better understanding of their employees’ lives. In addition, all employers had offered employees with children the opportunity to work from home and flex their hours, as well as offering wellbeing support, paid leave, acceptance of children appearing on video calls, and changed deadlines and objectives to reflect caring responsibilities. It seems there can be a positive stance to be found out of these tough times, after all.
HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
On 29 September 2020, the CIPD and EHRC published ‘Managing and supporting employees experiencing domestic abuse: a guide for employers’. The guide recommends that employers have a clear policy in place to support employees and a framework of support made up of four steps: recognise the problem, respond appropriately to disclosure, provide support and refer to the appropriate help. It calls for an empathetic, non-judgmental approach and flexibility (for example in working hours or concerning work tasks) as two key areas for employers to focus on. In particular, as many more people are working from home as a result of the COVID-19 pandemic and related restrictions, employers will need to consider how to maintain support when escape routes or time apart from an abuser may be dramatically curtailed.
The guide notes that it is not for employers to solve the problem, but they should enable their employees to access professional support, whether in the form of legal or financial advice, housing support, counselling or arranging childcare. It calls for employers to provide paid leave for those struggling to do their work or who need to access essential services. The guide addresses the need for open workplace cultures to break the silence around domestic abuse and for roles and responsibilities, such as those of HR and line management, to be clear when it comes to providing support.
On 9 June 2020, BEIS launched a review of how employers and the government could better support domestic abuse survivors in the workplace. Submissions were required by 9 September 2020 and the review is expected to report by the end of 2020.
Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
A report entitled ‘Gender Pay Gap Reporting: a comparative analysis‘ has been published by the Fawcett Society and the Global Institute for Women’s Leadership at King’s College London, which analysed the gender pay gap reporting legislation of ten countries. The report has revealed that the UK is “unique in its light-touch approach” to tackling the gender pay gap. In particular, the related research highlighted the UK’s failure to require private employers to produce action plans for reducing their gender pay gap, with only one other country, Austria, also not requiring this.
Interestingly, the report placed the UK ahead of its peers in terms of transparency and compliance; in 2019, 100% of eligible employers reported their statistics. However, the report did call for the pay gap reporting requirement currently applicable in England, Scotland and Wales to be extended beyond companies with 250 employees or more.
Equality: The number of executive positions occupied by women remains “stubbornly low”
The ‘Female FTSE Board Report 2020’, published by Cranfield School of Management and EY, which looks at trends in female representation on FTSE 100 and FTSE 250 boards each year, has found that the record number of women on boards is failing to translate into genuine equality in senior roles. Despite significant progress in the number of non-executive directors on FTSE 100 boards (where women now account for a record 40.8% of non-executive directors), the increase in the number of executive positions being awarded to women remained “stubbornly low“. In June 2020, less than one in seven executive director roles (13.2%) were held by women, with women filling just five out of 100 chief executive roles. Women fared worse in the FTSE 250, where they held 11.3% of executive director roles.
The report warns that the COVID-19 pandemic threatens to reverse gender equality progress and notes that the unequal burden of care placed on working women during the lockdown was likely to exacerbate existing gender inequalities and the gender pay gap.
Anti-racism: MHFA England guidance on creating anti-racist workplaces published
Mental Health First Aid England (MHFA England) has collaborated with the Chartered Management Institute (CMI) and Business in the Community (BITC) to publish guidance as part of the ‘My Whole Self campaign’. The guidance promotes the mental health and wellbeing of People of Colour and Black people in the workplace through the creation of an anti-racist environment. The guidance provides practical advice on how organisations, managers and colleagues can be better allies to People of Colour and Black people.
Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
On 12 October 2017, the Parker Review Committee published its final report into the ethnic diversity of UK boards. It recommended that there should be at least one racially and ethnically diverse director on each FTSE 100 board by 2021 and on each FTSE 250 board by 2024. On 5 February 2020, in an update report, the Committee noted that, while companies were not yet up to speed, there had been movement and it might still be possible to meet the targets.
On 1 October 2020, the CBI announced that at the end of October it will be launching ‘Change the Race Ratio’ campaign, a campaign to increase racial and ethnic participation in British businesses. The campaign will identify four Commitments to change which are to:
- Increase racial and ethnic diversity among board members by taking action to ensure that FTSE 100 companies have at least one racially and ethnically diverse board member by the end of 2021 and FTSE 250 companies do so by 2024.
- Increase racial and ethnic diversity in senior leadership by setting clear and stretching targets and publishing them within 12 months of making the commitment.
- Be transparent by publishing a clear action plan to achieve targets and sharing progress through Annual Reports or on company websites. This should include disclosing ethnicity pay gaps by 2022 at the latest.
- Create an inclusive culture through recruitment and talent development processes, fostering safe, open and transparent dialogue, provision of mentoring, support and sponsorship, working with a more diverse set of suppliers and partners (including minority owned businesses) and through data collection and analysis.
Following this announcement, in a letter to FTSE 100 companies, Legal & General Investment Management (LGIM), the UK’s biggest fund manager with a 2% to 3% stake in nearly every FTSE 100 listed company, has warned firms that there will be “voting and investment consequences” for companies who fail to diversify their senior leadership team by 2022. Currently, approximately 37% of FTSE 100 companies have all-white boards. LGIM wants all FTSE 100 boards to include at least one black, Asian or other minority ethnic (BAME) member by January 2022. If companies fail to meet that target, it has said that it would openly vote against the re-election of their chairperson or the head of their nomination committee.
Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
On 2 October 2020, H&M received a fine of EUR35 million for monitoring and recording “extensive details” about hundreds of its employees in Nuremburg, in breach of the General Data Protection Regulation (GDPR). The Hamburg Commission for Data Protection and the Freedom of Information revealed that the information included details of absences for vacations and sick leave, symptoms of illness and diagnoses, family issues and religious beliefs.
The Commission found that the data was able to be read by up to 50 managers and that this data was used to “obtain a detailed profile of employees for measures and decisions regarding their employment“.
H&M has also agreed to pay out compensation to employees who worked at the Nuremburg site for at least a month since May 2018.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
- 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.
A review of July’s employment law cases and other important news, including variousemployment-related Covid-19 updates.
- Contracts: Illegal performance may not prevent subsequent enforcement of contract
- Disability discrimination: Disability must have “long-term effect” at the time of discriminatory acts
- Age Discrimination: Compulsory retirement age at University not justified
- Equality Act: One-off decisions may amount to a PCP for discrimination claims
- Indirect discrimination: It is not discriminatory to pay men less for shared parental leave
- Whistleblowing: Employer not liable to surgeon who damaged his reputation by trying to set the record straight
- National minimum wage: Government announces changes to salaried hours work and salary sacrifice schemes
- Equal Pay: Fawcett Society publishes research to support a new Bill
- Ethnic diversity: Parker Review publishes update report on ethnic diversity on boards
- Data Protection: Nominations open for Practitioner Award for Excellence in Data Protection
Contracts: Illegal performance may not prevent subsequent enforcement of contract
In the recent case of Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi UKEAT/0106/19, the employee worked for the employer for a period of ten years under a contract which specifically provided that the employee would be responsible for paying her own income tax, but during the first seven years she failed to do so. However, once the employer became aware of the issue of non-payment of tax and took steps to address it, the employee remained employed for a further three years during which time deductions for tax and national insurance were made despite the parties being in dispute about the historical position.
The employee made various disclosures which she claimed were protected prior to her dismissal. She made claims for unfair and wrongful dismissal, and that she had suffered a detriment for making protected disclosures. The tribunal found that the reason for the dismissal was not related to the disclosures and any detriment she suffered was not materially influenced by the making of protected disclosures. Her dismissal would have been unfair but by knowingly performing her contract illegally by failing to pay income tax (as set out in the express provision in her contract that she was responsible for doing so) she was prevented from enforcing the contract and bringing any claims.
The law states that parties to an employment contract that is affected by illegality may be prevented from bringing claims in an employment tribunal or elsewhere. The effect of illegality on an employment contract will depend on the way in which the illegality arises. Where an employment contract is lawful when made but is illegally performed, the contract’s enforceability will depend on the knowledge and participation of the parties. It will be a question of fact in each case whether there has been a sufficient degree of active participation by the employee (Hall v Woolston Hall Leisure Ltd  ICR 99).
On appeal at the EAT, the decision was overturned. The EAT found that the tribunal had erred in its approach to illegality. The earlier period of illegality did not prevent the employee from bringing claims for wrongful and unfair dismissal when she was dismissed at the end of that three-year period, as the prior period could be severed from the legitimately performed contractual period when she was paying the income tax. Her claims for unfair and wrongful dismissal were upheld whilst the whistleblowing claims failed at first instance on the facts.
Disability discrimination: Disability must have “long-term effect” at the time of discriminatory acts
In Tesco Stores Ltd v Tennant UKEAT/0167/19/00 the EAT has held that to claim disability discrimination, a claimant must show that their condition had a “long-term effect” at the time of the alleged acts of discrimination.
Under s.6(1) of the Equality Act 2010, a person is disabled if they (a) have a physical or mental impairment and (b) if the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Under paragraph 2(1) of schedule 1 of the Act, the effect of an impairment is “long-term” if it (a) has lasted for at least 12 months, (b) is likely to last at least 12 months or (c) is likely to last for the rest of the life of the person affected.
In this case, the claimant was employed by Tesco as a check out manager from June 2005. From September 2016, she was off sick for extended periods as a result of depression. She brought a claim for disability discrimination a year later (September 2017), alleging discriminatory acts which took place between September 2016 and September 2017. A preliminary hearing to determine disability took place in December 2018. The employment tribunal found that the claimant’s depression was an impairment that had had an adverse effect from 6 September 2016. Given that the claimant was still suffering from depression 12 months later, the tribunal found that the definition of disability under the Act was satisfied. However, the tribunal found no evidence on prognosis to suggest it was likely to last more than 12 months, or the rest of her life. Tesco appealed.
The EAT upheld the appeal, dismissing the claim. It held that it was necessary to determine whether the definition of disability was satisfied at the time of the discriminatory acts, not at the time the claim was submitted. The claimant could show that her condition had lasted for 12 months from 6 September 2017, but not before. Therefore, the EAT substituted a finding that the claimant was disabled from 6 September 2017. Since the relevant period was then up to 11 September 2017, this would severely limit the scope of the claimant’s claim. Therefore, the definition of “long-term” in paragraph 2(1)(a) of schedule 1 was not met in respect of acts which took place before this date.
Interestingly, permission was refused to remit the case to the tribunal to consider whether the claimant could show she was disabled at an earlier date on the basis that her condition was likely to last 12 months under paragraph 2(1)(b) of schedule 1. The EAT held that this argument had been attempted by the claimant before the tribunal, had failed, and had not been cross-appealed. Therefore, it would not be right to allow the claimant to raise the point again on remission.
Age Discrimination: Compulsory retirement age at University not justified
In Ewart v Chancellor, Master and Scholars of the University of Oxford ET/324911/2017 an employment tribunal has upheld a university professor’s claims for direct age discrimination and unfair dismissal following his compulsory retirement under the university’s Employer Justified Retirement Age policy. The university had argued that the policy was not discriminatory as it was a proportionate means of achieving a legitimate aim.
The tribunal found that there were legitimate aims for the policy, which included intergenerational fairness and career progression for junior academics; facilitating succession planning; and promoting equality and diversity (noting that recent recruits were more diverse than the existing workforce, especially the older cohort).
The tribunal went on to find that the policy was “in principle capable of contributing to the legitimate aims”. However, statistical evidence suggested that the EJRA only created 2-4% more vacancies than would otherwise have arisen, an effect that the tribunal described as “trivial in comparison with the discriminatory effect”. There was also no evidence of a system of career progression for junior academics, or expectation that they would be promoted, as senior posts were often filled externally. In relation to the diversity aim, the policy was only one of many diversity measures adopted by the university, and the evidence suggested that the university did not view it as a particularly significant measure. In conclusion, the university had not shown that having a policy made a sufficient contribution to the legitimate aims to justify its discriminatory impact. The tribunal therefore did not need to go on to consider whether the particular retirement age chosen in the policy (67) was itself appropriate.
Since the reason for dismissal was unlawfully discriminatory, the tribunal also held that it could not amount to “some other substantial reason”, meaning that the dismissal was unfair.
This decision contradicts an earlier decision in Pitcher v University of Oxford ET/3323858/2016, in which the university’s Employer Justified Retirement Age was held to be justified. It is believed the University intends to appeal this decision.
Equality Act: One-off decisions may amount to a PCP for discrimination claims
In Ishola v Transport for London  EWCA Civ 112, the claimant was an employee who worked for TfL for almost eight years and was considered to be a disabled person suffering with depression and migraines. Following a period of sickness absence in May 2015, he did not return to work and was dismissed on grounds of medical incapacity in June 2016. He brought several claims, of which only one was pursued, and subsequently dismissed, but for a limited finding that there was a breach of the duty to make reasonable adjustments (in the respondent’s lateness in advising of a reduction to his sick pay and failure to allow a friend or family member to accompany him to sickness review meetings) and a corresponding finding of unlawful indirect discrimination.
The single ground of appeal raised by the claimant that the Court of Appeal considered was that the tribunal had taken too narrow and technical an approach with regard to the reasonable adjustments claim in that the respondent operated a provision, criterion or practice (‘PCP’) of requiring the claimant to return to work without concluding a proper and fair investigation into his grievances prior to his dismissal. The tribunal had held that this was not a PCP but a “one-off act in the course of dealings with one individual”.
The EAT upheld the Tribunal’s decision, concluding there had been no error of law. The Court of Appeal agreed with the EAT on the concept of a PCP: that although a one-off decision or act can be a PCP, it is not necessarily one.
Indirect discrimination: It is not discriminatory to pay men less for shared parental leave
In May last year we reported on the two cases of Hextall v Chief Constable of Leicestershire Police and Ali v Capita Customer Management 2019 EWCA Civ 900. The matter had been appealed to the Supreme Court but permission to appeal has now been refused, meaning the Court of Appeal’s decision is upheld.
The Court of Appeal held that it is not sex discrimination for employers to enhance pay for women on maternity leave, but offer only the statutory rate for both men and women on shared parental leave.
There were three issues: direct sex discrimination, indirect sex discrimination and sex equality clauses. The two cases were sufficiently similar to be heard at the same time. They involved male employees, fathers, wanting to take Shared Parental Leave (“SPL”). Broadly speaking, they argued that it was sex discrimination that men on SPL were not paid the same rate as women who received enhanced maternity pay. Weekly statutory rates for Shared Parental Pay and Statutory Maternity Pay (“SMP”) are the same but some employers pay above the SMP rate (enhanced maternity pay) and there is no statutory requirement for employers to matched enhanced maternity pay for men and women who are on SPL. The question then was whether this was direct or indirect sex discrimination.
The Court of Appeal reached the following conclusions, which are now precedent:
- The correct comparator for a man on SPL is a woman on SPL, rather than a mother who had just given birth because the predominant purpose of the minimum 14 weeks leave required by the Pregnant Workers Directive is not just childcare but other matters exclusive to the birth mother resulting from pregnancy and childbirth which are not shared by her husband or partner. Therefore there could be no direct discrimination because the man could not be treated less favourably.
- There was no “particular disadvantage” to which men were put. Women on maternity leave are materially different, for the reason given above, and so men on parental leave and women on maternity leave are not in comparable positions for the purposes of Equality Act 2010.
- Even if Mr Hextall’s claim had fallen within the sexual equality clause section of the Equality Act 2010 (indirect sex discrimination based on an equal pay claim) it could not succeed because of the specific exclusion in the Act which states that “A man cannot make a claim based on more favourable terms enjoyed by a woman as a result of pregnancy or childbirth”. This exclusion prevented him from relying on the sexual equality clause because the more favourable term (enhanced maternity pay) was in connection with pregnancy or childbirth, rather than just childcare following the birth of a child.
Whistleblowing: Employer not liable to surgeon who damaged his reputation by trying to set the record straight
In Jesudason v Alder Hey Children’s NHS Foundation Trust  EWCA Civ 73 the Court of Appeal has upheld an employment tribunal’s decision to reject a whistleblowing detriment claim by an employee (Mr Jesudason, a consultant paediatric surgeon) who had raised concerns with various parties, including the media, about malpractice at the Department of Paediatric Surgery at Alder Hey Children’s Hospital. In responding to the media furore, the employer had falsely stated that the employee’s complaints were completely without foundation, and had failed to acknowledge that an independent report had made recommendations for improvements which the employer had acted upon.
The court held that, although the employee had made protected disclosures and had suffered a detriment to his reputation, the detriment did not arise from the protected disclosures. The employer had been motivated by an intention to minimise the harm from adverse, and in part misleading, information which the claimant had chosen to put in the public domain.
National minimum wage: Government announces changes to salaried hours work and salary sacrifice schemes
The government has responded to a consultation launched in December 2018 on whether certain aspects of the national minimum wage (NMW) legislation should be amended to ensure that they do not inadvertently penalise employers.
Having considered over 100 responses to the consultation, the government has announced that it will amend the NMW legislation to relax the current rules relating to “salaried hours work”. This will allow employers to pay salaried hours workers on different payment cycles, to choose a calculation year for their workers, and to make premium payments to salaried hours workers. These changes are intended to come into force on 6 April 2020.
Although the government has decided not to amend the NMW legislation in relation to salary sacrifice schemes, several measures have been announced to help employers understand the rules and drive compliance. These include improving the available guidance, waiving certain financial penalties for breach of the salary sacrifice rules, a resumption of the NMW Naming Scheme (subject to a higher arrears threshold), providing pro-active support for new, small businesses, and giving employers access to help directly from HMRC (via a telephone helpline and online).
Equal Pay: Fawcett Society publishes research to support a new Bill
The Fawcett Society (a campaigning women’s rights charity) has published research to accompany the launch of the Equal Pay Bill 2019-20, which was introduced as a private members’ bill in the House of Lords by Baroness Prosser on 28 January 2020. The Bill was developed by a Fawcett Society working committee made up of equal pay and human resources experts, within input from the EHRC.
The research revealed that:
- a staggering 40% of people do not know that women have a right to equal pay for work of equal value;
- only 36% of people know that women have a legal right to ask male colleagues about their salary if they believe they may be the victim of pay discrimination; and
- in most workplaces, people do not talk openly about what they earn – with only 24% reporting that salaries are discussed openly in their workplace.
Among other things, the Bill aims to give women who suspect they may be suffering pay discrimination a statutory right to know what a male comparator is being paid. It would extend pay gap reporting to employers with 100 or more employees (rather than 250 as at present) and would widen the scope of pay gap reporting beyond gender, to include the pay gap between employees of different ethnic groups. This is something on which the government has consulted but not yet legislated.
Ethnic diversity: Parker Review publishes update report on ethnic diversity on boards
On 5 February 2020, the Parker Review Committee published an update report, the first following its final report into the ethnic diversity of UK boards in October 2017. The new report includes detailed data both on the current profile of FTSE 350 boards and on ethnic diversity reporting (the latter commissioned by the Financial Reporting Council (FRC) from Cranfield School of Management).
The original Parker report recommended (among other things) that there should be at least one director of colour on each FTSE 100 board by 2021 and on each FTSE 250 board by 2024. The update report suggests that, while companies are not yet up to speed, there has been movement and it might still be possible to meet the targets.
The data on ethnic diversity reporting is described by the FRC in a separate press release as unsatisfactory. Among the headline findings are that:
- Over half of FTSE 250 companies (52%) fail to mention ethnicity in their board diversity policy.
- Most of the FTSE 350 do not set measurable ethnicity targets.
- Only 14% of FTSE 100 companies set measurable objectives for board ethnic diversity. For FTSE 250 companies the figure is 2%. Even where objectives have been set, no FTSE 350 companies report progress against them.
The FRC will be closely monitoring how companies report on their policies or explain their lack of progress in this area. It expects to see improvements.
The update report includes:
- Company success stories, illustrating good practices that may make it easier to meet the Parker Review targets.
- Success profiles (of individual directors).
- A Directors’ Resource Toolkit developed by Ernst & Young (principal sponsor to the Parker Review report) to assist companies and those responsible for recruitment.
Data Protection: Nominations open for Practitioner Award for Excellence in Data Protection
Those businesses that process a lot of data may be interested to know that the ICO has just opened its nominations for the third annual Practitioner Award for Excellence in Data Protection. They are looking for individuals who have shown an outstanding impact in relation to accountability or inspiring public trust and confidence in how personal data is processed. An award such as this could be a very useful addition to a business’s marketing strategy and integrity, showing a strong commitment to the individuals they serve.
Individuals can nominate themselves or nominations can be made by a colleague, and the winner will be announced at the ICO Data Protection Practitioners’ Conference in Manchester on 6 April 2020.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
We give you a round up of some of the big issues of 2019 in employment law, and what to expect in 2020, including a brief look at what’s likely to be covered by the Employment Bill 2020 and what happens next when the UK leaves the EU.
What were the big issues in 2019?
Equality, sexual harassment and discrimination
Looking back over the course of 2019, in amongst the omnipresent Brexit headlines (we got a new prime minister and a Brexit date was finally agreed, let’s just leave that there for now), several linked issues kept arising. The #MeToo movement has put a spot light on the treatment of women in the workplace and so it is not surprising that the topics of equality, sexual harassment and sexual discrimination should have continued to surface. In June, The Women and Equalities Committee published a report on ‘The use of non-disclosure agreements in discrimination cases’ tackling the perceived ‘cover up’ culture, which was followed by the Law Society publishing NDA guidance summarising both the things employers cannot stop workers from doing and explaining the restrictions commonly imposed on workers prior to signing the NDA. The government responded that it would review this as well as opening a consultation to address sexual harassment in the workplace.
The government also produced ‘Gender equality at every stage: a roadmap for change’. The plan is to financially empower women from school to retirement, by including measures such as improved information for parents around family friendly entitlements. This seems much needed after UNICEF published a report last year showing the UK is one of worst countries in Europe for paid parental leave, and yet figures gathered by the ONS show the number of mothers in the workforce is up by 75%. The Gender Roadmap also includes a consultation on strengthening measures to tackle sexual harassment, and a review of the enforcement of the equal pay legislation and the effectiveness of the gender pay gap reporting system. In fact, the gender pay gap figures from 2019 (for 2018) show a widening gap in favour of men. Perhaps naming and shaming is simply not enough, who would have guessed that?
Meanwhile ACAS produced guidance for employers on the sensitive handling of menopause symptoms whilst at work. The government also backed a ‘Lead the Change’ board which was set up to encourage business leaders to promote diversity and inclusion – it is an independent review board to ensure that talented women at the top of business are recognised, promoted and rewarded.
Mental Health and Stress
Quite rightly, mental health and stress are key areas that are really starting to occupy people’s focus, after all, an unhealthy workforce leads to sickness, absence, low morale, and inefficiency. In July, the government launched a consultation entitled ‘Health is everyone’s business: proposals for reducing ill health-related job loss.’ There were various reports published in 2019 looking at mental health: the CIPD reported on the increasing number of stress-related absences from work; Nuffield reported on the impact of flexible working and working from home on workers’ health and how it should be carefully managed; and a TUC report that showed that Britons have some of the longest working hours in Europe.
Modern working practices
In the gig economy and with more focus on mental health and family life, the way we work is changing rapidly, with the CV-Library reporting last year that the number of remote workers has doubled in the last 4 years, which is challenging the government to keep pace. In 2018, the Supreme Court finally ruled the Pimlico plumbers were workers rather than independent contractors. Having received that decision, one of them made a claim to the tribunal for holiday pay, only to be told it was out of time, however given he didn’t know at the time he was entitled to it, he will likely be appealing this decision. After a number of holiday pay dispute cases in recent years, BEIS published online guidance and a calculator to help calculate holiday pay for workers whose hours or pay are not fixed. Meanwhile, the government seems to be trying to clamp down on the tax aspects of flexible working arrangements by announcing changes to the so-called ‘IR35 rules’ (those which affect the private sector are due in April 2020) concerning those individuals who provide services to clients via a service company. Whilst this may indeed lead to an increase in income tax and National Insurance payments for the government, it may simply lead to more inventive ways to get around the tax rules, whilst the tribunals and courts are left to battle it out over the true meaning of what constitutes a worker, an employee or an independent contractor.
What should we expect in 2020?
Employment Bill 2019-20
This is expected to apply in the main to England, Wales and Scotland and include the following measures:
- A single enforcement body for the labour market. As recommended by the Good Work Plan, a single enforcement agency to be set up dealing with non-compliance in the labour market, to replace the enforcement functions of the Employment Agency Standards Inspectorate (EASI), the Gangmasters and Labour Abuse Authority (GLAA), HM Revenue and Customs (HMRC) and the Health and Safety Executive (HSE). A consultation on these proposals closed on 6 October 2019; a response is awaited.
- Protecting tips and service charges for workers. Employers to be required to pass on all tips and service charges to workers and, supported by a statutory Code of Practice, to ensure that tips would be distributed on a fair and transparent basis.
- The right to request a more predictable contract. The government previously indicated its intention to legislate to introduce a right for all workers to request a more predictable and stable contract after 26 weeks’ service as part of the Good Work.
- Extending redundancy protection to prevent pregnancy and maternity discrimination. The Pregnancy and Maternity (Redundancy Protection) Bill 2017-19 was not granted Royal Assent in the 2017-19 Parliamentary session. The Bill was designed to extend the existing redundancy protection, effectively making it harder to make employees redundant during pregnancy and afterwards, until six months after they have returned from maternity leave. The Bill was believed to have cross-party support and the government is now intending to implement this measure through the Employment Bill.
- Extended leave for neonatal care. The government’s consultation on a new right to neonatal leave and pay, to support parents of premature or sick babies, closed on 11 October 2019; a response is awaited.
- A week’s leave for unpaid carers. This proposal was made in the Conservative Party’s election manifesto.
- Making flexible working the default. As set out in the Conservative Party’s election manifesto, the government intends, subject to consultation, to make flexible working the default position unless an employer has a good reason.
- Brexit-related provisions. The Employment Bill may contain provisions designed to safeguard workers’ rights derived from European legislation, after similar provisions were removed from the European Union (Withdrawal Agreement) Act 2020.
The Good Work Plan
A number of changes set out in the government’s Good Work Plan, published in December 2018, will come into effect on 6 April 2020:
- The right to a written statement of terms for all workers (not just employees) on or before the first day of employment.
- Additional information will need to be included in written statements of terms for employees and workers, including information on the length of time a job is expected to last, the notice period, eligibility for sick leave and pay, other rights to leave, any probationary period, all pay and benefits, and specific days and times of work.
- The removal of the “Swedish derogation” in the Agency Workers Regulations 2010, which allows employment businesses to avoid pay parity between agency workers and comparable direct employees where the agency workers receive pay between assignments.
- The introduction of a Key Information document for agency work-seekers, including information on the type of contract, the minimum expected rate of pay, how they will be paid and by whom.
- The threshold to request workplace information and consultation arrangements under the Information and Consultation of Employees Regulations 2004 (SI 2004/3426) will be lowered from 10% to 2% of employees, subject to the existing minimum of 15 employees.
- The increase of the reference period for determining an average week’s pay (for the purposes of calculating holiday pay) from 12 weeks to 52 weeks.
The Conservatives’ manifesto did not mention resolving the complex issue of employment status and there has not yet been any response to the 2018 consultation on this, suggesting that it is not a high priority for the current government.
Off-payroll working rules
In order to address non-compliance with IR35 in the private sector, the government confirmed at the Autumn 2018 Budget that the off-payroll working rules would be extended to the private sector from 6 April 2020, but that small entities would be excluded from the scope of the new rules. This means that payments to workers supplied to large and medium-sized companies by personal service companies will be treated as payments of employment income and so subject to income tax and NICs. This shifts responsibility for tax compliance from the personal service company to the client or intermediary. However, as the legislation has not yet been passed, this measure remains subject to any further changes. During the election campaign, Sajid Javid, the Chancellor of the Exchequer, spoke about wanting to ensure that the proposed changes to off-payroll working were “right to take forward”. Some have suggested that there could therefore be a delay in implementation.
Taxation of termination payments
From 6 April 2020 all termination payments above £30,000 will be subject to employer’s NICs. This measure is implemented in the National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 which received Royal Assent on 24 July 2019.
Parental bereavement (leave and pay)
The Parental Bereavement (Leave and Pay) Act 2018, which entitles all working parents to two weeks’ paid statutory leave if they lose a child under the age of 18 (including a still birth after 24 weeks of pregnancy), is expected to finally come into force in April 2020, after a long wait. Secondary legislation is also awaited to implement the details of the scheme.
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”.
The government has also stated that new requirements will be introduced for the limitations of a confidentiality clause to be clear to those signing them, as well as for mandatory independent legal advice on a settlement agreement to include the limitations of any confidentiality clause. Clauses that do not follow these new rules will be void.
In July 2019, the government launched a consultation on measures to address sexual harassment in the workplace. The consultation includes proposals such as introducing a mandatory duty on employers to prevent harassment in the workplace and increasing the time limit for bringing a discrimination claim from three to six months. The Equality and Human Rights Commission (EHRC) statutory code of practice on preventing sexual harassment in the workplace is also awaited and may well be published in 2020.
Ethnicity pay 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. A response to this consultation is still awaited and as there was no mention of this measure in the recent Queen’s Speech, it may be that this is no longer a priority for the current government. It is notable that the Conservative Party’s recent manifesto included a pledge to further investigate pay disparity in the UK, yet this manifesto did not refer to the possibility of introducing mandatory ethnic pay reporting.
The Conservative Party pledged in its manifesto to increase the National Living Wage (NLW) to two-thirds of average earnings (£10.50 an hour) by 2024 and to extend the NLW to over-21s.
On 12 and 13 February 2020 the Supreme Court will hear the appeal in Royal Mencap Society v Tomlinson-Blake, considering whether the correct approach to determine whether employees, who sleep-in in order to carry out duties if required, engage in “time work” for the full duration of the night shift, determining if they are therefore only entitled to the national minimum wage when awake for the purposes of working.
On 22 and 23 July 2020 the Supreme Court will hear the appeal in Uber BV and others v Aslam and others. The court will decide whether to uphold the Court of Appeal’s majority finding that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.
We are currently awaiting the judgment in Various claimants v Wm Morrisons Supermarket which was heard in the Supreme Court on 6 and 7 November 2019. The court considered the High Court’s ruling that Morrisons are vicariously liable for a data leak by one of their employees. The breach resulted in around 5000 staff members having their personal data stolen and shared with the public.
A hearing date for the Supreme Court hearing of Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police is currently awaited. The court will consider whether it was direct or indirect sex discrimination, or a breach of the equal pay sex equality clause, for two employers to fail to pay two male employees enhanced shared parental pay.
The hearing date for another Supreme Court hearing, Asda v Brierley, is also awaited. The court will decide whether workers in retail stores were employed under comparable terms and conditions to those working in separate distribution depots for the purposes of equal pay claims under the Equality Act 2010 and the Equal Pay Act 1970.
This will come as no surprise to you, but, yes, we are expecting the UK to leave the European Union at 11.00 pm (UK time) on 31 January 2020. Whilst we cannot be sure what the long-term impact of Brexit on employment law will be, there are unlikely to be any significant changes happening in 2020. The UK will be in a post-Brexit transition period and most EU law (including as amended or supplemented) will continue to apply to the UK.
The European Union (Withdrawal Agreement) Act 2020 was recently given royal assent, implementing the withdrawal agreement into UK law. Under the withdrawal agreement, a post-Brexit transition period will run from exit day until 31 December 2020, during which time the UK will be treated for most purposes as if it were still an EU member state, and most EU law (including as amended or supplemented) will continue to apply to the UK. The transition period could be extended for up to one or two years, but only if the joint UK-EU committee agrees to an extension before 11.00 pm (UK time) on 30 June 2020. The Act includes a provision that prohibits the UK government from agreeing in the joint committee to an extension.
In the unlikely event that the UK and the EU do not conclude a withdrawal agreement by exit day (and there is no further extension of the Article 50 period, and the Article 50 withdrawal notice is not revoked), the UK will leave the EU on exit day with no agreement to govern the terms of withdrawal, and no transition period.
Once the UK leaves the EU, with or without a deal, formal negotiations on the future UK-EU relationship can start under Article 218 of the Treaty on the Functioning of the European Union. (Trade agreements are also governed by Article 207.) Assuming the UK and the EU agree a political declaration before withdrawal (in tandem with the withdrawal agreement), this declaration will form the basis for their post-Brexit negotiations on the future relationship. If the UK leaves the EU with a withdrawal agreement and transition period, the future relationship would ideally come into effect at the end of the transition period to minimise disruption, as many aspects of a no-deal scenario would again arise if relevant future relationship agreements are not in force by the end of the transition period.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
- Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave
- Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status
- Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?
- Unfair Dismissal: Automatically unfair if hidden reason is trade union activities
- TUPE: Protection could extend to workers, not just employees
- ICO: Find out if you need to pay the data protection fee
- ONS: Pay gap for disabled workers is 12.2%
- Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements
Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave
In City of London Police v Geldart UKEAT/0032/19/RN the EAT found in favour of a female claimant who was entitled to a ‘London Allowance’ payable to serving police officers in both the City of London and Metropolitan Police forces (pursuant to Part 6 of the Police Regulations 2003). This is a non-pensionable payment which is distinct from salary and ‘London Weighting’. The Police force had stopped paying her London Allowance when her maternity pay ceased during maternity leave.
Both the tribunal and the EAT found that there was nothing in the Police Regulations which meant the London Allowance should stop being payable during maternity leave, and cited the example that the allowance was also payable when an officer was suspended from duty. It was distinguished from certain allowances to cover expenses incurred when performing duties which were capable of being stopped. Failing to pay the London Allowance during maternity leave was therefore an act of direct sex discrimination contrary to section 39(2) of the Equality Act 2010.
In this matter, the claimant did not have to show that the Police force would have treated a male officer more favourably (i.e. used a comparator) because she was treated unfavourably on the ground of her pregnancy or maternity. As a result, she was the victim of sex discrimination and does not need to, and indeed cannot, prove that a man would have been treated differently (as set out in Webb v EMO Air Cargo (UK) Ltd  ICR 770).
Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status
In Stuart Delivery Ltd v Augustine UKEAT/0219/18/BA Mr Augustine was a delivery courier working for Stuart Delivery in fixed hours ‘slots’ (typically around 3 hours). During the slot Mr Augustine was under the control of Stuart Delivery, he was not able to leave the zone he had agreed to operate in and was required to undertake the deliveries offered to him in return for a guaranteed hourly wage. He could not hold himself out as available to other delivery companies during the period of a slot. Mr Augustine could release a slot he had signed up to back into the pool of approved couriers via Stuart Delivery’s Staffomatic app.
The tribunal, and the EAT, found that the use of the Staffomatic app to release a slot, and therefore extricate himself from work, was not of the character of a substitution clause which would deny him ‘worker’ status. The EAT held that the tribunal had correctly found that Mr Augustine would only be released from the obligation of performing the slot himself if another courier signed up for it. Therefore, he had no control over whether, or who, picked up the slot he had released. This did not amount to a ‘right’ of substitution, or a provision that was inconsistent with limb (b) worker status (as set out in s.230(3)(b) ERA1996).
Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?
The case of Royal Mail Group v Jhuti  UKSC 55 has been progressing for some time (we reported the decision of the EAT in July 2016, and the Court of Appeal in October 2017) and it has now been considered by the Supreme Court.
The facts are that having made a protected disclosure (whistleblowing) to her line manager, Ms Jhuti was dismissed due to capability (he had retaliated by scrutinizing her performance) following deliberate misleading of the investigating manager by the same line manager because of the disclosure. Ms Jhuti claimed unfair dismissal, which was rejected by the tribunal but on appeal, the EAT found in favour of the claimant on the basis that just because the HR department was ignorant of the full facts (the investigating manager didn’t know about the whistleblowing, so couldn’t have been motivated by it), the original line manager who had had the full facts had manipulated the decision by engineering the dismissal with the whistleblowing in mind. Given his position, that responsibility fell on the employer, and therefore she had been unfairly dismissed, even though the person with actual decision-making responsibility had been unaware of it.
The Court of Appeal reversed this decision but the Supreme Court agreed with the EAT, stating that “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”
Unfair Dismissal: Automatically unfair if hidden reason is trade union activities
In Cadent Gas Limited v Singh  UKEAT 0024_19_0810 Mr Singh was a gas engineer with 29 years’ service and an unblemished record. He was also a health and safety representative and trade union shop steward. He was required to respond to priority gas leaks without delay. One day, he was called out to a gas leak at 1.13am. He accepted the job despite having not slept or eaten much all day. Without informing dispatch he stopped for some food on the way to the call out, arriving at the premises 1 minute outside the hour stipulated in the service level agreement.
Mr Singh had previously had problems with Mr Huckerby, a senior manager, in relation to his trade union activities. Mr Huckerby noted that Mr Singh had been late, then played a leading role in the investigation, although this was not the norm, and told others that he wanted to keep the trade union activities “on the radar”. He also gave incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by another manager, who had not had any prior involvement. He decided to dismiss Mr Singh for gross misconduct. Mr Singh claimed unfair dismissal on the ground of his trade union activities contrary to s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Tribunal upheld his claim, concluding that the managers who conducted the disciplinary hearing and appeal were not motivated by prejudice against Mr Singh for his trade union activities, although Mr Huckerby was. The employer appealed but the EAT dismissed the appeal, holding that the investigation was inadequate and the dismissal automatically unfair. On the basis that even though the other managers were not motivated by prejudice, it did not preclude a finding that trade union activities played a part in their reasoning, following the decision in Royal Mail Group v Jhuti (see previous case review above) whereby the motivation and knowledge of someone who is not a decision-maker may be attributed to the employer if (as here) that person is engaged in and had manipulated the investigatory process.
TUPE: Protection could extend to workers, not just employees
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the definition of employee is given as “an individual who works for another person whether under a contract of service or apprenticeship or otherwise”. In the case of Dewhurst v Revisecatch Ltd t/a Ecourier  UKET 2201909/2018, Judge Joffe has interpreted the ‘or otherwise’ part to include workers, citing the Acquired Rights Directive which states that TUPE should be interpreted liberally.
Workers affected by a TUPE transfer have the right to be informed about and consulted on it, under the regulations, and failure to do so can result in compensation of up to 13 weeks’ pay per person. Transferor employers have to include details of the workers on the Employee Liability Information. Currently, only traditional employees benefit from the provisions on automatic unfair dismissal as a consequence of a TUPE transfer. However, whilst this is first instance case, and therefore not currently binding, it is likely to be appealed and could therefore impact future decisions if this interpretation is upheld. Employers are therefore warned to be alert to this case and if involved in a TUPE transfer may consider including any workers in order to minimise risk or may wish to seek additional indemnities from other parties to a transaction to deal with this potential risk.
ICO: Find out if you need to pay the data protection fee
The Information Commissioner has recently announced that it is contacting all UK registered companies reminding them of their legal responsibility to pay a data protection fee. Organisations processing personal information are required to pay a data protection fee unless they are exempt. Check their website (link above) to see if you need to pay or if you are exempt, and how you can contact them to pay or complete their exemption form.
ONS: Pay gap for disabled workers is 12.2%
The Office for National Statistics (ONS) recently published a report entitled ‘Disability pay gaps in the UK: 2018’. Using data from 2018, the report presents the first analysis of disability pay gaps in the UK using newly reweighted earnings data from the Annual Population Survey. The main points are these:
- Median pay was consistently higher for non-disabled employees than for disabled employees; median pay for non-disabled employees was £12.11 an hour whilst for disabled employees it was £10.63 an hour, resulting in a pay gap of 12.2%.
- The disability pay gap was wider for men than for women.
- London had the widest disability pay gap at 15.3% and the narrowest pay gap was in Scotland, at 8.3%.
- Disabled employees with a mental impairment had the largest pay gap at 18.6%, while for those with a physical impairment the pay gap was 9.7% and those with other impairments had the narrowest gap, at 7.4%.
- Around a quarter of the difference in mean pay can be accounted for by factors such as occupation and qualification.
Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements
In a shocking report produced by a collaborative partnership of philanthropic organisations and campaigners, a study of 71 global hotel companies in the UK shows that four years after the introduction of the Act, only 18 have met the minimum requirements of the UK Modern Slavery Act 2015. These requirements include publishing a modern slavery statement which should include information on the following:
- disclose their structure, business and supply chains providing information about risks in supply chains and in direct operations,
- having policies in relation to slavery and human trafficking,
- due diligence processes undertaken, assessing actual and potential human rights impacts,
- risk assessment and management.
Whilst this report highlights the problems with enforcement by the government, another issue in such a high-risk sector, is the threshold of a £36m annual turnover set by the Act, which means that most hotels in the UK are not even subject to the law. With such a vulnerable workforce, the report has made a number of recommendations. One of which is the creation of a monitoring body to survey corporate compliance with the Act.
Further information on Modern Slavery can be found on the government website: https://www.gov.uk/government/collections/modern-slavery.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
- Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
- Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
- Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
- Disability Discrimination: Employers should make enquiries about an employee’s difficulties to avoid constructive knowledge
- Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
- TUPE: Obligation on transferee to keep and produce wage records for transferring employees
- Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
- ACAS: 2018-19 Annual Report Published
- Equality: Gender Equality Roadmap published
- Health at Work: Joint government consultation to reduce job losses
- Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
In Commerzbank AG v Rajput UKEAT/0164/18/RN the Claimant brought claims of direct sex discrimination, harassment (s.26 Equality Act 2010) and maternity leave discrimination. The ET upheld the claims. In its conclusion it held that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave. The Respondent appealed against the sex discrimination/harassment decisions because these stereotypical assumptions had not formed part of the Claimant’s case; nor had the tribunal made any suggestion to the Respondent or its witnesses that it had considered such matters when drawing inferences about the reasons for the conduct of which the complaint was made. The reference to stereotypical assumptions had appeared for the first time in the judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions or their application to the conduct of the decision-makers. This therefore constituted unfairness.
The Respondent challenged one of the two findings of maternity leave discrimination on the basis that the tribunal had wrongly substituted a ‘but for’ test of causation for the subjective test required by s.18(4) of the Equality Act.
The EAT dismissed the appeal on maternity leave discrimination, holding that on a fair reading of the judgment the tribunal had applied the correct test of causation. However, it upheld the appeal on sex discrimination/harassment. The EAT held that it was unfair of the tribunal to not give the Respondent and its witnesses prior notice and the chance to respond to the suggestion that they had acted on the basis of stereotypical assumptions. The claims were remitted to be heard before a new tribunal.
Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
In Tillman v Egon Zehnder Limited  UKSC 32 the Supreme Court was asked to consider an interesting contract drafting point. Ms Tillman worked for Egon Zehnder Limited, an executive search firm. When she left them, she sought to get out of her contractual six-month non-compete clause by arguing that the words “directly or indirectly engage or be concerned or interested in” any competing business was unenforceable as a restraint of trade because it had the effect of restraining her from even holding any shareholding in a competitor and was thus far too wide. The Supreme Court agreed with the finding of the Court of Appeal that the words “interested in” were unreasonably wide, but found that it had been wrong to conclude that the offending words could not be severed from the remaining, reasonable parts of the covenant, thus rendering the remainder enforceable. This decision by the Supreme Court reversed a Court of Appeal authority (Attwood v Lamont  3 KB 571) which had been in place for 99 years.The Supreme Court instead preferred the threefold approach laid down by the Court of Appeal in Beckett Investment Management Group Ltd v Hall  EWCA Civ 613:
- application of the blue pencil test – there can only be removal of words if upon removal there is no need to add to or to modify the wording that remains in order for it to remain enforceable;
- the remaining terms must continue to be supported by adequate consideration (i.e. payment or something of value); and
- the removal of the offending provision must not generate any major change in the overall effect of all the post-employment restraints in the contract.
Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
In Forbes v LHR Airport Limited  UKEAT 0174_18_2802 an employee (DS) posted a picture of a golliwog on her Facebook page with the caption “Let’s see how far we can make him travel before Facebook takes him off”. Her friends list included some of her colleagues, but not the Claimant. One colleague (BW) showed it to the Claimant who found it offensive and raised a grievance at work. DS was disciplined. When the Claimant was rostered to be working with DS he complained to his union representative because his grievance had been upheld, and was moved to another location without explanation.
The Claimant brought claims against the employer for harassment, victimisation and discrimination on the grounds of race because he felt it was vicariously liable. The tribunal found differently, and dismissed the claims on the basis that DS had not been acting ‘in the course of her employment’. She had not posted the image while at work, had not used work equipment to do it, the image had been shared amongst a private group (of which the Claimant had not been part) and had made no reference to the employer. The Claimant appealed on the grounds that 1) the image had been shared in the workplace, 2) the tribunal had been swayed by DS’s motive and whether she intended to cause offence, rather than the effect of the conduct, and that 3) the Respondent did not take all reasonable steps to prevent the discriminatory act from occurring.
The EAT found that DS had not acted in the course of her employment and the fact that they acted to discipline her for it, whilst not being an act carried out at work, was entirely appropriate and reasonable for them to do. Since the act was not done ‘in the course of employment’, the Respondent employer could not be held vicariously responsible and it renders the other arguments academic. However, the EAT went on to hold that there was no error by the tribunal as it took into account all the matters it was required to do, and that the Respondent had taken DS’s conduct seriously and given her a final written warning to prevent further discriminatory behaviour. The appeal was dismissed.
Disability Discrimination: Employers should make enquiries of an employee’s difficulties to avoid constructive knowledge
In A Ltd v Z  UKEAT/0273/18/BA the Claimant suffered from mental and psychological problems – stress, depression, low mood and schizophrenia, but she had not disclosed these to her employer as reasons for her absences from work, instead citing other health related reasons. At tribunal it was accepted that the Claimant was disabled for the purposes of the Equality Act 2010. The employer had dismissed her due to poor attendance and time-keeping, and whilst the tribunal found that the employer had no actual knowledge of her disability, it found that the employer should have made further enquiries into the reasons for her problems at work. The Claimant had not been forthcoming about her real problems and the employer had therefore not known anything more than she was having personal problems, from which she also suffered stress as a result. The Claimant’s s.15 Equality Act claim (i.e. discrimination because she was treated unfavourably due to her disability) succeeded on the basis that the employer had constructive knowledge of her disability.
The employer appealed. The EAT held that the tribunal had erred in only asking itself what process the employer might have been expected to follow, but then failed to address the critical issue of what the employer ought to have known. It reasoned that if the tribunal found that if the employer had made further enquiries the claimant would probably have continued to hide her real condition and refused a referral to Occupational Health, therefore the EAT held that making further enquiries would not have produced any further information and so the case for constructive knowledge was not made. The EAT upheld this part of the claim.
Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
In Kocur v Angard Staffing Solutions Ltd and another  EWCA Civ 1185 the Claimant was an agency worker at Royal Mail’s Leeds Mail Centre where there was a core of permanent staff supplemented by agency staff. He alleged he did not receive the same rest breaks or hours of work as the permanent employees. The tribunal dismissed these claims but on appeal, the EAT allowed the claim regarding breaks but dismissed the claim regarding equivalent hours. The claimant took the matter to the Court of Appeal.
In making its decision, the Court of Appeal looked at the statutory language and underlying purpose of the Agency Workers Regulations 2010 and the Agency Workers Directive. It found there was nothing in the legislation to suggest that they were meant to regulate the amount of work that employers are to provide to agency workers, specifically drawing attention to regulation 6(1)(b) of the Agency Workers Regulations 2010 which includes the duration of working time as a relevant term and condition which it found was intended to refer to terms which set a maximum length for any such periods. Accordingly, the Court held that the legislation entitle agency workers to the same working conditions as directly-recruited comparators, but does not entitle them to the same number of hours.
TUPE: Obligation on transferee to keep and produce wage records for transferring employees
S.9 of the National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records, including where an employee’s employment has ceased. In Mears Homecare Limited v Bradburn and others  UKEAT 0170_18_0205 the Claimants served 10 production notices under s.10 of the National Minimum Wage Act 1998 requesting wage information from the Respondent for the preceding 12 months. Out of that 12 months, 9 were spent with the Respondent as the employer and 3 months where the transferee was the employer because a TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006 – “TUPE”) transfer had taken place. The Respondent (the transferor) failed to produce the information within the 14 days required and therefore the Claimants brought their claims before the tribunal, as they were entitled to do so. The tribunal upheld their complaints and awarded them each the sum of £600, payable by the Respondent because where there has been a relevant transfer under TUPE, the duty to maintain wage records stays with the transferor. The Respondent appealed.
The EAT overturned the decision. A transferor was not required to maintain such age records and therefore did not need to comply with the s.10 production notices. The EAT held that because under TUPE a person’s employment does not cease for the purposes of the NMWA. Their employment continues with the transferee. The liability transfers as well, therefore it is incumbent upon transferees to insist that, as part of the transfer agreement, pay records are also delivered by the transferor.
Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
In BC and others v Chief Constable Police Service of Scotland and others  CSOH 2019, 28 June 2019 the Outer House of the Court of Session (Scotland) considered whether or not WhatsApp messages were capable of being used as evidence in misconduct proceedings. An officer, during a criminal investigation into sexual offences, had his smartphone confiscated and examined. Certain WhatsApp messages were discovered between a group of police officers. The messages were not used in that investigation but were subsequently used by the Police Service of Scotland (i.e. their employer) as a legal basis for bringing separate misconduct proceedings against a group of officers who were members of the chat group. The officers argued that it was a breach of their right to privacy under common law and Article 8 of the European Convention on Human Rights to use messages for a purpose collateral to the original investigation.
The court held that in normal circumstances there would be an expectation of privacy of individuals for any messages sent via WhatsApp. However, the police are subject to high professional standards which apply both when they are on and off duty. Thus, their expectation of privacy is limited. Failure to meet and comply with those standards would be likely to interfere with the impartial discharge of that officer’s duties or at least give that impression to the public, and this was the case here.
This is the first time that a Scottish court has expressly declared that there is a common law right to privacy in Scotland (in England the courts recognised and developed the concept of a common law right to privacy – this was most clearly seen in Campbell v MGN Ltd  2 AC 457), though this is a decision of the Outer House and therefore only of persuasive authority in the Court of Session and lower courts. It does not apply in England but it is useful to see how technology is permeating the law as its influence and reach grows, and this issue may yet be considered before the English courts.
ACAS: 2018-19 Annual Report Published
ACAS has recently published its latest Annual Report and Accounts for 2018-19. It discusses ACAS’s three strategic aims (below), how it has managed these over the last year and its plans to develop them more in the future.
- To advise on good practice in everyday working life
- To resolve disputes and manage conflict
- To influence employment policy and debate
There are also performance indicators showing how they have delivered against target over the last two years. It also includes figures showing where matters have been referred to ACAS for early conciliation from the tribunals, which are increasing year on year.
Equality: Gender Equality Roadmap published
On 3 July, Penny Mordaunt (Minister for Women and Equalities) launched the Government Equalities Office’s Roadmap for change: “Gender equality at every stage: a roadmap for change”. The plan is to financially empower women from school to retirement, by including measure such as a review of enforcement of equal pay legislation, and improved information for parents around family friendly entitlements. At the same time, the Women’s Business Council is to be refreshed. There will be a new chair – Fiona Dawson, the Global President of Mars Food, Multi-sales and Global Customers . The aim will be tackling individual sectors to ensure they are closing their gender pay gaps and at the same time that female staff have the same opportunities as their male counterparts.
Some of the proposals of the roadmap include:
- a consultation on strengthening measures to tackle sexual harassment (including clarifying the rules on third party harassment, exploring whether protections need to be extended to interns and volunteers,and considering whether to extend the three-month time limit for bringing discrimination and harassment claims)
- consulting on a new right to carers’ leave
- reviewing the enforcement of equal pay legislation
- assessing the effectiveness of gender pay gap reporting and consulting on any changes by 2021
- completing the government’s evaluation of the shared parental leave and pay scheme by the end of 2019, after which it will consider whether to modernise the existing system.
Health at Work: Joint government consultation to reduce job losses
This month, the Department for Work and Pensions and the Department of Health and Social Care launched a joint consultation: Health is everyone’s business: proposals for reducing ill health-related job loss. It sets out proposals which aim to reduce ill health-related job loss. Whilst the government sees that there is much more employers can do to support employees who are managing health conditions, or who are experiencing a period of sickness absence, it recognises that it can and should provide more help for employers, recognising the differences in employers’ capacity and capability to act.
Key proposals include:
- Improving the information and advice the government provides to employers.
- Improving the occupational health market and look at what financial support the government could provide to improve access to occupational health for smaller businesses.
- Encouraging early and supportive action by employers for their employees with health conditions.
- A new right for non-disabled employees to request workplace modifications to assist their return from sick leave, supported by a new Code of Practice and enforceable in the employment tribunal.
- Reforms to the statutory sick pay system, including pro rata payments for phased return to work after sickness absence, changing eligibility requirements.
The consultation seeks views on measures to reduce ill health-related job loss with the emphasis on employers taking more responsibility and having more involvement. You can submit your views online, without having to answer all the questions, here: https://getinvolved.dwp.gov.uk/work-and-health/consultation/. The consultation closes on 7 October 2019.
Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
On 16 July 2019, BEIS published a consultation (‘Good Work Plan: establishing a new Single Enforcement Body for employment rights’) on its proposal to change the way employment rights are enforced and therefore protected by creating a single enforcement body. At the moment, the enforcement of employment rights are carried out by the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, HM Revenue and Customs and the Health and Safety Executive. The Director of Labour Market Enforcement oversees the enforcement priorities of the first three, but not the HSE.There are also other areas, such as umbrella companies and holiday pay for vulnerable workers which it would seek to enforce.
The government recognises that moving to a single body risks losing the benefits of specialisation and expertise built up in existing bodies. There would therefore be a transitional period while the new body becomes fully operational. It also cites the examples of other bodies which have combined to produce more powerful single entities: the National Crime Agency and the Competition and Markets Authority.
Among other things, the consultation also seeks views on:
- should the single body have a role in enforcing rights in relation to statutory sick pay, supporting the Equality and Human Rights Commission and a role in enforcing unpaid tribunal awards;
- extending the civil penalties regime used to enforce payment of the national minimum wage;
- transparency in supply chains;
- enforcing joint responsibility for labour market breaches.
You can respond online or by contacting BEIS. See the link here: https://www.gov.uk/government/consultations/good-work-plan-establishing-a-new-single-enforcement-body-for-employment-rights. The consultation closes on 6 October 2019.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
- Disability Discrimination: A perceived risk of future disability is discrimination
- Discrimination: Does contributory negligence affect amount of injury to feelings award?
- Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
- Right to Privacy: Employer can rely on material produced under police investigation
- Trade Unions: One-off direct offer is not unlawful inducement
- Tribunal proceedings: Extensions of time where belief reasonable
- Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
- Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
- Health & Safety: Employers should support victims of domestic abuse
- Health & Safety: IES publishes report regarding support for epileptic workers
- Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
- Parental Leave: UK ranks near bottom for family friendliness
Disability Discrimination: A perceived risk of future disability is discrimination
In Chief Constable of Norfolk v Coffey  EWCA Civ 1061 Lisa Coffey was a police officer in the Wiltshire Constabulary who suffered from a degree of hearing loss which had never caused her any problems in doing her job (‘day to day activities’) and which, everyone agreed, does not constitute a disability within the meaning of the Equality Act 2010. In 2013 she applied for a transfer to the Norfolk Constabulary, but it was refused because on a medical test her hearing fell, as the medical adviser put it, “just outside the standards for recruitment strictly speaking”. She brought a claim for disability discrimination against the Chief Constable of the Norfolk Constabulary because of a (perceived) disability. Section 13(1) of the Equality Act states: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Her claim was upheld by an Employment Tribunal but the Constabulary appealed. The EAT agreed with the tribunal.
Upholding the decisions of the previous tribunals, the Court of Appeal found that the Constabulary did unlawfully discriminate against Ms Coffey because of a perception of a risk of future inability to work in a particular role, as she was clearly carrying out her current front-line officer role without hindrance. It was this perception of a risk of future disability that was discriminatory and resulted in the recruiting officer giving her less favourable treatment. The appeal was dismissed.
Discrimination: Does contributory negligence affect amount of injury to feelings award?
The Law Reform (Contributory Negligence) Act 1945 (‘LRCNA’) basically allows an award for damages to be reduced proportionately where the claimant suffered the damage partly as a result of his/her own actions or those of someone else.It is possible for it to apply to some discrimination claims, but reduction of an award for contributory negligence would rarely, if ever, be justified because of the difficulties in applying the concept of “fault” to the victim of a discrimination claim and the fact that the discriminator may have acted without “fault” in the sense of the 1945 Act.
In First Greater Western Limited & Linley v Waiyego UKEAT/0056/18/RN the Claimant succeeded in bringing a claim for failure to make reasonable adjustments and a claim for disability discrimination, for which she was awarded £19,800 for injury to feelings in respect of the first claim and £8,800 for injury to feelings arising from the second claim. Both sides appealed.
On appeal, the Respondent claimed that the LRCNA could be applied to discrimination claims and that the tribunal failed to make any deduction to reflect the Claimant’s contributory negligence in failing to give the employer details of her previous cognitive behavioural therapist. The EAT held that the obiter dictum relied upon in Way v Crouch  ICR 1362 was in fact too broad and a contributory negligence argument in a discrimination claim may be more appropriately treated as an allegation of failure to mitigate loss. It further held that the tribunal had not erred in its assessment of the quantum of non-financial loss (psychiatric injury and injury to feelings) for disability discrimination. These awards were not flawed by misdirection in relation to causation of loss; nor were they perversely high or flawed by double counting.
As for the Claimant’s appeal, the EAT held that the tribunal had rightly rejected the Claimant’s invitation to impose a financial penalty on the First Respondent (First Greater Western Limited) under section 12A(1) of the Employment Rights Act 1996 for deliberate and repeated breaches of employment law. It was held that the tribunal had also rightly rejected the invitation of the Claimant to award aggravated damages.
Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
In Kelly v Royal Mail Group Ltd UKEAT/0262/18/RN, Mr Kelly was a postman who had a poor attendance record generally, which had triggered the Royal Mail’s Attendance Policy on several occasions. Following two further periods of absence relating to surgery for Carpal Tunnel Syndrome the policy was triggered again, including the final AR3 stage of the policy, which allowed for a review of the whole of his attendance record. As a result the Royal Mail decided that it had lost confidence in Mr Kelly’s ability to maintain a satisfactory attendance record and accordingly dismissed him.
The tribunal held that, whilst dismissal was a harsh response, it was within the band of reasonable responses and therefore the dismissal was fair. It dismissed the allegation that this amounted to disability discrimination on the basis that Royal Mail did not know and could not reasonably be expected to know that Mr Kelly had a disability. Mr Kelly appealed on the grounds that it was perverse to conclude that it was fair to dismiss him for two absences for corrective surgery which he could not help, and for Royal Mail to rely upon earlier absences. Furthermore, it was argued that the tribunal erred in accepting that Royal Mail did not have constructive knowledge of disability because it just “rubber stamped” the Occupational Health report.
The EAT dismissed the appeal – the tribunal’s conclusion as to the fairness of the dismissal was not perverse because the policy expressly permitted earlier absences to be taken into account, and accordingly conduct in line with that policy is unlikely to be unfair. The policy applied to all absences, irrespective of fault or blame, and Royal Mail was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future. As to disability discrimination, the EAT found Royal Mail had not simply rubber stamped the Occupational Health reports, but had actually given independent consideration to the question of disability (and arrived at the decision that carpal tunnel syndrome is not automatically a disability) though the reports themselves contained more than a bare assertion that the Claimant was not disabled. No other evidence had been supplied by Claimant or his representative, and there was nothing to suggest that the employer should seek further clarification as to whether the Claimant was disabled or not. Given all this, there was no error in the tribunal’s conclusion that Royal Mail did not have constructive knowledge of disability.
Right to Privacy: Employer can rely on material produced under police investigation
In Garamukanwa v United Kingdom  6 WLUK 109, Mr Garamukanwa and Ms Maclean worked for the same NHS hospital trust, and had had a relationship that had ended. Mr Garamukanwa had then suspected Ms Maclean had had a relationship with another member of staff, Ms Smith. According to the evidence, he then started a campaign of harassment against Ms Maclean including stalking her and sending unpleasant emails to her and her colleagues. As a result, she made a formal complaint to the police. The police investigation included them taking copies of incriminating photos he had on his mobile ‘phone. In light of the investigation, the employer decided to suspend him on full pay pending their own investigation. Whilst the police ultimately decided not to prosecute, the employer NHS Trust obtained copies of the photographs seized by the police from his mobile ‘phone. A disciplinary hearing was held and the Claimant, Mr Garamukanwa, was summarily dismissed for gross misconduct. He appealed, but the appeal was also dismissed.
A tribunal found that the decision to dismiss was within the range of reasonable responses for a reasonable employer and therefore fair. The evidence was found to justify the conclusion that the Claimant was guilty of gross misconduct: a wrongful dismissal claim also failed. In making his claim, the Claimant also raised the issue that his employer had breached his right to privacy (Article 8 of the European Convention on Human Rights – ‘ECHR’) by using the emails and other material he sent, together with the photographs from his mobile ‘phone. His contention was that they were entirely private and personal. It was this issue that reached the European Court of Human Rights, which upheld the view of the EAT, which found that the dismissal of an employee by an NHS Trust did not breach the employee’s right to privacy under Article 8 ECHR. The NHS Trust relied upon material that had been collected by, and passed on to them by, the police during their investigation into harassment allegations made against him by a colleague.
The European Court of Human Rights found that while business communications are capable of falling within the protection given to “private life” and “correspondence”, the Claimant could not have reasonably expected that any materials or communications linked to the criminal investigation would remain private, and the tribunal was fully entitled to reach this conclusion. Article 8 was therefore not engaged and the appeal dismissed. Leave to appeal to the Court of Appeal also dismissed.
Trade Unions: One-off direct offer is not unlawful inducement
In Kostal UK Ltd v Dunkley & others  EWCA Civ 1009 the company had been negotiating with the employees’ union, UNITE, in respect of certain employment contract terms and conditions through collective bargaining. Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) prohibits employers from circumventing this collective bargaining route and approaching the employees direct if the result is that such terms will not form part of the collective bargaining (an inducement to a ‘prohibited result’). In this instance, however, the negotiations had stalled and so the employer made two offers on two separate occasions. The offers created the prohibited result which was that the workers’ terms of employment, or any of those terms, “will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union” – i.e. circumventing the collective bargaining fifty-seven workers took the matter to the tribunal who made awards to each of them. The employer appealed.
The EAT agreed with the tribunal’s conclusion that the employer had sought to achieve a ‘prohibited result’ and dismissed the appeal. The Court of Appeal, however, took a different view of what constitutes a prohibited result. It found that a one-off direct offer did not constitute an unlawful inducement because section 145B only prohibits two types of scenarios:
- where an independent trade union is seeking to be recognised and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment will not be determined by a collective agreement; and
- where an independent trade union is already recognised, the workers’ terms of employment are determined by collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment (as a whole), or one or more of those terms, will no longer be determined by collective agreement (i.e. the change takes the term or terms outside the scope of the collective bargaining on a permanent basis).
It distinguished these offers: where an independent trade union is recognised, the workers’ terms of employment are determined by a collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that one or more of the workers’ terms of employment will not, on this one occasion, be determined by the collective agreement. The appeal was successful and the claims were dismissed.
Tribunal proceedings: Extensions of time where belief reasonable
When bringing an employment tribunal claim, a claimant must complete a form ET1 and start the claim within certain prescribed time limits. In Lowri Beck Services Ltd v Brophy  UKEAT 0277_18_2503, the original Claimant, Mr P Brophy, brought claims of unfair and wrongful dismissal and of disability discrimination against his employer. Mr Brophy suffers with severe dyslexia and had been helped much of his life by his brother, Michael Brophy. Due to his difficulties and the emotional impact of being dismissed for gross misconduct, the Claimant had asked his brother to help him deal with his claim. It turns out the Claimant had misunderstood the date of his actual dismissal and this was compounded by the unclear nature of the employer’s letter causing the brother to genuinely get the wrong date of dismissal. This, in turn, meant the claims were brought out of time. The tribunal decided to extend time for these reasons, and that it would be just and equitable to extend time, there being no prejudice to the employer in doing so. The employer appealed against the extension.
The EAT held that the tribunal had not erred in its findings. This mistake had been one of fact not law. The issue was whether the brother’s belief was reasonable. The tribunal had found that it was, and was therefore entitled to conclude that it had not been reasonably practicable for the claim to have been presented in time. The extension was upheld and the appeal dismissed.
Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
The decision of the EAT in Dudley Metropolitan Borough Council v Willetts and others (which we previously reported in September 2017) has recently been approved by the Court of Appeal in East of England Ambulance Service NHS Trust v Flowers & Others  EWCA Civ 947. A number of ambulance crew worked ‘voluntary’ overtime. It was voluntary – they were under no obligation at all. They made a claim for unlawful deduction from wages to the employment tribunal, arguing that their voluntary overtime was not included with their ‘normal’ remuneration for the purposes of holiday pay calculation, and therefore they were owed pay.
The EAT in Dudley held that holiday pay under the Working Time Directive must include regular voluntary overtime, i.e. elements of pay that are sufficiently regular or recurring to qualify as “normal” must be included. The Court of Appeal expressly approved this decision and said that the patterns of voluntary overtime will be for the tribunals to determine, on a case-by-case basis, as to whether they are sufficiently regular and settled. Additionally, in this case, the Claimants’ contractual terms are to be found in the NHS Terms and Conditions of Service Handbook, a collective agreement popularly known as “Agenda for Change”. These required voluntary overtime to be included in the calculation of contractual holiday pay, and as Justice Soole in the EAT broke it down to be a mere question of construction, there being “no good basis to construe clause 13.9 so as to exclude overtime in the calculation of holiday pay”, which the Court of Appeal upheld.
Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
In November 2018, we reported that The Women and Equalities Committee (WEC) had launched a new inquiry looking at the use of non-disclosure agreements (NDAs)where any form of harassment or discrimination has been alleged. The committee was seeking written submissions on whether there are certain types of harassment or discrimination for which NDAs are more likely to be used, whether the use of NDAs should be banned or restricted in these cases and what safeguards may be necessary to prevent their unethical use.
The WEC has now published their report on ‘The use of non-disclosure agreements in discrimination cases’. Its findings show that NDAs are used as a matter of routine to ‘cover up’ unlawful discrimination and harassment and maintain confidentiality of employers in a variety of ways, such as preventing people from making protected disclosures under whistleblowing legislation, or preventing people from explaining to a new employer why their previous job ended, or preventing them from reporting an issue to the police. Settlement agreements will often include non-disparagement provisions. This is happening, the report suggests, because of the “substantial imbalance of power” between employers and employees. Employees are often left feeling that they have little choice but to sign the agreements and agree to their stringent conditions. The report also looked at the effect and practicalities of taking such a matter to an employment tribunal. Furthermore, the report also covers the emotional and psychological damage that can be inflicted upon those feeling forced into entering into NDAs, and how being in such a situation can make moving on and finding a new job more difficult.
The reports states:
This cover-up culture has to be challenged. NDAs should not be used to silence victims of discrimination and harassment. Employers and their legal advisers should not be complicit in using NDAs to cover up allegations of unlawful acts. Discrimination at work is unlawful and employers should not have the option to cover it up through the use of NDAs. They have a duty of care to provide a safe place of work for their employees and that includes protection from unlawful discrimination. Insufficient focus and force from regulators to require employers to do more to protect employees has to change. It is in the public interest that employers tackle discrimination and harassment and that allegations of such behaviour are investigated properly and not covered up by legally sanctioned secrecy. The Government has to reset the parameters within which NDAs can be used and must address the failure of the employment tribunal system to ensure all employees who have experienced discrimination have a meaningful route of legal redress.
The WEC suggest the Government follow these key recommendations:
- ensure that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives;
- require standard, plain English confidentiality, non-derogatory and similar clauses where these are used in settlement agreements, and ensure that such clauses are suitably specific about what information can and cannot be shared and with whom;
- strengthen corporate governance requirements to require employers to meet their responsibilities to protect those they employ from discrimination and harassment; and
- require named senior managers at board level or similar to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment cases.
They also renewed their previous calls (which have been rejected) for the Government to:
- place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace; and
- urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages, and awards for the non-financial impact of discrimination should be increased significantly.
Health & Safety: Employers should support victims of domestic abuse
The figures on domestic abuse are shocking:
Two women a week are killed by a partner or former partner. One in four women and one in six men will experience domestic abuse in their lifetime, which can range from coercive behaviour to murder. That means we are all likely to know or work with someone suffering from it right now. The damage to people’s mental and physical well being is huge, as is the cost to the economy, calculated by government to be £66 billion a year, writes Iqbal Wahhab OBE in the Independent.
Over 270 companies and public sector businesses have joined the Employers Initiative on Domestic Abuse (EIDA) (https://eida.org.uk/) to help put a stop to this. The EIDA is a network of employers who have set up this organisation to work collectively to end domestic abuse, and support and protect domestic abuse victims in their workplaces. The EIDA website invites you to join them, there is no fee, and provides an employer’s toolkit, as well as other resources to help employers help their employees in crisis. Among the suggestions are for employers to introduce policies and educate staff to identify, support and signpost victims.
Health & Safety: IES publishes report regarding support for epileptic workers
One in 100 people in the UK suffer with Epilepsy but they are more than twice as likely as non-sufferers to be unemployed. The Institute for Employment Studies (IES) was commissioned by Epilepsy Action to conduct research to explore the factors that contribute to people with epilepsy being disadvantaged at work, and to identify what good employment support should look like. The report ‘Employment support for people with epilepsy – Qualitative research to identify what good employment support for people with epilepsy should look like’ has now been published.
The study revealed both a lack of knowledge on the part of employers about the condition, particularly its fluctuating nature, and the fear held by epilepsy sufferers that they would suffer discrimination in the workplace. IES’s recommendations include a personalised online toolkit – covering disclosure, health and safety, reasonable adjustments and other common concerns – could guide employers and employees in their conversations. Checklists and ‘job carving’ would help employers to assess employees’ capacity and fit with job tasks, and to make adjustments. These are areas that Epilepsy Action can address.The report also highlights the need for improved access to support services to empower people with epilepsy in their interactions with employers.
Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
Can you believe it’s been a year since we all scrambled to get our policies, permissions and records straight? It has been a big change to the regulatory landscape and privacy is now arguably much better understood and appreciated.
The Information Commissioner, Elizabeth Denman, explains:
People have woken up to the new rights the GDPR delivers, with increased protection for the public and additional obligations for organisations. But there is much more still to do to build the public’s trust and confidence. The focus for the second year of the GDPR must be beyond baseline compliance. Instead organisations need to shift their focus to accountability with a real, evidenced understanding of the risks to individuals and how those risks should be mitigated.
With this in mind, the ICO has published a report detailing their work since 25 May 2018, looking back at what has been learnt over the last year, describes some of the work undertaken by the ICO to deliver the goals set out in its Information Rights Strategic Plan (such as supporting the public and organisations, and using its new enforcement and investigation powers). The report also looks at the ICO’s attempts to stay relevant and foster innovation to be an effective regulator both at home and abroad.
Parental Leave: UK ranks near bottom for family friendliness
The BBC recently reported that the UK is one of the worst countries in Europe for paid parental leave, according to UNICEF. Researchers for UNICEF looked 31 European countries and ranked them according to their paid parental leave and affordable childcare to assess how family-friendly they are. The UK came in at a disappointing twenty-eighth, followed only by Cyprus, Greece and Switzerland. Research revealed that UK parents were among the most likely to state that the high cost of childcare was the key factor dissuading them from using it. And yet many nurseries close or have to request top up fees from parents because their running costs are so high (even though childcare is not well paid) and the government’s ‘free childcare’ provision does not meet the actual cost of providing it.
Perhaps unsurprisingly, Sweden and Norway ranked first and second, because they have more progressive paid parental leave policies, with parents being able to split parental leave jointly and family time being much more important socially. These countries offered the equivalent of 35 and 45 weeks of paid leave respectively, while Estonia offers 85 weeks’ paid leave.
Family-friendly policies strengthen the bond between parents and their children, which is critical for the development of families and socially cohesive societies. UNICEF advocates for at least six months of paid leave for parents, and for universal access to quality, affordable childcare from birth to children’s entry into the first grade of school.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
- TUPE: Dismissal due to difficult working relationship may be automatically unfair
- Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
- Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
- Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
- Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
- Indirect Discrimination: Justification of rule more important than application of rule to individual
- Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
- BREXIT: ICO website contains SME Brexit preparation tools
- Data Protection: Vote Leave Ltd fined £40,000 by ICO
- Immigration: Seasonal workers pilot opens
- Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
- Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
- Wages: National Minimum Wage and National Living Wage set to increase from 1 April
TUPE: Can a dismissal due to difficult working relationship be automatically unfair?
In Hare Wines Ltd v Kaur  EWCA Civ 216 the question before the Court of Appeal was whether the Claimant’s dismissal for purely ‘personal reasons’, was a sufficient reason to prevent the dismissal from being automatically unfair as it related to a TUPE transfer. In this case, Mrs Kaur was a cashier for a wine wholesaler, which had been run by several different businesses during the time she had worked there, with common directors/shareholders. In 2014, the business was transferred under TUPE to Hare Wines Ltd. Mrs Kaur and Mr Chatha were colleagues with a strained working relationship. Mr Chatha became a director of Hare Wines Ltd. On the day of the transfer, Mrs Kaur was dismissed, and all the rest of the employees transferred under TUPE to Hare Wines Ltd. Mrs Kaur claimed this was automatically unfair as it was related to the transfer, and the tribunal agreed.
Hare Wines Ltd argued that Mrs Kaur had objected to the transfer because she did not wish to work with Mr Chatha, who was to become a director. However, the tribunal held that this was not the case, and that the real reason was that the business did not want her because it may have continuing difficulties between the individuals. On appeal to the EAT and then the Court of Appeal, the tribunal’s finding that she had not objected was upheld and that the reason for the dismissal was not that she had been dismissed because of her difficulties with Mr Chatha with the transfer being coincidental, it was that the employer did not want her because she and Mr Chatha did not get on. This was the principal reason. The relationship had been strained for some time and she had not been dismissed until the transfer was to happen, therefore the two were linked. The Court of Appeal noted that dismissals for economic, technical or organisational (aka ‘ETO’) reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as preventing a transfer-related dismissal from being automatically unfair.
Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
In Nosworthy v Instinctif Partners Ltd UKEAT/0100/18, Miss Nosworthy had entered in to a Share Purchase Agreement and Articles of Association with the company, which contained some common bad leaver conditions. The conditions meant that a shareholder who is also an employee who voluntarily resigns is considered to be a bad leaver . In this case, the bad leaver provisions meant that when Miss Nosworthy resigned she was forced to forfeit deferred earn-out shares and loan notes – i.e. transfer her shares – with the value of the shares being determined at the acquisition cost (which was £143 for her 2% share). Miss Nosworthy claimed this forced transfer was a contract connected with employment and therefore could be considered to be unconscionable, a penalty or an unlawful deduction from wages
The tribunal disagreed, and this finding was upheld by the EAT. The criteria for setting aside an agreement as unconscionable were not satisfied – there had been no serious disadvantage. It was not a penalty as a result of a breach of contract, because it was a term of the Articles of Association which applied to any bad leaver, regardless of breach, and was not a breach of contract. Furthermore, the company’s remuneration committee, which had the power to reclassify her as a good leaver, had not failed to exercise its discretion in good faith because there were no exceptional circumstances for it to take into account. Lastly, it was not an unlawful deduction from wages, because the definition only covers payments made in respect of her capacity as a worker, whereas the shares were provided to her as a shareholder.
Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
In Exmoor Ales Ltd & Another v Herriot UKEAT/0075/18/RN theEAT Mrs Herriot had provided accountancy services for Exmoor Ales, a brewery, for nearly three decades, submitting invoices from her partnership. Since 2011, the brewery had paid her £1,000 each quarter, which Mrs Herriot claimed was an exclusivity payment, but which the respondents denied. In 2017 Mrs Herriot brought claims against the brewery just before her work relationship with it ended. The claims were for unfair dismissal, age discrimination, holiday pay, failure to provide a statement of written particulars of employment, harassment and victimisation.
The tribunal found, on the evidence, that the quarterly payment did indeed change the nature of the relationship from that point onwards and that she did in fact, stop working for other clients. The brewery had also given her allocated seating in their premises, she was fully integrated into their business, and exercised a high level of control over her whilst at work. It was also noted that there was mutuality of obligations between the parties from April 2011 onwards, and she had no right to appoint a substitute. The tribunal therefore held that until that time, Mrs Herriot had been an independent contractor providing accountancy services to the brewery but after the quarterly payments started, she was in actual fact an employee.
The brewery appealed arguing that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. These were rejected by the EAT, however, because the tribunal had considered these elements but found the factors highlighted by it had overridden those identified by the Respondents. In this instance, the quarterly exclusivity payment had been an influencing factor although in reality it was the effect it had on their respective behaviours that led the tribunal and EAT to find her to be a de facto employee.
Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
Last year the Supreme Court ruled in Pimlico Plumbers Ltd & Another v Smith that the plumbers had been employed by Pimlico Plumbers as workers rather than being hired as independent contractors. As workers, this meant they were entitled to some basic employment rights such as the right to be paid the national minimum wage and holiday pay. At the end of his successful seven year battle with Pimlico Plumbers, Mr Smith began proceedings in the Croydon employment tribunal for backdated holiday pay. However, the tribunal ruled that he had not filed his claim quickly enough – the regulations state that claims for missed pay should be filed within 3 months of each holiday period, dating back to 2005. His claim amounted to £74,000. He is going to appeal this decision because he did not know he was entitled to paid leave while he was employed by Pimlico Plumbers so did not bring a claim until after his contract was terminated in May 2011.
Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
In South West Yorkshire Partnership NHS Foundation Trust v Jackson UKEAT/0090/18/BA the claimant was on maternity leave when she became part of a number of staff at risk of redundancy who were then sent an email by the HR department to their work email addresses, which the claimant could not access, setting out redeployment opportunities. She was not able to open the email for several days but this in itself did not cause her substantial harm. However, it raised a legitimate concern that such behaviour was unfavourable treatment (s.18(4) of the Equality Act) because she was exercising her right to take maternity leave, and it is on this ground that she made a claim.
The tribunal upheld her claim. However, the EAT found that the tribunal had erred in its approach to the causation test. Although the unfavourable treatment would not have happened “but for” the fact that the Claimant was on maternity leave, the tribunal had not considered whether this was the “reason why” she had been treated unfavourably. There was no finding by the tribunal as to why the Claimant was not able to access her emails, as she had in fact attended a meeting a few days before despite being on maternity leave.
Mr Justice Shanks said, the “ET must ask itself the standard “reason why” question in relation to why the unfavourable treatment took place and that it is not sufficient for the “but for” test to be satisfied for there to be a finding of discrimination under section 18.” He went on to say that it did not seem as if the tribunal had found that the characteristic of being on maternity leave had been on anyone’s mind, nor had the tribunal decided that an inherently discriminatory rule had been applied in this case. It seems to have been pure administrative error and therefore the test used by the tribunal was that ‘but for being on maternity leave, the Claimant would not have been disadvantaged’, which was not sufficient for a finding of discrimination. As a result the case was remitted back to the tribunal for further findings.
Contract: Suspending an employee does not always breach the implied term of trust and confidence
In The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322 a primary school teacher was accused of using excessive force with two pupils with special educational needs, and suspended pending investigation as a result. The teacher, Ms Agoreyo, resigned the same day. She claimed that the suspension had been a knee-jerk reaction and that an investigation did not require suspension. The suspension was a repudiatory breach of contract – a breach of the implied term of mutual trust and confidence between them, and she was entitled to resign and claim constructive dismissal.
At first instance, the County Court found that the school had reasonable and proper cause for her suspension. The claim was dismissed. Ms Agoreyo appealed. The High Court allowed the appeal on the basis that suspension should not be the default option – an individual should be suspended only if there is no reasonable alternative. The school had said the suspension was a neutral act but the High Court disagreed and said that it is never a neutral act. Ms Agoreyo’s resignation letter neither negated nor undermined the case on breach of the implied term as to trust and confidence.
On further appeal however, the Court of Appeal agreed with the County Court, and held there was no breach of trust and confidence. It found the High Court had erred in its test of whether it was necessaryto suspend was setting the bar too high and the correct legal test was whether the school had had reasonable and proper cause to suspend Ms Agoreyo. The County Court judge was entitled to hold that it did and Ms Agoreyo’s claim that her suspension was a breach of contract failed.
Indirect Discrimination: Justification of rule more important than application of rule to individual
In The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey UKEAT/0171/18/JOJ a bus company had instituted a rule in the rostering system that bus drivers had to work 5 out of 7 days, including Saturdays or Sundays. Mr Harvey was a Seventh Day Adventist who asked not to work between sunset on Friday and sunset on Saturday so that he could observe the Sabbath. The bus company had given him a service that was able to take this into account but it was not a permanent arrangement and so he subsequently had to swap shifts or call in absent from work on the days when he was required to work a shift on Friday evening or Saturday daytime. They had also offered him flexible working but in the meantime he had brought a claim of indirect discrimination on the grounds of religion or belief.
The bus company argued that it feared that if it agreed to this as a permanent arrangement, more drivers would ask for time off for other religious reasons, particularly events and festivals, and this might result in industrial unrest. At tribunal it was accepted that the bus company’s working arrangements imposed a ‘provision, criterion or practice’ (“PCP”) that placed Mr Harvey at a disadvantage. So, the question then was, whether the PCP was a proportionate means of achieving a legitimate aim. The tribunal found that the bus company had established legitimate aims of ensuring efficiency, fairness to all staff, and recruitment and retention. In upholding Mr Harvey’s claim, however, the tribunal ruled that the PCP was not justified becausethere was insufficient evidence to support one of the legitimate aims – maintaining a ‘harmonious workforce’.
On appeal to the EAT the decision was overturned the decision. It was incorrect of the tribunal to focus on the particular application of the rule on the claimant rather than the general justification for the rule. The tribunal had recognised that the bus company’s problems arose not from granting the Mr Harvey’s request, but from granting many such requests, and in doing so meant it had failed to balance the general aims of the bus company with the potentially discriminatory impact of the rule. The judge remitted the case back to the original tribunal to reconsider this issue.
Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
The Information Commissioner’s Office (ICO) has carried out investigations into nuisance marketing which, by working with the Insolvency Service, has led to 16 company directors being banned from running a company for more than 100 years in total. One of the worst offenders was Richard Jones who has been barred from being a company director for eight years after his two companies, Your Money Rights Ltd and Miss-Sold Products UK Ltd were responsible for 220 million automated nuisance calls, most of which were in respect of PPI claims. The companies’ breaches resulted in total fines of £700,000 in 2017, which Mr Jones then tried to avoid by applying to wind up the companies. This was blocked by the ICO which then referred the case on to the Insolvency Service.
New legislation which came into force in December 2018 means that the ICO now has powers to make company directors and other company officers personally liable for the fines imposed for illegal marketing.
BREXIT: ICO website contains SME Brexit preparation tools
Who knows what the next few weeks have in store, but that’s not very helpful for businesses. Whilst most businesses may well be more prepared than the government, the ICO has produced guidance and practical tools to help organisations prepare in terms of their data, including: Data Protection and Brexit Law enforcement processing: Five steps to take, Data protection in the event of a no-deal Brexit, aimed at UK based businesses or organisations to which the GDPR or Part 3 of the Data Protection Act 2018 currently applies to their processing of personal data.
Data Protection: Vote Leave Ltd fined £40,000 by ICO
Vote Leave Limited has recently been fined £40,000 by the Information Commissioner’s Office (ICO) for sending out thousands of unsolicited text messages run up to the 2016 EU referendum. An ICO investigation found that Vote Leave sent 196,154 text messages promoting the aims of the Leave campaign with the majority containing a link to its website. Vote Leave claimed the contact information it had used to message people was obtained from enquiries which had come through their website; from individuals who had responded via text to promotional leaflets; and from entrants to a football competition. However, the organisation said that following the conclusion of the referendum campaign it had deleted evidence of the consent relied upon to send the messages. Also deleted were details of the phone numbers the messages were sent from, the volume of messages sent, and the volume of messages received. Being unable to provide evidence that the people who received the messages had given their consent (a key requirement of electronic marketing law) made them liable for this fine.
This latest fine is part of the ICO’s ongoing investigation into the use of data in political campaigns. As a result of the investigation the ICO has taken action against a number of different organisations engaged in campaigning for breaches of direct marketing and data protection laws.
Immigration: Seasonal workers’ pilot opens
In September 2018, the Home Secretary and Environment Secretary announced that, having listened to farmers, they were introducing a nationwide pilot scheme seasonal workers to bring seasonal migrant workers to UK farms. The pilot opened on 6 March meaning that UK fruit and vegetable farmers will be able to employ migrant workers for seasonal work for up to 6 months. Subject to recruitment and visa application processes, the pilot, which runs until the end of December 2020, will allow up to 2,500 workers from outside the EU into the UK each year. Concordia and Pro-Force are the two scheme operators who have been licensed to manage the pilot. It is their responsibility to identify suitable workers who they will then match to UK farmers, as well as ensuring the welfare of the workers whilst they are in the UK.
The aim is to test the effectiveness of the immigration system at alleviating labour shortages during peak production periods.The pilot will be reviewed before any decisions are taken on running a future scheme.
Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
In October 2018, the Home Office was moved to action following pressure from numerous groups frustrated by what they see as ‘blatant compliance failures’. It began with the Home Office writing directly to the chief executives of 17,000 businesses telling them to open up about modern slavery in their supply chains, or risk being named as in breach of the Modern Slavery Act. The letter gave the companies a grace period to comply – which ends on 31 March 2019.
Those businesses which do not comply by the deadline date will be “named and shamed” in a public report. The ‘naming and shaming’ is seen as a prelude to strengthening the reporting requirements under the legislation and, possibly, introducing sanctions for non-compliance.
The government reports that:
Businesses with a turnover of more than £36 million must publish annual transparency statements, known as a Modern Slavery Statement, setting out what they are doing to stop modern slavery and forced labour practices occurring in their business and supply chains. At the moment, it is estimated that 60% of companies in scope have published a statement. Whilst there are many examples of good practice, some of these statements are poor in quality or fail to even meet the basic legal requirements.
Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
The Department for Business, Energy and Industrial Strategy (BEIS) has published guidance and an online calculator on how to calculate holiday pay for workers whose hours or pay are not fixed. This guidance is intended to help employers pay the correct amount of holiday pay for all their workers.
In simple terms, the Working Time Regulations 1998 mean that almost all workers are legally entitled to 5.6 weeks’ paid holiday per year, with the pay being calculated based on the amount of hours they work and how they are paid for those hours. For workers who do not work fixed or regular hours, and therefore do not receive the same amount of pay each week, month or other pay period, it can be more complicated. This guidance helps employers calculate holiday for such workers, using the holiday pay reference period (a worker’s previous 12 week paid period) and gives examples of what to do if you don’t have 12 weeks of data, when the reference period starts, what the definition of week is, etc.
Wages: National Minimum Wage and National Living Wage set to increase from 1 April
In the Budget 2018, in response to the Low Pay Commission’s recommendations the Chancellor, Philip Hammond, announced new National Minimum/Living Wageincreases from 1 April 2019 as follows:
- from £7.83 to £8.21 for workers aged 25 and over (the National Living Wage)
- from £7.38 to £7.70 for 21-24 year olds
- from £5.90 to £6.15 for 18-20 year olds
- from £4.20 to £4.35 for 16-17 year olds
- from £3.70 to £3.90 for apprentices aged under 19 or in the first year of their apprenticeship.