Tag Archive: diversity

  • Employment Law General Update – July 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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    Further Information:

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

  • Employment Law Newsletter – October 2021

    Cases:

    • Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
    • Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
    • Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
    • Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures

    Other news:

    • Data Protection: ICO data sharing code of practice under DPA 2018 in force
    • Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
    • New Legislation: Consultation response to tipping, gratuities, cover and service charges
    • Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
    • Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
    • Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market

    Cases:

    Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful

    In R (Cornerstone (North East) Adoption and Fostering Services Ltd) v Chief Inspector of Education, Children’s Services and Skills (Ofsted) [2021]  EWCA Civ 1390, Cornerstone, an independent fostering agency which operates as a charity adhering to evangelical Christian principles, had a recruitment policy requiring foster carers to refrain from “homosexual behaviour“. Cornerstone is regulated by Ofsted, which determined that the recruitment policy should be amended because it was a violation of the Equality Act 2010 (EqA 2010) and the European Convention on Human Rights (ECHR). Cornerstone unsuccessfully applied for judicial review of Ofsted’s decision, the High Court holding that Cornerstone was subject to the EqA 2010 and the ECHR as a hybrid public authority, and that the policy unlawfully discriminated, directly and indirectly, against gay men and lesbians.

    Cornerstone appealed to the Court of Appeal. In a unanimous judgment it held that Cornerstone’s policy was a clear instance of direct and indirect discrimination because of sexual orientation. The Court of Appeal considered whether the policy could be justified, under section 19 of the EqA 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.

    For reasons similar but not identical to the High Court, the Court of Appeal held the policy was not capable of being justified as a proportionate means of achieving a legitimate aim. It emphasised that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. The requirement that discrimination on the ground of sexual orientation required weighty reasons to justify differential treatment was heavily underscored by statute in the case of a religious organisation that provided services to the public. Cornerstone had failed to provide credible evidence to justify the policy.

    In concluding comments, the Court of Appeal noted that the appeal was a collision between two protected characteristics and accepted the need to protect those who are discriminated against in small numbers to progress equality for wider communities.

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    Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims

    In Rooney v Leicester City Council (EA-2020-000070-DA and EA-2021-000256-DA) the EAT has held that a tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010, and in dismissing her disability and sex discrimination, harassment and victimisation claims. The tribunal’s judgment failed to properly analyse the claims and consider the evidence presented to it, and it was not Meek-compliant as it did not adequately explain why the claims were dismissed. The claims were remitted to a differently constituted tribunal.

    This case is an example of the difficulties faced by menopausal women in the workplace and the challenges that can arise in establishing that their symptoms amount to a disability. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. This is only the second appellate case concerning menopause discrimination at work that we are aware of, illustrating that these decisions are rarely appealed. The Women and Equalities Committee have recently held an inquiry into this area and their recommendations are awaited.

    A reminder that ACAS has produced guidance for employers on how to deal with the impact of the menopause on employees at work: https://www.acas.org.uk/menopause-at-work

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    Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy

    In conjoined appeals in Pitcher v Chancellor, Masters and Scholars of the University of Oxford [2021] 9 WLUK 293 regardingProfessor Pitcher (an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John’s College) and Professor Ewart (an Associate Professor in Atomic and Laser Physics at the University), the EAT has upheld two opposing employment tribunal decisions on the objective justification of a directly discriminatory employer justified retirement age (EJRA) operated by Oxford University and St John’s College. In the first case, an employment tribunal found the EJRA to be justified and the retirement dismissal fair. In contrast, in the second case, a differently constituted employment tribunal upheld the direct age discrimination and unfair dismissal claims, finding that the EJRA was not objectively justified.

    The EAT dismissed the appeals against both employment tribunal decisions. The EJRA facilitated the achievement of the legitimate aims (inter-generational fairness, succession planning, and equality and diversity) by ensuring vacancy creation was not delayed. In terms of objective justification, the EAT held that the nature of the assessment undertaken by employment tribunals means it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims. While acknowledging that that it is undesirable for an employer to be faced with conflicting tribunal decisions relating to a particular policy, the EAT’s task is not to strive to find a single answer, but to consider whether either tribunal erred in law.

    There were two material differences in the way in which the evidence was presented to the tribunals. First, one tribunal had the benefit of statistical evidence on the impact of the EJRA upon the creation of vacancies, which was not available to the other tribunal. Second, the tribunals received different evidence on the detriment suffered by those to whom the EJRA applied and so were entitled to give different weight to the mitigating factors relied on. Following a detailed analysis of the evidence considered and the reasoning adopted by each tribunal, the EAT concluded that neither had erred in law in coming to the conclusions they had on objective justification.

    While the upholding of opposing decisions is undesirable from a wider employment law perspective, particularly for employers seeking to justify their own compulsory retirement policy, it demonstrates the importance that such employers should place on evidence or, if unavailable, reasoned projections of the impact of a policy on the achievement of its legitimate aims.

    Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures

    In Secure Care Ltd v Mott EA-2019-000977-AT (19 October 2021) the EAT has overturned a tribunal’s decision that an employee had been automatically unfairly dismissed in a whistleblowing case. The claimant, Mr Mott, had made a number of complaints to his employer about staff shortages, long working hours, rest breaks and other staffing difficulties, which he said endangered health and safety. He was dismissed, ostensibly for redundancy, and brought a tribunal claim for unfair dismissal under section 103A of the Employment Rights Act 1996, arguing that he had been selected for redundancy because he had made protected disclosures.

    The tribunal found that three of his nine alleged disclosures were qualifying disclosures and that these met the test for protected disclosures. The tribunal found that “the fact that he had been ‘pointing out problems’ (in a number of communications some of which amounted to qualifying disclosures) clearly had a material effect on his selection [for redundancy]“. Although there was a genuine redundancy situation, Mr Mott’s dismissal was therefore automatically unfair.

    On the employer’s appeal, the EAT held that the tribunal had erred in two respects. First, it had wrongly applied the test in Fecitt v NHS Manchester [2012] ICR 372 (CA), in considering whether the protected disclosures “materially influenced” the employer’s treatment of the claimant. This test should only be applied to claims for detriment short of dismissal under section 47B. The unfair dismissal test under section 103A is whether the protected disclosures were the “sole or principal reason” for dismissal.

    Second, the tribunal had failed to confine its consideration to the effect of the three protected disclosures. Rather, it had considered the combined impact and effect of the claimant’s communications about staffing levels and the associated problems this gave rise to.

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    Other News:

    Data Protection: ICO data sharing code of practice under DPA 2018 in force

    The Information Commissioner’s Office (ICO) has updated its Data sharing information hub, confirming that a new version of its statutory data sharing code of practice came into force on 5 October 2021.   The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and Data Protection Act 2018 (DPA 2018), including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements.   Section 121 of the DPA 2018 requires the ICO to issue a data sharing code, either by way of amendments to an existing code or by way of a replacement code. The new code replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998.   The code has been issued under section 125 of the DPA 2018; a failure to act in accordance with it does not of itself make a person liable to legal proceedings in a court or tribunal, but the code is admissible in evidence in legal proceedings.

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    Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy

    Website ‘Moneymarketing.co.uk’ reports that The Pensions Regulator has warned gig economy employers that they must “voluntarily and promptly” comply with their auto-enrolment obligations or risk enforcement action.

    This comes after Uber recently announced its plan to offer a pension scheme provided by NOW: Pensions to all its eligible UK drivers, following the Supreme Court’s February 2021 ruling that Uber drivers were “workers” and therefore qualified for auto-enrolment.

    Commenting on the news, a spokesperson for the Regulator welcomed the “landmark” initiative, adding that “we want to see all eligible workers in this sector have access to pensions saving“.

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    New Legislation: Consultation response to tipping, gratuities, cover and service charges

    The government has responded to the 2016 consultation on tipping, gratuities, cover and service charges, and has confirmed its intention, first announced in 2018, to legislate to provide that tips left for workers are retained by them in full.

    Measures to be included in the forthcoming Employment Bill will include:

    • Requirements for employers in all sectors not to make any deductions from tips received by their staff, including administration charges, other than those required by tax law.
    • Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
    • Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but should respond within four weeks.
    • Requirements for employers to have regard to a statutory Code of Practice on Tipping. It is expected that this would replace the existing voluntary code of practice, published in 2009.

    Workers will be able to enforce these rights in the employment tribunals. The response states that the Employment Bill will be brought forward when Parliamentary time allows. The new rules are expected to come into force no earlier than one year after the Bill has been enacted.

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    Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace

    Two new reports show that many employers continue to struggle to recruit and retain Black employees. Many Black job applicants feel they are treated unfairly in the recruitment process and continue to face racism at work with inadequate support. The Institute of Student Employers reported that 54% of employers have a strategy to attract Black candidates to their business but only 44% of employers track retention. Another survey, Race at Work, has found that although job applicants from Caribbean (71%) and African (67%) backgrounds are more likely to use a recruitment agency than white people (47%), only 34% of Black candidates felt they are treated fairly, compared to 49% of white people.

    Black employees continue to face specific challenges in the workplace, including explicit and covert racism and a lack of representation of Black people in senior positions. Black graduates have called for more support to help successfully transition into the workforce. Currently, less than a quarter of employers provide dedicated support to help their Black recruits address the challenges they face.

    The Institute of Student Employers identified that to make a tangible difference, CEO backing is required, and set out five ways companies can support Black graduates before and during their careers, including:

    • Being an ally
    • Preparing all students for diverse workplaces and addressing racism and diversity as part of this
    • Turning recruitment into a force for equality – ensuring that recruitment processes are overhauled to ensure that they are not biased and discriminatory
    • Maximising the potential of hires from Black heritage backgrounds – Recognising that organisations need to support hires from Black heritage backgrounds during their early careers
    • Transforming your organisation and influencing the world around you – Calling on all stakeholders to make more fundamental changes to ensure representation at all levels of their organisations and that they should lend their voices to wider campaigns for racial justice.

    Additionally, the Race at Work report makes several recommendations for the recruitment industry and employers including:

    • Critically examining entry requirements, focusing on potential achievement rather than which university or school the individual went to
    • Drafting job specifications in plain English and providing an accurate reflection of essential and desirable skills to ensure applications from a wider set of individuals
    • Larger employers ensuring that the selection and interview process is undertaken by more than one person, ideally including individuals from different backgrounds to help eliminate bias
    • Seeking opportunities to provide work experience to a more diverse group of individuals and stopping the practice of unpaid or unadvertised internships.

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    Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work

    A new report published by the Fawcett Society, Tackling Sexual Harassment in the Workplace, shows that at least 40% of women experience sexual harassment during their career. Twenty-three per cent of those surveyed said that the sexual harassment increased or escalated while they were working from home during the COVID-19 pandemic. Disabled women surveyed were more likely to have experienced sexual harassment (68%) than women in general (52%). Employees from ethnic minority backgrounds, both men and women, reported experiencing sexual harassment at a higher level than white employees, with rates of 32% and 28% respectively. The report also found that 68% of LGBT employees had experienced harassment in the workplace.

    Culture, policy, training, reporting mechanisms and the way employers respond to reports are five critical elements to help create a workplace intolerant of sexual harassment. The report recommends that employers should:

    • Take all forms of sexual harassment seriously.
    • Treat employees who report sexual harassment with respect and empathy and ensure women feel able to report harassment, including facilitating anonymous reporting.
    • Increase gender equality within the organisation, especially at senior levels.
    • Demonstrate leadership commitment to tackling harassment.
    • Measure their organisational attitudes towards sexual harassment by conducting an employee survey.
    • Provide managers dealing with reports with guidance and support.
    • Have a clear and detailed sexual harassment policy that is separate to their general harassment and bullying policy.

    The recommendations in the report will form the basis of a sexual harassment toolkit for employers which will be published next January. Employers can sign up to receive a copy of the toolkit (see Fawcett Society: Sexual Harassment Toolkit for Employers).

    Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market

    On 8 October 2021, BEIS published a report prepared by PwC, The Potential Impact of Artificial Intelligence on UK Employment and the Demand for Skills. For the purposes of the report, artificial intelligence (AI) is a collective term for digital systems and machines that can, in at least some ways, sense their environment, think, learn and take action in response to what they are sensing and their objectives. The report considers two main questions:

    • Whether AI and related technologies (such as robots, drones and autonomous vehicles) will follow historical patterns by triggering significant structural labour market change.
    • How large the disruption to labour markets from AI will be and what form it will take.

    The report concludes that, while AI and related technologies should not cause mass technological unemployment (by displacing large numbers of workers from their jobs), they may lead to significant changes in the structure of employment across occupations, sectors and regions of the UK. The effects may be relatively small over the next five years but could become more material over the next ten to 20 years. They may add to income inequalities by tending to favour people with higher education and skills levels, who also tend to have higher earnings levels.

    PwC’s modelling estimates that professional occupations will experience the highest net job gains over time, with nearly half the increase being in jobs for health professionals and the other half spread between scientists, researchers, engineers, technologists, educators, businesspeople, media professionals and civil servants. AI in these occupations is likely to be largely labour-augmenting and used to perform specific tasks that increase productivity (for example, lawyers using AI to read large numbers of cases to search for precedents and other arguments to use in a current case). Managerial occupations, for which tasks involved are difficult to automate, and occupations requiring “human touch” (such as caring or leisure) are also likely to experience net job creation. Other occupations are likely to experience changing patterns over time, with sales and customer services experiencing the highest rate of job displacement over the next five years, administration experiencing particularly high displacement in five to ten years and manual occupations (including taxi drivers) experiencing high rates of displacement but probably not before the 2030s.

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    Further Information:

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

  • Employment Law Newsletter – June 2021

    Cases: 

    • 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  

    Other news: 

    • 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 

    Cases:  

    Contracts: Prior period of illegal performance did not prevent subsequent enforcement of contract  

    In Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi [2021] 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 [2016] 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.  

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    Discrimination: Gender critical belief was a “philosophical belief” under the Equality Act 2020 

    In Forstater v CGD Europe and others [2021] 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 [2010] 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. 

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    Discrimination: Absence of interim relief remedy for discrimination cases not incompatible with ECHR 

    In Steer v Stormsure Ltd [2021] 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.  

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    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 [2021] EWCA Civ 680the 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.  

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    Fiduciary Duties: No-conflict rule and fully informed consent 

    In Reader v SPIE Ltd & another [2021] 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.  

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    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.  

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    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. 

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    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. 

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    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 [2021] 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. 

    Other News:  

    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.  

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    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.  

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    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. 

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    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. 

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    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“. 

    Further Information

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

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  • Employment Law Newsletter – December 2020

    Cases:

    • 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

    Other news:

    • 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

    Cases:

    Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not

    In Berkeley Catering Limited v Jackson [2020] 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.

    Other News:

    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.

    Further Information:

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

  • Employment Law Newsletter – October 2020

    Cases:

    • 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

    Other news:

    • 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

    Cases:

    Age discrimination: Establishing group and individual disadvantage for indirect discrimination

    In Ryan v South West Ambulance Services NHS Trust [2020] 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 [2020] 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 [2020] 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 [2020] 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 [2020] 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 [2020] 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.

    Other News:

    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.

    Further Information:

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

  • Employment Law News – February 2020

    Cases:

    • 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

    Other news:

    • 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 [2001] 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 [2020] 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:

    1. 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.
    2. 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.
    3. 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 [2020] 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.

    Other News:

    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.

    Further Information:

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

  • Employment Law Newsletter – November 2019

    Cases:

    Other news:

    Withholding Wages: Employer cannot rely on Home Office negative right to work check notice

    In a decision that will make every employer roll their eyes, the EAT has recently decided that receiving a negative verification notice from the Home Office in response to an Employer Checking Service (ECS) right to work check request was not sufficient to allow an employer to withhold pay from an employee.

    In the case of Badara v Pulse Healthcare Limited UKEAT/0210/18 the employer held an honest but mistaken belief that a non-EEA national (Nigerian) had to provide documentary evidence of their right to work, and this was a clause written into their contracts. Mr Badara was, in fact, entitled to an automatic right to work as a result of being a family member of an EEA national – the strict legal position irrespective of documentary evidence. Given this, when the employer requested an ECS from the Home Office, it should have provided a positive result, but for some reason came back negative. The employer therefore refused to provide Mr Badara with work and wages for fear of breaching the Immigration Asylum and Nationality Act 2006. The tribunal concluded that it was not unreasonable in the circumstances for the employer to rely on the ECS checks. However, the EAT disagreed because had the tribunal applied the ‘Additional Information’ section of the Right to Work guidance from the Home Office and the appropriate case law (Okuoimose v City Facilities Management Ltd UK EAT 2011) then it would have followed that the right to work would have been established, although the guidance states that a statutory excuse might not be established. The act of dismissal was prima facie indirectly discriminatory. The tribunal’s decision that the dismissal was justified could not stand and the employee’s claims for unlawful deduction from wages and indirect race discrimination were remitted to the tribunal for reconsideration.

    A note for employers: despite the threat of the penalty provisions in the  Immigration Asylum and Nationality Act 2006, Home Office guidance (and case law) states that an ECS check is not always enough to determine eligibility to work. If in any doubt, read all the guidance and seek professional advice.

    Redundancy: Trial period and dismissal

    In a redundancy situation, s.138 of the Employment Rights Act states that an employee is entitled to an automatic four week ‘statutory’ trial period in an alternative position if they have been dismissed as a result of redundancy, they accept an alternative role before the old one comes to an end, the new contract begins either immediately after the old role, or within 4 calendar weeks of the end of the old role, and the terms of the new contract differ from the original contract. This means that if there is no dismissal (or notice of dismissal) from the old role, then there can have been no statutory trial period.

    In the case of East London NHS Foundation Trust v O’Connor [2019] UKEAT 0113_19_2910, Mr O’Connor was told in March 2017 that due to a reorganisation, his role of Psycho-Social Intervention Worker was going to be ‘deleted’ with effect from 3 July 2017, putting him at risk of redundancy. He was offered an alternative role on a trial basis as Care Coordinator, starting from 3 July 2017. There was a disagreement as to whether this was suitable alternative employment, following which Mr O’Connor pursued a grievance. When that proved unsuccessful, the employer re-offered him the Care Coordinator position, which he declined. Mr O’Connor was dismissed in December 2017.

    Mr O’Connor claimed he was owed a redundancy payment but the employer refused. It argued that the statutory trial period had ended on 9 August 2017 and the Care Coordinator role was a suitable alternative employment which Mr O’Connor had unreasonably refused. Thus, he was not entitled to a redundancy payment.

    The EAT upheld the tribunal’s finding that Mr O’Connor had not actually been dismissed in July,  and that the deletion of his role did not, in fact, amount to notice of dismissal – there being no rule of law which said so. The tribunal found that it was a matter of considering all the facts and circumstances to establish what happened. In this case, the evidence pointed to Mr O’Connor having started a trial in July without having been dismissed, which happened in December. The result was that this matter was remitted to the tribunal to consider the question of whether it was in fact dismissal by way of redundancy and therefore what payment may be due.

    Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?

    The European Court of Human Rights recently handed down its decision in López Ribalda and others v Spain. The matter concerned a supermarket where the manager noticed some inconsistencies between the stock level and the sales figures, running into thousands of Euros over a number of months.  The manager launched an internal investigation and installed CCTV cameras, some visible and other hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. The employees were told that the manager suspected theft and about the installation of the visible cameras, but not the hidden ones. Prior to this, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked.

    The CCTV did indeed show how the thefts were being carried out, which tallied with the stock reports and till receipts. The management informed the employees’ union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. Fourteen employees were dismissed with immediate effect, including the five applicants, of whom three signed settlement agreements in which it was agreed no criminal proceedings would be brought against them and other employment claims would be waived by both sides. Only the manager and the union representative watched the CCTV footage.

    The five applicants then brought unfair dismissal claims against the supermarket.  The applicants objected to the use of the covert video-surveillance, arguing that it had breached their Article 8 right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings. The employer opposed the proceedings brought by the 3 employees who had signed settlement agreements but those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.

    The Spanish employment tribunal found that any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights – an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. Courts are supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In this case, it had found that the covert CCTV had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Spanish Constitution. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful. Further, there had been no evidence of coercion or manipulation by the employer regarding the settlement agreements.

    The Grand Chamber of the European Court of Human Rights held by a majority of 14 to 3 upheld the decisions of the lower courts that a fair balance had been struck and the intrusion was proportionate because the employer had legitimate reasons. No violation of the Article 8 right to respect for private and family life had occurred. Not being informed in advance that they would be recorded did not violate the employees’ Article 8 right to private life. The Court held that employees should have a limited expectation of privacy at work on a supermarket floor (a public area) and found that the employer had taken steps to confine the circulation of the recordings to a very limited number of people. The surveillance was limited to ten days, had stopped once the responsible employees had been identified, and the recordings were targeted at a small group of individuals. 

    The three dissenting judges, however, were concerned by the

    growing influence and control that technology has in our world, and more particularly, the collection and use of our personal data in our everyday activities. As a living instrument, the Convention, and therefore the Court, not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for the private life of individuals.

    Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?

    It is often the case that when it comes to an employer offering an employee a settlement agreement, they agree to pay the costs of that employee taking advice. A common fee is £500+VAT. In order for the agreement to be fair, the employee needs to be given the opportunity to discuss the effect of signing a settlement agreement which in effect means they waive all rights to pursuing any claims against the employer in future.

    In the case of Solomon v University of Hertfordshire [2019] UKEAT 0258_18_2910, one of the EAT judges made an obiter comment at the end of the judgment, basically saying that £500+VAT was not enough for an employee to take full advice on settling their claim:

    … We think it clear that the advice which the Claimant could expect to receive for this sum (or any sum remotely like it) would only relate to the terms and effect of the proposed settlement and its effect on her ability to pursue her rights thereafter (see section 203(3) of the Employment Rights Act 1996). Any advice as to the merits of the Claimant’s claim and the likely award of compensation would require reading and consideration on a quite different scale. So even if the Claimant had sought advice, she would still have had to make her own lay assessment as to the merits of her claim and the likely award of compensation. The ET said, in paragraph 10 of its reasons, that the offer of £500 plus VAT was for a solicitor “to advise on the merits of a settlement”. If so, the offer was wholly unrealistic.

    This may be something to bear in mind when considering settlement agreements, given the amount of the settlement and the potential claims that may be involved. This case concerned a figure of £50,000 regarding claims of unlawful discrimination, victimisation and sexual harassment.

    Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence

    In 2017, the case of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979, set out a two -stage test for determining the question of what is in the “public interest” for whistleblowing claims (i.e. to enable the disclosure to be a qualifying disclosure within s.43B(1) of the Employment Rights Act 1996, making it a “protected disclosure”). The test states that (1) the claimant must believe, at the time of making a disclosure, that it is in the public interest, and (2) that belief must be reasonable. This is a subjective belief, about which that person must be asked directly at tribunal so that they can be cross-examined. It is up to the tribunal to consider the evidence and make findings as to subjective belief and the reasonableness of that belief.

    In the recent case of Ibrahim v HCA International Ltd [2019] EWCA Civ 2007, Mr Ibrahim was an interpreter at a hospital. He asked his employer to investigate rumours that he had breached patient confidentiality, as he wanted to clear his name and reputation. The hospital investigated his complaint but his complaint was rejected and he was later dismissed. He brought several claims to the tribunal, among which was that he had suffered a detriment following making a protected disclosure. The tribunal dismissed his whistleblowing claim on several grounds, one of which was that he had not made it in the public interest but to clear his own name. The EAT agreed, finding that Mr Ibrahim had held no subjective belief in the public interest. Additionally, the judge confirmed that breach of a legal obligation under section 43B(1)(b) of the ERA 1996 can be broad enough to include tortious duties such as defamation and those statutory duties contained in the Defamation Act 2013. It was immaterial that Mr Ibrahim had not used the word ‘defamation’ himself.

    Mr Ibrahim took the matter to the Court of Appeal. The Chesterton two-stage test had been handed down after the tribunal hearing but before the judgment, and so Mr Ibrahim claimed the tribunal had not applied the test correctly. The Court of Appeal found that the tribunal erred in that it should have specifically asked him about his subjective belief, although in this case, it was probably down to the timing of the case. In addition, a further onus was on the tribunal to ensure he explained his case as he was unrepresented. The decision in Chesterton made clear that motive and genuine belief in public interest are not the same thing. Mr Ibrahim had not said anything about public interest, which hampered his case, but did not dispose of the point. His appeal was therefore allowed and the case remitted back to the same tribunal to hear evidence from Mr Ibrahim and for consideration of this point.

    Other News:

    Data Protection: ICO publishes new detailed guidance for Data Protection Officers

    The Information Commissioner’s Office (ICO) has recently published a new set of detailed guidance on ‘Special Category Data’. This guidance is targeted at:

    • those people for whom the existing Guide does not provide the answers you are looking for; or
    • those needing a deeper understanding of the conditions for processing special category data to help you comply in practice;
    • Data Protection Officers; and
    • those with specific data protection responsibilities in larger organisations.

    Special Category Data is a collection of types of personal data which are likely to be more sensitive, and which are therefore entitled to receive extra protection, for example: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; health, sexual orientation, etc.

    This guidance contains practical examples of special category data and its processing requirements and is arranged in four sections:

    • What is special category data?
    • What are the rules on special category data?
    • What are the conditions for processing?
    • What are the substantial public interest conditions?

    It goes into detail regarding the general prohibition on processing special category and the ten exceptions to the prohibition referred to as the conditions for processing special category. The guidance emphasises the importance of identifying special category data and approaching it carefully. If your purpose is not covered by any of the processing conditions and you cannot obtain valid explicit consent, you cannot process the special category data.

    Gender Balance: Hampton-Alexander Review’s fourth annual report published

    On 13 November 2019 the Hampton-Alexander Review announced it has published it fourth Annual Report on improving gender balance in FTSE leadership. The original report was published in 2016 and set a target of getting a minimum of 33% women’s representation on the boards and on the leadership teams (meaning those who either sit on a company’s executive committee or directly report to members of that committee) of FTSE 350 companies by the end of 2020. According to this year’s annual report, this has been the strongest year of progress since targets were first set:

    • FTSE 100 on track to reach the 33% target for women on boards ahead of the 2020 deadline.
    • FTSE 250 made strong gains during the year and with sustained effort, will also meet the 2020 deadline.
    • Women now hold 32.4% of FTSE 100 board positions (up from 30.2% in 2018), but 51 FTSE 100 companies have not yet achieved the 33% target.
    • Women now hold 29.6% of FTSE 250 board positions (up from 24.9%), but 139 FTSE 250 companies have not yet achieved the 33% target.
    • The FTSE 350 still has 2 all-male boards (5 in 2018) and 39 companies that have only one woman on the board, 28 of which have had only one woman for the second year running.
    • Women now hold only marginally more chair, senior independent director and CEO roles. Across the FTSE 350 there are only 25 female chairs (5 in the FTSE 100), 80 female SIDs (20 in the FTSE 100) and 14 female CEOs (6 in the FTSE 100). There are only 74 female executive directors (30 in the FTSE 100), being 11% of executive directors in the FTSE 350.

    However, it also reported that a step-change is needed for senior leadership roles below board level: 50% of all appointments next year need to go to women, or the 2020 target will not be met.

    Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%

    The government’s Office for National Statistics has released its ‘Families and the labour market, UK: 2019’ report. It shows the employment rates of men and women with dependent children in the UK, based on data from the Labour Force Survey and Annual Population Survey. This year’s figures demonstrate that:

    • The number of mothers in the labour market has reached 75.1%, a significant increase compared with 66.2% of mothers in 2000.
    • The number of working fathers has increased from 89.4% in 2000 to 92.6% in 2019.
    • Almost 3 in 10 mothers (28.5%) with a child aged 14 years and under said they had reduced their working hours because of childcare reasons. This compared with 1 in 20 fathers (4.8%).
    • The proportion of parents who faced an obstacle fulfilling responsibilities decreased as the age of the child increased; from 34.9% of parents whose youngest child was aged between 0 and 4 years to 20.4% of parents with a child aged 11 to 14 years.

    This is good news for employers who are arguably getting access to a broader talent pool with more mothers returning to work, and demonstrates how much employers need to be aware of how much family life impacts their workforce – both male and female.

    Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity

    Nuffield Health, working with the University of Manchester and Manchester Metropolitan University, have published a whitepaper on ‘The effects of remote working on stress, wellbeing and productivity’. The opinions of over 7,000 employees were used to gather the data. The paper looks at the varied effects of remote working on different demographics and begins to explore the future of flexible working.

    From the basis of the data, the paper has also made some recommendations for employers who do already, or want to, use remote working. These include:

    • Having an organisation-wide policy on remote-working.
    • Understanding that remote working requires significant management time to ensure it works effectively.
    • Consideration of the impact of remote working on the mental health of employees.
    • Avoiding the feeling of isolation by helping managers to foster social and professional interaction, and providing the sense of belonging to a bigger group.
    • Giving workers training so that they are able to navigate remote working and get the most out of it.
    • Developing a relationship of trust between managers and workers.
    • Ensuring their working space is adequate, wherever it may be.
    • Communication between employers and workers is key to many of these considerations for example, agreeing work hours.

    This is an important read for all employers now that technology is enabling us to have more flexibility. A one-size-fits-all approach could be damaging as workers should be treated on an individual basis to ensure the best working relationship, getting the best out of people, which depends on their individual circumstances.

    National Minimum Wage: Rates for April 2020 delayed by general election

    The Budget is the usual forum for the government to announce the latest National Minimum Wage Rates which are due to take effect from the following April. This year’s Budget has been cancelled due to the general election. Usually, the Low Pay Commission presents its recommendations to the government at the end of October, following which the government sets out its response and confirms any changes thereto in the Autumn Budget.

    With no place for the Chancellor to make his announcement, this may mean it is delayed until January 2020. If your business carries out pay reviews in early January this may mean setting wages without knowing whether you will be able to comply in April.

    The Low Pay Commission’s (LPC) recommendations are not yet known but the CIPD have produced their submission to the LPC earlier in the year, which may provide food for thought.

    Tribunals & Courts: Closures over Christmas and New Year 2019

    Details have now been published by Her Majesty’s Courts and Tribunals Service (HMCTS) of the closures of courts and tribunals over the Christmas holiday period, including Crown Courts, Magistrates’ Courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and Tribunals. For more information see here.

    Further Information:

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