News & Views

Employment Law Case Update – September 2024

Employment,
27th September 2024

Employment Law

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

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

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

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

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

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Unfair Dismissal: Dismissal based on capability and performance is fair

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

News & Views

Employment Law General Update – July 2024

Employment,
26th July 2024

Employment Law

This month we bring you a brief summary of the employment, pensions and immigration highlights of the King’s Speech, a look at new guidance from the EHRC on job advertising and how not to fall foul of the legislation, with a particular reference to the protected characteristic of ‘sex’. We also have a looking at the reasons and recommendations for a Seasonal Worker Scheme and consider the results of the Co-Op’s first pay gap report considering the socioeconomic background of workers.

The King’s Speech 2024: Employment, Pensions and Immigration
Discrimination: EHRC updates its guidance on discriminatory adverts
Immigration: MAC publishes review of the Seasonal Worker visa
Pay Disparity: Co-op publishes socioeconomic pay gap report

The King’s Speech 2024: Employment, Pensions and Immigration

His Majesty, King Charles III, has set out the government’s priorities and proposed policies for the next parliamentary session at the State Opening of Parliament, which took place on 17 July 2024.

This includes 40 legislative proposals to be addressed in the 2024–2025 parliamentary session. In his speech, King Charles explained that the government’s ‘legislative programme will be mission led and based upon the principles of security, fairness and opportunity for all’.

This King’s Speech 2024 focuses on improving the living standards of working people through economic growth and taking the ‘brakes off Britain’. A major employment announcement came in the form of the Employment Rights Bill, as the government commits to deliver its ‘Plan to Make Work Pay: Delivering a New Deal for Working People’ and to legislate to ban zero-hour contracts, end fire and rehire practices, and introduce certain employment rights from day one. The government will also work on delivering a new Draft Equality (Race and Disability) Bill, which will enshrine the full right to equal pay for ethnic minorities and disabled people in law. The Skills England Bill will be introduced to seek to understand national and local skills needs via establishment of a new body, ‘Skills England‘. The Skills England Bill will also establish a new partnership with employers and reform the apprenticeship levy.

Pensions

The speech contained the announcement of a new Pensions Schemes Bill, stating, ‘Bills will be brought forward… to strengthen pensions investment‘. The Bill aims to increase the amount available for pension savers and states it could help an average earner, who saves over their lifetime in a defined contribution scheme, to have over £11,000 more in their pension pots with which to secure their retirement income.

Immigration

The speech also covered the introduction of the new Border Security, Asylum and Immigration Bill which seeks to ‘modernise‘ the asylum and immigration system and strengthen and secure the border.

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Discrimination: EHRC updates its guidance on discriminatory adverts

The Equality and Human Rights Commission (EHRC) has updated its guidance on discriminatory adverts. The main updates are to the section ‘When is an advert which restricts a job or service to particular groups unlawful’. The guidance now includes examples in relation to an ‘occupational requirement’ under Schedule 9 of the Equality Act 2010 and where an occupational requirement applies, the employer must make sure that it is objectively justifiable.

Guidance in relation to the protected characteristic of ‘sex’ now states that ‘sex’ means a person’s legal sex as recorded on their birth certificate or their Gender Recognition Certificate (GRC). This means that a sex-based occupational requirement that an applicant is a woman, as is common within specialist support services for women, such as rape counselling, will include women who are recorded female at birth and also transgender women who have obtained a GRC. The guidance notes, however, that Schedule 9 of Equality Act 2010 also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include people who have obtained a GRC. It states that a ‘sex-based’ occupational requirement to be a woman under Schedule 9 cannot include transgender women who have not obtained a GRC, as they do not have legal status as women under Equality Act 2010.

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Immigration: MAC publishes review of the Seasonal Worker visa

The Migration Advisory Committee (MAC) has published its review of the Seasonal Worker visa, which sets out the reasons for having a Seasonal Worker Scheme, how the scheme works, the economic and social impact of the scheme, the impact of the scheme on employers, the welfare issues that arise for the workers, and recommendations based on five key themes. The report considers the call for evidence that ran from June–October 2023, stakeholder engagement, and both internal and external research.

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Pay Disparity: Co-op publishes socioeconomic pay gap report

The Co-op has become the first retailer to publish a pay gap report based specifically on socioeconomic background. The report collected data submitted voluntarily from 48% of its 57,000 employees, finding a mean pay gap of 5.2% between those of a higher and of a lower socioeconomic background. Employees from a lower socioeconomic background are also less likely to progress into more senior positions, according to the data.

As a result of the findings, Co-op has ‘doubled down’ on its Social Mobility Plan, including campaigning for the government to make socioeconomic background a protected characteristic under the Equality Act 2010. Co-op has also set a target of collecting 80% of socioeconomic employee data for the next 12 months. In addition to the main report, Co-op also published a one-page summary.

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Employment Law Case Update – March 2024

Employment,
24th March 2024

Employment Law

This month’s case updates include a case of unfair dismissal which sparked a debate over the bounds of reasonable responses of an employer in dismissing an employee for posting a racist ‘joke’ on an intranet, we scrutinize parental leave protection against dismissal, look at whether employers can be held vicariously liable for detriments amounting to dismissal caused by co-workers in whistleblowing cases, and take a look at the potential discrimination of a Christian actor removed from a role due to anti-gay social media posts, although she admitted she would never had played that role anyway. Lastly, looking at Equal Pay, we investigate the ‘material factor defence’.

Unfair Dismissal: Band of Reasonable responses
Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave
Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal
Discrimination: Fired ‘Color Purple ‘actor loses appeal over Christian beliefs
Equal Pay: Identification of decision-maker is not essential to material factor defence

Unfair Dismissal: Band of Reasonable responses

In Vaultex UK Ltd v Bialas [2024] EAT 19 the question before the EAT was whether the original tribunal had been entitled to decide that a decision to dismiss an employee for posting a racist ‘joke’ on his employer’s intranet fell outside the band of reasonable responses.

The Claimant posted a racist joke on the Respondent’s intranet, which was used by all its employees. The Respondent was a large company which conducts cash processing. The Claimant had a long, unblemished service record and apologised for his actions but nonetheless, the Respondent decided to dismiss the Claimant for gross misconduct.

The tribunal held that the Claimant had been unfairly dismissed, and had even directed itself, citing pertinent authority, that, in relation to sanction, a band of reasonable responses approach should be applied, and that the tribunal “must not simply substitute its judgment for that of the employer in this case”. The tribunal concluded that, given the Claimant’s record and the fact he had apologised, any sanction above a final written warning fell outside the band of reasonable responses that a reasonable employer could have reached.

The Respondent appealed. The first ground of the appeal was the assertion that the tribunal nevertheless committed the error of substituting its own opinion of the appropriate sanction for that of the Respondent. The second ground was that, on the question of whether the sanction of dismissal was within the band of reasonable responses, the tribunal reached a conclusion which was perverse or not within the range of reasonable decisions open to it.

The EAT found that this was not a case where the tribunal found that there was unfairness because a relevant circumstance was not considered by the employer at all. To the contrary, the tribunal specifically found that the Claimant’s long service and the fact that this was a first offence were taken into account by the Respondent. Secondly, given that the tribunal found that the Respondent’s policies and procedures made it clear that conduct of this sort was considered to be potentially so serious that it could result in dismissal for a first offence, and, indeed, that they explained that, even if not directed at another employee, such conduct might amount to discriminatory harassment of colleagues exposed to it, and that this post was placed on an intranet used by the entire workforce, they did not find that it was reasonably open to the tribunal to conclude, if it did, that the Claimant’s prior clean record of long service meant that dismissal was outside of the reasonable band of responses.

The EAT therefore held that the tribunal had, in fact, substituted its own view for that of the Respondent and upheld both grounds of appeal. The EAT concluded that “any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think the decision, was within the band of reasonable responses open to the employer in this case“. It held that the response was within the band of reasonable responses and therefore substituted a finding of fair dismissal.

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Parental Leave: Protection against dismissal can arise before employee gives notice to take parental leave

In Hilton Foods Solutions Ltd v Wright [2024] EAT 28 the EAT had to consider how protection from dismissal arises regarding parental leave. An employee is protected against being dismissed because s/he took parental leave. In broad terms, an employee is also protected if s/he ‘sought’ to take parental leave, pursuant to regulation 20 of the Maternity and Parental Leave Regulations 1999 (MAPLE Regs), SI 1999/3312. His Honour Judge Tayler noted that this appeal raises one point of construction; what is required for an employee to have ‘sought’ to take parental leave? The Respondent argued that the employee must have complied with certain formal requirements of the MAPLE Regs that are a prerequisite of exercising the right to take parental leave. The Claimant (Mr Wright) argued that whether an employee has sought to take parental leave is a question of fact for the appreciation of the Employment Tribunal having considered all the relevant evidence.

The EAT held that the use of the word ‘sought’ was of an ordinary English construction and therefore the question of whether an employee has ‘sought’ to take parental leave for the purposes of this regulation 20 should be based on a factual determination made by the employment tribunal having considered the relevant evidence and circumstances. In addition, it concluded that there is no absolute requirement that the employee must have given notice to take parental leave pursuant to paragraphs 1(b) and 3 of MAPLE Regs, Schedule 2.

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Whistleblowing: Employer cannot be vicariously liable for detriment caused by act of co-worker which amounts to dismissal

In Wicked Vision Ltd v Rice [2024] EAT 29, the Claimant brought a claim of automatic unfair dismissal against the Respondent on the basis that he was dismissed because he had made protected disclosures. The Claimant later tried to amend his claim, to add that the act of the dismissing officer in dismissing him was a detriment on grounds of whistleblowing for which the Respondent was liable. The tribunal allowed the amendment.

At appeal, the EAT disagreed with the tribunal and held that:

a claimant cannot claim that their employer (a company) is vicariously liable under section 47B(1B) of the Employment Rights Act 1996 (ERA 1996) for the act of a co-worker (in this case the company’s owner) for the ‘detriment of dismissal’; and
such a claim is barred by ERA 1996, s 47B(2) because the alleged detriment ‘amounts to dismissal (within the meaning of Part X)’ of ERA 1996.

Therefore the correct claim was the one originally made by the Claimant.

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Discrimination: Fired ‘Color Purple’ actor loses appeal over Christian beliefs

In Omooba v (1) Michael Garrett Associates Ltd (ta Global Artists) (2) Leicester Theatre Ltd [2024] EAT 30 the EAT held that a theatre company did not discriminate against a Christian actor when it dropped her from a role in a musical production of ‘The Color Purple’ over an anti-gay social media post.

The Claimant was an actor, cast to play the role of Celie in the stage production of ‘The Color Purple’. Celie is seen as an iconic lesbian role and, when the claimant’s casting was announced, a social media storm developed relating to a past Facebook post in which she had expressed her belief that homosexuality was a sin. The consequences of that storm led to the termination of the Claimant’s contracts with the theatre (the Second Respondent) and her agency (the First Respondent). Arising out of those events, she brought Employment Tribunal (“ET”) claims of religion and belief discrimination and harassment, and breach of contract. Shortly before the ET hearing, having only then read the script, the Claimant volunteered she would never in fact have played the part of Celie, and would have resigned from the role in due course. She continued with her claims, but these were all dismissed and an award of costs made against her.

The Claimant appealed against those decisions, and against a further order relating to the continued use of the hearing documents. The Respondents cross-appealed the ET’s finding that the Claimant had suffered detrimental treatment, its failure to find that there was an occupational requirement that the actor playing Celie had not manifested a belief such as that expressed in the Claimant’s Facebook post, and its failure to find that keeping the Claimant on the books of the agency would effectively have amounted to compelled speech.

The EAT dismissed the appeals. Although, contrary to the Respondents’ first ground of cross-appeal, it had been open to the ET to find that the Claimant had suffered detrimental treatment, it had not fallen into the error of confusing reason and motive but had permissibly found that, whilst the Claimant’s belief formed part of the context, it was not a reason for either her dismissal by the theatre or the termination of her agency contract. In the circumstances, it was unnecessary to rule on the occupational requirement or compelled speech arguments. As for the harassment claim, the ET had not failed to have regard to the impact on the Claimant of the social medial storm (the “other circumstances” for the purposes of section 26(4)(b) Equality Act 2010), but had found that the Respondents had not caused, or contributed to, that circumstance, and permissibly found that the Claimant’s treatment had not reasonably had the requisite effect.

The ET had also been entitled to reject the Claimant’s argument that any breach of ECHR rights would amount to a “violation of dignity”; that argument was academic, as the ET had not found that any of the Claimant’s ECHR rights had been infringed. The ET had also been correct to dismiss the Claimant’s breach of contract claim against the Second Respondent. She had been offered the full contract fee, so there was no pecuniary loss. Moreover, as the Claimant knew she would not play a lesbian character, but had not raised this with the theatre, or sought to inform herself as to the requirements of the role of Celie, she was in repudiatory breach of her express obligations, and of the implied term of trust and confidence. Although the Second Respondent was not aware of this at the date of termination, no damages (e.g. for loss of publicity/enhanced reputation) could be due.

In making a costs award against the Claimant, the ET had been entitled to reach the conclusion that her claims either had no reasonable prospect of success from the outset, or that they had no reasonable prospect once the Claimant realised that she would never in fact have played the role of Celie, or that the conduct of the claims had been unreasonable; as such it had permissibly found the threshold for a costs award was met. As for the Claimant’s objection to the amount of the award (the entirety of the Respondents’ costs, subject to detailed assessment), the ET: (i) was entitled to find that the change in the Claimant’s case had an effect on the entire proceedings, and (ii) had drawn inferences that were open to it on its findings as to the conduct of the Claimant’s case, such that it had permissibly taken into account the resources of those who had supported the litigation for their own purposes. As for the order restricting the future publication of all hearing documents, that had been a decision open to the ET under its powers of case management. It had had due regard to the open justice principle and been entitled to exercise its discretion in the way that it had.

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Equal Pay: Identification of decision-maker is not essential to material factor defence

In Scottish Water v Edgar [2024] EAT 32, the Claimant brought an equal pay claim under the Equality Act, 2010. Her comparator was a male employee with the same job title and within the same pay band who had been appointed after her. The Appellant raised a ‘material factor defence’ (i.e. the employer is able to give a genuine reason for the difference in pay between the Claimant and their comparator that is not related to gender) that the difference in pay was due to the comparator’s superior skills, experience and potential. The Appellant led evidence about discussions within its organisation about those matters and about the resultant level of salary ultimately offered to the comparator at the time of his appointment. It also sought to lead comparative evidence of the Claimant’s skills, experience and potential both at the time of and after his appointment.

The Employment Tribunal (ET) directed itself that the Appellant required to prove the identity of the pay decision-maker at the point in time when the comparator was engaged. It concluded that the Appellant had not done so, and that the material factor defence accordingly failed. It also directed itself that comparative evidence of the respective skills, experience and potential of the Claimant and the comparator in a period of time after the comparator’s appointment was irrelevant.

The EAT held that:

an employer does not need to prove the identity of the decision-maker in order to establish a material factor defence to an equal pay claim, and
comparative evidence of the respective skills and abilities of the claimant and the comparator from a period in time after the comparator’s appointment is not necessarily irrelevant to the employer’s defence, according to the EAT.

The ET’s judgment was set aside and the preliminary issue was remitted to a differently constituted tribunal. It was observed that the primary purpose of the reasons section of any decision of an ET should be to explain to the parties clearly and concisely why the tribunal reached its decision.

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Employment Law General Update – February 2024

Employment,
26th February 2024

Employment Law

Welcome to our February employment law updates covering issues such as: the EHRC’s guidance on menopause in the workplace under the Equality Act, the National Minimum Wage sees latest amendments, over 500 companies are named and shamed for wage non-compliance. Discussions around ‘fire and rehire’ practices intensify, and updates on Skilled Worker and Family Immigration are announced, including changes limiting careworkers’ dependents and ending the Ukraine Family Scheme. Stay informed as we navigate these key developments.

Equality Act: EHRC issues menopause in the workplace guidance for employers
Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024
Pay: 500+ companies named and shamed for not paying National Minimum Wage
Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement
Immigration: Dates announced on Skilled Worker and Family Immigration
Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

Equality Act: EHRC issues menopause in the workplace guidance for employers

The Equality and Human Rights Commission (EHRC) has issued new guidance on menopause in the workplace, setting out employer’s legal obligations under the Equality Act 2010. The new guidance aims to clarify these obligations and provide practical tips for employers on making reasonable adjustments and fostering positive conversations about the menopause. If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, they may be considered a disability. Under the Equality Act 2010, an employer will be under a legal obligation to make reasonable adjustments and to not discriminate against the worker. Additionally, workers experiencing menopause symptoms may be protected from less favourable treatment related to their symptoms on the grounds of age and sex.

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Pay: National Minimum Wage (Amendment) (No 2) Regulations 2024

The draft National Minimum Wage (Amendment) (No 2) Regulations 2024, which are due to come into force on 1 April 2024:

abolish the rate of the national minimum wage for workers who are aged 21 or over (but are not yet aged 23 years) so that workers aged 21 or over will now qualify for the national living wage, rather than a lower national minimum wage rate;
increase the rate of the national living wage for workers who are aged 21 or over from £10.42 to £11.44 per hour;
increase the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £7.49 to £8.60 per hour;
increase the rate of the national minimum wage for workers who are under the age of 18 from £5.28 to £6.40 per hour;
increase the apprenticeship rate for workers within SI 2015/621, reg 5(1)(a), (b), from £5.28 to £6.40 per hour;
increase the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £9.10 to £9.99 for each day that accommodation is provided.

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Pay: 500+ companies named and shamed for not paying National Minimum Wage

The Department for Business and Trade (DBT) has named more than 500 companies for not paying national minimum wage to over 172,000 employees. Defaulting employers have been ordered to repay these workers almost £16m to backfill these breaches. This is the 20th list to be published by the government since the introduction of the naming scheme in 2013 under which it publicly ‘names and shames’ employers who fail to pay the minimum wage. The ‘naming and shaming’ scheme was paused from July 2018 until it recommenced in February 2020 in a revised form.

Employers named include major high street brands, including Estee Lauder, Easyjet, Greggs, Wickes and River Island. One employer, Staffline Recruitment Ltd, failed to pay £5,125,270.93 to 36,767 workers.

The businesses named have since paid back what they owe to their staff and have also faced financial penalties of up to 200% of their underpayment. The investigations by His Majesty’s Revenue and Customs (HMRC) concluded between 2015 and 2023.

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Fire and Rehire: DBT publishes response to consultation on code of practice on dismissal and re-engagement

The Department for Business and Trade has published a response to the consultation on a draft statutory code of practice on dismissal and re-engagement. The consultation lasted from 24 January 2023 to 18 April 2023 and considered the action to be taken by employers when considering whether to dismiss and re-engage employees. As a result of the consultation, the government has made a number of changes to the draft code.

Changes to the code include:

a change to the sequencing of the code to ensure the sections on information sharing and consultation appear earlier;
the separate lists of information for employers to share located at paragraphs 25 and 33 have been combined;
the requirement for employers to conduct a full re-assessment of plans after information sharing and consultation;
changing the obligation to phase in changes to ‘best practice’;
a reduction in the length of the code and amendments to make it clearer and less technical;
a greater requirement on employers contacting ACAS prior to dismissal and re-engagement.

The full response can be found here.

The explanatory memorandum can be found here.

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Immigration: Dates announced on Skilled Worker and Family Immigration

The Minister of State for Legal Migration and the Border, Tom Pursglove MP, has made a Statement to the House of Commons giving more details of the timeline for various aspects of the five-point legal migration plan relating to the Skilled Worker and family migration routes. In terms of new announcements, he confirmed that there will be two sets of Statements of Changes in Immigration Rules, issued on 19 February 2024 and 14 March 2024, and the dates that the changes will come into force for these purposes.

The 19th February 2024 Immigration Rules will come into force on 11 March 2024 and will:

remove the right for care workers and senior care workers to bring dependants

ensure that care providers in England will only be able to sponsor migrant workers if they are undertaking activities regulated by the Care Quality Commission (CQC)

The 14 March 2024 Immigration Rules will:

raise the Skilled Worker general salary threshold from £26,000 to £38,000 (with some exceptions) from 4 April 2024, and remove the 20% going rate discount for occupations on the Shortage Occupation List (being renamed the Immigration Salary List), as well as temporarily add any occupations as recommended by the Migration Advisory Committee to the new Immigration Salary List
raise the minimum income threshold from 11 April 2024 from £18,600 to £29,000 (in due course it will be raised to £34,300 and then £38,700).

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Immigration: Statement of Changes HC 556 stops careworkers from bringing dependants and ends Ukraine Family Scheme

The Home Office has issued a new Statement of Changes in Immigration Rules HC 556, along with an Explanatory Memorandum (EM). The Statement makes anticipated changes as regards the dependants of careworkers and senior careworkers in the Skilled Worker/Health and Care visa route, and also makes a number of surprise and immediate changes to the Ukraine Schemes, including ending the Ukraine Family Scheme from 3pm on the 19^th February 2024.

Skilled Worker/Health and care visa route

The Statement implements the first part of the Home Secretary’s ‘Five-point plan for Legal Migration’, which seeks to reduce net migration, and removes the possibility for dependent partners and children to apply in the Skilled Worker/Health and Care visa route where the main applicant is applying in, or has leave in either Standard Occupational Code (SOC) codes 6145 (Care worker) or 6148 (Senior care worker). The change will not apply for dependants where the main applicant already has leave in Skilled Worker in either SOC code, or applied for entry clearance or leave in the route on or before 11 March 2024 (and also will not apply where such a main applicant subsequently applies to extend or change employer in either SOC code, or applies for settlement). It will also not apply for children born in the UK.

In addition, sponsors of persons initially applying in either SOC code on or after 11 March 2024 will be required to have Care Quality Commission (CQC) registration and to be currently carrying out a regulated activity. Similar transitional provisions apply as above for further applications by persons who were granted leave under the Rules on or before 10 March 2024 as regards working for a sponsor which does not meet the new requirements.

These changes are effected via amendments to Appendix Skilled Worker, Appendix Skilled Occupations and Appendix Shortage Occupation List of the Immigration Rules. They come into force for applications submitted on and after 11 March 2024. The EM states that the changes are being made ‘in response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand’. It goes on to say that ‘in the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.’

Ukraine Schemes

Closure of the Ukraine Family Scheme

The Statement announces the closure of the Ukraine Family Scheme from 3pm on 19 February 2024. The Ukraine Family Scheme allowed British nationals and those with a qualifying immigration status to sponsor family members. This included immediate and extended family members, as well as the immediate family members of extended family members (e.g. a British national could sponsor a cousin and their children).

Going forwards many people who could have applied under the Ukraine Family Scheme will have to apply under the Homes for Ukraine Sponsorship Scheme instead. This requires an offer of six months accommodation, assessed as suitable by the local authority.

Persons impacted by this change may need advice on alternative immigration options, such as making a human rights claim to join family in the UK.

Reduction in period of leave to 18 months

Ukraine Scheme visa-holders have been receiving three years leave. From 3pm on 19 February 2024 a positive grant of leave will only result in 18 months leave to remain, rather than three years leave. This affects persons who applied before the change in the law and have not yet received a decision on their case.

A limited exception is for unaccompanied minors, who will still receive three years leave, so long as they made their initial hosting application before 3pm on 19 February 2024, even if the local authority check takes place later. Unaccompanied minors who apply after that date will still only receive 18 months leave.

Extension scheme to close on 16 May 2024 except for some children born in the UK

The Ukraine Extension Scheme allows Ukrainians with a time-limited visa in the UK to switch into the Ukraine Scheme, recognising that Ukrainians cannot be expected to return to Ukraine. The deadline to apply has been changed, but it appears that there are currently no plans to increase the 16 May 2024 deadline for the Scheme. This will mean that Ukrainians on other visas, including visit, student, seasonal worker and family visas, will no longer be able to switch into the Ukraine Extension Scheme from that date.

The Statement creates an exception to the closure of the Ukraine Extension Scheme for children born in the UK to a parent who has leave under the Ukraine Scheme. This will come into force on 11 March 2024. The children will receive leave in line with their parent (or if both parents are here, in line with whichever parent’s leave expires last). Such children have been using this scheme informally already, but it is helpful to see a provision in the Rules. Unfortunately, the new provision is silent on what children born outside the UK to a parent with a Ukraine Scheme visa should do.

Additional grounds for refusal

Part 9 of the Immigration Rules sets out general grounds for refusal of immigration applications on character grounds. Only some of those criteria have so far applies to Ukraine Scheme applications and mainly those focused on criminality. The Statement provides that from 3pm on 19 February 2024 additional grounds for refusal will apply, including previous breaches of immigration laws, failures to provide information when required and other general grounds for refusing entry clearance or cancelling permission on arrival. Anecdotally, there have been some cases of arrivals from Ukraine who do not have the right documentation and so this may be a response to that. This does however indicate a tightening up of visa controls for Ukrainians.

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Further Information:

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

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Mandatory Payrolling of Benefits from April 2026

Paul Webb,
13th February 2024

Tax

The reporting of benefits in kind (BiK) has transformed over the past few years. Gone are the days of paper based P11Ds, having been replaced by online reporting and the option of ‘payrolling’ BiKs through payroll systems.

On 16 January 2024, the government announced a package of measures to support its ambition to simplify and modernise the tax system, using the efficiencies of digital service to drive public sector productivity and to make the tax system simpler and fairer.

One of the measures announced was that the government will mandate the reporting and paying of Income Tax and Class 1A National Insurance Contributions (NICs) on benefits in kind, via payroll software from April 2026.

How it currently works

Currently, employers have two ways of reporting their BiKs:

To report via P11D submission to HMRC, annually, before the deadline of 6 July following the tax year in which the employee received the benefit. Payment of Class 1A employer national insurance contributions (NICs) must be paid before 22 July (if paying electronically). Using the information reported on the P11D, the employee pays the associated income tax through self-assessment, or it is collected by way of an adjustment to the employee’s tax code in the tax year after the benefits or expenses are received.

To payroll benefits, allowing benefits to be reported in real time through pay as you earn (PAYE), meaning no mid-year changes to tax codes as tax is deducted throughout the year. Class 1A employer NICs still need to be reported on P11D(b) by 6 July after the end of the tax year.

One of the drawbacks of the traditional, or legacy, P11D submission is that an employee could wait over a year before seeing any tax related benefits they’re receiving being deducted from their pay. Any change to an employee’s tax code being made so long after the benefit has been received often causes confusion.

Conversely, the payrolling of benefits allows for the tax on BiKs to be collected in real-time via the employee’s pay, reducing the confusion for the employee, however the system is currently not fool-proof and currently employer-provided living accommodation, and interest free/low interest (beneficial) loans cannot be payrolled.

What should employers consider now?

Less flexibility – employers will no longer have the option to payroll only certain BiKs or employees, with all benefits requiring to be reported. This could have a direct cashflow impact on the employee.
Data management – employers will need to be able to easily access the reportable monthly data so they can provide it to the payroll department ahead of payroll processing cut-off dates.
Increased PAYE risk – compulsory reporting of benefits increases the risk of monthly non-compliance and tax driven penalties.
Employee impact – the employee might experience a cashflow impact in 2026/27 when the mandatory payrolling of BiKs and PAYE code adjustments for the prior year overlap.
Employee communication – upcoming changes to the BiKs reporting system will need to be communicated to employees.
Payroll impact – can your current payroll software/outsources payroll provider cope with the change? Will there be an increase in fees?
Process impact – it has yet to be determined how beneficial loans and employee-related accommodation benefits will be reported. What will the impact be for leavers, if processed before payroll cut off?

Next steps

HMRC has confirmed that government ministers will not be putting the change out to public consultation, but instead will be liaise with key stakeholders such as the Chartered Institute of Payroll Professionals (CIPP), to discuss the forthcoming change at length, ahead of implementation come April 2026.

CIPP are seeking to address the following key issues:

Ensuring calculation methods for employer-provided living accommodation and beneficial loans are updated and can be processed via payroll software.
Ensuring working sheets are available for employers and agents to help with calculating values to be used.
Being mindful of the changes required for payroll systems, and the time taken for software companies to implement the changes.
Pushing for real-time payments of Class 1A employer NICs, to eliminate the need for the P11D(b).

Let’s Talk

If you would like any further information on the changes and how they might affect you or your business, please do not hesitate to contact your usual Dixcart UK contact or enquire at hello@dixcartuk.com

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Employment Law Case Update – January 2024

Anne-Marie Pavitt,
26th January 2024

Employment Law

We welcome you back into the land of employment law cases with a few of cases from the back end of 2023. Learn how the ACAS Code plays a crucial role in handling whistleblowing cases, and its implications for compensation uplifts and the limitations of contractual terms. We take a look at how future discrimination claims can be waived when done correctly in a settlement agreement, and evaluate how timings should be considered when looking at constructive dismissal cases, particularly where the claimant has a long employment history and there have been efforts at negotiation.

Whistleblowing: Using the ACAS Code for grievances and compensation uplifts, and whether contractual terms can limit losses
Equality Act: Unknown future claims can be waived in a settlement agreement if sufficiently particularised
Constructive Dismissal: Was resignation too slow to have been ‘the last straw’?

Whistleblowing: Using the ACAS Code for grievances and compensation uplifts, and whether contractual terms can limit losses

In SPI Spirits (UK) Ltd & Anor v Zabelin [2023] EAT 147, the claimant was the Group Chief Investment Officer for the first respondent company (SPI Spirits). He agreed a 30% pay cut from April to June 2020 because of the effects of the coronavirus (COVID-19) pandemic on the business. When the first respondent said that the pay cut was being extended to at least 1 September 2020 the claimant raised, in an email of 4 June 2020 and at a meeting on 5 June 2020, various issues including alleging that the pandemic was being used as an excuse to cut pay and that employees were being intimidated. On 8 June 2020 the claimant had a telephone discussion with the second respondent (Shefler), the majority shareholder in the group, who suggested that the claimant should resign if he didn’t agree to proposed changes to bonuses. When the claimant queried why he should resign the second respondent dismissed him. The claimant brought claims including of automatic unfair dismissal and detriment on the grounds of having made whistleblowing protected disclosures (including regarding (a) the claimant’s pay; (b) the claimant’s 2020 bonus; (c) staff welfare; and (d) coronavirus pretence).

The outcome of the case was that the EAT confirmed that a grievance must be in writing for the ACAS Code on Disciplinary and Grievance Procedures to apply but, once that has occurred, if new grievances arise they do not each have to be put in writing for the Code to be engaged, unless there is a ‘material change’ in the nature or scope of the complaint or redress sought such that fairness requires it. In addition, the uplift to compensation for an employer’s failure to follow the ACAS Code also applies to awards made against individuals if the relevant individual was responsible for the failure. Finally, contractual terms limiting loss will not be upheld if they produce an outcome which would have the same effect as disapplying or limiting a statutory provision, according to the EAT.

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Equality Act: Unknown future claims can be waived in a settlement agreement if sufficiently particularised

In Bathgate v Technip Singapore PTE [2023] CSIH 48 the Inner House of the Court of Session held that the various protections for the employee built into section 147 of the Equality Act 2010 do not exclude the settlement of future claims so long as the types of claim are clearly identified and the objective meaning of the words used encompassed settlement of the relevant claim. Section 147 of the Equality Act 2010 allows claims for discrimination to be settled using a settlement agreement provided that the settlement agreement relates to the ‘particular complaint’. Accordingly, a settlement agreement can relate to a future complaint if there is sufficient description of it in the claims waived.

There has been significant uncertainty for some time about whether or not future claims an employee might acquire against their employer but which have not yet arisen could, with the correct wording, be effectively waived as part of a settlement agreement. This decision by the Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal) comes unequivocally to the conclusion that future claims can be waived in a settlement agreement so long as they are sufficiently identified in accordance with the requirements in Hinton v University of East London [2005] EWA Civ 532.

Whilst employers would be wise to consider including future claims in settlement agreements, those representing individuals may try to exclude future claims. However, it should be noted that the decision in this case may not necessarily be followed in England. While decisions from the Inner House of the Court of Session are often considered by employment tribunals and the Employment Appeal Tribunal (EAT) in England, they are not strictly binding, so caution should be exercised.

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Constructive Dismissal: Was resignation too slow to have been ‘the last straw’?

In Leaney v Loughborough University [2023] EAT 155, the claimant had been a university lecturer and warden of a halls of residence with over 40 years’ service at the University. A student had made a complaint against him in 2018, which he disputed and had led to disciplinary action and in turn a grievance being raised by the claimant. He subsequently resigned as warden in December 2019, and asked several times for a grievance appeal to be held. They told him several times to draw a line under the matter but the claimant persisted. On 29 June 2020, he was told that the university could not look at the issue any further. There followed a period of negotiation between solicitors but due to be back at work that autumn, the claimant was so anxious he was signed off sick by his GP on 10 September 2020, and then resigned with notice on 28 September 2020, thereafter claiming constructive unfair dismissal, alleging a cumulative breach of the implied duty of trust and confidence.

The claimant claimed the notification he had received on 29 June 2020 was the ‘last straw’. The tribunal held that he had affirmed the contract of employment during the three months between 29 June, and his resignation on 28 September 2020 because he should have tendered his resignation prior to this.

The EAT disagreed with the tribunal’s approach and remitted the issue of affirmation for reconsideration, holding:

that the tribunal’s focus should not necessarily be on how much time has passed when considering whether affirmation has taken place, but should take into account all the surrounding facts and circumstances should be weighed.
where there has been a period of delay then length of service should be taken into account in deciding whether the contract has been affirmed but it is fact sensitive. It is understandable that an employee with long service may take longer to consider their position (without necessarily having affirmed) before removing themselves from a secure job, but the surrounding context is vital and should be applied on an case-by-case basis.
a period of negotiation before resignation is relevant. Negotiations could be an employee’s attempt to give the employer the opportunity to ‘put things right’ before resigning and therefore such a delay may not necessarily amount to affirmation of the contract.

His claim was dismissed on the basis that, between the date of the last matter that could potentially be relied upon as a last straw, and the date of resignation, he had affirmed the contract. Having regard to the facts found, and the matters relied upon by the claimant as relevant to the question of whether there had been affirmation, the tribunal erred in its approach to affirmation. The EAT found the tribunal had focused incorrectly on things that did not happen (the Claimant did not delay his resignation because of student exams and did not state that he was working under protest), which, if they had happened, might have pointed away from affirmation. Instead, they should have honed in on what conduct there had been which might have amounted to affirmation. The EAT therefore remitted the matter to the same tribunal for fresh consideration of that issue, in light of the facts found, and, as necessary, the further issues to which the complaint gave rise.

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

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Employment Law Case Update – September 2023

Employment,
21st September 2023

Employment Law

This month we bring you a plethora of interesting cases centring around dismissal in all its forms – be they agreed, part of a restructure or initiated for a reason. The questions will always be: is that reason fair and/or have you followed the correct procedure? Have a look at our case run down here.

TUPE: Employment decision on when a TUPE transfer takes place

Redundancy: Employees in restructure did not unreasonably refuse suitable employment

Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

Vicarious Liability: School not liable for acts of work experience student

Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

TUPE: Employment decision on when a TUPE transfer takes place

In Rajput v Commerzbank and Société Générale [2023] EAT 116 the EAT held that (i) in a ‘series of transactions’ cases, the transfer does not necessarily take place at the end of the series, and (ii) when determining the date of the transfer, a tribunal can have regard to matters which occur outside the UK. Regulation 3(1)(a), which provides that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 apply to undertakings which are ‘situated immediately before the transfer in the UK’, does not mean that a tribunal must focus solely on events which take place within the UK-businesses which are situated in the UK.

Sarah Clarke, barrister at 3PB, who represented the claimant in this appeal, writes in a case analysis for Lexis Nexis that, on the face of it, the EAT’s finding that a transfer can take place at any point within the ‘series of transactions’ could cause uncertainty and increase the amount of litigation in this area. However, she goes on to say that she considers that, in the vast majority of cases, a transfer will take place at the end of the series. The question to be determined is when responsibility for the carrying on of the business transfers to the transferee and it is difficult to envisage many situations in which responsibility would transfer over prior to the end of the transactions. Indeed, as a matter of logic, if a transfer is ‘effected’ by a series of transactions, it cannot be until the last of those transactions that the transfer is complete, as otherwise the later transactions could not have ‘effected’ the transfer. However, this argument was rejected by the EAT and, in her view, there is scope for further judicial consideration of this.

In relation to the location of the business, this case makes it clear that, when determining when a transfer takes place, a tribunal’s focus ought not to be solely on those matters which occur in the UK. The relevance of geography to TUPE is simply that the business must be situated in the UK immediately before the transfer takes place. However, this does not preclude the business operating from other locations outside the UK. Thus, when dealing with this issue, parties must ensure that they provide evidence to the tribunal which clearly explains all matters relevant to the transfer, regardless as to where in the world those events took place.

The claimant was employed by Commerzbank (CB) from 2012 as a senior compliance officer. She was dismissed in March 2020 and brought various claims, including automatic unfair dismissal (on the basis that the sole or principal reason for her dismissal was the TUPE transfer) and victimisation (following a previous successful discrimination claim she had brought against CB). She had worked within the Equity Markets and Commodities Division (EMC) of the business, which was sold to Société Générale (SG), following a business purchase agreement which was signed in November 2018.

The EMC business was divided into three divisions, namely Flow Trading, Asset Management (AM) and Exotics, Vanilla and Funds (EVF), and was spread across several countries, including the UK, Luxembourg and Germany. The claimant worked across all three divisions.

For the purpose of the business sale, each division was (i) allocated its own purchase price, and (ii) divided into sub-batches, which transferred over a period of time. The EVF division transferred over in six batches from March to October 2019, with AM transferring over from May to November 2019. The last part of the EMC business to transfer over was Flow. It was based mainly in Germany, with only a small presence in London consisting of five employees. Most of Flow had transferred over by March 2020, with the remainder transferring in May 2020.

The employment tribunal found that the transfer took place on 1 October 2019 on the basis that 95% of the UK operation had transferred over by then. The judge thus ignored the last division which transferred over, as this was based predominantly in Germany.

The EAT, Mr Justice Kerr sitting alone, concluded that:

‘…there is no presumption or rule that a transfer effected by a series of transactions occurs at the end of the series. Completion may be artificially delayed. The last transaction in the series may be a minor detail, putting the last piece of the jigsaw in place long after the transferee has started running the business to the exclusion of the transferor.’

However, he agreed that the judge had erred in excluding from his consideration the Flow part of the business. The question to be determined was when responsibility for the carrying on of the business was transferred to the transferee (CELTEC v Astley). It was an agreed fact that Flow formed ‘part of the organised grouping of resources’ which comprised the EMC business. There was no reason why an ‘organised grouping of resources’ (in the words of TUPE 2006, SI 2006/246, reg 3(2)) could not be located across several countries at once. A business or part of a business can be ‘situated’ in the UK without its entire operation being located in the UK. He concluded that ‘there is nothing in the TUPE Regulations that required the tribunal to confine its consideration to the part of the organised grouping of resources based in this country.’

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Redundancy: Employees in restructure did not unreasonably refuse suitable employment

In Mid and South Essex NHS Foundation Trust v Stevenson [2023] EAT 115 the EAT had to consider whether the respondent had been entitled to refuse to make redundancy payments to the claimants where the employment tribunal had held that the alternative roles offered to them were ‘suitable’ but that their rejection of them was not unreasonable due to their personal perceptions of those roles.

The EAT held that there was no error in the employment tribunal’s approach:

— the relevant statutory test is whether the claimants ‘unreasonably’ refused an offer of employment that was suitable to them (the suitability of the role is not in and of itself determinative)

— even though the claimants’ perception of the roles was objectively groundless, the employment judge had found that there was a sufficient basis for their personal perceptions of the roles (eg that they would be a loss of autonomy and status) for them not to have acted unreasonably in refusing them

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Unfair Dismissal: Direct Line beats claims advisers case over agreed exit

Insurer Direct Line has successfully defended a case by a claims adviser that it unfairly dismissed him, with the EAT ruling that the employment tribunal had been entitled to find that there was no dismissal because the employee had mutually agreed to terminate his employment after his mental health problems meant he could not work.

In Riley v Direct Line Insurance Group plc [2023] EAT 118, the EAT ruled that an employment tribunal was entitled to find that Matthew Riley had consented to leaving his job. This is because he knew that he would receive lifetime insurance payments after being left unable to work due to mental health problems stemming from autistic spectrum disorder.

His Honour Judge (HHJ) Murray Shanks said the employment tribunal did not err when it rejected Riley’s case that he was duped into terminating his employment. ‘There was ample evidence for the conclusion reached, and the tribunal considered in detail whether Mr Riley’s consent was freely given’, he said. HHJ Shanks added that the tribunal ‘went to considerable lengths to emphasise their conclusions that Mr Riley was not tricked or coerced in any way and that he participated in the discussions, was given time and fully understood what he was doing’.

Riley was absent from work from 2014 until October 2017 due to anxiety and depression, according to the judgment. He began to make a phased return—but was again left unable to work from May 2018 because of anxiety and paranoia, the judgment says. He met with managers in August 2018 and September 2018, when he discussed leaving the job and relying on an insurance policy with UNUM that would make payments equating to 80% of his salary until he reached retirement age, according to the judgment.

Direct Line notified Riley in September 2018 that he was being dismissed following a meeting at which UNUM confirmed that he would be entitled to the benefits of the policy, the judgment says. Riley launched a case at the employment tribunal later that year, lodging claims of unfair dismissal and disability discrimination over allegations that he had been tricked by managers, according to the judgment.

But the tribunal dismissed his case in 2019, rejecting Riley’s evidence that he was put under pressure and did not understand what he was being told by managers. It also found that Riley had told managers that he knew terminating his employment to rely on the insurance policy was ‘where it’s been heading for the last four years’, according to the appeal judgment. The tribunal also concluded that Riley’s discussions with managers about his leaving had been supportive and designed to help him make the right decision.

John Platts-Mills, of Devereux Chambers, Riley’s counsel, argued before the EAT that the tribunal had failed to address the questions of who really terminated their client’s employment and whether the claims adviser really gave ‘true, mutual consent’, according to the appeal judgment.

But HHJ Shanks rejected the argument, ruling that the tribunal had ‘considered evidence relating to this in detail’. ‘It is true that they did not expressly refer to his disability in this context, but they must have had it well in mind when they rejected his evidence that he did not understand what was being said at meetings and found that he had made a fully informed decision’, he said.

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Unfair Dismissal: Conclusion on the fairness of a dismissal must be based on the established reason for that dismissal

In Greater Glasgow Health Board v Mullen [2023] EAT 122, the EAT dismissed the employer’s appeal against the decision of the employment tribunal which found that the employer’s reason for dismissing their employee was a belief by it in the existence of misconduct consisting of aggressive and threatening behaviour by him to one of his line reports. The tribunal further concluded that the employer’s belief in the existence of that misconduct was genuinely held and reached after reasonable investigation. The issue was whether the tribunal had erred in their decision.

The EAT held, among other things, that: (i) in the circumstances it was not open to the employment tribunal to base its conclusion about the fairness of the dismissal in terms of section 98(4) of the Employment Rights Act 1996 on a factual hypothesis that the ‘real reason’ for the dismissal was something different to the established reason; and (ii) on the findings in fact made by the employment tribunal, the only conclusion to which they could properly have come was that dismissal was within the range of reasonable responses open to the employer and was fair. Consequently, the employment tribunal’s judgment was set aside, and the claim of unfair dismissal was dismissed.

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Vicarious Liability: School not liable for acts of work experience student

In MXX v A Secondary School [2022] EWHC 2207 (QB) the Court of Appeal upheld the High Court’s decision that the defendant, a co-educational secondary school providing education for children aged 11 to 16, was not vicariously liable for the sexual assaults carried out by PXM on the claimant (a pupil), subsequent to PXM undertaking a work experience placement at the school. The court held that the judge had been wrong to have found that the relationship between the defendant and PXM was not akin to employment but that:

— given the limited nature of PXM’s role during the course of one week (eg he had no pastoral responsibility), the facts did not begin to satisfy the requirements of the close connection test

— the grooming which led to the sexual offending was not inextricably woven with the carrying out by PXM of his work during his week at the defendant’s school such that it would be fair and just to hold the defendant vicariously liable for the acts of PXM.

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Disability Discrimination: Tribunal rules insurer discriminated against menopausal worker

A British insurance company has been ordered to pay one of its former workers £64,645 after the tribunal found it failed to make reasonable adjustments for an employee with menopausal symptoms, who later resigned.

In Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022, Employment Judge Wade found that Direct Line Insurance Services Ltd did not fully consider the impact of menopause on Maxine Lynskey when it launched a warning and disciplinary process based on her performance. ‘At that time the disadvantage the claimant faced in doing her job while struggling with menopausal symptoms ought to have been recognised as such and adjustments made’, Judge Wade wrote.

The insurer must pay the sum to Lynskey to account for a range of factors, including damages for injury to feelings as well as losses she suffered, according to a remedy judgment. These events are a ‘serious and sustained number of contraventions over a period involving both the claimant’s line manager and her line managers and HR’, the tribunal found.

Lynskey was a motor sales consultant for Direct Line from April 2016. She had ‘very good’ performance ratings in that role. She then informed her manager at a meeting she was having health issues related to menopause.

‘It was clear from the information the claimant provided that she was being profoundly affected by menopausal symptoms and was seeking treatment for them; that was apparent from March 2020’, Judge Wade wrote.

Lynskey then moved to a different team considered to be a ‘better fit’ in light of her personal and health circumstances, albeit one that did not involve a sales related bonus. However, the tribunal found that with this new role, Lynskey’s managers should have been aware of health issues that would affect her performance. ‘The respondent knew, or ought reasonably to have known, from March 2020, that the claimant had become a disabled person by reason of menopausal symptoms’, Judge Wade wrote. ‘She was self-evidently at a disadvantage in comparison with colleagues without her disability in meeting the respondent’s performance standards and targets, and generally more likely to be sanctioned or face disciplinary/performance warnings.’

Lynskey began underperforming, and was told she wouldn’t receive a pay rise because her performance was rated ‘need for improvement’, the judge wrote. The tribunal ruled that it was unfavourable treatment to score her performance without fully factoring in her disability. ‘Need for improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve, or meet the required standards’, it said. She later faced a warning meeting where her manager ‘failed to recognise or take in the explanations’ around her symptoms. Lynskey then faced a disciplinary meeting where her health condition was not fully considered. Judge Wade found that the subsequent disciplinary warning ‘was unfavourable treatment because of something arising in consequence of disability’.

‘It is clear a less discriminatory approach could have been taken, including occupational health referral, consideration of other roles, and accepting the claimant’s mitigation, namely her disability’, the judge wrote.

After a period of ill health and personal issues outside work, Lynskey’s sick pay was stopped, the ruling said. She then submitted a grievance to her employer before ultimately resigning in May 2022, then brought constructive unfair dismissal and Equality Act 2010 complaints against the insurance company.

The tribunal upheld Lynskey’s arguments that Direct Line failed to make reasonable adjustments for her, as well as her complaints about discrimination because of her menopause symptoms. It rejected her complaints relating to constructive unfair dismissal, sex and age.

The tribunal handed down an extempore judgment (given verbally at the end of the case, not written down) on 28 April 2023, and Direct Line requested the written reasons, which were published on 25 August 2023.

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Sex Discrimination: Tribunal’s misstatement of grievance outcome materially impacted on its consideration of the claim

In Iourin v The Chancellor, Masters and Scholars of the University of Oxford [2023] EAT 108 the EAT considered a number of appeals against an employment tribunal’s decision dismissing the claimant’s claims for direct sex discrimination, victimisation, and disability discrimination against the respondent under the Equality Act 2010.

The claimant had attempted to hug and kiss a colleague when they were in a car together. She raised a grievance and the grievance committee held that this conduct was unwanted but that, in the context of their relationship, it did not amount to harassment or sexual harassment. The claimant was however required to undergo training related to harassment, which he claimed was sex discrimination.

In finding that this did not amount to sex discrimination, the employment tribunal had made a material error of law by relying on its mistaken account of the grievance committee’s finding—stating that it was harassment but not sexual harassment—in reaching its conclusion that this was the non-discriminatory reason for the training requirement. That claim was therefore remitted to the employment tribunal for rehearing.

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Further Information:

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

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Employment Law Case Update – June 2023

Employment,
27th June 2023

Employment Law

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

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

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

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

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

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

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

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

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

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

The GMC appealed to the EAT.

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

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

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

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

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

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

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

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

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

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

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

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Employment Law General Update – May 2023

Employment,
29th May 2023

Employment Law

This month’s news provides an update on the effect of the Retained EU Law Bill and the scrapping of the sunset clause, a new smart regulation from the DBT, a report on the post-pandemic economic growth in the UK labour markets, new guidance from ACAS on both managing stress at work and making reasonable adjustments for mental health at work, a new podcast from the HSE to support disabled people in the workplace and a consultation from the EBA on the benchmarking of diversity practices. Lastly, we have the results of research carried out on unfair treatment of parents following fertility treatment.

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights
Employment Law: Department for Business and Trade – Smart regulation unveiled to cut red tape and grow the economy
Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets
Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work
Disability: HSE launches podcast to support disabled people in the workplace
Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices
Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Brexit: Government scraps the proposed sunset clause from the Retained EU Law Bill and Minister confirms effect of the Bill on equality and employment rights

On 10 May 2023, the government announced that it will scrap the proposed sunset clause from the Retained EU Law (Revocation and Reform) Bill. As we have previously reported in our Employment Law News, the sunset clause would have meant that most retained EU law in secondary legislation would have been revoked at the end of 2023. Instead at least 600 pieces of retained EU law will be set out in a revocation schedule, which can be found here. Any laws not listed in the revocation schedule will be retained automatically.

Meanwhile, the Department for Business and Trade has published a response to a letter by the Rt Hon Caroline Nokes MP, Chair of the Women and Equalities Committee, requesting further explanation about the Retained EU Law Bill’s effect on equality rights and protections. The response by the Rt Hon Kemi Badenoch MP, Minister for Women & Equalities, confirms that the Retained EU Law Bill does not intend to undermine equality rights and protections, employment rights or maternity rights in the UK. It sets out that most equality protections will remain unaffected, as they are provided for in primary legislation, in particular the Equality Act 2010 (to which no changes are expected because of the Bill) and any relevant secondary legislation and additional instruments will be considered.

It also highlights that where additional provision is required, the Bill enables the UK Government and the devolved governments to protect the rights and protections of UK citizens. This includes a restatement power which allows departments to codify rights into domestic legislation. The response emphasises that this power will secure rights and protections, by laying them out accessibly and clearly in statute.

Employment rights

The response sets out that the government does not intend to amend workers’ legal rights through the Bill, that the UK provides for greater protections for workers than are required by EU law and that the government remains committed to making sure that workers are properly protected in the workplace.

Parental leave

The response emphasises that the repeal of maternity rights is not and has never been government policy, and that the UK is in fact further along than the EU when it comes to maternity rights.

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Employment Law: Government’s “Smart regulation unveiled to cut red tape and grow the economy”

On the 10 May 2023 the Department for Business and Trade published its paper “Smarter regulation unveiled to cut red tape and grow the economy” which the government describes as “the first dynamic package of deregulatory reforms to grow the economy, cut costs for businesses and support consumers …”

The governments announcements include the following proposed amendments to employment law:

The government is proposing to remove retained EU case law that requires employers to record working hours for almost all.

Making rolled-up holiday pay lawful. Rolled up holiday pay is where an employer includes a sum representing holiday pay in an enhanced hourly rate rather than continuing to pay workers as normal when they actually take leave. This was ruled to be in breach of the Working Time Directive by the ECJ well over a decade ago.
The merger of annual leave (20 days derived from the EU’s Working Time Directive) and additional leave (being the additional 8 days holiday provided under the Working Time Regulations). Whilst this appears to be sensible it will be interesting to see how the European case law which specifically applies to the 20 days annual leave, such as what constitutes holiday pay and taking such holiday in the year in which it falls, is dealt with.
TUPE – there are proposals to do away with the need for elections of employee representatives for businesses with fewer than 50 employees or transfers of fewer than 10 employees.

The government has launched consultation on these points.

The government has also proposed limiting the length of non-compete clauses to three months. This will require the passing of legislation, which, the government says will be dealt with when parliamentary time allows.

So we wait to see exactly what legislative changes come about following these announcements.

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Flexible Working: House of Commons Committee report on post-pandemic economic growth in UK labour markets

A House of Commons Committee report says the government must reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections. The government has two months to respond to the committee’s proposals which are on topics including the machinery of government with responsibility for labour market policy; technology and skills development; workers’ rights and protection; and older workers.

The report, which follows on from a Call for Evidence on the state of play in the UK Labour market post-Brexit and the COVID-19 pandemic, highlights that:

with 500,000 people having left the British workforce since the start of the pandemic, a shortage of labour weighs heavily on the potential for economic growth;
economic inactivity has risen among people aged 50 to 64 years;
the way in which the recommendations of the Taylor Review have been implemented has been fragmented and drawn-out;
the enforcement of labour market rules is under-resourced.

It calls on the government to:

consider establishing a Ministry of Labour and appoint a new Minister of State for Labour in the Cabinet, as well as a Cabinet Committee on Labour;
take various actions in respect of technology and skills;
reconsider the need for an Employment Bill in the upcoming King’s Speech to address gaps in employment protections;
consider new legal structures for flexible work that include appropriate rights and protections for workers;
provide more protection for workers from any damaging effects of night-time working;
pursue the creation of the planned single enforcement body which would clarify rights of redress for those most in need;
continue and expand support for older workers.

It also calls on businesses to:

be more open to create more flexible constructions of work;
offer more flexible working opportunities to benefit from a huge untapped pool of older workers and to assess whether their recruitment practices and workplaces are ‘ageist’.

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Health at Work: ACAS publishes new guidance on managing stress at work and making reasonable adjustments for mental health at work

Managing stress at work:

ACAS has published new advice for employers on managing stress at work after YouGov revealed 33% of British workers disagreed that their organisation was effective at managing work-related stress. YouGov was commissioned by ACAS and surveyed just over 1,000 employees in Great Britain. ACAS sets out that stress can be caused by demands of the job, relationships at work, poor working conditions and life events outside of work such as financial worries. An ACAS poll in March 2023 revealed that 63% of employees felt stressed due to the rising cost of living.

Advice for employers on managing stress at work include:

looking out for any signs of stress among staff. Signs include poor concentration, tiredness, low mood and avoiding social events;
being approachable available and have an informal chat with staff who are feeling stressed;
respecting confidentiality and being sensitive and supportive when talking to staff about work-related stress;
communicating any internal and external help available to staff such as financial advice if the cost of living is a cause of stress.

ACAS states that creating a positive work environment can make employees healthier and happier at work, reduce absence levels and improve performance.

ACAS advice on managing stress can be accessed here.

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Making reasonable adjustments for mental health at work:

ACAS has published new guidance for employers and workers on reasonable adjustments for mental health. ACAS states that ‘employers should try to make reasonable adjustments even if the issue is not a disability’. The guidance covers:

what reasonable adjustments for mental health are;
examples of reasonable adjustments for mental health;
what reasonable adjustments can be made for mental health;
requesting reasonable adjustments for mental health;
responding to reasonable adjustments for mental health requests;
managing employees with reasonable adjustments for mental health;
reviewing policies with mental health in mind.

ACAS has also published case studies exploring how different organisations have helped staff with reasonable adjustments for mental health.

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Disability: HSE launches podcast to support disabled people in the workplace

The Health and Safety Executive (HSE) has launched a new podcast aiming to help employers support disabled workers and those with long-term health conditions in the workplace. The podcast features discussion by host Mick Ord, former BBC Radio journalist, Moya Woolley, Occupational Health Policy Team Leader at HSE and Rebecca Hyrslova, Policy Advisor at Federation of Small Businesses (FSB); and offers advice for employers on how to create a supportive and enabling workplace, take an inclusive approach to workplace health, understand the work barriers that impact on workers, make suitable workplace adjustments or modifications, develop skills, knowledge and understanding, use effective and accessible communication, and support sickness absence and return to work.

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Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices

The European Banking Authority (EBA) has launched a consultation on guidelines on the benchmarking of diversity practices including diversity policies and the gender pay gap pursuant to Articles 75(1) and 91(11) of the Capital Requirements Directive IV (Directive 2013/36/EU) (CRD IV) and Article 34(1) of the Investment Firms Directive (Directive (EU) 2019/2034). The EBA has been collecting data on diversity since 2015 based on information requests. The EBA hopes that the issuance of these guidelines will lead to a higher level of transparency regarding the EBA’s work on the topic of diversity and gender equality and will help improve the quality of the collected data as well as the awareness of all stakeholders on these topics. The new reporting format is expected to apply for the collection of data in 2025 for the financial year 2024. Responses are sought to the consultation by 24 July 2023.

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Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

Pregnant Then Screwed published a press release during Infertility Awareness Week revealing the unfair treatment women face in the workplace due to their reproductive health. Research has revealed that of the 43% of women who informed their employer of their fertility treatment, one in four did not receive any support from their employer. One in four women also experienced unfair treatment because of undergoing fertility treatment. Unfair treatment was also experienced by 22% of women who disclosed their pregnancy loss to their employer while 6% of partners who disclosed the same faced negative treatment.

The press release confirms Pregnant Then Screwed will be launching a new programme to help employers deal with reproductive health issues in the workplace better. They will be hosting a Women in the Workplace seminar for businesses to find out more about the new training and accreditation scheme which signals fertility friendly employers. This free event will take place in June 2023.

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

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Employment Law General Update – April 2023

Employment,
25th April 2023

Employment Law

A lot going on this month. New rates and consultations regarding NLW and NMW, new requirement for immigration scale-up route, an update on the Retained EU Law Bill and discussions over the definition of ‘sex’ under the Equality Act. Meanwhile, there is a review into whistleblowing law, an inquiry into seasonal worker visas, a blog on loneliness in the workplace, and a review relating to the work prospects of autistic people.

Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations
Whistleblowing: Government launches whistleblowing law review
Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route
Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa
Welfare: Glassdoor reveals survey findings on employee loneliness
Disability: DWP publishes new review to increase work prospects of autistic people
Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum
Brexit: An update on the Retained EU Law (Revocation and Reform) Bill
Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations

SI 2023/354: These Regulations are made to amend the National Minimum Wage Regulations 2015, SI 2015/621. They come into force on 1 April 2023 and increase:

the rate of the national living wage for workers who are aged 23 or over from £9.50 to £10.42 per hour
the rate of the national minimum wage for workers who are aged 21 or over (but not yet aged 23) from £9.18 to £10.18 per hour
the rate of the national minimum wage for workers who are aged 18 or over (but not yet aged 21) from £6.83 to £7.49 per hour
the rate of the national minimum wage for workers who are under the age of 18 from £4.81 to £5.28 per hour
the rate for apprentices within SI 2015/621, reg 5(1)(a) and (b) from £4.81 to £5.28 per hour
the accommodation offset amount which is applicable where any employer provides a worker with living accommodation from £8.70 to £9.10 for each day that accommodation is provided

The Low Pay Commission (LPC) has published a consultation seeking views on the impact of National Living Wage (NLW) and National Minimum Wage (NMW) increases for 2024. The NLW is expected to rise to between £10.90 and £11.43 in 2024. The information gathered will be used to inform the LPC’s recommendations to the government in the Autumn. The consultation closes on 9 June 2023 at 11:45pm.

See also our updated Facts and Figures for 2023

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Whistleblowing: Government launches whistleblowing law review

On 27 March 2023, the government published a press release confirming that they have launched a review of the whistleblowing framework. The press release states that the review will gather evidence on the effectiveness of the current whistleblowing regime in enabling workers to speak about wrongdoing and protect those who do so. The press release confirms that the evidence gathering stage of the review will end in Autumn 2023. The review will pursue views and evidence from whistleblowers, key charities, employers and regulators.

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Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route

The Home Office has updated its sponsor guidance in relation to the Scale-up route. Notably, it confirms that an ‘endorsing body pathway’ is being launched, on 13 April 2023, for prospective employer applicants who do not meet the sponsor licence eligibility requirements (eg ‘if their HMRC history is not long enough’). As an alternative, prospective sponsors will be able to obtain an endorsement from a Home Office-approved endorsing body and submit this with the licence application (which must be made no more than three months from the date of endorsement). The guidance confirms that the endorsement process will attract a fee, and further details will be published in due course. Other changes include a new Annex SC2, setting out the changes to the route from 12 April 2023, in line with the Statement of Changes in Immigration Rules HC 1160.

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Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa

The Chair of the Migration Advisory Committee (MAC), Professor Brian Bell, has published a letter written to the Minister of State for Immigration, Robert Jenrick, regarding an inquiry into the Seasonal Worker visa. The inquiry will consider the rules under which the scheme operates, the size and costs of the scheme, the potential for exploitation and poor labour market practice, evidence from international comparisons and the long-run need for such a scheme. Bell has also confirmed that MAC will be working with the Department of Environment, Food and Rural Affairs (DEFRA) during the inquiry.

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Welfare: Glassdoor reveals survey findings on employee loneliness

Glassdoor has published a blog with insights from its new study which surveyed 2,000 employees to understand the levels of employee loneliness in the UK. The blog reveals the impact of poor workplace social life and the importance of workplace friendships to retaining staff.

Key findings include:

six in ten people with less than five years of work experience are lonely all or most of the time
only 51% of employees connect socially with colleagues at least once a month
28% of workers under 35 would stay in a job they did not like if the workplace social life was good
89% of workers believe feeling a sense of belonging with their company is vital to their overall workplace happiness
nearly 49% of workers say a good social life has a significant impact on their overall job satisfaction and mental health

Common reasons for workplace loneliness include less in-person interaction with co-workers, inflexibility in the workplace, and a lack of focus on creating a sense of belonging or community by an employer.

Glassdoor reveals that without a good workplace social life, workers are more likely to be less productive and engaged. They are also more likely to experience stress, anxiety and eventually burnout.

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Disability: DWP publishes new review to increase work prospects of autistic people

The Department for Work and Pensions (DWP), supported by the autism charity Autistica, has launched a review, the Buckland Review of Autism Employment, to increase the employment prospects of autistic people. The review, which will be led by Sir Robert Buckland KC MP and start in May 2023, will consider how the government can support employers to recruit and retain autistic people and enjoy the benefits of a neurodiverse workforce. Recommendations for change will be made to the Secretary of State in September 2023.

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Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum

The House of Commons has released a research briefing on autism, policy and services. The briefing sets out the Department for Work and Pensions’ annual set of statistics on the employment of disabled people, which reports that the lowest rates of employment among disabled people are those on the autism spectrum.

In the 2020–21 financial year, 26.5% of disabled people on the autism spectrum were in employment, compared to 52.5% of all disabled people and 80.4% of non-disabled people in the same period. In 2016, the National Autistic Society reported that 77% of unemployed people with autism wanted to work.

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Brexit: An update on the Retained EU Law (Revocation and Reform) Bill

Retained EU law is a concept created by the European Union (Withdrawal) Act 2018. This Act took a ‘snapshot’ of EU law as it applied to the UK at the end of the Brexit transition period on 31 December 2020 and provided for it to continue to apply in domestic law. The Bill would automatically revoke, or ‘sunset’, most retained EU law at the end of 2023. This would not apply to retained EU law that is domestic primary legislation.

Ministers and devolved authorities could exempt most (but not all) retained EU law from the sunset, and UK ministers (but not devolved authorities) could delay the sunset until 23 June 2026 at the latest for specific descriptions of retained EU law. Any retained EU law that still applied after the end of 2023 would be renamed as assimilated law. The Bill would give ministers and devolved authorities powers to restate, reproduce, revoke, replace or update retained EU law and assimilated law by statutory instrument.

The Bill would also repeal the principle of supremacy of retained EU law from UK law at the end of 2023, although its effects could be reproduced by statutory instrument in relation to specific pieces of retained EU law. The Bill would also make changes to the way that courts could depart from retained EU case law.

The Bill would change the way that some types of retained EU law can be modified. It would ‘downgrade’ retained direct EU legislation so that this could be amended by secondary legislation. It would also remove additional parliamentary scrutiny requirements that currently apply when modifying some types of EU-derived domestic secondary legislation.

The government has published a ‘dashboard’ of retained EU law, although it acknowledges this is not a comprehensive catalogue of all retained EU law that may be in scope of the Bill. The dashboard is due to be updated regularly.

Concerns have been raised throughout the Bill’s progress about the amount of retained EU law to be reviewed before the sunset deadline and whether some may end up being revoked inadvertently. In the Commons, MPs expressed concerns about the impact of large-scale and rapid changes to the statute book as a consequence of the Bill and have highlighted a lack of clarity about what retained EU law the government intends to keep, particularly in the areas of employment, environmental and consumer protections. They were also critical of a lack of parliamentary scrutiny of and input into the process of reforming retained EU law. However, the only amendments made to the Bill in the House of Commons were government amendments to clarify the Bill’s drafting.

The Bill is now with the House of Lords. Five days of Committee proceedings—when a Bill is examined in detail—concluded on 8 March 2023.

Over the five days, Peers put forward many amendments to the Bill on a range of subjects. Opposition peers were scathing in their comments on the Bill. For example, Baroness Ludford (LD), said the Bill was ‘pretty hopeless’ and accused the government of adopting a ‘slash and burn’ approach to legislative reform, with opposition amendments seeking to bring to it ‘some rationalisation and order’. For the government, Lord Callanan, said, on the contrary, a ‘significant minority’ of retained EU law was ‘legally inoperable’ and that it was ‘not good governance’ to subject it to ‘complex and unnecessary parliamentary processes’ before being able to remove it from the statute book. He added that the amendments, including those seeking to delay the sunset, would ‘hamper efforts to realise the opportunities the Bill presents’.

The Bill has come out of Committee stage in the Lords with amendments, including the insertion of a new clause setting out exceptions to the sunset of REUL, and it seems likely that further amendments will be made at Report stage. It is noteworthy that at Second Reading in the Lords a significant number of Conservative peers spoke against the Bill. The level of opposition expressed by peers from all parties indicates that it may not be straightforward for the government to get the Bill into law. It seems likely that the government will need to accept at least some of the Lords’ amendments if it wishes to avoid a lengthy period of ‘ping pong’ between the Lords and the Commons.

In contrast to the approach being taken in respect of much retained EU law, the House of Lords is, in parallel, scrutinising the Financial Services and Markets Bill, which would similarly revoke retained EU law relating to financial services, but contains developed provisions which enable the Treasury and financial services regulators to replace that EU Law with legislation designed specifically for UK markets.

Report stage on the Bill—a further chance for the House of Lords to closely scrutinise elements of the Bill and make changes—began on 19 April 2023.

Authors: David Mundy, Aaron Nelson, and Joanna Purkis at BDB Pitmans, for LexisNexis.

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Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

On 21 February 2023, the Minister for Women and Equalities, Kemi Badenoch, requested advice from the Equality and Human Rights Commission (EHRC) regarding the definition of the protected characteristic of ‘sex’ in the Equality Act 2010 (EqA 2010). EHRC have provided an initial response to the Minister’s request namely suggesting that the UK government carefully consider implications any change to the legislation could have.

Further Information:

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Employment Law General Update – February 2023

Employment,
27th February 2023

Employment Law

We bring you a month of reports and inquiries. Two reports from a think tank and the IES into how women’s finances are affected by their working life and what impact this can have on the gender pension gap. A new Bill has been given government backing to give zero hours workers more certainty by requesting a more predictable work pattern. A troubling and impactful inquiry has been published into the TSSA, with stark consequences, and a study finds that despite having whistleblowing policies in place, many require better implementation and training.

Pensions: Think tank publishes two reports on the gender pension gap with recommendations
Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
Trade Unions: Inquiry finds Sexual harassment rife at TSSA
Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds

Pensions: Think tank publishes two reports on the gender pension gap with recommendations

Two reports from think tank Phoenix Insights and the Institute for Employment Studies (IES) exploring women’s finances through the lens of the workplace, set out a number of recommendations to assist women’s ability to save thereby closing the gender pension gap. The gender pay gap already disadvantages women’s future finances because it means they are more likely to contribute less to their retirement savings than their male peers. The research found that this disparity is made worse by life events, including motherhood, menopause, divorce, childcare, menstruation and caring responsibilities which can all disproportionately affect a woman’s earnings, and therefore pension contributions.

Some of the key findings in the reports include that the gender pay gap is a significant contributor to the gender pension gap, yet women on average contribute a larger proportion of their salary to their pension. On average, women are contributing a higher percentage of their monthly income into their pension than men up until middle age – 6.1% compared to 5.8% aged 35-44 by middle age – where care responsibilities fall to one in four women in the UK – men are paying almost £80 more per month into their pension than women. Women are more likely than men to fall under the auto-enrolment threshold (women 35% : men 11%). Automatic enrolment closed the contribution gap in participation but increased the gap in terms of contribution. Women are more likely to be economically inactive due to long-term health conditions than men. There is limited awareness among employers of the causes and consequences of the gender pension gap, resulting in a lack of action over and above the statutory minimum allowances that seek to improve the savings capacity of women across the different life stages.

The think tank report recommends employers should be required to inform employees about the pensions impact that changes to their working hours and earnings may have, to help close the gender pension gap.

The opportunity for employers – five key recommendations:

re-enrol workers into pension schemes annually, rather than the statutory three years, to give workers the opportunity to re-engage if they have taken career breaks or have opted out because of a lack of affordability
ensure employer pension contributions continue during periods of parental leave
adopt a minimum of five days unpaid leave per year for those with childcare responsibilities, and where possible, five days paid carer’s leave
make flexible working the norm from day one and highlight this across all job roles
ensure workplace health policies offer explicit and visible support for reproductive conditions such as miscarriage, fertility treatment, for those diagnosed with endometriosis and managing menopause symptoms

The role of government – five key recommendations:

legally require employers to provide information on how contractual changes impact pension contributions
revisit the Carer’s Leave Bill to ensure that unpaid careers can access up to ten days statutory paid leave
the legal right to flexible working should be available from the first day of employment, and the number of reasons to reject flexibility should reduce from eight to two
widen the coverage of auto-enrolment by lowering age and earnings eligibility threshold to 18 years and £0, respectively
review the advice and guidance boundary so that a larger population can access tailored and reliable financial support

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Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern

The Department for Business, Energy & Industrial Strategy (BEIS) has announced that the government is backing Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill. The Bill seeks to ensure that all employees, even agency workers, receive more predictable working patterns.

‘Hard working staff on zero hours contracts across the country put their lives on hold to make themselves readily available for shifts that may never actually come’ said Labour Markets Minister, Kevin Hollinrake. ‘Employers having one-sided flexibility over their staff is unfair and unreasonable. This Bill will ensure workers can request more predictable working patterns where they want them, so they can get on with their daily lives.’ The Bill provides that if an employee’s existing working pattern lacks certainty in terms of the hours they work, the times they work, or if it is a fixed term contract for less than 12 months, they may make a formal application to change their working pattern to make it more predictable. The move comes as part of a package of policies designed to further workers’ rights, such as:

paid neonatal care leave
requiring employers to ensure that all tips, gratuities, and service charges are paid to workers in full
entitling unpaid carers to a period of unpaid leave
providing employees with a day one right to request flexible working, and a greater say over when, where, and how they work

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Trade Unions: Inquiry finds sexual harassment rife at TSSA

A misogynistic, ‘mafia-like’ culture of sexual harassment, bullying and violent language has permeated one of Britain’s transport unions, a new independent inquiry has revealed. An investigation by Baroness Helena Kennedy KC into the Transport Salaried Staffs’ Association (TSSA) concluded on 8 February 2023 that ‘there has been sexual harassment, discrimination and bullying within the TSSA and that the leadership and culture has enabled these behaviours through wilful blindness, power hoarding and poor practices’.

Kennedy’s report called for sweeping changes in an organisation where absolute power was concentrated in ‘a very small number of hands’, and called for new leadership at the TSSA. The TSSA opened the investigation in September 2022 after its General Secretary at the time, Manuel Cortes, was accused of sexual harassment by several women. Cortes, who has since retired with an undisclosed payout, denies the allegations. Kennedy pointed out in her report that neither the internal leadership of the TSSA nor the executive committee understood that to say they had not witnessed inappropriate behaviour is not an acceptable response to an ‘atmosphere of fear’ and an environment of ‘open secrets’.

Only two of the 50 people who volunteered to speak to Kennedy as she carried out her inquiry had any positive words to say about the TSSA’s culture, according to her report. The rest described a ‘dysfunctional’ and ‘mafia-like’ culture across the TSSA. The organisation was sexist, racist and homophobic, they said.

Kennedy said that a ‘distressing element’ of her inquiry was realising how little senior leaders at the TSSA seemed to have ‘moved with the times’. Their approach to management was ‘controlling’ and described by many staff members as bullying. The barrister said that, combined with governance failings, meant the ‘outdated attitudes of scepticism and disbelief of women’ formed a ‘dangerous mixture’.

Kennedy noted that the recent history of ‘wage suppression’, particularly in the public sector, and the ‘casual erosion of employment rights’ through precarious work points to an urgent need for healthy trade unions. She recommended a sweeping change of leadership, a realistic time-frame for reform and ‘serious investment of time in culture change’ to make a success of the TSSA.

TSSA said in response that the report made ‘difficult reading’ and highlighted serious problems that the union had to tackle. A spokesperson said the TSSA recognised the need for sweeping reform and stated its commitment to tackle institutional issues and drive through a culture change. ‘As a union, TSSA fights for equality, fairness and social justice for all, regularly winning on equality issues for our members’, the spokesperson said. ‘But it is clear from this report that our union has not followed the values we aspire to for our members.’

The President and Treasurer of the TSSA have stood down with immediate effect and interim replacements had been appointed, the spokesperson added. The TSSA has confirmed it is committed to take comprehensive, considered and meaningful action to address [the report’s] findings, and to enable the necessary further investigation and decisions to be made, the TSSA has suspended all five senior members of staff named in the report, including former General Secretary, Manuel Cortes.

Responding to the report, the TUC stated that ‘sexual harassment and bullying have no place in the trade union movement or any workplace. The TUC believes the women who came forward to share their experiences’. The TSSA have been asked to meet with the TUC General Secretary and the TUC President to discuss next steps.

The Kennedy report comes after a similar 2020 investigation into the GMB, conducted by Karon Monaghan KC, concluded that the GMB is institutionally sexist, and bullying, misogyny, cronyism and sexual harassment are endemic within the GMB.

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Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds

On 16 February 2023, an article by People Management reported that a study by whistleblowing and compliance services provider Safecall, which surveyed HR managers and directors from 222 organisations, found that that while 17 per cent of respondent organisations lacked a whistleblowing policy, the majority (83 per cent) did have one in place, and for those companies that provide internal whistleblowing services, only 58 per cent of their investigators had been formally trained.

The report also discovered:

more than two fifths (42 per cent) of employees responsible for managing whistleblowing complaints have either self-taught, learned their skills through experience, or have no experience at all
more than half (57 per cent) of HR professionals surveyed believed that their employees were actively encouraged to report wrongdoing.
however, just 42.6 per cent said employees “generally feel safe” to do so,
the majority (74 per cent) of HR professionals could not be certain that whistleblowers were confident in raising concerns, and
one in five (20 per cent) organisations have whistleblowing processes that their employees would find to be “highly untrustworthy”.

The article goes on to discuss various aspects of having whistleblowing policies. A policy that emphasises how employees can bring matters to their employer’s attention, which may help employers avoid or at least reduce the risk of employment claims by increasing the likelihood that disclosures will be readily identified as qualifying as a protected disclosures.

However, problems arise where there is a fundamental lack of trust between an organisation and its workforce. Having a whistleblowing policy that ensures there is a clear procedure that must be followed by all staff when a complaint is made can support businesses in fostering a transparent and open company culture. The policy should also demonstrate that staff should not be victimised or subjected to any detrimental treatment as a result of bringing a complaint.

Last year, legal experts warned HR professionals of the consequences of workers whistleblowing on their former and current employers for coronavirus job retention schemes, with law firm Pinsent Masons reporting that 13,775 furlough fraud whistleblowing reports were made to HMRC.

Meanwhile, a previous People Management report found that one in five (20 per cent) employees who had gone to their bosses with concerns over furlough fraud and breaches of Covid-19 safety rules were sacked as result.

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Employment Law Case Update – February 2023

Employment,
27th February 2023

Employment Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Employment Law Case Update – January 2023

Employment,
24th January 2023

Employment Law

We start off the new year with a Court of Appeal decision on whether a worker who declined to go back to work for fear of COVID-19 was unfairly dismissed or not, the first of its kind at this level. We also take a look at two discrimination cases, a Court of Justice of the European Union case about requirements on employers to provide ‘special corrective appliances’ (such as glasses), and a claim for misuse of private information concerning the reasonable expectation of privacy in private WhatsApp messages.

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals
Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles
Discrimination: Narrow test for marital status discrimination confirmed
Health & Safety at Work: Display screen equipment and the provision of spectacles by employers
Data Protection: Misuse of private information and abuse of process

COVID-19: First Court of Appeal decision on the application of ERA 1996, s.100(1)(d) to COVID-19 dismissals

In Rodgers v Leeds Laser Cutting [2022] EWCA Civ 1659, the claimant worked for the respondent as a laser operative in a large warehouse-type space about the size of half a football pitch in which usually only five people would be working. Following the first national ‘lockdown’ on 23 March 2020, the respondent told employees that the business would remain open, asked staff to work as normally as possible and stated ‘we are putting measures in place to allow us to work as normal’. Recommendations were made by an external risk assessment covering most of the things which were already in place before it was undertaken. The claimant left work as usual on 27 March 2020, having not made any complaint about his conditions at work. He obtained a self-isolation note until 3 April 2020 due to having a cough. On 29 March 2020, the claimant told his line manager he had to self-isolate because one child was high risk with sicklecell and a 7 month old baby. His manager agreed. Unfortunately, during this period he drove a friend who had broken his leg to hospital and at some point worked in a pub during the lockdown. On 24 April 2020 he found out he’d been dismissed and was sent his P45.

The claimant made a claim for unfair dismissal on the grounds of health and safety. Under the Employment Rights Act 1996 (ERA 1996), s.100(1)(d), any dismissal of an employee will be automatically unfair, if the reason (or, if more than one, the principal reason) for the dismissal is that, in circumstances of danger which the worker/employee reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, the employee:

left or proposed to leave, or
(while the danger persisted) refused to return to

their place of work or any dangerous part of their place of work. ‘Dangers’ in this context are not limited to dangers arising out of the workplace itself, but also cover dangers caused by the behaviour of fellow employees.

The questions that the employment tribunal has to decide in a case under ERA 1996, s.100(1)(d) are:

Did the employee believe that there were circumstances of serious and imminent danger at the workplace? If so:
Was that belief reasonable? If so:
Could they reasonably have averted that danger? If not:
Did they leave, or propose to leave or refuse to return to, the workplace, or the relevant part, because of the (perceived) serious and imminent danger? If so:
Was that the reason (or principal reason) for the dismissal?

The tribunal rejected the claim for a number of reasons, including that his evidence was inconsistent, his beliefs of serious imminent danger were not supported by his actions (driving his friend to hospital and working in a pub) and not related to his workplace but to the world at large, he had made no complaint about his specific working conditions, and the measures put in place by the employer (if followed) would make the business as safe as possible from infection.

The claimant appealed, arguing that the tribunal had erred in law by concluding that because his belief was one of a serious and imminent danger at large (i.e. in the whole community), his belief that his workplace presented a serious and imminent danger was not objectively reasonable. The Court of Appeal, like the EAT before it, dismissed the appeal because the claimant’s case failed on its own facts. While the coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, this was not the situation in this particular claimant’s case in respect of his workplace.

The Court of Appeal has confirmed that, on the particular facts of this case, where the employee refused to return to work during the coronavirus (COVID-19) pandemic in circumstances where the employer had put in place social distancing in the workplace and other measures like handwashing and face masks, the employment tribunal did not err in law in concluding that the claimant had not reasonably believed that there were circumstances of danger which were serious and imminent, or which could not be reasonably averted, and as result the dismissal was not automatically unfair under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996).

Guidance was given on the interpretation of ERA 1996, s 100(1)(d) including that:

it is sufficient that the employee had a (reasonable) belief in the existence of the danger as well as in its seriousness and imminence. They do not also have to prove that objectively such circumstances of danger did in fact exist;
the subsection does not apply where the perceived danger arose on the employee’s journey to work. The perceived danger must arise at the workplace. However it does not follow that the danger need be present only at the workplace;
while the paradigm case under ERA 1996, s 100 (1)(d) is where a danger arises by reason of some problem with the premises or equipment, there is nothing about the risk of employees infecting each other with a disease that takes it outside the scope of the subsection: the tribunal will have to decide whether on the particular facts of each case it amounts to a serious and imminent danger.

While the outcome of this case ultimately turned on its own particular facts, the judgment is nonetheless of interest because it is the first appeal to reach the Court of Appeal on the application of ERA 1996, s 100(1) to dismissals related to the coronavirus (COVID-19) pandemic.

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Discrimination: Whether PCP requiring disabled employee to work full-time had been applied, despite employer having part-time roles

In Davies v EE Ltd [2022] EAT 191, the EAT considered what amounted to a provision, criterion or practice (PCP) for the purposes of a disability discrimination claim relating to an alleged failure to make reasonable adjustments.

The employee, who was employed full-time, relied on two PCPs, which she contended had left her at a substantial disadvantage: (i) a requirement for employees to complete a full-time working pattern of 40 hours per week, with each shift approximately 9½ hours in length, and (ii) a requirement for employees to complete the shifts without agreeing any reduction in hours. The employment tribunal held that because the respondent employed some employees on a part-time basis and had allowed the claimant a phased return to work, neither PCP had been made out on the facts.

The EAT held that the tribunal had erred in law in concluding that the fact that the employer had other staff who worked part-time had meant that a PCP of requiring the employee to work her contracted hours of 40 per week had not been applied to her. Also, the fact that a temporary adjustment had been made during the employee’s phased return to work did not mean that the PCP had ceased to exist.

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Discrimination: Narrow test for marital status discrimination confirmed

In Ellis v Bacon [2022] EAT 188, the EAT considered a matter of two married director/shareholders whose messy divorce impacted the divorcing wife’s income from the company. Another director, Mr Ellis, sided with the husband, Mr Bacon, in relation to the marital dispute and was compliant with him in removing the Mrs Bacon’s directorship, not paying her dividends, reporting her to the police and suspending and dismissing her on spurious grounds. The employment tribunal held that these actions involved less favourable treatment by Mr Ellis against Mrs Bacon because of her marital status as a wife to Mr Bacon. Mr Ellis appealed.

The EAT held that in a claim of direct discrimination because of the protected characteristic of marriage, the employment tribunal must consider whether it was the claimant’s marital status which was the cause of the less favourable treatment and not the fact that they were married to a particular person. Further, an appropriate hypothetical comparator is someone in a close relationship but not married, and the tribunal must consider whether such a person would have been treated differently.

A person directly discriminates against another person where they treat them less favourably than they treat or would treat others, and they do so because of a protected characteristic. Marriage and civil partnership are protected characteristics. A person has the protected characteristic of marriage if the person is married (which includes a person who is married to a person of the same sex); of civil partnership if the person is a civil partner. Note that people who are not married, or not civil partners, do not have this protected characteristic.

Cases on discrimination because of marriage are very rare. This judgment confirms that the test is to be narrowly construed, with the causative reason for the less favourable treatment being the marital status and not:

the identity of the spouse, or
the closeness of the relationship.

As a result, there seems very limited scope for claimants to bring successful claims in the context of modern society and the legal concept of protection on grounds of marital status looks increasingly like an outdated concept.

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Health & Safety at Work: Display screen equipment and the provision of spectacles by employers

In TJ v Inspectoratul General pentru Imigrări, C-392/21, the Court of Justice of the European Union held that Article 9 of Council Directive 90/270/EEC, on the minimum safety and health requirements for work with display screen equipment, which is implemented in the UK by regulation 5 of the Health and Safety (Display Screen Equipment) Regulations 1992, must be interpreted as follows:

there is no requirement for a causal link between display screen work and potential visual difficulties;
‘special corrective appliances’ include spectacles aimed specifically at the correction and prevention of visual difficulties relating to work involving display screen equipment;
those ‘special corrective appliances’ are not limited to appliances used exclusively for professional purposes, i.e. they may be used at other times too; and
the employer’s obligation to provide the workers concerned with a special corrective appliance may be met by the direct provision of the appliance to the worker by the employer or by reimbursement of the necessary expenses incurred by the worker, but not by the payment of a general salary supplement to the worker.

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Data Protection: Misuse of private information and abuse of process

In FKJ v RVT [2023] EWHC 3 (KB), which concerned a claim for misuse of private information, the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings. FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ’s private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were ‘of the most intimate kind’. FKJ brought a claim for misuse of private information.

While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants’ grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT’s conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court.

RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.

The court gave short shrift to the defendants’ applications, reaching the ‘clear conclusion that they are without merit’. Parts of the applications were ‘not worthy of serious consideration’ and appeared to be ‘an attempt to stifle a claim that the defendants would prefer not to contest on its merits’. Both the strike out and summary judgment applications were dismissed.

[Written by Charlotte Clayson, partner at Trowers & Hamlins LLP, for Lexis+.]

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Employment Law General Update – October 2022

Employment,
27th October 2022

Employment Law

This month our update covers a new online service to help employers support disabled employees, the CIPD has found gaps in support for employees experiencing pregnancy or baby loss, there’s new draft guidance from the ICO, an update on the future of the four-day week, frustration over the scrapping of the plans to abolish the changes to off-payroll working rules, new guidance on the Professional Qualifications Act 2022, and research into allyships for underrepresented groups.

Disability: New online service to help employers support disabled employees
Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss
Data Protection: ICO consults on monitoring at work draft guidance
Working Practices: One third of employers expect a four-day week to be a reality within ten years
IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules
Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022
Discrimination: Research finds intent to be an ally often does not translate into action

Disability: New online service to help employers support disabled employees

On 17 October 2022, the government announced a £6.4 million investment to help employers support employees with disabilities and health conditions. Part of this investment will fund a new online service that will provide information and advice about how to support and manage employees with disabilities or health conditions, whether they are in or out of work. The service will be free and can be accessed by any employer although it is aimed at smaller businesses who may not have in-house HR support or access to occupational health services. It is hoped this service will help small businesses develop more inclusive workforces.

An early test version of the Support with Employee Health and Disability service is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.

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Support & Leave: CIPD report reveals gaps in workplace support for employees experiencing pregnancy or baby loss

A report published by the CIPD has identified gaps in workplace support for employees experiencing pregnancy or baby loss. Only a quarter of employees surveyed received paid compassionate or other special leave in this situation and a fifth of employees received no support at all from their employer. After compassionate leave, the types of support that employees identified as being most helpful were understanding from managers and colleagues that it is a difficult time, paid time off to attend appointments and the option to work from home when needed.

The CIPD has confirmed that it will publish guidance to provide practical advice for employers to improve workplace support for employees experiencing pregnancy and baby loss based on the following five principles:

Raise awareness, in a thoughtful and sensitive way, about the need for pregnancy or baby loss to be recognised as part of workplace wellbeing.
Create an open, inclusive and supportive culture to break down stigma and let employees know they will be supported.
Develop an organisational framework to support employees. This should include implementing specific policies, which the report identified only just over a third of employers have in place.
Manage absence and leave with compassion and flexibility.
Equip line managers to support people with empathy and understanding so that they feel comfortable and capable to have sensitive conversations with team members.

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Data Protection: ICO consults on monitoring at work draft guidance

On 12 October, the Information Commissioner’s Office (ICO) opened a consultation on draft employment practices and published its draft guidance on monitoring at work. The guidance is open for consultation until 11 January 2023. The ICO is publishing its draft guidance on employment practices in stages with this being the first. It has also published an impact scoping document and plans to publish additional practical tools such as checklists.

The draft guidance covers key topics such as lawful basis for monitoring, transparency, fairness and accountability. It also provides guidance on DPIAs, security and retention as well as specialist topics such as covert monitoring, use of biometric data, call monitoring, dashcams and device activity.

This follows on from the ICO’s call for views in 2021. The ICO has published a summary of the responses to its call for views.

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Working Practices: One third of employers expect a four-day week to be a reality within ten years

On 7 October 2022, the CIPD published a new report, The four-day week: Employer perspectives, which sets out employer perspectives on moving to a four-day week. The report is based on a survey which shows that 34% of respondent organisations consider that a four-day week for most workers is attainable within the next decade. One in ten respondents reported having already reduced working hours without cutting pay in the past five years (47% of those respondents confirmed the reductions were part of the COVID-19 furlough scheme). Many of the 2,000 employers surveyed felt that increased efficiency would be needed for a four-day week with no reduction in pay to be sustainable, either through organisations working smarter (66%) or the increased use of technology (68%).

The CIPD notes that the report is published amid rising interest in the concept of the four-day working week. A major trial in the UK, launched earlier this year, involves around 3,330 workers across 70 companies reducing their working week to four days with no loss of pay.

Despite the rising interest in adopting a four-day week, the report found that progress remains slow with just 1% of employers that have not already done so planning to reduce hours without lowering pay in the next three years. For organisations that have reduced working hours, the main drivers are improving employee wellbeing, helping with recruitment and retention, or a reduction in demand for products or services (36%, 30% and 32% of respondents respectively). The main challenges facing these organisations are that reduced hours do not suit everyone (32%), workers cannot achieve the same volume of work or output as before (30%), or a task requires someone to be present (26%).

A separate report, The four-day week: Scottish employer perspectives, has also been published.

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IR35: Frustration from business groups over latest Chancellor’s backtracking over the repeal of the IR35 rules

People Management reported on 18 October 2022 that business groups are frustrated by new Chancellor, Jeremy Hunt, has taken a u-turn from Kwasi Kwarteng’s mini-budget where he had proposed repealing the IR35 off-payroll tax rules for contractors.

We reported in our September Employment Law General Update that the mini-budget had planned to repeal the 2017 and 2021 reforms from 6 April 2023. It wasn’t going to abolish IR35 but would have taken us back to the rules in place from 2000 (the Intermediaries Legislation), where the onus was on the worker to correctly assess their status and pay the correct amount of tax. However, our new Chancellor has backtracked on this meaning the situation remains the same that the end client remains responsible (and liable) for determining the IR35 status of contractors. The liability and responsibility is on the fee-paying party (often the recruiter) in the supply chain applying to public sector bodies, and medium and large private sector businesses. Small companies are exempt.

Industry experts are frustrated that the promised simplification of the tax rules is not being delivered and that many businesses had already started to undertake the vital work of how their systems would need to change by April 2023. Paul Farrer, founder and chairman of global recruitment agency Aspire, said that in turbulent times like this freelancers and contractors were needed for businesses to navigate peaks and troughs in demand. However, he called the recent IR35 news a “a backward step” – not just for workers, “but for the recruitment industry and businesses that rely heavily on the flexibility and skills of the independent workforce”. Other business leaders complain that this system is complex and poorly enforced, and badly needs proper reform. To read the whole article, see People Management.

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Brexit: Government publishes guidance for UK regulators on Professional Qualifications Act 2022

The Professional Qualifications Act 2022 (PQA 2022) received Royal Assent on 28 April 2022, revoking the EU rules relating to the recognition of professional qualifications in the UK.

Among other things, the PQA 2022 introduced a new framework for the recognition of UK professional qualifications between different parts of the UK and overseas. Under this framework, UK regulators have a duty to publish information about the requirements for individuals to enter and remain in their professions (section 8, PQA 2022). In addition, UK regulators must, on request, share information with regulators from other parts of the UK (section 9, PQA 2022) and overseas regulators (section 10, PQA 2022). These obligations apply from 28 October 2022.

On 4 October 2022, BEIS published the following documents to assist UK regulators to comply with these new obligations:

Guidance on the obligation to publish qualification requirements under section 8 of the PQA 2022, setting out what information must be published, when the obligation applies and when published information should be updated.
Two separate guidance documents explaining the information-sharing obligations under, respectively, section 9 and section 10 of the PQA 2022. These documents set out when the legal requirements under the relevant section apply and what information must be shared. They also each contain a worked example of what a UK regulator should do when it receives a valid request for information.

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Discrimination: Research finds intent to be an ally often does not translate into action

One of the first studies into allyship in the UK workplace (published by Wates on 27 September 2022) has found that intent to support colleagues from underrepresented groups has not translated into action. The study of over 5,000 employees found that 67% of UK employees consider themselves an “ally“. However, only 36% have spoken up against discrimination or exclusion of a colleague from a minority background when they have seen it at work. Around two-fifths of respondents said that they had spent time educating themselves about the experience of minorities, although this figure was lower for senior executives.

The same research found that 40% of employees have experienced microaggressions related to identity. The figure rises to nearly 60% for LGBT employees and to 64% for respondents from Black Caribbean backgrounds. Microaggressions experienced by respondents include a name being mispronounced because it is “too hard” (60% of Black African respondents and 59% of Black Caribbean respondents) and a colleague being told that they “don’t even ‘look’ gay” (42% of men from the LGBT community). Respondents from minorities were more likely to report witnessing microaggressions or discrimination. Microaggressions or discrimination related to sexual orientation was reported by almost half of lesbian, gay and bisexual respondents compared to 25% overall. Microaggressions or discrimination related to race or ethnicity were reported by 35% of respondents, rising to 62% of Black Caribbean respondents and 47% of Pakistani respondents.

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Employment Law Case Update – September 2022

Employment,
26th September 2022

Employment Law

Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
Equality Act: Supporting a football club is not a protected philosophical belief
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
Fraud: A confiscation order should strip the profit from fraudulently obtained employment

Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes

Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.

Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.

On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.

A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.

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COVID-19: Two and a half weeks is not long enough for long COVID to become a disability

In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.

Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.

Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.

An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:

At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.

Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.

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COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory

In Cowie and others v Scottish Fire and Rescue Service [2022] EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.

Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.

The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.

The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.

The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.

The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:

To show group disadvantage in the section 19 claims.
To justify an award of compensation for injury to feelings in the section 15 claims.

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Equality Act: Supporting a football club is not a protected philosophical belief

At a preliminary hearing in McClung v Doosan Babcock Ltd and others [2022] UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).

Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.

The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:

The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.

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Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations

In Piepenbrock v London School of Economics and Political Science [2022] EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.

HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.

The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.

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Fraud: A confiscation order should strip the profit from fraudulently obtained employment

In R v Andrewes [2022] UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.

In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.

Appeal allowed, and confiscation order restored, albeit for different reasons:

It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.

This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.

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Employment Law Case Update – July 2022

Employment,
27th July 2022

Employment Law

This month we look at the saga of the ‘fire and rehire’ issue affecting Tesco employees and how whistleblowers can be fairly dismissed depending on their conduct. We also have two interesting cases about how direct discrimination can be viewed – the doctor who refused to address transgender people by their chosen pronouns who had not been discriminated against versus the feminist who expressed beliefs which could not be objected to (as core beliefs) even though they were capable of causing offence, and was discriminated against.

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees
Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures
Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun
Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

Fire and Rehire: Court of Appeal overturns injunction restraining termination and re-engagement of Tesco employees

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201, the Court of Appeal has overturned the High Court’s injunction restraining Tesco from dismissing and re-engaging a group of warehouse operatives to remove a contractual pay enhancement known as “Retained Pay“. This had been incorporated through collective bargaining with the trade union USDAW as a retention incentive during a reorganisation. The collective agreement stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.

The High Court had found that there was an implied term not to use termination and re-engagement as a means of removing Retained Pay. However, the Court of Appeal held that such an implied term was not justified. Neither could the employees rely on promissory estoppel since there had been no unequivocal promises related to termination. Furthermore, it was not “unconscionable” to remove a benefit that the employees had already received for over a decade and that far exceeded any redundancy payment to which they would have been entitled had they not accepted the Retained Pay.

In any event, even if there had been a breach, the court held that the injunction was not justified. The court was not aware of any previous cases in which a final injunction had been granted to prevent a private sector employer from dismissing an employee for an indefinite period. Moreover, the terms of the injunction had not been sufficiently clear.

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Whistleblowing: Whistleblower’s dismissal not automatically unfair as decision-makers’ view of conduct when making protected disclosures separable from content or fact of disclosures

In Kong v Gulf International Bank (UK) Ltd [2022] EWCA Civ 941, the Court of Appeal has upheld the EAT’s decision that an employment tribunal directed itself properly on the issue of the separability of the protected disclosures made by an employee and the reason in the minds of the decision-makers for her dismissal. The tribunal had properly considered and applied the guidance on the issue set out in authorities such as Martin v Devonshire Solicitors UKEAT/0086/10 and NHS Manchester v Fecitt and others [2012] IRLR 64. Despite the fact that the tribunal had found that the employee’s conduct when making the protected disclosures had been broadly reasonable and she had not, as alleged, questioned her colleague’s professional integrity, her dismissal was not automatically unfair because the decision-makers believed that she had acted unreasonably. The reason for dismissal in the minds of the decision-makers could be properly separable from the fact of the protected disclosures being made. The court rejected the submissions of Protect as intervenor that an employee’s conduct in making a disclosure should only be properly considered separable from the making of a protected disclosure where that conduct constitutes wholly unreasonable behaviour or serious misconduct.

This decision makes it clear that even where a worker’s conduct is not objectively unreasonable when they make a protected disclosure, their employer may escape liability when it treats them detrimentally or dismisses them because it subjectively believes that the manner in which they made the disclosures was unreasonable. However, the court stressed that particularly close scrutiny of an employer’s reasons for treating them detrimentally would be needed in such a case to ensure that the real reason for adverse treatment was not the protected disclosure itself.

It is understood that the employee is considering an appeal to the Supreme Court.

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Direct Discrimination: EAT upholds tribunal decision that Christian doctor was not discriminated against for refusing to address transgender people by their chosen pronoun

In Mackereth v DWP [2022] EAT 99, the EAT has held that a tribunal did not err in dismissing a Christian doctor’s claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of his refusal to address transgender service users by their chosen pronouns. He relied on his particular beliefs in the supremacy of Genesis 1:27 that a person cannot change their sex/gender at will, his lack of belief in what he described as “transgenderism” and his conscientious objection to “transgenderism“. However, Eady P, sitting with lay members, found that the tribunal had erred in several respects when applying the criteria from Grainger Plc v Nicholson UKEAT/0219/09 to determine whether these beliefs were capable of protection under section 4 of the Equality Act 2010. In particular, the tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. This threshold must be set at a low level so as to allow for the protection not just of beliefs acceptable to the majority, but also of minority beliefs that might cause offence (approving Forstater v CGD Europe UKEAT/0105/20).

The tribunal had been entitled to find in the alternative that the direct discrimination and harassment claims were not made out. It was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way.

The tribunal had also been entitled to reject the indirect discrimination claim. In holding that the PCPs were necessary and proportionate, it carefully considered the lack of practical alternatives to face-to-face contact with service users. In noting that Dr Mackereth had not identified any further alternatives, over and above those considered and discounted by his employer, this did not amount to the imposition of the burden of proof on him.

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Direct Discrimination: Gender critical feminist suffered direct discrimination for expressing her beliefs in a manner that was not “objectively offensive”

In Forstater v CGD Europe and others ET/22200909/2019, an employment tribunal has upheld a claim of direct discrimination on ground of belief, where an individual’s contract was not renewed because she had expressed gender critical beliefs which some colleagues found offensive. This follows an earlier EAT judgment in which her gender critical beliefs had been held to be protected as a philosophical belief under the Equality Act 2010. They included the belief that a person’s sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman. The claimant had described a prominent gender-fluid individual as a “part-time cross dresser” and a “man in heels” who should not have accepted an accolade intended for female executives. She had also left a gender critical campaign booklet in the office (which she later apologised for) and posted a campaign video on twitter containing ominous music and imagery, which argued that gender self-ID put women and girls at greater risk.

The respondents argued that it was the way in which the claimant had expressed her beliefs, and not the fact that she held them, that had been the reason for non-renewal. The tribunal held, following earlier case law, that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken, bearing in mind an individual’s qualified right to manifest their belief under Article 9 of the European Convention on Human Rights. In this case, the claimant’s tweets and other communications were little more than an assertion of the core protected belief (which could not be objected to even though it was capable of causing offence). In some cases the claimant had been provocative or mocking but this was the “common currency of debate” and was not objectively offensive or unreasonable.

The claimant had also been victimised when her profile was taken off the respondent’s website after she talked to The Sunday Times about her discrimination case. However, her claims of indirect discrimination and harassment were dismissed.

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

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Making reasonable adjustments for mental health at work:

Disability: HSE launches podcast to support disabled people in the workplace

Diversity: EBA publishes consultation on guidance on benchmarking of diversity practices

Sex Discrimination: Research reveals unfair treatment at work after fertility treatment

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Staff Pay: Changes to rates of National Living Wage and National Minimum Wage and 2023 consultations

Whistleblowing: Government launches whistleblowing law review

Immigration: Home Office publishes details of a new endorsement requirement for the Scale-up route

Immigration: MAC Chair publishes letter regarding inquiry into Seasonal Worker visa

Welfare: Glassdoor reveals survey findings on employee loneliness

Disability: DWP publishes new review to increase work prospects of autistic people

Disability: Commons briefing highlights lowest rates of employment among disabled people are for those on autism spectrum

Brexit: An update on the Retained EU Law (Revocation and Reform) Bill

Equality Act: EHRC respond to Minister’s request to clarify the definition of ‘sex’

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Pensions: Think tank publishes two reports on the gender pension gap with recommendations

Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern

Trade Unions: Inquiry finds sexual harassment rife at TSSA

Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds

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

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