Employment Law Newsletter – January 2022
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
Employment Law Newsletter – December 2021
- COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
- Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
- Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
- Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
- Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
- Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
- Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
- Guidance: CIPD publishes new Effective Hybrid Working guidance
- Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
- Workers: Government call for evidence on umbrella company market
- Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
- Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
- Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
Under the SEISS (Self-Employment Income Support Scheme), grants were awarded to self-employed individuals based on average trading profits (ATP) in the three full tax years preceding 2019/20. The scheme was amended in July 2020 to include those who had not qualified because of the effect of childcare, pregnancy or maternity on their trading profits or total income for the tax year 2018-2019.
In R (on the application of Motherhood Plan) v HM Treasury  EWCA Civ 1703 an application for judicial review of the scheme was brought by a self-employed mother and a maternity rights charity. They argued that, contrary to the ECHR, it was indirectly discriminatory to calculate grants based on ATP in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to. Alternatively, applying Thlimmenos v Greece  ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court of Appeal held that the High Court had been wrong to find that the use of ATP did not constitute prima facie indirect discrimination. The judge had found that the disadvantage to new mothers was not “caused by the scheme itself” but by their reduced earnings while on maternity leave. However, that mis-identified the alleged disadvantage, which was that recent mothers’ earnings in the measured period would be disproportionately unrepresentative of their hypothetical earnings had there been no pandemic, resulting in lower payments under the scheme for recent mothers as a group. That disadvantage was caused by the use of ATP as the relevant measure.
However, the High Court had reached the correct conclusion on justification. The indirect discrimination was justified because the SEISS was devised in the extreme and unique circumstances of the pandemic, where time was of the essence. Obtaining additional information from recent mothers would have significantly delayed the implementation of the scheme and the information would have been difficult to verify. In addition, the choice of ATP to assess profits had legitimate aims, namely: effectiveness; speed of delivery; ease of verification to reduce the risk of fraud; and the need to avoid perverse effects and costs. The requirements of speed and simplicity meant that the government was justified in introducing the scheme in a form which did not contain special provision for new mothers.
Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
In Abdar and others v Wm Morrison Supermarkets plc and another (2021) ET/1811283/18 an employment tribunal has held that retail workers in Morrisons and Safeway supermarkets could compare themselves for equal pay purposes with logistics workers in their employer’s regional distribution centres. At a preliminary hearing, the tribunal held that the majority of the claimants were employed on common terms with the logistics workers for the purposes of section 79(4) of the Equality Act 2010 (EqA 2010). Further, the terms on which they were employed had a single source for the purposes of their directly effective rights under Article 157 of the Treaty on the Functioning of the European Union (TFEU).
Subject to any appeal, the next stage will be for the tribunal to determine whether the retail workers’ roles are of equal value to those of the logistics workers. The tribunal noted that there is a dispute between the parties as to whether the ECJ’s decision in K and others v Tesco Stores Ltd  IRLR 699 is binding in this case, by virtue of Articles 86 and 89 of the Withdrawal Agreement and sections 6, 7A and 7C of the European Union (Withdrawal) Act 2018 (Withdrawal Act). In Tesco, the ECJ held that Article 157 of the TFEU extends to equal value claims. However, although the referral was made pre-Brexit, the decision was handed down after the UK left the EU. It is not disputed that if Tesco is not binding, the tribunal may have regard to it to the extent that it considers it relevant. It was accepted that the tribunal was bound by section 6 of the Withdrawal Act and the EAT’s judgment in Asda Stores Ltd v Brierley and others  ICR 384 that Article 157 of the TFEU has direct effect in equal value cases. The supermarkets did not therefore advance any arguments as to the binding effect of Tesco in the tribunal proceedings, but may do so on any appeal.
Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
In Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restaurants Ltd and others  UKEAT 2020-000110, the EAT has held that a tribunal erred in focusing on the behaviour adopted by a claimant in an attempt to manage her conditions when considering whether those conditions had an adverse effect on her day-to-day activities. The claimant suffered from epilepsy and vitiligo and avoided coffee, alcohol, cosmetics, cleaning products, sunlight and all medications (including those prescribed by her physicians to manage her conditions), believing that they would adversely trigger her conditions. However, there was no medical evidence to support the claimant’s beliefs, and she was acting contrary to medical advice in refusing to take medication.
The EAT held that the question of whether a claimant’s impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and could not be determined by a claimant’s subjective beliefs about how to manage their conditions. In this case, the claimant only relied on physical, not mental, impairments. The tribunal had to disregard the claimant’s coping mechanisms, even though her belief that they were necessary was strongly held. It should have considered the impact the actual conditions had on the claimant’s day-to-day activities, leaving aside the impact of her avoidance behaviours. The EAT remitted the question of disability to a fresh tribunal, noting that this was a novel point of law on which it believed there was no previous case law.
Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
In Gray v University of Portsmouth  UKEAT 2019-000891, the EAT has allowed an appeal where a tribunal failed to provide sufficient reasoning in its judgment to demonstrate that it caried out a critical ev aluation on the question of objective justification in respect of a claim for discrimination arising from disability under section 15 of the Equality Act 2010.
Mr Gray was employed by a University in its Information Service department from 2009. He was dismissed in 2017 following a two-year sickness absence related to his disability. He complained to an employment tribunal that he had suffered discrimination arising from his disability, alleging that the University had treated him unfavourably by initiating a formal meeting under their absence process, stopping his sick pay, dismissing him and rejecting his appeal against dismissal.
The tribunal rejected the claim. It determined that the University had a legitimate aim in ensuring the efficient running of the Information Service department as part of its provision to students. The Tribunal considered each of Mr Gray’s complaints and held that the actions taken were a proportionate means of achieving the legitimate aim.
Mr Gray appealed to the EAT, arguing that the tribunal had erred in its approach to objective justification under section 15 and had not adequately explained its conclusions. The EAT noted that the critical evaluation required for the purpose of section 15 means the tribunal must carry out its own assessment of objective justification. Further, the tribunal is required to make clear how it had undertaken its assessment by demonstrating that critical evaluation in its reasoning.
The EAT took issue with the tribunal’s findings on Mr Gray’s dismissal and the decision to uphold that dismissal on appeal. In its judgment, the tribunal had stated that it was “obvious” that continuing to hold Mr Gray’s job open was significantly disruptive for the University but, critically, failed to explain why it reached that finding. The judgment had not included findings about how Mr Gray’s job was being covered, whether his absence was actually causing any disruption or whether the University incurred additional cost. The EAT allowed the appeal and remitted the matter to the original tribunal.
Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
In Hovis Ltd v Louton  UKEAT 2020-000973, the claimant, a lorry driver for Hovis, was summarily dismissed for smoking while driving his company vehicle, which was a serious breach of the company’s smoking policy and a criminal offence. He denied smoking, and the investigator found no physical evidence of smoking in the vehicle. However, the evidence at his disciplinary hearing, which was accepted by the employer, included written statements by two eyewitnesses (a Hovis manager and his wife, who alleged that they saw the claimant smoking when they overtook him on the motorway). It also included dashcam footage confirming that it was indeed his vehicle.
A tribunal found the dismissal fair but wrongful. On the wrongful dismissal point, the tribunal noted that it had to undertake its own assessment of whether the claimant had been smoking. Neither of the eyewitnesses gave oral testimony, although their written statements from the internal investigation were put in evidence. The tribunal held that, without being able to assess their testimony, it could not conclude that the claimant was guilty on the balance of probabilities.
The EAT rejected Hovis’s first ground of appeal, that the tribunal had impermissibly fallen back on the burden of proof rather than making a positive finding. This was not a case where the evidence both ways had been equally compelling, leaving the tribunal unable to make a decision. Rather, the tribunal had held that there was insufficient evidence to support a finding that the claimant had been smoking.
However, the EAT upheld the second ground of appeal, namely, that the tribunal had wrongly attached no weight to the hearsay and documentary evidence. The employment judge had said that, without the eyewitnesses in attendance, she was “unable” to evaluate their credibility against that of the claimant, and therefore “cannot find” that the claimant had been smoking. In the EAT’s view the judge was wrong to say that she was “unable” to assess the credibility of the statements or that it was not open to her to find against the claimant. The statements were admissible as hearsay, and there was no rule that oral testimony must necessarily trump opposing hearsay or documentary evidence if the judge finds it more reliable or compelling.
For those reasons the EAT overturned the finding of wrongful dismissal and remitted it to a fresh tribunal.
Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
In Walsh v Network Rail Infrastructure Limited  UKEAT 2020-000724, the claimant submitted a flexible working request in February 2019, which the employer rejected in March and the claimant appealed. Following much correspondence causing a delay in arranging the date of the appeal hearing, it was eventually agreed between the parties in late June 2019 to hold the hearing on 1 July. However, this meant the appeal hearing was outside the three-month ‘decision period’ for resolving the request.
Before the appeal hearing, on 25 June, the claimant submitted a tribunal claim alleging breaches of the flexible working legislation, including that the process had not been concluded within the decision period. The tribunal held that by agreeing to attend the appeal hearing he had, by implication, agreed to extend the decision period itself meaning his claim was made prematurely and therefore the tribunal did not (yet) have jurisdiction to hear the claim.
The EAT disagreed, holding that in order to extend the decision period it must be clear that there is an agreement to extend the decision period. Agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.
Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
The BBC reported on 18 November 2021 that The Fawcett Society is urging employers to stop asking jobseekers about their previous salaries. The Fawcett Society is the UK’s leading membership charity campaigning for gender equality and women’s rights at work, at home and in public life and this is part of their “Equal Pay Day 2021 Briefing” campaign.
The question about past salaries is faced by almost half of working adults (47%) and affects 61% of women’s confidence to negotiate better pay. The Fawcett Society is calling on employers to stop this practice which contributes to pay inequality by replicating gaps from other organisations. Only a quarter of people surveyed believe their salary should be based on their previous rate of pay, but more than half (58% of women and 54% of men) think they have been offered a reduced salary because of this question.
Guidance: CIPD publishes new Effective Hybrid Working guidance
The CIPD (Chartered Institute of Personnel and Development) has published new guidance on 3 December 2021 around Effective Hybrid Working. The guidance was produced in partnership with the government’s Flexible Working Taskforce. The guidance focuses on the key areas of:
- People management
- Recruitment and induction
- Inclusion and fairness
- Health, safety and wellbeing.
They explain that hybrid working is a form of flexible working where workers spend some of their time working remotely (usually, but not necessarily, at home) and some of their time at their employer’s workplace. The Taskforce, which was relaunched earlier this year, is a partnership across unions, businesses, and government departments, and aims to improve public policy around flexible working. Members include the CBI, the Federation of Small Businesses (FSB), the British Chambers of Commerce (BCC) and Working Families.
The guidance was published on International Day of Persons with Disabilities, and is intended to encourage employers to train managers on how to ensure best practice in hybrid working. Inclusivity in the key to making hybrid working effective, allowing all employees access to flexible arrangements who are then treated equally regardless of how they work. It is also important to take into account people’s individual working preferences and personal circumstances. There could be unintended consequences for non-office based employees as they may miss out on things which happen in the office (such as training or learning opportunities), likewise promotions or other business opportunities may not be so obvious for those who choose to work from home more, leading to inequality. As such, hybrid working policies should be kept under regular review, with input from employees being key to maintaining working relationships.
The guidance also covers performance management, remote communication and effective collaboration, as well as ways to improve recruitment processes in order to accommodate flexible working practices.
Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
Personnel Today reports that, according to a study conducted by Flexonomics, refusing to accommodate flexible working requests is costing UK businesses £2 billion a year. The cost is attributed to the link between flexible working and employee morale, boosted productivity and lower employee absence. The study found that flexible working is currently contributing £37 billion to the UK economy and a 50% increase in flexible working could result in a net contribution of £55 billion to the UK economy and create 51,200 new jobs.
The report also looks at removing the myths around flexible working only being suitable for a few sectors and highlights how the construction and other “hard-to-flex” sectors could embrace flexibility through methods such as self-rostering.
Ahead of the government’s response to the consultation into flexible working, the report calls for more to be done to ensure businesses are being clear about flexible working opportunities in its job adverts and to be more proactive about communicating the benefits of flexible working to businesses.
Workers: Government call for evidence on umbrella company market
On 30 November 2021, HM Treasury, HMRC and BEIS published a call for evidence on the umbrella company market. It follows concerns about the tax and employment rights risks posed by umbrella companies. An umbrella company is a company that employs a temporary worker (an agency worker or contractor) on behalf of an employment agency. The agency will then provide the services of the worker to their clients.
Umbrella companies currently fall outside the regulation of the recruitment sector (Employment Agencies Act 1973, Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) and Agency Workers Regulations 2010 (SI 2010/93)). In April 2020, the government sought to address transparency on employer identity and pay for assignments of agency workers supplied through umbrella companies by introducing the Key Information Document (KID). The government proposes a multi-stage process of further action. Primary legislation will bring umbrella companies into the regulatory framework. Regulations will then set out minimum requirements and address common issues, including:
- Non-payment of wages and payroll skimming (where umbrella companies “skim” money from payslips or inflate deductions to retain money that should be received by a worker).
- Non-payment of holiday pay (by failing to inform workers of their entitlement or failing to pay the correct amount).
The Employment Agency Standards Inspectorate will continue to ensure compliance with the KID and enforce the regulations. Workers are invited to share their experiences of working through umbrella companies and the KID, to identify means of better protecting workers based on the most up-to-date market practices. Specifically, views are invited on the reasons for the increased use of “joint-employment” contracts in which an umbrella company and employment business both employ the worker (making it more difficult for workers to understand the nature of their relationship with either entity).
HMRC gives examples of tax (direct and indirect) non-compliance and evasion by umbrella companies and the steps that it has taken to combat such activities. However, HMRC seeks more evidence about the specific tax risks posed by umbrellas and how these risks might be mitigated. Evidence is sought from, among others, umbrellas and entities contracting with them, on their experiences, the steps they take to ensure tax compliance in their labour supply chains and the further steps HMRC and the government should take to prevent and tackle non-compliance.
Responses are requested, where possible by email (email@example.com) by 11.45 pm on 22 February 2022.
Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
In a press release issued on 25 November 2021, the Minister for Employment called on employers to strengthen their support of the careers of women who suffer from serious menopause symptoms. The press release was issued alongside the publication of findings from the independent report commissioned by the government in July 2021, which found that almost one in four women are forced to leave work as a result of menopause symptoms and those who experience serious symptoms take an average of 32 weeks of leave. Without the support of employers, this could limit progression and lead to long-term unemployment. The Minister for Employment has urged employers to use a national network of advisors, “50 Plus Champions”, to support and retain their workers over the age of 50, including women experiencing the menopause.
The government will be responding to the recommendations of the report in the coming months. The recommendations of the Women and Equalities Committee’s inquiry into menopause in the workplace are also awaited.
As we have previously reported, ACAS now has guidance for employers on how to help women at work dealing with the menopause, which you can view here: Menopause at Work.
Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
According to a survey conducted by Virgin Money, six in ten parents or expectant parents would change jobs if offered better parental leave benefits, reports Personnel Today. Virgin Money The survey revealed that employees were also worried that they would miss out on promotions or career opportunities while on maternity leave (58%) or lose their job (52%). Most of those who responded believed that parental leave policies are an important factor when considering roles at a new organisation (92%) and one in seven (14%) had already left roles due to poor parental leave entitlements, whilst almost a third (29%) of working parents feel maternity and paternity leave in the UK is generally outdated. Virgin Money goes on to report on other benefits workers and parents expect their company to offer include 30 days annual leave (55%), wellbeing days (39%), private medical insurance (31%) and the opportunity to work remotely abroad each year (28%).
The survey coincides with the launch of Virgin Money’s new parental leave policy, which offers equal family leave to all employees from the first day of employment. David Duffy, CEO of Virgin Money, said: “The pandemic has permanently changed our approach to working life. It’s clear to us that by taking a purpose-driven approach to how we work, we can help colleagues achieve a work-life balance that brings out their best.”
Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
The Department for Work and Pensions (DWP) has published its proposed increases to a number of statutory benefit payments. The following rates are expected to apply from April 2022:
- The weekly rate of statutory sick pay (SSP) will be £99.35 (up from £96.35).
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £156.66 (up from £151.97).
- The weekly rate of statutory paternity pay (SPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory shared parental pay (ShPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory adoption pay (SAP) will be £156.66 (up from £151.97).
The rates will be confirmed once an Order is made and are due to come into effect on 11 April 2022. The national minimum wage rates that will apply from April 2022 were announced in the Autumn Budget.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – November 2021
- Disability Discrimination: Dismissal for poor performance was not disability discrimination
- Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
- Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
- Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
- Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
- Autumn Budget: Key employment law points
- Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
- Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
- Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
- Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
- Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Disability Discrimination: Dismissal for poor performance is not disability discrimination
In Stott v Ralli Ltd  UKEAT 2019-000772, the EAT has upheld a tribunal’s decision that the dismissal of a paralegal for poor performance was not an act of discrimination arising from disability (a mental health impairment) contrary to section 15 of the Equality Act 2010 (EqA 2010).
The claim had been brought solely in relation to the claimant’s dismissal and the tribunal had been entitled to find that the respondent did not have knowledge (actual or constructive) of the claimant’s disability before the dismissal. Further, the tribunal had correctly directed itself in relation to the justification defence and had made sufficient findings of fact to support its conclusion that the defence had been made out.
In relation to knowledge, the claimant argued that the tribunal should have regarded the grievance she brought after her dismi ssal, and her appeal from the outcome of the grievance, as an integral part of the dismissal process. She submitted that the tribunal should have found that, by the end of that process, the respondent had knowledge of her disability. She relied on the EAT’s decision in Baldeh v Churches Housing Association of Dudley and District Ltd UKEAT/0290/18, which held that, where an employer had not known about an employee’s disability at the time of their dismissal but had been told about it at an appeal hearing, the dismissal could be discriminatory under section 15 of the EqA 2010.
The EAT noted that, for the purposes of an unfair dismissal claim, dismissal is regarded as a process which includes the appeal stage. It held that Baldeh does not establish any legal principle to the effect that the same approach universally applies in a discrimination claim. The approach in Baldeh was in fact similar to that in CLFIS (UK) Ltd v Reynolds  ICR 1010 in which it was held that a claim that a decision to dismiss was discriminatory, and a claim that a decision on appeal was discriminatory, were distinct claims which must be raised and considered separately. The claimant in this case had not brought a claim of disability discrimination in relation to her grievance; her claim was limited to the respondent’s dismissal decision.
Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
In Secure Care UK Limited v Mott  EA-2019-000977-AT, the EAT had to consider whether a dismissal by reason of redundancy (carried out after the employee had made protected disclosures) would be automatically unfair if the decision to dismiss had been ‘materially influenced’ by such disclosures. The EAT held that it would not.
The claimant was employed by the respondent as a logistics manager, providing transport services for NHS patients with mental health issues, including those detained under the Mental Health Act. He made nine protected disclosures about his employer (including insufficient staffing levels), who subsequently made him redundant. The claimant claimed under section 103A Employment Rights Act 1996 that he had been unfairly dismissed by reason of making protected disclosures. The tribunal, finding that three of the nine communications relied upon by the claimant were protected disclosures, upheld his claim, stating that while there was a genuine redundancy situation, the disclosures made by the claimant had had a material impact on his selection.
At appeal the case was remitted on the issue of causation as the EAT found that the tribunal had erred in two respects. Firstly, in applying the wrong causation test, namely the ‘materially influences’ test applicable to section 47B claims for detriment by reason of making a protected disclosure (Fecitt v NHS Manchester  ICR 372), rather than the ‘sole or principal reason’ test required by the terms of section 103A. Secondly, in failing to distinguish the impact of the three protected disclosures, from the impact of all nine of the claimant’s communications about staffing levels, when considering the reason for the dismissal.
Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
In London Borough of Hammersmith and Fulham v Keable  UKEAT 2019-000733 the EAT had to consider a Council employee who had been dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament in his time off. The employee was pulled into a disciplinary process because, although his role at the Council was non-political, the conversation had been about events around the time of the Haavara Agreement of 1933 prior to WWII. Not only had the words spoken included reference to anti-Semitism, Nazis and the Holocaust, but it had been filmed and made its way around social media, resulting in an MP tweeting about it and identifying the claimant as a Labour Party member and Momentum organiser. Once identified as a Council employee, the MP caused the respondent to investigate and a disciplinary process was begun, following which, the claimant was dismissed for serious misconduct. The claimant had never known about the video or been told which specific allegation had led to his dismissal. He brought a claim of unfair dismissal.
At tribunal, the judge determined that the dismissal was both procedurally and substantively unfair. She made an order for reinstatement. The respondent employer appealed.
In dismissing the appeals, the EAT found that the tribunal judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him. In reaching her conclusions the Judge did not substitute her own views for that of the employer. Whilst the Judge should have raised a relevant authority with the parties, on the facts of this case, that did not vitiate the decision. As to remedy, on the evidence before her, the Judge was entitled to conclude that reinstatement was practicable and to make the order she did. It was noted that in conduct cases, re-instatement can be ordered even if the dismissing manager genuinely believed misconduct had occurred; a conduct dismissal does not automatically mean that re-instatement is impracticable.
Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
In Stone v Burflex (Scaffolding) Ltd  UKEAT 2019 001183 the appellant raised a grievance about his level of pay; following a meeting with the respondent’s management he was summarily dismissed. The appellant brought a claim for unfair dismissal under s.104 of the Employment Rights Act 1996 (ERA). The respondent’s primary case had been that he was not dismissed but had resigned. The employment judge found that the appellant had been dismissed. The employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.
The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and so it substituted a finding to the contrary. The finding as to the reason for dismissal involved errors of law in that (a) the employment judge had not asked himself why the respondent had decided to withdraw the concession, and (b) the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, when there were a number of submissions the appellant might have made if the matter had been raised (in particular relating to s.105 ERA).
Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
In Ameyaw v PricewaterhouseCoopers Services Ltd  UKEAT 2019-000480, the EAT held that a tribunal had not erred in law by refusing a claimant’s application for an anonymity or restriction order under rule 50 of the Employment Tribunal Rules of Procedure 2013 (ET Rules) and had correctly held that her rights under Article 8 of the European Convention on Human Rights (ECHR) were not engaged.
The claimant had previously brought another rule 50 application as part of wide-ranging litigation against her former employer. This appeal concerned her application for an order that her identity be anonymised or that the contents of the reasons for an order made by an employment judge at a private preliminary hearing not be disclosed to the public. The reasons recorded the disruptive behaviour of her and her mother, and she was concerned about harm to her reputation. The EAT agreed with the tribunal that the claimant’s Article 8 rights were not engaged, for the following reasons:
- The claimant was not relying on conduct external to the legal proceedings and forming part of her private life, but conduct at a hearing recorded in writen reasons issued by the tribunal.
- Conduct at a tribunal hearing must not be taken to form part of a claimant’s private life protected by Article 8, even if members of the public are excluded from the hearing. A private hearing should not be conflated with the sphere of a claimant’s private life; the two are not the same.
- The claimant had no reasonable expectation of privacy in relation to her conduct at the hearing. A reasonable person of oridnary sensibilities would not consider the public disclosure of the nature of their conduct at a hearing, even a private one, to be offensive. It was a foreseeable conseuqence that a claimant who misconducts themselves at a hearing will have the nature andextent of their misconduct set out in the tribunal’s decision.
The EAT concluded that, even if Article 8 were engaged, the tribunal was correct to find that the balancing exercise was against the making of an order under rule 50 and in favour of the open justice principle.
Autumn Budget: Key employment law points
On 27 October 2021, the Chancellor, Rishi Sunak, delivered the Autumn 2021 Budget. The government has wound down much of the emergency support it put in place to deal with the COVID-19 pandemic and the budget announcements address the government’s shift in focus to economic recovery. We set out below the salient points in relation to employment.
Ongoing risks from COVID-19
It is noted that risks remain from COVID-19, especially through the coming months. On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan which sets out how, through use of Plans A and B, it intends to address the challenges that may be posed by COVID-19 over the autumn and winter period. It is suggested that the government is monitoring the data closely and will only introduce further measures if needed.
Skills and apprenticeships
On 4 October 2021, the Chancellor announced a £500 million expansion of the government’s Plan for Jobs initiative which would target support to workers leaving the furlough scheme, the unemployed aged over 50, the lowest paid and young people. The Chancellor announced further investment intended to boost opportunities for people to upskill and retrain, and an increase in apprenticeships funding. In particular, there will be increased funding for the National Skills Fund to expand the Lifetime Skills Guarantee so more adults in England can access funding for in-demand Level 3 courses and Skills Bootcamps will be scaled up.
As a result of increased apprenticeships funding, the government will continue to meet 95% of the apprenticeship training cost for employers who do not pay the apprenticeship levy and will deliver apprenticeship system improvements for all employers. These include:
- An enhanced recruitment service by May 2022 for small and medium-sized enterprises (SMEs), helping them hire new apprentices.
- Supporting flexible apprenticeship training models to ensure that apprenticeship training continues to meet employers’ needs. By April 2022, the government will consider changes to the provider payment profiles aimed at giving employers more choice over how the apprenticeship training is delivered and explore the streamlining of existing additional employer support payments so that they go directly to employers.
- Introducing a return-on-investment tool in October 2022 to ensure employers can see the benefits apprentices create in their business.
The Chancellor confirmed the extension of the £3,000 apprentice hiring incentive for employers until 31 January 2022 and announced investment in the Sector Based Work Academy Programme (SWAPs) which give unemployed people the opportunity to undertake work experience, learn new skills and retrain into high-demand sectors in their local area.
National minimum wage
On 3 March 2021, the government published its remit for the Low Pay Commission (LPC) for 2021. The remit asks the LPC to make recommendations for the National Living Wage (NLW) and National Minimum Wage (NMW) rates that should apply from April 2022. The LPC submitted its recommendations on 22 October 2021 and these were accepted by the government.
The Chancellor announced that the following rates (per hour) will apply from 1 April 2022:
- NLW for those over 23: from £8.91 to £9.50.
- NMW for those aged 21 to 22: from £8.36 to £9.18.
- NMW for those aged 18 to 20: from £6.56 to £6.83.
- NMW for those aged under 18: from £4.62 to £4.81.
- Apprentice Rate: from £4.30 to £4.81.
- Accommodation offset rate: from £8.36 to £8.70.
Workers who live in their employer’s family home, are treated as a member of the family and are not charged for food or accommodation do not qualify for the NMW (regulation 57, National Minimum Wage Regulations 2015 (SI 2015/621)). In submitting its recommendations, the LPC noted that this exemption, which was introduced to facilitate au pair placements, has given rise to longstanding concerns that it has provided a loophole for the exploitation of migrant domestic workers. The LPC recommends that the exemption is removed.
Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
The BBC reported on 22 October that the government has blocked a Private Member’s Bill which aimed to curb the practice of “fire and rehire” that has been the subject of recent high-profile disputes. Employers who wish to make detrimental changes to employees’ terms and conditions will, in the absence of employees agreeing to those changes, dismiss them and offer to re-engage them on the detrimental terms.
On 8 June 2021, responding to a report published by ACAS, the government stated that it would not yet legislate to prevent this practice but had requested that ACAS prepare more detailed guidance on how and when dismissal and re-engagement should be used.
Labour MP Barry Gardiner sponsored the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill which would discourage the use of fire and rehire practices and grant additional protection to those affected by it. The government ordered Conservative MPs to oppose the Bill at its second reading on 22 October 2021, as reported in Hansard. While it regards the practice as “unacceptable as a negotiating tactic“, the government intends to await the ACAS guidance. ACAS duly obliged by publishing this new guidance on 11 November 2021.
Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
On 5 November 2021, the BBC reported how some employers are monitoring their employees at home. The trade union, Prospect, has called for the regulation of employer’s use of technology to monitor employees to be strengthened. This comes as new polling suggests that nearly a third (32%) of employees working from home are being monitored by their employers, rising to nearly half (48%) for younger employees aged 18 to 34. The poll also shows that monitoring of homeworkers by camera has more than doubled since April 2021, from 5% to 13%. In addition to strengthened regulation, Prospect has called for the monitoring of employees through webcams to be made illegal, except during calls and meetings. This follows a recent consultation by the Information Commissioner’s Office (ICO) for views to inform new data protection and employee practices guidance, including to reflect changes in the way employers use technology, which will replace the existing Employment Practices Code.
Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
The All-Party Parliamentary Group (APPG) on the future of work published a report on 11 November 2021 that calls for an “Accountability for Algorithms Act (the AAA)” to curb employers’ use of technologies that monitor workers and setting performance targets determined by algorithms. The AAA is proposed to counter the negative impacts of the use of surveillance technologies which has increased significantly during the COVID-19 pandemic.
The report found that workers’ experience of these technologies amounts to “extreme pressure of constant, real-time micro-management and automated assessment“, and the APPG is particularly concerned about the impact this has on workers’ mental health and wellbeing. The report suggests the AAA would create a new corporate and public duty to undertake an “Algorithmic Impact Assessment“. It would also update digital protection for workers, offer additional collective rights for unions and specialist third sector organisations, and extend enforcement powers to the joint Digital Regulation Cooperation Forum (DRCF).
On 19 November 2021, People Management published its exploration of the contents of the proposed Accountability for Algorithms Act, and what it might mean for employers. For a more in depth review, read the full article here: How new artificial intelligence legislation affects businesses.
Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
On 15 November Personnel Today reported that PwC’s analysis of the most recent gender pay gap statistics shows a minimal decline of the gap from 13.3% in 2019/2020 to 13.1% in 2020/2021. According to PwC, the changes to the reporting deadline, due to the COVID-19 pandemic, impacted the disclosure rate significantly. Only a quarter of the employers that reported this year did so by the original reporting deadline of 5 April 2021. Analysis of those figures showed a decrease in the gender pay gap to 12.5%. By the extended deadline of 5 October 2021, 80% of the employers that reported in 2018/2019 had submitted their figures and the gap had risen to 13.1%. When the figures were released by ONS they noted comparisons ought be treated delicately due to the impact the pandemic had on wages and hours worked. PwC repeated this concern and added that the slight decrease in the gap, while positive, may be “masking other workforce patterns that are detrimental to gender diversity and inclusion in the workplace“.
Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Research carried out by Dr Deng at Durham Business School, and colleagues from other universities around the world, has found that parents who feel ashamed when something at work calls into question their parenting role, are less productive than those who do not feel ashamed. It also showed that staff struggling to balance work and parental responsibilities inevitably prioritise family commitments, at the expense of their work commitments. Those parents who already had lower levels of emotional stability were more likely to feel that their identity as a parent was under threat.
“Working parents not only experience pressure to exemplify an ‘ideal’ worker role, but they are also expected to engage in intensive parenting practices to raise successful children. Although the roles can complement each other, many find achieving this balance challenging, and therefore end up prioritising childcare as it is deemed more important.”Dr Deng
Dr Deng and colleagues explained that in today’s remote working world, the lines between professional and personal responsibilities are becoming blurred. More often than not, working parents are struggling to cope with the pressure of juggling the two, something which has been highlighted by the pandemic.
All is not lost though, as more and more organisations are finding out, good mental health is the cornerstone to a healthy and productive workforce. To help working parents tackle this imbalance, Dr Deng suggests organisations can, and should, be doing more to help their workers balance both their working role and their parental role too, saying:
“Organisations can train managers to recognise when employees are struggling with these issues, and work through those vulnerabilities by helping them to identify ways to proactively bounce back from their self-despair without withdrawing from their work roles.”Dr Deng
Dr Deng also suggests employers can also help employees further by giving them more flexibility to attend to their children’s needs, in exchange for employers gaining more focused and hardworking employees whilst on the job.
Speaking to People Management, Simon Kelleher, head of policy and influencing at Working Families said that flexible working practices are often beneficial for productivity and talent retention, but called on the government to deliver on the recent flexible working consultation.
“We continually hear from working parents and carers who are denied even modest flexible working requests and are having to make unenviable trade-offs to manage from going into debt to pay for childcare or leaving careers they had worked hard to build due to inflexibility,” he said.Simon Kelleher, Working Families
Currently, the law only allows for employees to take a ‘reasonable’ (which is undefined) amount of unpaid time off for unexpected events involving dependents. Some employers may provide further contractual benefits but this is entirely at the employer’s discretion.Simon
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – September 2021
- COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
- COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
- Contract: Employer liable to pay income protection payments not covered by insurance
- Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
- COVID-19: Adjusted Right to Work checks extended until April 2022
- COVID-19: Government publishes Autumn and Winter Plan: employment aspects
- National Insurance: Increase to pay for health and social care
- Immigration: Changes to UK Immigration Rules announced
- Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
- Flexible Working: Consultation published on making flexible working a “day one” right for employees
- Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
An employment tribunal has allowed an employee’s victimisation claim that his employer subjected him to a detriment contrary to section 27 of the Equality Act 2010 (EqA 2010) by not furloughing him under the Coronavirus Job Retention Scheme (CJRS) to proceed, as amended. The employee’s other claims and proposed amendments were struck out or not allowed.
In Jimenez v Firmdale Hotels Plc ET/2203194/2020 (12 February 2021) Mr Jimenez had previously brought various claims against his employer, Firmdale Hotels Plc (Firmdale). These claims were dismissed following a final hearing in March 2021. The outcome of that hearing was unknown at the time that the preliminary judgment in the present case was handed down. However, it was not disputed that presentation of the earlier claims was a protected act within the meaning of section 27 EqA 2010. It was also not disputed that Mr Jimenez was excluded from the group of employees furloughed by Firmdale under the CJRS, whether in late March 2020 or subsequently. His exclusion was because he was on long-term sick leave and not in receipt of Statutory Sick Pay, meaning that Firmdale considered him “ineligible” under the CJRS. It subsequently considered it too late to furlough him because he had not been furloughed before June 2020.
Without purporting to make a judicial determination of the point, the employment judge at the preliminary hearing considered that Firmdale was mistaken in its understanding of the CJRS and could have furloughed Mr Jimenez. In addition, despite his requests, it had not explained to him in sufficient detail why it considered him ineligible for furlough. Firmdale submitted that other employees on long-term sick leave were treated in the same way as Mr Jimenez. The judge noted that if this was correct and there was no other indication of differential treatment, it would be compelling evidence that Mr Jimenez had not been subjected to a material detriment because of the protected act. However, with sufficient evidence to shift the burden of proof to Firmdale, his claim could proceed given that he had also attempted to present it in time. The judge advised Mr Jimenez to consider any comparator documents disclosed by Firmdale, as they were likely to inform his decision on whether to pursue his claim to a final hearing or apply to amend it to a discrimination arising from disability claim.
COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
Two non-binding employment tribunal decisions have provided guidance on how measures taken to protect pregnant workers during the height of the pandemic might be viewed and when dismissing an employee who refuses to obey a management instruction due to COVID-related risks might be automatically unfair.
In Prosser v Community Gateway Association Ltd ET/2413672/2020 (13 May 2021), Ms Prosser, a pregnant zero hours worker, was sent home at the start of the pandemic because her employer viewed her as clinically vulnerable. Her return to work was delayed following a risk assessment and while her employer implemented social distancing measures (spacing of desks and Perspex screens). She was advised that she would not be asked to undertake night shifts, which involved lone working, unaccompanied travelling to tenants’ homes and the provision of physical support. This was deemed unsafe for her as a pregnant worker. During her absence, she was paid “generously” in excess of her contractual entitlement and was not left out of pocket. A payment was mistakenly made late but not because of her pregnancy. A tribunal dismissed her discrimination and victimisation claims, noting that her treatment was appropriately informed by the available public health advice and relevant COVID regulations. A formal risk assessment had been completed and the employer’s motive was to protect her and her unborn baby.
In Ham v Esl Bbsw Ltd ET/1601260/2020 (14 April 2021), Mr Ham was dismissed from his cleaning service job when he refused to deliver equipment to his self-isolating manager’s home, who had COVID-19 symptoms and was unvaccinated because it was the start of the pandemic. He offered to bring the equipment to another location, where it could be stored securely. In his internal appeal against his dismissal, he expressed concern for his and his family’s health. A tribunal concluded that his dismissal was for the principal reason that he had raised health and safety concerns, making it automatically unfair contrary to section 100(1)(c) and (e) of the Employment Rights Act 1996. While his inexperienced manager was dealing with huge uncertainty at the start of the first lockdown, when a lot was unknown, her reaction to his legitimate concerns was not excusable. It was inconceivable that an employee being instructed to go to the home of two self-isolating individuals (his manager and her daughter) during late March 2020 was not raising legitimate health and safety concerns or taking appropriate steps to protect himself.
Contract: Employer liable to pay income protection payments not covered by insurance
In Amdocs Systems Group v Langton UKEAT/0093/20 and UKEAT/0210/20 (24 August 2021), the EAT has held that an employer was liable to pay an employee the level of income protection payments (IPP) set out in an offer letter and summary of benefits provided by his original employer prior to a TUPE transfer. The EAT held that those documents had contractual force as they contained clear and certain terms and were intended to be incorporated. The employer was bound to pay the additional “escalator” payment of 5% per annum that they referred to, regardless of the fact that this was not covered by its insurance. From a review of the relevant authorities the EAT held that it was clear that, if there was any ambiguity or uncertainty as to whether an employer’s obligation to provide benefits was limited by reference to the specific terms of its insurance cover, any such ambiguity would be resolved against the employer and in favour of the employee. To be effective, any limitation of the employer’s exposure should have been unambiguously and expressly communicated to the employee. However, the employee had not been given, nor given access to, the insurance policy terms, or any other document setting out the specifics of what those terms were.
This case is a reminder to transferee employers on a TUPE transfer to carefully check the level of permanent health insurance benefits provided by the transferor to any transferring employee, and whether this will be fully covered by their existing insurance policy.
Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
In Kong v Gulf International Bank (UK) Ltd  EA-2020-000357-JOJ and EA-2020-000438-JOJ (10 September 2021) the EAT has clarified that, when determining the reason for dismissal in an unfair dismissal claim, it will rarely be possible to attribute to the employer the motivation of any person other than the one who decided to dismiss.
Ms Kong was employed by Gulf International Bank (UK) Limited (GIB) as Head of Audit. She raised several concerns with GIB’s Head of Legal, Ms Harding, about an agreement relating to one of GIB’s financial products. It was accepted that these concerns were protected disclosures. Ms Harding disagreed with Ms Kong and confronted her. During this conversation, Ms Kong questioned Ms Harding’s legal awareness. Ms Harding was upset and complained to GIB’s Head of HR and CEO that Ms Kong had questioned her “integrity“. She subsequently limited interaction with Ms Kong. The Head of HR and CEO informed the Group Chief Auditor of the incident. The three managers collectively decided that Ms Kong should be dismissed because her manner meant that colleagues did not want to work with her.
Ms Kong brought claims for unlawful detriment and automatic unfair dismissal for having raised protected disclosures. The claim for unlawful detriment as a result of Ms Harding’s treatment would have succeeded, but was out of time. The claim for automatic unfair dismissal failed: the tribunal found that the decision makers dismissed Ms Kong because of her conduct, not her protected disclosures.
Ms Kong appealed to the EAT in relation to the automatic unfair dismissal claim. She argued that Ms Harding had sought her dismissal because of the protected disclosures, and that Ms Harding’s motivation should therefore be attributed to GIB pursuant to Royal Mail Group Ltd v Jhuti  UKSC 55.
The EAT held that:
- The tribunal had been right not to attribute Ms Harding’s motivation to GIB. The principle in Jhuti will rarely apply. Ms Harding’s complaint that Ms Kong had criticised her integrity, as opposed to her legal awareness, was not sufficient manipulation for Jhuti purposes. Further, there was no finding that Ms Harding had sought Ms Kong’s dismissal.
- The tribunal was clear that what motivated the decision makers was not the content or fact of Ms Kong’s disclosures, but the way in which she conveyed her personal criticisms to Ms Harding. The former was properly separable from the latter.
COVID-19: Adjusted Right to Work checks extended until April 2022
The government announced at the end of August that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. Given positive feedback on the ability to carry out checks remotely, the government has decided to continue using the following temporary changes (originally introduced on 30 March 2020) until 5 April 2022 (inclusive):
- checks can currently be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
You can be fined up to £20,000 for employing illegal workers so this is very important to get right.
See our Immigration note for more information on this: Checking a job applicant’s right to work.
COVID-19: Government publishes Autumn and Winter Plan: employment aspects
On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan. The Plan sets out how the government intends to address the challenges that may be posed by COVID-19 through autumn and winter while ensuring that the National Health Service is not put under unsustainable pressure.
Plan A is described as a comprehensive, five-point approach designed to steer the country through autumn and winter. In addition to continued use of pharmaceutical interventions (including further vaccine deployment), managing pressures on the NHS and social care and managing risks at the border, the government intends to continue with Test, Trace and Isolate and to provide guidance on how people can protect themselves. Existing requirements and support for self-isolation will remain in place. The government intends to review these by the end of March 2022. Guidance on how employers can reduce risks in their workplaces will be kept up to date.
Plan B is provided in outline and will only be enacted if the data suggests further measures are necessary to protect the NHS. The steps anticipated here involve advising the public of the need to behave more cautiously given an increased level of risk, introducing mandatory vaccine-only COVID-status certification in certain settings, legally mandating face coverings in certain settings (which would be determined at the time) and instructing those who can to work from home. The Plan concludes that beyond Plan B “more harmful economic and social restrictions would only be considered as a last resort“.
National Insurance: Increase to pay for health and social care
Prime Minister Boris Johnson announced on 7 September 2021 a new UK wide ‘health and social care levy’ to address the funding crisis in this sector. See our full article on this for more detail: National Insurance increase to pay for health and social care.
Immigration: Changes to UK Immigration Rules announced
On 10 September 2021, the government published Statement of changes to the Immigration Rules: HC617, most of which comes into force on 1 October 2021. The statement:
- Introduces coronavirus (COVID-19) concessions on Tier 1 (Entrepreneur), the EU Settlement Scheme (EUSS), Skilled Worker and Tier 2 Sportsperson routes into the Immigration Rules.
- Extends the Youth Mobility Scheme to include nationals of Iceland and India.
- Introduces a dedicated International Sportsperson route to replace the T2 and T5 Temporary Worker routes for professional sporting workers.
- Expands the list of eligible prizes under the Global Talent route.
- Makes changes to the EUSS to allow a joining family member to apply to the EUSS while in the UK as a Visitor.
Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
People Management has reported how the Equality and Human Rights Commission (EHRC) is preparing to restart “enforcing gender pay gap reporting requirements again next month as a temporary suspension of enforcement, put in place to help employers through the coronavirus crisis, comes to an end”. With this in mind, the Chartered Management Institute (CMI) has partnered with the EHRC to create a practical toolkit to support organisations drive action in tackling their gender pay gap. The publication of practical guidance follows a warning from the ECHR that the gender pay gap disparity has widened during the pandemic, and that employers risk de-prioritising the issue close to the extended deadline of pay gap reporting of 5 October 2021. Government figures indicate that currently, only 5,000 employers of around 12,500 that meet the reporting requirements have filed figures for the year.
The toolkit itself contains case studies, recommended actions for employers, and tried and tested “how to” guides from the Behavioural Insights team.
Flexible Working: Consultation published on making flexible working a “day one” right for employees
The government has published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during the COVID-19 pandemic.
The proposals do not introduce an automatic right for employees to work flexibly. Instead, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs. The main change would be making the right a “day one” right, removing the requirement for 26 weeks’ qualifying service. The consultation also considers:
- Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.
- Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
- Changing the administrative process underpinning the right to request flexible working. In particular, the government wants to explore whether to allow employees to make more than one statutory request each year.
- Raising awareness of the existing right of employees to request a temporary flexible working arrangement.
The government has decided not to proceed with the proposal, put forward in an earlier consultation, to introduce a requirement for large employers to publish their flexible working policies.
You can complete the online survey here. The consultation will remain open until 1 December 2021.
Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
Website, peoplemanagement.co.uk, reported on 31 August 2021 that figures released by the Office for National Statistics (ONS) show how working from home has affected the older generation. For example, in June and July 2020, workers aged 50 and over who worked from home during the COVID-19 pandemic instead of in their usual workplace were more than twice as likely to say they planned to retire later (11%) than those in the same age category who did not work from home (5%). Similarly, the statistics show that workers with a long-standing illness, disability or infirmity who work from home are nearly twice as likely to say they plan to retire later (10.9%) than those who do not work from home (5.9%). Jonathan Boys, labour market economist at the CIPD, suggested that working from home could extend working lives and may be appreciated more by older workers than younger ones.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – July 2021
- Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
- Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
- COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
- Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
- COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
- Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
- Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
- Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
- Data Protection: European Commission adopts UK adequacy decisions
- Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
- Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
- COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
- ACAS: New guidance published on hybrid working
- Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
In Driscoll (née Cobbing) v V & P Global Ltd and another EA-2020-000876, the EAT has held that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (the Act), departing from its earlier contrary decision, Timothy James Consulting Ltd v Wilton  ICR 764.
The harassment provisions in the Act must be construed purposively, so as to conform with all relevant EU directives, on which the original legislative wording was based. However, in Wilton, the EAT had not referred to the European law, simply holding that harassment in the context of employment, as prohibited by section 40 of the Act, did not expressly include resignation amounting to constructive dismissal. Having examined the relevant directives, the EAT was satisfied that each of them proscribes harassment on the grounds of their respective protected characteristics, including in relation to dismissals. It was notable that, under the directives, harassment is expressly deemed to be a form of direct or indirect discrimination, and should be treated as such. Further, the ECJ has long held that the term “dismissal” is to be construed widely to include, for example, termination as part of a voluntary redundancy scheme and reaching an age limit under an employer’s general retirement policy. There was therefore no principled basis for excluding constructive dismissal from the scope of the applicable directives.
The EAT also drew support from domestic case law, namely Meikle v Nottinghamshire County Council  ICR 1, where the Court of Appeal held that a constructive dismissal could amount to a discriminatory act for the purpose of a disability discrimination claim.
In light of its analysis, the EAT held that Wilton was not correctly decided. As the decision was “manifestly wrong”, it was appropriate for the EAT to depart from its earlier decision. Accordingly, where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment related to a protected characteristic, the constructive dismissal is itself capable of constituting “unwanted conduct” for the purpose of section 26 of the Act.
Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
In IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594, the ECJ has bolstered existing case law on religious dress bans in the workplace, holding that an employer’s policy of political, philosophical and religious neutrality may justify indirect discrimination on the grounds of religion or belief caused by a rule prohibiting the wearing of any visible sign of such beliefs. An employer’s aim of preventing social conflicts may also be a legitimate aim.
However, a dress ban limited to conspicuous, large-sized signs of political, philosophical and religious belief is likely to be directly discriminatory, which cannot be justified. As such, an employer’s ban must apply to all such signs if its indirectly discriminatory effects are to be capable of objective justification.
To objectively justify indirect discrimination on the ground of religion or belief caused by an employer’s dress code, it is necessary for the employer to show that the rule meets a genuine need, taking account of the rights and legitimate wishes of customers or users as well as the adverse impact to the employer in the absence of such a policy. The aim must be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary. In the context of a policy of neutrality, this requires it to be applied in a consistent and systematic manner, to include all visible signs of political, philosophical or religious beliefs and to be limited in application to only those workers who come into contact with customers or users.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is objectively justified, the rights and freedoms recognised by the Charter of Fundamental Rights and the European Convention on Human Rights must be taken into account. In addition, a national rule that lays down an additional requirement for justifying an employer’s rule must also be considered.
COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
The employment tribunal in Montanaro v Lansafe Ltd ET/2203148/2020 held that an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger (section 100(1)(e), Employment Rights Act 1996).
Mr Montanaro (M) was employed by Lansafe Ltd (L) Ltd from 17 February 2020 and provided services to L’s client, B. M believed he had permission to take holiday on 9 and 10 March for his sister’s wedding in Italy. On 9 March, Italy went into lockdown and UK government guidance stipulated 14 days’ isolation on return from Italy. On 10 March, M was told to keep his mobile and laptop on and wait for instructions. On 11 March, L sent a letter to M in London (despite knowing he was in Italy) advising that he had been dismissed with effect from 6 March for failing to follow company procedures and taking unauthorised leave. In absence of communication from L, M was told by B to continue working remotely and M sent information to L about travel restrictions in Italy. On 1 April, L sent M’s P45 and final payslip by email. M successfully claimed automatic unfair dismissal under section 100(1)(e).
The tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that M reasonably believed the danger was serious and imminent. M had taken appropriate steps to protect himself and others. He had asked L for advice, instructions and assistance with documentation had L initially wanted him to fly to London. He had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop. When he didn’t hear from L he communicated direct with B and continued his work on a day-to-day basis. The purported dismissal letter had not been relevant to M’s circumstances and L’s evidence as to the reason for dismissal had not been credible. M had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
The Court of Appeal in Independent Workers Union of Great Britain v Central Arbitration Committee and another  EWCA Civ 952 has unanimously held that Deliveroo riders do not fall within the scope of the trade union freedom right under Article 11 of the European Convention on Human Rights because they are not “in an employment relationship” with Deliveroo. The Central Arbitration Committee had been entitled to reach the conclusion it did given that Deliveroo riders are, genuinely, not under an obligation to provide their services personally and have a “virtually unlimited” right of substitution.
In reaching its decision, the court confirmed that the question of whether Article 11 is engaged in respect of the right to form and join trade unions should be determined having regard to the International Labour Organisation Recommendation 198 (2006). This broadly reflects the position taken in domestic law in identifying the characteristics not only of a contract of service but also a “worker contract”. In particular, it refers to the fact that work “must be carried out personally by the worker”. The absence of such an obligation, as in the case of Deliveroo riders, must therefore point away from worker status and an employment relationship. The decision reiterates the importance of personal service and the value of genuine and unfettered rights of substitution when seeking to argue that an individual is neither an employee nor a worker.
COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
If a respondent wishes to defend an employment tribunal claim, it must present its response (using the prescribed ET3 form) to the tribunal office within 28 days of the date on which it was sent a copy of the claim by the tribunal. If the 28-day deadline has expired the respondent must make a written application for an extension of time, copied to the claimant, setting out the reason why the extension is sought and stating whether it requests a hearing. The application must be accompanied by either a draft of the response, or an explanation of why it is not possible to attach a draft.
In Fyfe v Arcadis Human Resources Ltd ET/4102033/2020 Mr Fyfe submitted an ET1, claiming breach of contract and age discrimination, during the initial phase of the first COVID-19 lockdown. The tribunal’s notification of the claim was not received by Arcadis Human Resources Ltd despite it having an operational post room with skeleton staff throughout lockdown. On 15 July 2020, Mr Fyfe sent Arcadis an email attaching his evidence prior to a final hearing on 17 July 2020. Arcadis immediately instructed a solicitor who contacted the tribunal to put himself on the record, request copies of the ET1 and indicate that Arcadis wished to defend the claim and apply for an extension of time to do so. On 16 July 2020, a written application and draft ET3 were sent to the tribunal. The hearing on 17 July 2020 was converted to a preliminary hearing to hear the application.
The tribunal accepted that these events occurred at an unprecedented time, when many individuals and organisations were adjusting to new working practices, and that Arcadis had not received notification of the claim. It noted the guidance on the exercise of discretion given by the EAT in Kwik Save Stores Ltd v Swain  ICR 49. Arcadis had acted swiftly once it knew of the claim. Considering the balance of prejudice, while Mr Fyfe would not now succeed on a “default judgment” basis, he might still prove his case. By contrast, if Arcadis was precluded from participating, it might have judgment against it in relation to serious matters. Given the overriding objective and interests of justice, the extension of time was allowed and the ET3 was accepted.
Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
The EAT, in Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20, has upheld an employment tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career-long loss. The employee suffered from PTSD, depression and symptoms of paranoia, as well as other functional impairments, and his conditions were likely to be life-long. His case was one of the rare cases where a career-long basis for assessment of financial loss was appropriate.
However, the EAT allowed appeals against various other aspects of the calculation, including the employment tribunal’s decision to apply only a 5% discount to reflect the possibility of employment being cut short for another reason (for example, due to early death, disability or other unforeseen circumstances) and its award of a 20% uplift for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The EAT accepted that the employment tribunal had not demonstrated that it had considered the absolute financial value of the award it was making, despite having evidence that would have given it a clear indication of the probable level of award in issue (likely to be over £2 million).
The case is a rare example of an individual being treated so badly in their employment that the resulting injury was likely to be permanent, meaning that it was very unlikely that they would be able to return to any work before retirement age and therefore justifying compensation on a career-long basis.
Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
In Brightman v TIAA Limited  UKEAT/0318/19 the EAT has held that a tribunal erred in law by failing to consider a claimant’s challenge to her employer’s justification defence in respect of her discrimination arising from disability claim.
Mrs Brightman had various long-term conditions and was disabled for the purpose of the Equality Act 2010. This was not in dispute. On 11 January 2017, she was dismissed by reason of capability on the basis of the available medical evidence, the fact that no further adjustments were possible, her unacceptable level of attendance (which her employer concluded was likely to continue) and the lack of alternative roles. She unsuccessfully appealed and brought various claims, including unfair dismissal and discrimination arising from disability. The tribunal dismissed her claims. She appealed to the EAT.
The EAT noted the following:
- Mrs Brightman’s last day of sickness absence was 24 October 2016 (two and a half months before her dismissal was confirmed), and she attended work throughout the dismissal and appeal processes.
- By the date of her dismissal, her GP report was over a year old and her OH report was based on a consultation from six months earlier (the referral being to assess her fitness to work).
- At the time of dismissal, she had a new central line, was under the care of a new medical team and was optimistic about the future.
The case was not about dismissing an employee on long-term sickness absence but dismissing a working employee because of the risk that she would have further periods of sickness absence in the future. The EAT concluded that the tribunal had impermissibly relied on employer medical evidence that post-dated the dismissal, which it had allowed to be introduced to fill the evidential “gap” and was irrelevant to the liability hearing. Regarding the discrimination arising from disability claim, Mrs Brightman’s absence record was the “something arising“. Her employer’s legitimate aim seemingly concerned the “unpredictable nature” of her absence and the need for other employees to provide cover. However, the tribunal erred by not adequately engaging with her arguments on justification (notably, in circumstances where her employer had been sustaining her absence levels for years). Employers must tread carefully before dismissing, even where an employee has had multiple periods of prolonged absence. Medical evidence relied on should be current, and the employee’s condition and prognosis at the time of dismissal considered.
Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
The Guardian reports that in a letter addressed to Cabinet Office minister Michael Gove, the Confederation of British Industry (CBI), the Trades Union Congress (TUC) and the Equality and Human Rights Commission (EHRC) have called for a clear timetable for the introduction of mandatory ethnic pay gap reporting. Citing the potential of data collection to solve racial inequality in the workplace, the signatories argue that mandatory reporting would highlight pay disparities and the lack of minority representation in senior positions with the hope that this would push employers towards action.
A government spokesperson indicated that the findings of the Commission on Race and Ethnic Disparities were still being considered and that the government would respond in due course. The Commission’s report did not recommend mandatory reporting.
Data Protection: European Commission adopts UK adequacy decisions
On 28 June 2021, the European Commission adopted the two UK adequacy decisions under the General Data Protection Regulation ((EU) 2016/679) and the Law Enforcement Directive. This means that personal data can now flow freely from the EU to the UK as the UK offers an equivalent level of protection to personal data as under EU law. The Department for Digital, Culture, Media and Sport has updated its guidance to confirm the decisions.
The decisions include sunset clauses that limit the decisions to four years, after which they will be reviewed.
The Information Commissioner, Elizabeth Denham, has welcomed the decisions as a positive result for UK businesses and organisations and a testament to the strength of the UK’s data protection regime, noting that “adequacy is the best outcome as it means organisations can carry on with data protection as usual“.
Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
Website, People Management, has reported on a league table prepared by the CIPD over access to flexible working using analysis by the HR body of the Office for National Statistics’ Labour Force Survey data. It reports that “the UK is at risk of becoming a two-tier workforce when it comes to who has access to flexibility with some regions of the country already becoming flexible ‘notspots’”, because some areas of the country have much better access to flexible working than others.
Flexibility was measured by looking at 1) where employees were permitted to work, 2) how informally flexible working policies were operated, including how start and end times were determined and 3) whether employees were able to take leave on short notice.
It turns out employees in the south-east of England have the best access to flexible working options, followed by the east of England and Northern Ireland, which the CIPD states reflects the predominance of certain sectors in different parts of the country, as well as areas with a higher concentration of higher-skilled and higher-paid jobs, which are concentrated in London and the south east.
Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
On 12 October 2020, the Department for Work and Pensions (DWP) launched a call for evidence seeking views on challenges to progression in low-pay sectors, benefits of progression to employers and localities, and examples of good practice across the country. On 1 July 2021, the DWP published the In-Work Progression Commission’s report ‘Supporting progression out of low pay: a call to action’. The report notes that people in low-pay sectors find it very hard to progress to, and stay in, higher earning work. The reasons for this include a lack of skills, logistical challenges, such as a lack of suitable transport or childcare arrangements, as well as confidence and motivational barriers. It recommends that employers play their role in minimising and removing these barriers and in establishing a culture of lifelong learning to support their workforces. Developing skills and an understanding of the value of continual learning is essential to help people in low pay sustainably progress in work.
Employers should adopt the “5-point progression checklist“:
- an individualised progression and learning plan,
- shadowing and work experience, and
- supporting professional development.
They should also develop transparent progression pathways to ensure that entry-level jobs are a stepping-stone. An appropriate senior leader should be responsible for embedding support for progression into management practice. Employers should know about the transport and childcare options available to their staff and use this to inform business practice.
The report recommends that the government works with employers to consider how employers can be supported to accurately monitor individual progression over time, increasing transparency around in-work progression, with particular focus on those in the lowest-skilled roles. This could include developing an appropriate metric to track individual progression and looking at whether, in the longer term, pay reporting data should be part of annual company reports. The report recommends that care workers in England should be registered under a central body (as in the Devolved Administrations) which can manage and certify their registration, training and ongoing professional and skills development.
COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
On 6 July 2021, HM Treasury issued a further Treasury direction under sections 71 and 76 of the Coronavirus Act 2020, modifying and extending the terms of the Self-Employment Income Support Scheme (SEISS) to cover the period beginning on 1 May 2021 and ending on 30 September 2021. In particular, the Treasury direction provides for claims for the fifth SEISS grant (SEISS 5) to be submitted on or before 30 September 2021 in respect of that period. A claim cannot be amended after 30 September 2021. Applications for SEISS 5 will open from late July 2021.
The amount of the grant will be determined by a turnover test. Individuals whose turnover has fallen by 30% or more will receive 80% of three months’ average trading profits, capped at £7,500. However, individuals whose turnover has fallen by less than 30% will receive a 30% grant, capped at £2,850.
ACAS: New guidance published on hybrid working
On 13 July 2021, ACAS published new guidance on hybrid working to help employers consider whether it could be an option for their workplace and how to fairly introduce it. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working. The advice includes tips for employers on how to:
- Consult with staff on the practical considerations regarding introducing hybrid working.
- Support and manage staff who are hybrid working and ensure all hybrid workers are treated fairly.
- Create a hybrid working policy.
- Handle hybrid working requests from staff.
It advises employers to consider whether technology could assist hybrid working, and issues such as health and safety, data privacy, cybersecurity, onboarding new joiners, and how teams will communicate remotely.
The guidance was developed after consultation with the government’s Flexible Working Taskforce which previously recommended that flexible working should be the default position for all workers.
Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Personnel Today reports that a briefing paper published by the Social Market Foundation (SMF) records that 80% of workers surveyed would not be in favour of a four-day working week, if it meant that they earned less. While workers in banking (14%), energy & water (13%), manufacturing (13%), transport & communication (13%), and construction (12%) were most likely to say they wanted to work less, those working in the hospitality (14%), other services (12%), and public administration sectors (8%) were most likely to say they wanted to work more hours.
The survey also found that the workers who stood to benefit most from a four-day week were more likely to be higher earners, those in higher occupational classes, and men.
The introduction of a four-day working week is one of the proposals currently being considered by the government’s flexible working taskforce following a call from cross-party MPs.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – March 2021
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd  UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority  EWCA Civ 255 and Page v Lord Chancellor and another  EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson  UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – February 2021
- Worker Status: Supreme Court rules Uber drivers ARE workers
- Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
- Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
- Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
- Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
- Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
- Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
- Intellectual Property: Employer owned copyright relating to software
- COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
- COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
- Flexible Working: CIPD calls for flexible working to be day-one right for employees
- Mental Health: Commission reveals £8,400 mental health income gap in the UK
- Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
- Pensions: Pension Schemes Act 2021 gains Royal Assent
Worker Status: Supreme Court rules Uber drivers ARE workers
As we reported last month, the Supreme Court heard the case of Uber BV and others v Aslam and others on 21 and 22 July 2020 but has only recently published its judgment. The two questions before the initial tribunal were:
- Do the drivers whose work is arranged through the Uber app work for Uber under workers’ contracts (and so qualify for the national minimum wage, paid annual leave and other workers’ rights), or do they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent (and therefore do not qualify for any of these rights)?
- If drivers work for Uber under workers’ contracts, then were the drivers/claimants working under such contracts whenever they were logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips; or were they working only when driving passengers to their destinations?
The Court of Appeal had upheld the decision of the tribunal and found, by a majority, that Uber drivers were workers, and not independent contractors, and therefore were entitled to the statutory rights afforded to workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. The Supreme Court judges unanimously upheld this decision. It also found that they were working from the time they switched on the app.
In reaching their conclusion, the Judges highlighted the following points which all indicated that Uber was in the more dominant position, like an employer, and unlike in a self-employed contractor situation where there is more equality:
- Uber sets the fares for each ride the drivers carry out and the drivers are not permitted to set their own prices as they would if they were self-employed.
- Uber sets the terms and conditions of using its service.
- Drivers face penalties for cancelling or not accepting rides – sometimes preventing them from working, such as being unable to access the app for a limited time.
- Uber has significant control over the way that drivers work, as they face a rating system. Should a driver’s Uber rating fall below a certain level they face penalties or termination of their contract.
- Uber takes active steps to prevent drivers and passengers from having an agreement outside of the Uber app.
Additionally, the case once again highlights that in determining whether a worker or self-employed contractor situation exists, it will always examine the reality of the actual relationship between the parties over whatever documentation may have been prepared between them.
The Court also decided that the drivers became ‘workers’ from the time they switched on the app and were available to work in their designated area, to the time they switched off the app. This means there will now be a significant number of minimum wage, backpay and holiday pay claims made against Uber. It will undoubtedly open the floodgates for other ‘gig-economy’ workers to make claims against employers.
Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
An application for judicial review of the Self-Employment Income Support Scheme (SEISS) on the basis that it was indirectly discriminatory has been rejected by the High Court. Under the SEISS, grants were awarded to self-employed individuals based on average trading profits in the three full tax years preceding 2019/20. The application was brought by a self-employed mother and a maternity rights charity, The Motherhood Plan. They argued that the SEISS breached Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1, in two ways:
- It was indirectly discriminatory to calculate grants based on average trading profits in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to.
- Applying Thlimmenos v Greece  ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court was not persuaded that there was any indirect discrimination. The disadvantage complained of was not caused by the SEISS itself; rather, it flowed from an absence of or reduction in past income. There were no hidden barriers to eligibility and it was not harder for women on maternity leave to quantify their earnings than for others. The fact that some claimants received lower grants than others reflected the fact of lower earnings in past years; in the context of the SEISS with its stated purpose, the reasons for the lower earnings in past years were irrelevant.
In relation to Thlimmenos, the Court noted that the claimants’ arguments would be to demand redress under the SEISS in relation to their unique situation in the past. There was no authority to support the proposition that uniqueness or difference in the past is a basis on which to require different treatment in the present, such that failure to accord that different treatment amounts to unlawful discrimination. Even if there had been discrimination, the court found that this would have been justified. The government had a broad margin of appreciation in this context and the design of the SEISS was not manifestly without reasonable foundation. Additionally, the government had not breached the public sector equality duty in section 149(1) of the Equality Act 2010.
Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
In Allay (UK) Ltd v Gehlen  UKEAT/0031/20 the EAT has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on section 109(4) of the Equality Act 2010. The employment tribunal was entitled to find that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale“, there was evidence that the training was insubstantial and that employees had forgotten it. It was also appropriate to find that a further reasonable step could have been to offer refresher training. Therefore, the employer could not show that all reasonable steps had been taken.
There are few reported cases that consider the reasonable steps defence. This case illustrates that in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately, it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination.
Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
In, Cumming v British Airways plc  UKEAT/0337/19 the EAT has held that, when determining whether a provision, criterion or practice (PCP) was indirectly discriminatory against women due to their greater childcare responsibilities, the tribunal should consider whether the PCP put women at a particular disadvantage, not whether the PCP applied to all employees in the pool equally. British Airways plc had a policy that aircrew who took three days’ unpaid parental leave would lose one paid rest day that month. Ms Cumming argued that the PCP was indirectly discriminatory against women, as a higher proportion would take parental leave than men. It was common ground that the correct pool for comparison was all aircrew with childcare responsibilities. An employment tribunal rejected her claim on the basis that the PCP applied equally to all aircrew so there was no particular disadvantage to women.
The EAT held that this was an error of law. The fact that the PCP affected all employees who took parental leave in the same way did not mean that there was no particular disadvantage to women. Not all employees with childcare responsibilities would take parental leave. There was statistical evidence to show that more female than male aircrew took parental leave and therefore more women were adversely impacted by the PCP. Further, in Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice  UKSC 27, Lady Hale observed that women tended to “bear the greater responsibility for caring for the home and family than…men“. The tribunal had therefore failed to consider whether more women were put to a particular disadvantage by the PCP than men in the same circumstances. The EAT remitted the case to a fresh tribunal.
Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
In Chalmers v Airpoint Ltd and others  UKEATS/0031/19 the EAT has upheld a tribunal’s decision that an employee’s comment in her written grievance that the employer’s actions “may amount to discrimination” was not sufficient in the circumstances to amount to a protected act under section 27(2)(d) of the Equality Act 2010 for the purposes of her victimisation claim. The employee’s statement related to the fact that the employer had arranged a Christmas event on a date she could not attend. The EAT held that the tribunal was entitled to take into account the factual context surrounding the allegation. The employee worked in the human resources field and was articulate and well-educated. The use of the word “may“, and the failure to refer explicitly to sex discrimination, could be contrasted with the fact that the employee had complained in clear terms about other matters. Further, the tribunal had found that no discrimination had occurred in relation to the Christmas event and, on the day of the event, the employee had expressed her dissatisfaction to the managing director but had not complained of discrimination.
While a tribunal was not required to interpret the words used by an employee literally and there would be circumstances in which the use of equivocal language would amount to a protected act, this would depend on the context and the tribunal’s assessment of the evidence, including whether the employee was the type of person likely to express themselves cautiously. On the evidence before it, the tribunal was entitled to conclude that an allegation of sex discrimination had not been made, the word “may” usually signifying doubt or uncertainty, and given her background and experience, the employee’s failure to refer to sex discrimination was intentional.
Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
The EAT has overturned an employment tribunal’s finding that two disclosures made by a consultant solicitor about alleged overcharging by the firm for which he worked, had not, in the solicitor’s reasonable belief, been made in the public interest, and so were not protected disclosures under the whistleblowing legislation.
In Dobbie v Felton t/a Feltons Solicitors  UKEAT/0130_20_1102 the EAT found that the guidelines set out by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979 had not been properly considered. If the solicitor held a genuine and reasonable belief that his disclosures were in the public interest, that did not have to be his predominant motive in making them. If he reasonably believed that he was disclosing information that tended to show the firm was overcharging the client, in breach of the Solicitors Accounts Rules or other regulatory obligations, the disclosures did not cease to be protected merely because they were made in the context of concerns about the client’s prospects of recovering litigation costs from its opponent. The tribunal had limited its reasoning to consideration of only one of four relevant factors in Chesterton: the numbers in the group whose interests the disclosure served. This had led the tribunal to determine that it was a private matter between the client and the firm. The tribunal had not considered whether the protection of one client alone could have constituted the protection of a “section of the public“.
A disclosure of information relevant to only one person can be a matter of public interest, such as in the case of a one-off error in the medical treatment of a patient. In this case, the disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.
The tribunal had also applied the wrong legal test for causation in concluding that the solicitor’s disclosures had had little influence on the firm’s decision to terminate his consultancy agreement. The correct test was whether the disclosure had a material influence on the firm’s decision to terminate the agreement. If the making of one or both of the protected disclosures was an effective cause of the termination, a detriment would be made out, even if the agreement would have been terminated in any event.
Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
In Northbay Pelagic Ltd v Anderson  UKEATS/0029/18 the EAT has held that an employer was not entitled to dismiss an employee who was conducting surveillance in the workplace, noting that the employer had failed to conduct a balancing exercise between the right to privacy and the employee’s desire to protect his confidential information. The employee had set up a camera to monitor whether anyone had entered his office to access his computer. However, the case was remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis he failed to follow a management instruction.
The EAT also held that if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be “sealed off” from one another. It further highlighted the need to ensure evidence is adduced from relevant witnesses, suggesting the employer’s failure to do so in this case may have led to the tribunal preferring the employee’s evidence over that of the employer.
Intellectual Property: Employer owned copyright relating to software
In Penhallurick v MD5 Ltd  EWHC 293, the Intellectual Property Enterprise Court found in favour of the defendant, MD5 Ltd, in copyright infringement proceedings, granting a declaration that MD5 was the owner of copyright in various literary works relating to software created by the claimant, Mr Penhallurick, who was MD5’s employee from November 2006 until April 2016.
The works in issue were various versions of the software, a graphical user interface and a user guide. The judge’s decision on ownership, and therefore infringement, turned on whether each of the works was created in the course of Mr Penhallurick’s employment with MD5.
Judge Hacon said that it was clear from the evidence that making the software was the central task for which MD5 was paying Mr Penhallurick at the relevant times. Where there was such a strong and primary indication, the fact that some of the work was done in his home and using his own computer would not make any difference to the fact that it formed part of his employment duties. All versions of the software were created by Mr Penhallurick with the knowledge and encouragement of MD5 and in return for payment, and all were directed to making and improving the software product sold by MD5. MD5 was therefore also the first owner of copyright in all the versions. Copyright in these (along with copyright in the other works in issue) was also assigned to MD5 under an intellectual property clause in an agreement between the parties made in November 2008. MD5 was therefore the owner of copyright in all the works. The fact that Mr Penhallurick had identified himself as the copyright owner on each version of the software and in the user guide did not create any presumption of ownership under section 104 of the Copyright, Designs and Patents Act 1988.
The judge granted a declaration of MD5’s copyright ownership in relation to all the works in issue, other than two pleaded works which he had found to be of doubtful existence and of no relevance to the claim.
COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
The TUC, Amnesty International and dozens of other organisations have called on the Equality and Human Rights Commission (EHRC) to investigate the alleged disproportionate equality impact of the government’s response to the COVID-19 pandemic, particularly on women and minority groups. In response, the EHRC said that “While government focuses on the current crisis we do not consider it appropriate to use our legal powers“. However, it added that it will seek input and monitor the government’s response to the ongoing inequality and human rights issues, and “where necessary take the appropriate action“.
This follows a report entitled ‘Unequal Impact? Coronavirus and the gendered economic impact‘ published this month by the Women and Equalities Committee. The report addresses a number of areas including labour market and employment, benefits and social security, young people, pregnancy and maternity discrimination, childcare, the extent to which gender equality has been embedded into policy responses to the COVID-19 pandemic, and how to improve equality data.
The report made wide-ranging recommendations, including that the government should:
- Remove the 26 weeks’ service threshold for employees to request flexible working arrangements.
- Publish the draft Employment Bill by the end of June 2021 and that the Bill must take into account the recommendations of the report.
- Introduce legislation in this parliamentary session to extend redundancy protection to pregnant women and new mothers.
The committee made further recommendations in relation to pay gap reporting. It urged that gender pay gap reporting be reinstated with reporting for the financial years 2019/20 and 2020/21 required in April 2021, and that the government should publish proposals for introducing ethnicity and disability pay gap reporting within six months.
The report highlights the need for equality impact analyses to be undertaken in relation to key schemes, such as the Coronavirus Job Retention Scheme and the Self-Employment Income Support Scheme.
COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
Personnel Today reports that a survey conducted by Small Business Prices, to mark this year’s partnership week (8-14 February), has revealed that apprenticeship starts fell by 45.5% overall since the beginning of the initial lockdown compared to the same period in 2019, with health and social care suffering the biggest blow with 11,063 (46%) fewer starts. Starts in administration, business management, and hospitality and catering apprenticeships were also adversely affected by the pandemic, suffering a fall in starts of 9,783 (62%), 7,031 (40%) and 5,411 (70%) respectively.
Flexible Working: CIPD calls for flexible working to be day-one right for employees
The CIPD has launched a new campaign calling for the right to request flexible working to be a day-one right for all employees and for employers to advertise jobs as flexible. This comes after its research found that 50% of employees surveyed did not have flexible working arrangements, such as flexitime and part-time working. Furthermore, 20% of respondents revealed that their organisation did not offer any flexible working arrangements.
While the survey also saw a huge increase in working from home amid the COVID-19 pandemic, CIPD noted that more than two in five employees were not able to work from home, largely due to the nature of their employment.
The CIPD’s proposal echoes calls previously made by the Equality and Human Rights Commission and the TUC for the right to request flexible working to be a day-one right.
Mental Health: Commission reveals £8,400 mental health income gap in the UK
The Mental Health and Income Commission, a collaboration of businesses, trade unions and charities led by the Money and Mental Health Policy Institute, has published a report revealing that the UK’s current mental health income gap is £8,400. The Commission’s report, ‘Closing the gap‘, also found that one in five people with mental health problems in the UK have faced workplace discrimination.
In response, the Commission calls on employers and the government to introduce ameliorative measures and systemic reforms to reduce the pay gap and improve working conditions for workers with mental health problems. These include the right to flexible working for all employees during the COVID-19 pandemic, an increase in Statutory Sick Pay and a broadening of its eligibility criteria, as well as introducing a legal pay gap reporting requirement for larger companies to reveal the inequalities and discrimination faced by employees with mental health problems.
Notably, three in ten people with mental health problems experienced an income reduction during the pandemic. More generally, the Commission found that one in five respondents with mental health problems said that they had suffered workplace discrimination due to their condition, including being passed over for promotion or being made redundant. Further, more than two-thirds had their requests for reasonable adjustments rejected or only partly met.
Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
A research report published by the CIPD entitled ‘Inclusion at work: Perspectives on LGBT+ working lives’, has revealed that, over a twelve-month period, more than 40% of LGB+ workers and 55% of trans workers faced conflict in the workplace (use of the term LGB+ in the report’s findings relates to specific ways in which the research was conducted).
The report’s classifications of “conflict situations” include those in which workers were humiliated or undermined, faced discriminatory behaviour, or experienced physical or sexual assault. 18% of trans workers reported feeling psychologically unsafe at work (unable to be accepted, valued, or voice their concerns) and 16% of LGB+ workers felt the same way. This figure fell to 10% for heterosexual workers. The data revealed that trans workers are particularly unsafe in the workplace, with 12% of trans workers experiencing unwanted sexual attention at work and 2% experiencing sexual assault, and at least 50% of workplace conflicts experienced by trans people remaining unresolved.
The CIPD has suggested a range of steps that organisations can take to improve support for LGBT+ staff in the workplace, including initiating company-wide education on inclusion, and the creation of safe spaces and networks for LGBT+ employees and allies.
Pensions: Pension Schemes Act 2021 gains Royal Assent
The Pension Schemes Act 2021 has completed its progress through the parliamentary procedure and received Royal Assent on 11 February 2021 in what the government has called “the biggest shakeup of UK pensions for decades”. The Act contains major changes for both defined benefit and defined contribution pension schemes, including new powers for the Pensions Regulator, and the regulatory frameworks for collective defined contribution schemes and pensions dashboards.
The majority of the Act’s provisions will be brought into force following subsequent statutory instruments and consultations that are expected in the coming months, although several sections containing regulation-making powers take effect from 11 February 2021. The headline issues are tougher powers for the Pensions Regulator, with two new criminal offences with a wide scope and include unlimited fines and up to seven years in jail. There will shortly be a consultation on how it will apply these new powers, with the aim for these to be in use by the autumn. Companies and trustees may need to seek legal advice to ensure they don’t fall foul of any of these new powers. There will also be a new regime for defined benefit contributions with detailed regulations aimed to be published in the second quarter of the year. Certain occupational schemes will need to address climate change risks and opportunities. Again, regulations are to be published. For individuals, there will be a new pensions dashboard. The aim is for this to be provided by the Money and Pensions Service by 2023.
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