Employment Law Newsletter – December 2020
- Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
- Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
- COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
- DBS Checks: New filtering rules for Standard and Enhanced DBS checks
- ACAS: Change to Early Conciliation Rules
- Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
- Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
- Minimum Wage: Just Eat couriers to receive NMW and other benefits
- Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
- Human Rights: Government launches independent review of Human Rights Act 1998
Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
In Berkeley Catering Limited v Jackson  UKEAT/0074/20/LA(V) the EAT looked at the effect of how the redundancy situation arises on whether a redundancy situation exists or not. In this case, the owner manager of a company named himself CEO and took over management decision-making and operations. As there was already a Managing Director (the claimant), it undermined her position, and the company claimed it no longer had a requirement for her and therefore the need to carry out work of that particular kind had diminished, and she was made redundant. As a result, Mrs Jackson claimed unfair dismissal.
The tribunal found that, as a matter of law and fact, there was no redundancy, and also that there was no business reorganisation constituting some other substantial reason for dismissal. The EAT disagreed and instead held that the tribunal erred in finding that there was no “genuine redundancy” where the employer had arranged matters so that its Director took over the claimant’s duties in addition to his own duties, because those facts established a redundancy situation under section 139(1)(b) Employment Rights Act 1996. The test was whether “one employee was now doing the work formerly done by two, [then] the statutory test of redundancy had been satisfied”, even where the amount of work to be done was unchanged. There was no error in the tribunal’s rejection of the employer’s alternative case of some other substantial reason, holding that if there was a business reorganisation it was not the employer’s true reason for dismissing the claimant. Justice Bourne said “A redundancy situation under section 139(1)(b) either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists.” (p.8 para E) He went on to say that even where a redundancy situation exists, it does not necessarily follow that the redundancy was the reason for the dismissal. Additionally, even if the employer proves that the reason was a potentially fair reason such as redundancy, section 98(4) ERA requires the tribunal to decide whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. A claim may succeed on the basis of substantive and/or procedural unfairness.
In this case, Berkeley arranged its affairs so that Mr Patel took over the work of the MD, there was a diminution in the requirement for employees to carry out work of that kind, ergo, a redundancy situation. That part of the appeal failed. The next question was whether the dismissal had been fair. A redundancy or some other substantial reason (such as business re-organisation) can be fair, however, the tribunal had not properly considered the unfair dismissal elements of this case because it had found no redundancy so the EAT remitted the questions regarding the fairness of the dismissal back to a new tribunal to be considered.
Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
In Kol v Information Commissioner and another (EA/2020/0017P) (6 October 2020) the applicant asked Reigate and Banstead Borough Council (council), the second respondent, for information concerning four specified council officers (including its Head of Planning, a Conservation Officer, a Senior Enforcement Officer and a Graduate Planning Officer). This included their relevant professional qualifications, recent professional development training and training attendance record.
The council withheld the information under section 40(2) (with section 40(3A)(a)) of the Freedom of Information Act 2000 (FOIA) (the personal data exemption). The relevant academic qualifications of two of the officers were already in the public domain. The Information Commissioner (IC) rejected the applicant’s complaint.
On appeal, the First-tier Tribunal (Information Rights) (FTT(IR)) upheld the IC’s decision, holding that the council had been permitted to withhold the information. Disclosure was not necessary to meet the applicant’s (undisputed) legitimate interest in ensuring that council officers were appropriately qualified. Without satisfying the lawful basis in Article 6(1)(f) of the GDPR, disclosure would have breached the first data protection principle of lawful, fair and transparent processing (Article 5(1)(a), GDPR). The FTT(IR) considered that:
- If the applicant’s legitimate aim could be achieved “by something less” than disclosure, disclosure was not necessary. The IC had correctly adopted this approach and was not required to consider Article 8 of the European Convention on Human Rights (right to respect for private and family life).
- When considering the alternatives available, however, the IC was wrong to place much weight on the council’s complaints procedure for challenging the actions of individual officers. This was not a forum for challenging officers’ qualifications or training.
- Together with the publicly available information on two of the officers, the fact that the council required proof of qualifications from would-be employees as part of its recruitment process and that training was provided to officers as required, meant that the applicant’s legitimate interests were met (“by something less”).
The FTT(IR) also held that the IC had been permitted to take a different approach than in Decision notice FS50146907, in which section 40(2) did not prevent disclosure of the professional qualification details, among other information, of all lawyers in the Treasury Solicitor’s Department.
Employee information is commonly requested under FOIA and this decision presents a straightforward but relevant analysis of the framework under section 40 and the GDPR.
COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
Researchers at the St John’s Institute of Dermatology at Guy’s Hospital in London have written an article published in the Occupational Health Medical Journal which suggests that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of COVID-19.
In response to the data, the researchers recommend that employers and occupational health teams consider working in cold environments to be an independent occupational risk factor for developing COVID-19. Employers are advised to conduct risk assessments and individual health risk appraisals to identify staff who have pre-existing health conditions and may be predisposed to developing infections. They also noted that additional interventions should be implemented to protect against the cold and that airborne transmission can be reduced by improving ventilation.
DBS Checks: New filtering rules for Standard and Enhanced DBS checks
With effect from 28 November 2020, the criminal records disclosure regime has been amended by the catchily named ‘The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020’ (SI 2020/1364) (the Order). The changes were brought about following the decision by the Supreme Court in R (on the application of P) v Secretary of State for the Home Department 2019 UKSC 3. The Supreme Court identified that some elements of the existing filtering rules were disproportionate: the multiple conviction rule, and the warnings and reprimands given to young offenders.
A Disclosure Barring Service (DBS) check enables employers to check the criminal records of current and potential employees in order to ascertain whether or not they are suitable to work with vulnerable adults and children based on the applicant’s criminal record history. For certain positions, a valid DBS disclosure is a legislative requirement. The information disclosed by the DBS check is governed by Part V of the Police Act 1997 (in England and Wales), which sets out when a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) must be issued. Both certificates must include any ‘relevant matter’ recorded on the Police National Computer as defined in S.113A(6) of the 1997 Act. The Order has narrowed the definition of ‘relevant matter’ by removing youth cautions (including youth warnings and reprimands) from the scope of the definition, as well as the ‘multiple conviction rule’, which provided that where a person had more than one conviction all their convictions (regardless of their nature) had to be disclosed. Neither of these two matters are now subject to mandatory disclosure.
This means that certificates produced after 28 November will be processed under the new filtering rules, and those issued prior to that date will be in line with the previous rules.
You can read the updated DBS guidance here: https://www.gov.uk/government/news/new-filtering-rules.
ACAS: Change to Early Conciliation Rules
The ACAS Early Conciliation Rules have been updated from 1 December to allow for a standard six weeks for the early conciliation talks. Prior to this, the provisions were one month with a possible extension of a further two weeks.
Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
In a poll recently published by Milkround, 66% of 1,000 students and graduates revealed that they do not believe that employers recruit a truly diverse workforce. Interestingly, the majority stated that, from their perspective, recruitment decisions are based largely on physical appearance (58%), ethnicity (52%) and nationality (52%). These figures are a stark contrast with the fact that 59% of employers see their efforts to recruit a diverse workforce as sufficient.
Looking forward, 62% of students and graduates agreed that the introduction of blind recruitment practices could be effective in reducing unconscious bias. Although the poll revealed that only 14% of employers currently practice blind recruitment, 37% were planning to do so in the near future. For more information on how the blind recruitment process works, read the Milkround blog here.
Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
Unilever is the first employer to sign up to the Halo Collective’s new pledge and code of practice to end race-based hair discrimination in schools and the workplace. It is hoped that the new Halo Code will tackle statistics which reveal that one in five Black women feel societal pressure to straighten their hair for work even though race-based hair discrimination is illegal under the Equality Act 2010.
Minimum Wage: Just Eat couriers to receive NMW and other benefits
Food delivery company, Just Eat, has announced that it will be introducing a range of measures designed to support its couriers and ensure that they receive the national minimum wage. This has been an ongoing issue with rival companies such as Uber and Deliveroo, whose drivers have been found to be workers, rather than self-employed contractors, by the courts. Just Eat will start its new policy in London, with a nationwide roll out in 2021, paying couriers by the hour rather than by the job. It will also pay pension contributions, holiday pay, sick pay and maternity and paternity pay. The move is intended to create a thousand jobs including full-time, part-time and zero-hour work, with couriers being given the choice to opt-in or out of the scheme.
Just Eat’s initiative follows a series of recent cases that have considered the employment status of drivers, couriers and other gig economy workers. The decision of the Supreme Court in Uber v Aslam, which was heard in June 2020, is awaited.
Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
On 4 December 2020, BEIS opened two consultations: one on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week, and the other on measures to reform post-termination non-compete clauses in employment contracts.
The extension of the ban on exclusivity clauses in contracts would prevent employers from contractually restricting low earning employees from working for other employers. The government previously consulted on this proposal but decided to only introduce a ban on exclusivity clauses in zero hours contracts in 2015. It is revisiting the measure again as it is mindful that low earners have been particularly adversely affected by the COVID-19 pandemic, and many employers are currently unable to offer their employees sufficient hours for them to make ends meet.
The consultation on reform of post-termination non-compete clauses in employment contracts seeks views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The consultation follows a call for evidence on the use of non-compete clauses in 2016 which found that they worked well and were a valuable and necessary tool for employers in protecting their business interests.
Both consultations close on 26 February 2021.
Human Rights: Government launches independent review of Human Rights Act 1998
On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998) and whether it requires reform.
The review will be undertaken by a panel headed by Sir Peter Gross (a former Court of Appeal judge) and will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR), including how the duty to take account of ECtHR case law has been applied in practice, and whether dialogue between domestic courts and the ECtHR works effectively.
- The impact of the HRA 1998 on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the HRA 1998 applies outside the territory of the UK and whether there is a case for change.
The government states that the UK remains committed to the European Convention on Human Rights (ECHR) and the review is limited to examining the structural framework of the HRA 1998, rather than the rights themselves.
The review is expected to report its recommendations in summer 2021. It runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts. Ultimately the reviews of the HRA 1998 and judicial review (alongside other workstreams) will deliver their findings to the Constitution, Democracy and Rights Commission.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org