Employment Law Newsletter – September 2019
- Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
- Holiday pay: Part-year workers not subject to pro rata reduction
- Worker status: Out of hours GP is a worker despite using limited company
- Disability Discrimination: Tribunal must address all four limbs of the definition of disability
- Harassment: Conduct that creates an offensive or humiliating environment
- Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
- Information Commissioner’s Office: Brexit hub
- Data Protection: Subject Access Requests and Individual Rights – timescales changed
- Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
- Non-Disclosure Agreements: Law Society publishes new guidance
- Upskilling: Give me the chance to save my job
Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
In Barrasso v New Look Retailers Limited UKEAT/0079/19 the EAT had to consider how ‘employee shareholder status’ is terminated, as it is not provided for under the Employment Rights Act 1996 (‘ERA’). The concept of ‘employee shareholder status’ was introduced in 2013. It applies to those who are employed by a company in which they are issued £2,000 worth of fully paid up shares, having first agreed to be an employee shareholder and received information about the status, its rights and independent legal advice. Having the status means they retain some key employment rights but give up others (in return for the shares), such as the right to claim unfair dismissal or receive a statutory redundancy payment. S.205A of the ERA prescribes how one achieves this status but it silent on how it is terminated.
Mr Barrasso was employed as UK Managing Director by New Look until it was sold to another company and he was offered 7,000 shares in the parent company if he signed an Employee Shareholder Agreement (and met the criteria under the ERA), which he did. He was reassured by side letter (signed as a deed between the parties) that he would receive contractual benefits equal to the statutory employment rights he was giving up. He subsequently signed a new director’s service agreement (to standardise terms for all the directors) as a deed. This agreement contained a ‘complete agreement clause’ which purported to preserve the effect of the side letter (not mentioning the Employee shareholder agreement), whilst superseding all other agreements.
Believing that his employee shareholder status had been terminated by the service agreement when Mr Barrasso’s employment was terminated he brought a claim for unfair dismissal. The tribunal dismissed his claim on the basis that the service agreement made no reference to the employee shareholder status – therefore did not supersede it – and the side letter meant the statutory rights had been removed in favour of his contractual rights. He appealed to the EAT, who agreed with the tribunal’s findings. They also looked at how the status could have been terminated practically-speaking, given that the ERA is silent on this, citing examples such as: a new contradictory contract, or an agreement to sell back the shares. It was clear to the EAT however, that the intention of the parties was not to alter Mr Basrrasso’s employee shareholder status by signing his service agreement.
Holiday pay: Part-year workers not subject to pro rata reduction
The Court of Appeal has overturned the decision of an employment tribunal (Harpur Trust v Brazel  EWCA Civ 1402), finding that it should not have read words into reg.16 of the Working Time Regulations 1998. The tribunal had been wrong to read it as if it meant the annual leave entitlement of ‘part-year workers’ (people who work only part of the year) on permanent contracts should be capped at 12.07% of the annualised hours. The Court accepted that ECJ rulings may allow employers to use the Working Time Directive to pro rate the annual leave entitlements of part-year workers to that of full-year workers, but member states may implement better arrangements. There is no requirement in the Working Time Regulations to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably, it is simply a protection for part-time workers to not to be treated less favourably than full-time workers.
There is a lesson here: employers who employ the 12.07% approach to pay holiday to staff on zero hours permanent contracts should consider their potential exposure and their options. The calculation exercise required by regulation 16 of the WTR 1998, which involves identifying a week’s pay and multiplying it by 5.6 weeks, is straightforward and should be followed, even if it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay (in this case, 17.5%). How the 5.6 weeks’ holiday entitlement itself should be calculated for part-year workers remains unclear, however. As a direct result of this case, BEIS has removed its holiday pay calculator from its holiday pay guidance for workers without fixed hours or pay. BEIS are currently reviewing this.
Worker status: Out of hours GP is a worker despite using limited company
In Community Based Care Health Ltd v Narayan UKEAT/0162/18, Community Based Care Health Ltd (‘CBCH’) provided out of hours GPs to the NHS (each of whom had to be fully qualified and competent), and Dr Narayan provided her services as a GP through CBCH for a number of years. She worked a regular shift pattern but did not need CBCH’s permission to take leave or work elsewhere so there was no mutuality of obligation. She did provide her own equipment and indemnity insurance, and had to work personally for the company and could not send a preferred substitute instead. CBCH audited the services of the GPs it provided to comply with its NHS contracts. Dr Narayan began to use a limited company of her own to receive her payments but never informed CBCH of this fact, merely updated her bank details.
Following an issue with some telephone advice Dr Narayan had provided and a claim that she had unjustifiably swapped duties on short notice, CBCH decided it was no longer going to offer her work. Dr Narayan brought claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. CBCH claimed she was self-employed and neither an employee nor a “worker”. The tribunal disagreed.
The judge found that Dr Narayan was a worker under s.230(3)(b) of the Employment Rights Act 1996, despite the fact that she had used a limited company to receive payments for over a year without CBCH’s knowledge. CBCH had tried to argue that this had led it to unwittingly become one Dr Narayan’s company’s clients under the ‘undisclosed principal’ doctrine (i.e. if A makes a contract with Z in A’s own name, it is open to B at a later date to assert that the contract was made by A on B’s behalf and that B is the contracting party. This means that the resulting contract is between B and Z.) CBCH claimed that therefore it was contracting with Dr Narayan’s company, and not her. This was dismissed from the appeal because it had not been argued at first hand, but in any event the fact that the contract required a competent and suitably qualified doctor precluded a company from being the contracting party. Further, the judge found that the decision in Suhail v Herts Urgent Care UKEAT/0416/11 was not a good precedent he was bound to follow in this case, distinguishing it on the basis that Dr Suhail positively marketed his services to other clients. Dr Narayan, on the other hand, worked for one provider for a number of years on a regular shift pattern. The judge also found the evidence suggested Dr Narayan had been integrated into CBCH’s business. The EAT upheld the tribunal judge’s decisions and found no error of law.
Disability Discrimination: Tribunal must address all four limbs of the definition of disability
In Parnaby v Leicester City Council UKEAT/0025/19/BA Mr Parnaby suffered depression brought about by work-related stress and was dismissed because of his long-term sickness absence due to work related stress (a capability issue). Mr Parnaby claimed this dismissal was in fact disability discrimination and/or potentially unfair. The tribunal found him not to be a disabled person for the purposes of the Equality Act 2010 (“the Act”) though it did accept that he suffered an impairment that had a substantial adverse effect on his ability to carry out normal day to day activities but held this was not long-term. In particular, the tribunal noted that Mr Parnaby had suffered work related stress for six months, but that it had ceased following his dismissal, therefore the effect was not ‘long-term’ (i.e. 12 months or more) for the purposes of paragraph 2 Schedule 1 of the Act. Mr Parnaby appealed.
The EAT allowed the appeal. It held that the tribunal had erred in not addressed all four limbs of the definition of disability contained in the Act. Mr Parnaby had suffered depression brought about by work-related stress which affected his ability to carry out his day-to-day activities – his impairment. The act of discrimination claimed was the dismissal. At that time, his impairment had not lasted for 12 months (s.2(1)(a) of Sch1 to the Act) and was therefore not ‘long-term’. However, the tribunal considered that by removing the source of his impairment (his job) then the likely future impairment and its impacts would cease. The EAT held that the tribunal should have looked at whether it was likely to last twelve months or might recur in the future (i.e. could well happen = more probable than not). It was not for the tribunal to make assumptions about the time-limited nature of his impairment. On this basis the claim was remitted back to tribunal to be reheard.
Harassment: Conduct that creates an offensive or humiliating environment
In Raj v Capita Business Services Limited & Ward EAT0074/19/LA the EAT considered the first tribunal’s dismissal of Mr Raj’s claims of unwanted conduct either of a sexual nature or unwanted conduct relating to his sex, pursuant to s.26 of the Equality Act 2010 (the “Act”). The issue was that the claimant had felt uncomfortable when his female manager massaged his shoulders in their open plan office. Whilst the tribunal found this to be unwanted conduct which created an offensive environment for him, it found that on balance, the evidence provided brought them to the conclusion that whilst the conduct was unwise and uncomfortable but not related to gender, but more likely due to misguided encouragement. This part of the claim failed.
On appeal, the EAT considered the two-stage burden of proof test set out by s.136 of the Act and explained in Igen v Wong  ICR 931. The first stage is that the claimant prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent committed an unlawful act of discrimination. The second part is only applicable if the first stage is met, and then puts the burden of proof onto the respondent who must prove he/she did not commit that unlawful act. The EAT agreed with the tribunal’s finding that in this case, the claimant fulfilled stage one – it was agreed that there was conduct that was unwanted, thereby producing “an intimidating, hostile, degrading, humiliating, or offensive environment for him”. However, the remaining issue for stage two was whether this conduct related to the claimant’s gender. The tribunal found the evidence to show a prima facie case that this conduct related to his gender to be very limited. The appeal was on the basis that the tribunal had erred in law by not approaching the test properly but the EAT did not agree; the burden of proof had not shifted to the respondent and, in any event, the explanation given by the respondent had been accepted.
Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
This is a warning case to employers involved in litigation. In Kasongo v Humanscale UK Ltd UKEAT/0129/19 the claimant brought claims of unfair dismissal and discrimination related to pregnancy and maternity. Part of the employer’s strategy was to waive its legal advice privilege (i.e. communications between a client and their solicitor which are confidential and come into existence for the purpose or giving or receiving advice about what should prudently or sensibly be done in the relevant legal context) because certain documents arguably demonstrated that it did not know about the claimant’s pregnancy at the time it was considering dismissing her. The documents comprised a draft dismissal letter prepared by the solicitors from which the solicitors notes and comments had been redacted (it was agreed that the letter itself was not legally privileged, but the redacted parts were) and two earlier documents. The issue was whether the disclosure of the two earlier documents meant that the redacted parts were no longer protected by privilege, and therefore if the tribunal had erred in its decision as to which documents were protected by legal advice privilege.
The EAT held that the tribunal had erred in failing to address or rule on one of the three documents. All three documents were part of the same transaction of providing legal advice about the dismissal of the claimant and, given the nature and purpose of the disclosure, the EAT held that fairness required that the redacted part of the letter concerning the reason for the claimant’s dismissal also be disclosed. The reason being that it would be unfair to allow the respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. Cherry-picking the parts one discloses is therefore impermissible. The appeal was allowed and the EAT ordered that the redactions be removed and the full letter be included in the trial bundle for evidence at the hearing.
Information Commissioner’s Office: Brexit hub
The ICO has put together a ‘Brexit hub’ containing checklists, FAQs and guidance to help organisations of every size in case prepare for a no-deal Brexit. A good place to stay up to date with how your business manages its data protection duties. You can also sign up to their service to receive regular emails which will let you know about any updates to the guidance.
Data Protection: Subject Access Requests and Individual Rights – timescales changed
In August, the Court of Justice of the European Union ruled on a Dutch case which considered timescales under Regulation No 1182/71. Following this ruling, the Information Commissioner’s Office has updated their guidance on timescales for responding to subject access requests (SAR), and other individual rights requests.
The effect of the ruling is that the timescale has now changed to reflect the day of receipt as ‘day one’, as opposed to the day after receipt. For example, a SAR received on 3 September should be responded to by 3 October.
Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
Following recent reforms made to the National Referral Mechanism (NRM) (a government framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support), the Home Office issued new Modern slavery victims: referral and assessment forms. The forms allow staff at designated First Responders Organisations to refer potential victims of modern slavery or human trafficking to the NRM.
The recent reforms to the NRM include:
- The Home Office created a single, expert unit to handle all cases referred to it to handle decision making about whether somebody is a victim of modern slavery. This replaces (and is completely separate from) the case management units in the National Crime Agency and UK Visas and Immigration.
- All negative Conclusive Grounds decisions will now be reviewed by an independent panel of experts, to increase the scrutiny such cases receive.
- The NRM process will be supported by a new digital system, enabling easier referrals, data capture and analysis, aimed at improving prevention and law enforcement.
For more details on which organisations form part of the First Responders list, see the government website.
Non-Disclosure Agreements: Law Society publishes new guidance
Following our reporting of the Women and Equalities Committee’s review of the use of Non-Disclosure Agreements in discrimination cases, the Law Society has now published a brief guidance leaflet called ‘Non-disclosure agreements: what you need to know as a worker’. This is just as helpful to employers as it summarises both the things employers cannot stop workers from doing and explains the restrictions commonly imposed on workers prior to signing the NDA.
This has been published as part of the Law Society’s new legal education initiative to assist the public understand their rights.
Upskilling: Give me the chance to save my job
PwC has recently published a new study called ‘Upskilling Hopes and Fears’, based on a survey of 22,000 people globally, of whom 2,004 were UK adults in the age range 18-65 (retirees were not included). Their findings show that 73% of workers would welcome the opportunity to expand their knowledge of new workplace technology while 54% of those questioned said they would be happy to learn new skills or completely retrain in order to improve their future employability. But many UK workers say their employers are not offering opportunities to upskill. People fear automation in a growing digital world will lead to fewer jobs and this lack of investment in the workforce is breeding mistrust of employers among workers.
The research also highlights disparities in upskilling opportunities by gender, education, and age:
- Over half (54%) of men surveyed say their employer is giving them the chance to learn new skills, as opposed to only 45% of women. Over half of women (55%) say they are offered no opportunities at all.
- 56% of university graduates say they are offered them, whereas only 41% of those educated to school leaver level say the same.
- 64% of workers aged 18-34 say they are offered opportunities, compared with 48% of 35-54 year olds and 41% of ages 55 and over.
These results highlight the need for organisations to look seriously at offering upskilling opportunities for staff – particularly in the UK where three-quarters (73%) of workers would take the opportunity to better understand or use technology if they were given the option by their employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – June 2019
- Disability Discrimination: A perceived risk of future disability is discrimination
- Discrimination: Does contributory negligence affect amount of injury to feelings award?
- Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
- Right to Privacy: Employer can rely on material produced under police investigation
- Trade Unions: One-off direct offer is not unlawful inducement
- Tribunal proceedings: Extensions of time where belief reasonable
- Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
- Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
- Health & Safety: Employers should support victims of domestic abuse
- Health & Safety: IES publishes report regarding support for epileptic workers
- Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
- Parental Leave: UK ranks near bottom for family friendliness
Disability Discrimination: A perceived risk of future disability is discrimination
In Chief Constable of Norfolk v Coffey  EWCA Civ 1061 Lisa Coffey was a police officer in the Wiltshire Constabulary who suffered from a degree of hearing loss which had never caused her any problems in doing her job (‘day to day activities’) and which, everyone agreed, does not constitute a disability within the meaning of the Equality Act 2010. In 2013 she applied for a transfer to the Norfolk Constabulary, but it was refused because on a medical test her hearing fell, as the medical adviser put it, “just outside the standards for recruitment strictly speaking”. She brought a claim for disability discrimination against the Chief Constable of the Norfolk Constabulary because of a (perceived) disability. Section 13(1) of the Equality Act states: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Her claim was upheld by an Employment Tribunal but the Constabulary appealed. The EAT agreed with the tribunal.
Upholding the decisions of the previous tribunals, the Court of Appeal found that the Constabulary did unlawfully discriminate against Ms Coffey because of a perception of a risk of future inability to work in a particular role, as she was clearly carrying out her current front-line officer role without hindrance. It was this perception of a risk of future disability that was discriminatory and resulted in the recruiting officer giving her less favourable treatment. The appeal was dismissed.
Discrimination: Does contributory negligence affect amount of injury to feelings award?
The Law Reform (Contributory Negligence) Act 1945 (‘LRCNA’) basically allows an award for damages to be reduced proportionately where the claimant suffered the damage partly as a result of his/her own actions or those of someone else.It is possible for it to apply to some discrimination claims, but reduction of an award for contributory negligence would rarely, if ever, be justified because of the difficulties in applying the concept of “fault” to the victim of a discrimination claim and the fact that the discriminator may have acted without “fault” in the sense of the 1945 Act.
In First Greater Western Limited & Linley v Waiyego UKEAT/0056/18/RN the Claimant succeeded in bringing a claim for failure to make reasonable adjustments and a claim for disability discrimination, for which she was awarded £19,800 for injury to feelings in respect of the first claim and £8,800 for injury to feelings arising from the second claim. Both sides appealed.
On appeal, the Respondent claimed that the LRCNA could be applied to discrimination claims and that the tribunal failed to make any deduction to reflect the Claimant’s contributory negligence in failing to give the employer details of her previous cognitive behavioural therapist. The EAT held that the obiter dictum relied upon in Way v Crouch  ICR 1362 was in fact too broad and a contributory negligence argument in a discrimination claim may be more appropriately treated as an allegation of failure to mitigate loss. It further held that the tribunal had not erred in its assessment of the quantum of non-financial loss (psychiatric injury and injury to feelings) for disability discrimination. These awards were not flawed by misdirection in relation to causation of loss; nor were they perversely high or flawed by double counting.
As for the Claimant’s appeal, the EAT held that the tribunal had rightly rejected the Claimant’s invitation to impose a financial penalty on the First Respondent (First Greater Western Limited) under section 12A(1) of the Employment Rights Act 1996 for deliberate and repeated breaches of employment law. It was held that the tribunal had also rightly rejected the invitation of the Claimant to award aggravated damages.
Disability Discrimination: Is reliance on Occupational Health reports sufficient to prevent constructive knowledge of a disability?
In Kelly v Royal Mail Group Ltd UKEAT/0262/18/RN, Mr Kelly was a postman who had a poor attendance record generally, which had triggered the Royal Mail’s Attendance Policy on several occasions. Following two further periods of absence relating to surgery for Carpal Tunnel Syndrome the policy was triggered again, including the final AR3 stage of the policy, which allowed for a review of the whole of his attendance record. As a result the Royal Mail decided that it had lost confidence in Mr Kelly’s ability to maintain a satisfactory attendance record and accordingly dismissed him.
The tribunal held that, whilst dismissal was a harsh response, it was within the band of reasonable responses and therefore the dismissal was fair. It dismissed the allegation that this amounted to disability discrimination on the basis that Royal Mail did not know and could not reasonably be expected to know that Mr Kelly had a disability. Mr Kelly appealed on the grounds that it was perverse to conclude that it was fair to dismiss him for two absences for corrective surgery which he could not help, and for Royal Mail to rely upon earlier absences. Furthermore, it was argued that the tribunal erred in accepting that Royal Mail did not have constructive knowledge of disability because it just “rubber stamped” the Occupational Health report.
The EAT dismissed the appeal – the tribunal’s conclusion as to the fairness of the dismissal was not perverse because the policy expressly permitted earlier absences to be taken into account, and accordingly conduct in line with that policy is unlikely to be unfair. The policy applied to all absences, irrespective of fault or blame, and Royal Mail was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future. As to disability discrimination, the EAT found Royal Mail had not simply rubber stamped the Occupational Health reports, but had actually given independent consideration to the question of disability (and arrived at the decision that carpal tunnel syndrome is not automatically a disability) though the reports themselves contained more than a bare assertion that the Claimant was not disabled. No other evidence had been supplied by Claimant or his representative, and there was nothing to suggest that the employer should seek further clarification as to whether the Claimant was disabled or not. Given all this, there was no error in the tribunal’s conclusion that Royal Mail did not have constructive knowledge of disability.
Right to Privacy: Employer can rely on material produced under police investigation
In Garamukanwa v United Kingdom  6 WLUK 109, Mr Garamukanwa and Ms Maclean worked for the same NHS hospital trust, and had had a relationship that had ended. Mr Garamukanwa had then suspected Ms Maclean had had a relationship with another member of staff, Ms Smith. According to the evidence, he then started a campaign of harassment against Ms Maclean including stalking her and sending unpleasant emails to her and her colleagues. As a result, she made a formal complaint to the police. The police investigation included them taking copies of incriminating photos he had on his mobile ‘phone. In light of the investigation, the employer decided to suspend him on full pay pending their own investigation. Whilst the police ultimately decided not to prosecute, the employer NHS Trust obtained copies of the photographs seized by the police from his mobile ‘phone. A disciplinary hearing was held and the Claimant, Mr Garamukanwa, was summarily dismissed for gross misconduct. He appealed, but the appeal was also dismissed.
A tribunal found that the decision to dismiss was within the range of reasonable responses for a reasonable employer and therefore fair. The evidence was found to justify the conclusion that the Claimant was guilty of gross misconduct: a wrongful dismissal claim also failed. In making his claim, the Claimant also raised the issue that his employer had breached his right to privacy (Article 8 of the European Convention on Human Rights – ‘ECHR’) by using the emails and other material he sent, together with the photographs from his mobile ‘phone. His contention was that they were entirely private and personal. It was this issue that reached the European Court of Human Rights, which upheld the view of the EAT, which found that the dismissal of an employee by an NHS Trust did not breach the employee’s right to privacy under Article 8 ECHR. The NHS Trust relied upon material that had been collected by, and passed on to them by, the police during their investigation into harassment allegations made against him by a colleague.
The European Court of Human Rights found that while business communications are capable of falling within the protection given to “private life” and “correspondence”, the Claimant could not have reasonably expected that any materials or communications linked to the criminal investigation would remain private, and the tribunal was fully entitled to reach this conclusion. Article 8 was therefore not engaged and the appeal dismissed. Leave to appeal to the Court of Appeal also dismissed.
Trade Unions: One-off direct offer is not unlawful inducement
In Kostal UK Ltd v Dunkley & others  EWCA Civ 1009 the company had been negotiating with the employees’ union, UNITE, in respect of certain employment contract terms and conditions through collective bargaining. Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) prohibits employers from circumventing this collective bargaining route and approaching the employees direct if the result is that such terms will not form part of the collective bargaining (an inducement to a ‘prohibited result’). In this instance, however, the negotiations had stalled and so the employer made two offers on two separate occasions. The offers created the prohibited result which was that the workers’ terms of employment, or any of those terms, “will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union” – i.e. circumventing the collective bargaining fifty-seven workers took the matter to the tribunal who made awards to each of them. The employer appealed.
The EAT agreed with the tribunal’s conclusion that the employer had sought to achieve a ‘prohibited result’ and dismissed the appeal. The Court of Appeal, however, took a different view of what constitutes a prohibited result. It found that a one-off direct offer did not constitute an unlawful inducement because section 145B only prohibits two types of scenarios:
- where an independent trade union is seeking to be recognised and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment will not be determined by a collective agreement; and
- where an independent trade union is already recognised, the workers’ terms of employment are determined by collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms of employment (as a whole), or one or more of those terms, will no longer be determined by collective agreement (i.e. the change takes the term or terms outside the scope of the collective bargaining on a permanent basis).
It distinguished these offers: where an independent trade union is recognised, the workers’ terms of employment are determined by a collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that one or more of the workers’ terms of employment will not, on this one occasion, be determined by the collective agreement. The appeal was successful and the claims were dismissed.
Tribunal proceedings: Extensions of time where belief reasonable
When bringing an employment tribunal claim, a claimant must complete a form ET1 and start the claim within certain prescribed time limits. In Lowri Beck Services Ltd v Brophy  UKEAT 0277_18_2503, the original Claimant, Mr P Brophy, brought claims of unfair and wrongful dismissal and of disability discrimination against his employer. Mr Brophy suffers with severe dyslexia and had been helped much of his life by his brother, Michael Brophy. Due to his difficulties and the emotional impact of being dismissed for gross misconduct, the Claimant had asked his brother to help him deal with his claim. It turns out the Claimant had misunderstood the date of his actual dismissal and this was compounded by the unclear nature of the employer’s letter causing the brother to genuinely get the wrong date of dismissal. This, in turn, meant the claims were brought out of time. The tribunal decided to extend time for these reasons, and that it would be just and equitable to extend time, there being no prejudice to the employer in doing so. The employer appealed against the extension.
The EAT held that the tribunal had not erred in its findings. This mistake had been one of fact not law. The issue was whether the brother’s belief was reasonable. The tribunal had found that it was, and was therefore entitled to conclude that it had not been reasonably practicable for the claim to have been presented in time. The extension was upheld and the appeal dismissed.
Holiday Pay: Under the Working Time Directive holiday pay must include regular voluntary overtime
The decision of the EAT in Dudley Metropolitan Borough Council v Willetts and others (which we previously reported in September 2017) has recently been approved by the Court of Appeal in East of England Ambulance Service NHS Trust v Flowers & Others  EWCA Civ 947. A number of ambulance crew worked ‘voluntary’ overtime. It was voluntary – they were under no obligation at all. They made a claim for unlawful deduction from wages to the employment tribunal, arguing that their voluntary overtime was not included with their ‘normal’ remuneration for the purposes of holiday pay calculation, and therefore they were owed pay.
The EAT in Dudley held that holiday pay under the Working Time Directive must include regular voluntary overtime, i.e. elements of pay that are sufficiently regular or recurring to qualify as “normal” must be included. The Court of Appeal expressly approved this decision and said that the patterns of voluntary overtime will be for the tribunals to determine, on a case-by-case basis, as to whether they are sufficiently regular and settled. Additionally, in this case, the Claimants’ contractual terms are to be found in the NHS Terms and Conditions of Service Handbook, a collective agreement popularly known as “Agenda for Change”. These required voluntary overtime to be included in the calculation of contractual holiday pay, and as Justice Soole in the EAT broke it down to be a mere question of construction, there being “no good basis to construe clause 13.9 so as to exclude overtime in the calculation of holiday pay”, which the Court of Appeal upheld.
Sexual Harassment and Discrimination: WEC publishes report on use of NDAs in discrimination cases
In November 2018, we reported that The Women and Equalities Committee (WEC) had launched a new inquiry looking at the use of non-disclosure agreements (NDAs)where any form of harassment or discrimination has been alleged. The committee was seeking written submissions on whether there are certain types of harassment or discrimination for which NDAs are more likely to be used, whether the use of NDAs should be banned or restricted in these cases and what safeguards may be necessary to prevent their unethical use.
The WEC has now published their report on ‘The use of non-disclosure agreements in discrimination cases’. Its findings show that NDAs are used as a matter of routine to ‘cover up’ unlawful discrimination and harassment and maintain confidentiality of employers in a variety of ways, such as preventing people from making protected disclosures under whistleblowing legislation, or preventing people from explaining to a new employer why their previous job ended, or preventing them from reporting an issue to the police. Settlement agreements will often include non-disparagement provisions. This is happening, the report suggests, because of the “substantial imbalance of power” between employers and employees. Employees are often left feeling that they have little choice but to sign the agreements and agree to their stringent conditions. The report also looked at the effect and practicalities of taking such a matter to an employment tribunal. Furthermore, the report also covers the emotional and psychological damage that can be inflicted upon those feeling forced into entering into NDAs, and how being in such a situation can make moving on and finding a new job more difficult.
The reports states:
This cover-up culture has to be challenged. NDAs should not be used to silence victims of discrimination and harassment. Employers and their legal advisers should not be complicit in using NDAs to cover up allegations of unlawful acts. Discrimination at work is unlawful and employers should not have the option to cover it up through the use of NDAs. They have a duty of care to provide a safe place of work for their employees and that includes protection from unlawful discrimination. Insufficient focus and force from regulators to require employers to do more to protect employees has to change. It is in the public interest that employers tackle discrimination and harassment and that allegations of such behaviour are investigated properly and not covered up by legally sanctioned secrecy. The Government has to reset the parameters within which NDAs can be used and must address the failure of the employment tribunal system to ensure all employees who have experienced discrimination have a meaningful route of legal redress.
The WEC suggest the Government follow these key recommendations:
- ensure that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment, and stop their use to cover up allegations of unlawful discrimination, while still protecting the rights of victims to be able to make the choice to move on with their lives;
- require standard, plain English confidentiality, non-derogatory and similar clauses where these are used in settlement agreements, and ensure that such clauses are suitably specific about what information can and cannot be shared and with whom;
- strengthen corporate governance requirements to require employers to meet their responsibilities to protect those they employ from discrimination and harassment; and
- require named senior managers at board level or similar to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment cases.
They also renewed their previous calls (which have been rejected) for the Government to:
- place a mandatory duty on employers to protect workers from harassment and victimisation in the workplace; and
- urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages, and awards for the non-financial impact of discrimination should be increased significantly.
Health & Safety: Employers should support victims of domestic abuse
The figures on domestic abuse are shocking:
Two women a week are killed by a partner or former partner. One in four women and one in six men will experience domestic abuse in their lifetime, which can range from coercive behaviour to murder. That means we are all likely to know or work with someone suffering from it right now. The damage to people’s mental and physical well being is huge, as is the cost to the economy, calculated by government to be £66 billion a year, writes Iqbal Wahhab OBE in the Independent.
Over 270 companies and public sector businesses have joined the Employers Initiative on Domestic Abuse (EIDA) (https://eida.org.uk/) to help put a stop to this. The EIDA is a network of employers who have set up this organisation to work collectively to end domestic abuse, and support and protect domestic abuse victims in their workplaces. The EIDA website invites you to join them, there is no fee, and provides an employer’s toolkit, as well as other resources to help employers help their employees in crisis. Among the suggestions are for employers to introduce policies and educate staff to identify, support and signpost victims.
Health & Safety: IES publishes report regarding support for epileptic workers
One in 100 people in the UK suffer with Epilepsy but they are more than twice as likely as non-sufferers to be unemployed. The Institute for Employment Studies (IES) was commissioned by Epilepsy Action to conduct research to explore the factors that contribute to people with epilepsy being disadvantaged at work, and to identify what good employment support should look like. The report ‘Employment support for people with epilepsy – Qualitative research to identify what good employment support for people with epilepsy should look like’ has now been published.
The study revealed both a lack of knowledge on the part of employers about the condition, particularly its fluctuating nature, and the fear held by epilepsy sufferers that they would suffer discrimination in the workplace. IES’s recommendations include a personalised online toolkit – covering disclosure, health and safety, reasonable adjustments and other common concerns – could guide employers and employees in their conversations. Checklists and ‘job carving’ would help employers to assess employees’ capacity and fit with job tasks, and to make adjustments. These are areas that Epilepsy Action can address.The report also highlights the need for improved access to support services to empower people with epilepsy in their interactions with employers.
Data Protection: One year on since implementation of GDPR and Data Protection Act 2018
Can you believe it’s been a year since we all scrambled to get our policies, permissions and records straight? It has been a big change to the regulatory landscape and privacy is now arguably much better understood and appreciated.
The Information Commissioner, Elizabeth Denman, explains:
People have woken up to the new rights the GDPR delivers, with increased protection for the public and additional obligations for organisations. But there is much more still to do to build the public’s trust and confidence. The focus for the second year of the GDPR must be beyond baseline compliance. Instead organisations need to shift their focus to accountability with a real, evidenced understanding of the risks to individuals and how those risks should be mitigated.
With this in mind, the ICO has published a report detailing their work since 25 May 2018, looking back at what has been learnt over the last year, describes some of the work undertaken by the ICO to deliver the goals set out in its Information Rights Strategic Plan (such as supporting the public and organisations, and using its new enforcement and investigation powers). The report also looks at the ICO’s attempts to stay relevant and foster innovation to be an effective regulator both at home and abroad.
Parental Leave: UK ranks near bottom for family friendliness
The BBC recently reported that the UK is one of the worst countries in Europe for paid parental leave, according to UNICEF. Researchers for UNICEF looked 31 European countries and ranked them according to their paid parental leave and affordable childcare to assess how family-friendly they are. The UK came in at a disappointing twenty-eighth, followed only by Cyprus, Greece and Switzerland. Research revealed that UK parents were among the most likely to state that the high cost of childcare was the key factor dissuading them from using it. And yet many nurseries close or have to request top up fees from parents because their running costs are so high (even though childcare is not well paid) and the government’s ‘free childcare’ provision does not meet the actual cost of providing it.
Perhaps unsurprisingly, Sweden and Norway ranked first and second, because they have more progressive paid parental leave policies, with parents being able to split parental leave jointly and family time being much more important socially. These countries offered the equivalent of 35 and 45 weeks of paid leave respectively, while Estonia offers 85 weeks’ paid leave.
Family-friendly policies strengthen the bond between parents and their children, which is critical for the development of families and socially cohesive societies. UNICEF advocates for at least six months of paid leave for parents, and for universal access to quality, affordable childcare from birth to children’s entry into the first grade of school.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.