Employment Law Case Update – September 2022
Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.
- Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
- COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
- COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
- Equality Act: Supporting a football club is not a protected philosophical belief
- Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
- Fraud: A confiscation order should strip the profit from fraudulently obtained employment
Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.
Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.
On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.
A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.
Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.
Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.
An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:
- At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
- While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
- The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.
Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
In Cowie and others v Scottish Fire and Rescue Service  EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.
Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.
The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.
The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.
The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.
The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:
- To show group disadvantage in the section 19 claims.
- To justify an award of compensation for injury to feelings in the section 15 claims.
Equality Act: Supporting a football club is not a protected philosophical belief
At a preliminary hearing in McClung v Doosan Babcock Ltd and others  UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).
Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.
The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:
- The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
- Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
- There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
- Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
In Piepenbrock v London School of Economics and Political Science  EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.
HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.
The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.
Fraud: A confiscation order should strip the profit from fraudulently obtained employment
In R v Andrewes  UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.
In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.
Appeal allowed, and confiscation order restored, albeit for different reasons:
- It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
- The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
- When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
- The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.
This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.
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Employment News – May 2022
This month the news contains the employment highlights of the Queen’s speech, how Long COVID is affecting people, a new Health & Wellbeing report from the CIPD, a new campaign to help tackle pay disparity, government guidance for businesses employing Ukrainian refugees and new legislation covering foreign professional qualifications.
- Queen’s Speech 2022: Implications for employment
- COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
- Health & Wellbeing: CIPD publishes new report for 2022
- Pay Disparity: End Salary History campaign launched to tackle pay disparity
- Ukraine: New guidance for businesses offering work to people from Ukraine
- Qualifications: Professional Qualifications Act 2022 receives Royal Assent
Queen’s Speech 2022: Implications for employment
On 10 May 2022, the Queen’s Speech was delivered at the opening of Parliament. A key point of interest was the notable exclusion of the long-awaited Employment Bill. Although its omission was expected (after a government official suggested it was unlikely to be included in the Queen’s speech), the TUC pointed out that the government had promised the Employment Bill to enhance workers’ rights 20 times since first announcing it in the 2019 Queen’s Speech. The head of the TUC, Frances O’Grady, said that the failure to bring forward the legislation “sent a signal that [the government is] happy for rogue employers to ride roughshod over workers’ rights“. The Employment Bill had been expected to contain measures in relation to tips, additional rights for zero hours workers and pregnant women, neonatal and paid carers’ leave and default flexible working.
The Queen’s Speech announced a new Harbours (Seafarers’ Remuneration) Bill, following the recent mass redundancies at P&O. The Bill is intended to protect seafarers working on vessels regularly visiting UK ports by giving ports the power to refuse access to ferry services that do not pay the equivalent to the national minimum wage (NMW) to seafarers while in UK waters, although no changes will be made to the NMW legislation itself. A consultation has been launched, closing on 7 June 2022. However, the British Ports Association (BPA) has already said that it has concerns about ports being made to regulate ships and that ports do not “have a core competency” in enforcing the minimum wage. The government also hopes to secure bilateral agreements on “minimum wage corridors” with France, the Netherlands, Spain, Germany, Ireland and Denmark, where seafarers on routes between either country must be paid at least the equivalent of the NMW.
In briefing notes, the government has also stated its aim to encourage greater private sector investment in employee training, including apprentices. The government will consider whether the current tax system, including the apprenticeship levy, is sufficient to incentivise businesses to invest in high-quality employee training.
Despite the absence of the anticipated Employment Bill in the Queen’s Speech, BEIS has issued a press release highlighting the actions it says the government has taken “to support workers and build a high skilled, high productivity, high wage economy“. The key measures highlighted were:
- The increase of the national minimum wage (NMW) and national living wage (NLW) in April 2022. The government also named and shamed 208 employers in December 2021 who failed to pay the NMW.
- An extension of the ban on exclusivity clauses for all workers whose guaranteed weekly income is below the Lower Earnings Limit.
- A commitment to produce a statutory code of practice on fire and rehire.
- The abolition of the Swedish derogation which had allowed agency workers to be paid less than permanent staff in certain circumstances and the introduction of the right to receive a written statement of terms on day one for all workers.
- Recognising the importance of flexible working, including a consultation on making flexible working the default that closed on 1 December 2021 and to which the government response is awaited.
- The introduction of a legal right to two weeks’ paid bereavement leave for those who have lost a child.
- Support for employees during the COVID-19 pandemic, including protecting wages through the furlough scheme.
COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
An estimated 1.8 million people in the UK are experiencing long COVID symptoms, according to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms. Long COVID is the term used to describe COVID-19 symptoms that persist for more than four weeks, but 44% of people self-reporting long COVID had been affected for at least a year and 13% for at least two years. 67% of those with self-reported long COVID say that their day-to-day activities are adversely affected by their symptoms, amounting to 1.2 million people, and 19% report that their ability to undertake day-to-day activities has been “limited a lot“. Long COVID is most prevalent in people aged between 35 and 49, females, people living in more deprived areas and people working in social care, teaching, education or health care. There is also increased prevalence in people who already have another activity-limiting health condition or disability.
In a tweet posted on 7 May, the EHRC stated that “without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability“. COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement. It said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010, if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way. Employers should follow existing guidance when considering reasonable adjustments and flexible working in order to support affected workers.
Health & Wellbeing: CIPD publishes new Report for 2022
The CIPD has published a report on its Health and wellbeing at work survey 2022. Key findings include:
- COVID-19 absence. COVID-19 is included among the top three causes of short-term absence for two-thirds (67%) of organisations and just over a quarter (26%) report long COVID among their top causes of long-term absence.
- Long COVID. Nearly half (46%) of respondents reported having employees who have experienced long COVID. While most suggested only a small proportion of employees are affected, the report warns that this likely underestimates the real figure.
- Absence management. While the majority of employers look to line managers to manage short-term and long-term absence and train them on this, only 38% agree that managers are confident to have sensitive discussions and signpost employees to expert support. Management style remains the most common cause of stress at work.
- Health and wellbeing. Over half of employers (52%) undertook additional action around employee health and wellbeing in response to the pandemic. While figures suggest that there has been less focus on employee health and wellbeing than in the first year of the pandemic (70% of respondents agreed that employee wellbeing is on senior leaders’ agenda, a reduction of 5% since last year), the longer-term trend suggests it has been gradually rising up the corporate agenda. Half of organisations (51%) are taking a strategic approach to employee wellbeing and those organisations are much more likely to report positive outcomes. Mental health is the most common focus of wellbeing activities and the extent to which there is provision for specific groups or issues, such as for carers, bereavement, suicide risk or good sleep hygiene, is more variable. It may be of interest, amid the current cost-of-living crisis, that the most neglected area is financial wellbeing.
- Homeworking. The survey found that almost three-quarters of employers (72%) are providing new or better support for people working from home. However, there is indication that presenteeism is more prevalent among homeworkers and the number of organisations taking steps to tackle the issue has grown over the past two years (53% in 2022, up from 45% in 2021 and 32% in 2020).
Pay Disparity: End Salary History campaign launched to tackle pay disparity
A new End Salary History campaign to tackle pay disparity on the grounds of gender, race and disability has been launched by the Recruitment and Employment Confederation (REC) and the Fawcett Society. Fawcett Society polling has found that 58% of women and 53% of men feel that being asked about their earning history causes them to be offered a lower wage and affected their confidence when asking for better pay (61% of women and 53% of men). The campaign includes a guide for recruiters on ending the practice of asking job applicants about their salary history and an employer petition to bolster the Fawcett Society’s call on the government to ban the practice.
The government recently announced a pilot scheme which would see participants refrain from asking job applicants about salary history as well as including salary information in job advertisements. Further details of the government’s scheme are awaited.
Ukraine: New guidance for businesses offering work to people from Ukraine
On 6 May 2022, the government published new guidance for businesses offering work to people from Ukraine. The guidance applies to businesses in England, Scotland and Wales.
While the guidance is not detailed, it provides the following:
- Businesses offering employment opportunities to people arriving in the UK from Ukraine should complete a vacancy information questionnaire and return the completed questionnaire to a specified Home Office email address. After completion of the questionnaire, a business will be contacted by the National Employer and Partnership Team at the Department for Work and Pensions (DWP) within five working days. Job opportunities will then be shared across the DWP Jobcentre Plus network and with the Refugee Employment Network (REN).
- Ukrainians who hold professional qualifications may need those qualifications to be recognised in the UK, if they work in a regulated profession. The UK Centre for Professional Qualifications provides a free service which explains whether a profession is regulated and any entry requirements.
There is an FAQ section at the end of the guidance which provides information on immigration status and additional support available to businesses. One of the FAQs addresses employment rights, noting that “the UK is proud to extend the same employment rights that everyone in the UK is entitled to, to people arriving in the UK from Ukraine“. Businesses are encouraged to understand these rights by reference to the employment status of a worker. The FAQ response directs businesses to GOV.UK guidance and ACAS for further information.
Qualifications: Professional Qualifications Act 2022 receives Royal Assent
On 28 April 2022, the Professional Qualifications Act 2022 (PQA 2022) received Royal Assent. It will give UK regulators the power to make mutual recognition agreements with their counterparts in other countries where there is a UK shortage of qualified professionals.
The PQA 2022 revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 (SI 2015/2059) which implemented a reciprocal framework for the recognition of professional qualifications, enabling nationals from the European Economic Area (EEA) and Switzerland to have their professional qualifications recognised and gain access to the regulated profession in which they are qualified in another EEA member state or Switzerland. Any sector-specific legislation that established a similar interim system following the UK’s exit from the EU will also be revoked.
Under the PQA 2022, the government and, where applicable, devolved administrations, will identify and specify in regulations a priority list of professions where there is demand for skills from overseas. Considerations for those priority professions will include whether the profession is on the shortage occupation list, vacancy levels, workforce modelling and skills forecasting, and whether there are other ways that professions might address shortages, such as arrangements already in place to recognise qualifications from other countries. The government has stated that the key provisions of the PQA 2022 will come into force by autumn 2022 and that it will work closely with regulators and other stakeholders on how to prepare for the new regime.
In May 2021, the government published guidance to assist regulators in negotiating and entering into mutual recognition agreements with foreign counterparts.
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