This month the news is full of diversity and equality – calls to support and engage on a wide range of matters such as neurodiversity, LGBTQ+ and race and ethnicity. There is also a focus on health – with updates on fit notes to calls for action on mental health and menopause.
- Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
- Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
- Equality: Government publishes response to Commission on Race and Ethnic Disparities report
- Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
- Mental Health: DHSC publishes discussion paper and call for evidence
- Menopause: Workplace pledge signed by over 600 employers
Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
On 21 March 2022, Neurodiversity in Business (NiB) was launched at the Houses of Parliament to support neurodiverse employees in the workplace. Between 15% and 20% of the population are estimated to be neurodivergent. Dan Harris, Chief executive of NiB, states that although employers increasingly recognise the benefits of a neurodiverse workforce, neurodivergent employees need improved support. NiB and founding members, such as Accenture, AstraZeneca, Bank of England, Capita, Network Rail, Sky and Unilever, recognise that reasonable modifications can enable more neurodiversity in the workplace and also benefit sustainability. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.
Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
On 18 March 2022, the government’s LGBT+ Business Champion, Iain Anderson, issued a call to engage to employers, staff networks, trade unions and civil society organisations with practical experience of creating LGBT+ inclusive workplaces, supporting LGBT+ inclusion and improving outcomes and experiences for LGBT+ people. He is looking for practical examples that work of what businesses are doing to improve LGBT+ outcomes and experiences in the workplace. The call to engage is not for personal experiences or views.
The questions ask for information on the following issues:
- The collection of LGBT+ diversity and inclusion data and how effective this has been.
- How organisations have been able to improve the outcomes and experiences of LGBT+ employees in the workplace and how effective this has been. Where possible, respondents are asked to disaggregate measures taken in support of lesbian, gay, bisexual and trans employees.
- In countries where LGBT+ people routinely experience discrimination, what organisations are doing to support the safety and advocacy of LGBT+ staff.
- How organisations can have a positive social and economic impact on LGBT+ equality, including in countries where LGBT+ people routinely experience discrimination. In particular, comments are welcomed on impacts outside the organisation, for example, having a positive influence through supply chains, distributors and customers.
The consultation closes on 28 April 2022.
Equality: Government publishes response to Commission on Race and Ethnic Disparities report
On 17 March, the government has published its response to the report of the Commission on Race and Ethnic Disparities made a number of recommendations to address ethnic and racial disparities across society. The response confirms that mandatory ethnicity pay gap reporting will not be introduced. However, organisations who choose to publish their figures will be required to publish a “diagnosis and action plan“, setting out reasons why disparities exist and what will be done to address them. Guidance on voluntary ethnicity pay gap reporting, to be published in summer 2022, will be designed to help employers address some of the challenges around ethnicity pay gap reporting. It will include case studies drawn from organisations which have already chosen to report on their ethnicity pay, setting a benchmark for what a good action plan might cover.
The report also tackles the use of artificial intelligence in recruitment processes and automated decision-making. A white paper, to be published later in the year, will deal with how to address potential racial bias in algorithmic decision-making. To ensure technological advances do not have a disproportionate impact on ethnic minority groups, the EHRC will advise on the safeguards needed and issue guidance that explains how to apply the Equality Act 2010 to algorithmic decision-making.
The government has accepted the Commission’s recommendation that the acronym BAME (Black, Asian and minority ethnic) is unhelpful, and it has stopped using the term in its own communications. It is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups. Where it is absolutely necessary to draw a binary distinction between the ethnic majority and ethnic minorities, the government will use the term “people from ethnic minority backgrounds“. The response also states that terms such as “white privilege” can be seen as stigmatising and potentially divisive, as they have the unintended consequence of pitting groups against each other.
The response includes a package of other measures designed to improve diversity and inclusion, including additional funding for the EHRC, an “Inclusion at Work Panel” which will disseminate diversity resources to employers, and updated guidance for employers on positive action, to be published by the end of the year.
Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
In its July 2021 response to the 2019 consultation document “Health is everyone’s business: proposals to reduce ill health-related job loss“, the government committed to removing the statutory obstacles to the digital issuing of fit notes. Currently, fit notes must be signed in ink by the issuing doctor, although given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided digitally.
The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. They amend the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604). The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.
Mental Health: DHSC publishes discussion paper and call for evidence
The Department for Health and Social Care has published a discussion paper and call for evidence on improving mental health and wellbeing, which includes the development of a ten-year plan to reduce the prevalence, incidence and recurrence of mental ill-health.
The discussion paper suggests compassionate employers are needed, who will protect and promote positive mental wellbeing by understanding and meeting physical and mental needs in the workplace. Two key challenges that were identified through the Thriving at Work are reiterated in the document:
- the need for a clear role for employers to prevent the onset of mental health conditions and mental ill-health, and
- wider implementation of workplace interventions to support mental health.
The role for employers to support mental wellbeing is further highlighted in the discussion around early intervention. Employers are identified as an important source of support for employees who may not need “clinical” early interventions. This section also highlights that in those instances, employers may need support and information to provide support for a distressed employee.
The consultation is open to all, and responses will be collected through an online survey until 11.45 pm on 5 July 2022.
Menopause: Workplace pledge signed by over 600 employers
More than 600 employers have signed the Menopause Workplace Pledge, which is part of a campaign by Wellbeing of Women. In signing the pledge, employers recognise that the menopause can be a workplace issue for which employees need support. Signatories commit to open, positive and respectful workplace dialogue about the menopause and to taking active steps to support employees affected by the menopause and informing them of the support offered. Active measures have already been undertaken by some signatories: the Royal Mail has run an internal campaign to normalise conversations about the menopause, Tesco plans to incorporate a breathable fabric into its uniform to help with hot flushes, and News UK has said it will cover the cost of NHS HRT prescriptions and provide desk fans.
Last week, a survey of 1,000 HR professionals, (conducted by YouGov on behalf of Irwin Mitchell) revealed almost three-quarters of employers (72%) do not have a menopause policy and that only 16% of employers train line-managers on the menopause. The CIPD has reminded employers that positive action, such as engaging with this pledge and having a policy that outlines available support, must be “underpinned by a culture where people are actively encouraged to have open and supportive conversations“. It has its own Guidance for employers on how to better manage those affected by menopause at work, which can be accessed here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
- 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
- Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
- Worker Status: Does worker status require a minimum degree of obligation or commitment?
- Disability Discrimination: Mental health of gym trainer not properly accounted for
- Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
- Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
- COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
- COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
- COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
- COVID-19: Adjusted right to work check measures extended to 20 June 2021
- National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
- National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
- Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
Worker Status: Does worker status require a minimum degree of obligation or commitment?
In Nursing & Midwifery Council v Somerville  UKEAT 0258_20_0505 the EAT has dismissed the Nursing & Midwifery Council’s (NMC) appeal against a tribunal’s finding that Mr Somerville was a worker. Somerville was a panel member chair of its Fitness to Practice Committee, and he made a claim against the NMC for unpaid statutory holiday pay, contending that he was either an employee or worker.
At first instance, the tribunal judge found that:
- there were a series of individual contracts between the parties each time Mr Somerville agreed to sit on a hearing, for which the NMC agreed to pay him a fee, and also an overarching contract between them in relation to the provision of his services as a panel member chair;
- these written materials correctly represented the parties’ true agreement;
- there was no contractual obligation on Mr Somerville to offer / accept a minimum amount of sitting dates and he was free to withdraw from dates he had accepted;
- Mr Somerville agreed to provide his services personally to the NMC and there was no right of substitution;
- the NMC was not a client or customer of a profession or business carried on by Mr Somerville.
Accordingly, there was insufficient mutuality of obligation to give rise to an overarching employment contract or an employment contract in relation to individual assignments that he accepted. Therefore, in rejecting this alternative contention that he was an employee, the tribunal decided that there was no irreducible minimum of obligation, as Mr Somerville was not obliged to offer a minimum amount of sitting dates and he was free to withdraw from dates he had accepted. In light of the contract that existed between the parties, the personal service involved and the client/customer finding, the tribunal instead found Mr Somerville to be a worker within the meaning of section 230 Employment Rights Act 1996 (ERA) and regulation 2(1) Working Time Regulations 1998 (WTR).
The NMC appealed this conclusion on the basis that: (i) the tribunal had misdirected itself in law, since an absence of mutuality of obligation in the sense of an absence of an irreducible minimum of obligation as identified in the employee caselaw was incompatible with a finding of worker status; and (ii) in finding the NMC was not a client or customer of a business carried on by Mr Somerville, the tribunal had failed to consider relevant factors and had taken into account irrelevant considerations.
The EAT dismissed the appeal holding thata review of the authorities (including the Supreme Court’s decision in the recent Uber case) and the statutory language indicated that an irreducible minimum of obligation in the sense relied upon by the NMC was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as here, an overarching contract existed between the parties under which the individual agreed to perform services personally to the NMC and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client/customer exception applied, but it was not necessarily fatal to a conclusion of worker status. Further, that in considering the client/customer exception in this case, the tribunal had made no error of law; the weight that it attached to particular factors was a matter for its evaluation.
Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
The Court of Appeal has refused permission to appeal from the EAT (Addison Lee Ltd v Lange and others  EWCA Civ 594) against a finding that Addison Lee minicab drivers were “limb (b)” workers*, and that time in which drivers were logged onto the Addison Lee portal, and had not notified the company that they were taking a rest break, was working time under the Working Time Regulations 1998 (WTR 1998). The court had previously given permission on the papers, but had stayed the appeal pending the Supreme Court’s decision in Uber BV and others v Aslam and others  ICR 845. Following the Uber decision, the court had set aside its original grant of permission and held an oral hearing to re-consider the matter. It held, in the light of Uber, that the appeal in this case has no reasonable prospect of success.
The employer sought to distinguish Uber on the basis of differences in the contractual documentation (specifically, that there was an express contract between Addison Lee and its drivers that negated any mutuality of obligation). However, the Supreme Court in Uber had re-affirmed the principle in Autoclenz Ltd v Belcher and others  IRLR 820 (SC) that, in deciding limb (b) worker status, the tribunal is interpreting the statute rather than interpreting the contract, and should disregard any contractual provisions that do not reflect reality. The tribunal’s factual finding that, when a driver was logged on, they were undertaking to accept jobs allocated to them, was, in the court’s view, “unappealable”.
The court also held that, following Uber, there was no arguable error of law in the employment tribunal’s conclusion that when drivers were logged on, this satisfied the definition of working time as they were at the employer’s disposal.
(* “Limb b” means working under any other contract (other than a contract of employment) where the person agrees to do the work personally, and the relationship between the parties to the contract is not akin to a client or customer of any profession or business relationship.)
Disability Discrimination: Mental health of gym trainer not properly accounted for
A case from London South employment tribunal (Burton v Nuffield Health V 2300147/2019) has recently hit the headlines because the judge found in favour of the claimant, Ali Burton, who claimed disability discrimination and victimisation against her employer Nuffield Health. Burton worked at a branch of the fitness chain Nuffield Health.
The tribunal heard that Burton disclosed her mental health condition (generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids) at the interview stage, and again to Nuffield’s in-house occupational health team during her induction. Occupational health passed her as fit to do the job with agreed modifications (such as avoiding hygiene-related tasks which could trigger her GAD; exempt from undertaking health appointments involving blood tests; and that her shift hours should be reduced and consecutive to ensure “ample time off” to manage her condition).
It began with a senior general manager who, unaware of Burton’s condition, asked her to pick up used towels from the floor in the gym. She refused, explaining it was due to her mental health, and was told “we all have to do things that are unpleasant” and advised to use gloves. The manager apparently made mocking remarks and questioned how this might affect her working in the gym, making her feel pressured and embarrassed.
What followed was a series of different managers, who clearly demonstrated they had been given no training in how to either have appropriate discussions with her or simply be able to deal with such a condition, treating her in such a way as to upset her to the point where she raised a grievance. She was questioned over her reduced hours, asked to explain her condition, and asked to provide her medical notes to show her latest diagnosis. Following a meeting, the grievance was not upheld and again she was asked to provide her GP notes and medical history. Following a protracted process of trying to challenge the grievance, it was still not upheld and so Burton lodged a tribunal claim alleging direct discrimination and victimisation.
Her claim of victimisation was not successful but the complaint of direct discrimination succeeded in part, as did her complaint of discrimination because of something arising in consequence of disability; of harassment; and of failure to make reasonable adjustments. The tribunal found Nuffield Health lacked “adequate arrangements” for communicating important information about Burton’s condition, and that this formed part of an “ongoing discriminatory state of affairs”. There was clearly a limited understanding of her condition and a failure to appropriately train managers to deal with such conditions.
Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
In Hamilton v Fife Council UKEATS/0006/20/SS (V) the claimant was a teacher whose department had surplus staff. She was told that as the member of staff with the shortest length of service she could be transferred to another school as a result of a collective agreement, meanwhile the school advertised a vacancy for a full-time position in her department. The relevant term of the collective agreement said that where a teacher has been designated surplus, a permanent post would not be advertised. The claimant resigned, claiming (among other things) constructive unfair dismissal on the basis that the school was in repudiatory breach of this term. The tribunal disagreed, finding on the facts that the events said to constitute breaches of the underlying contract either had not been proved to have happened or, to the extent that they had been proved to have happened, did not constitute breaches of the contract. Where there had been one single breach the tribunal found, however, that such breach had not caused the her resignation. The claimant appealed.
The EAT dismissed the appeal. It held that whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether
“any particular part of the collective agreement founded upon is apt to be a part of an individual contract of employment or whether, alternatively, it is essentially collective in nature between the employer and the relevant union”.(para. 28)
The judge went on to say that collectively agreed terms incorporated into individual contracts which regulate certain matters such as pay, holiday entitlement and hours of work, etc, are all capable, of giving rise to enforceable individual rights on the part of employees. On the other hand, collectively agreed terms which are truly collective in their nature are not (e.g. redundancy procedures). The term in question was vague and lacked specification as to when it could be invoked demonstrating that it was not intended to confer individual rights, but simply a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract and the appeal failed.
Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
The High Court in Antuzis and others v DJ Houghton Catching Services Ltd and others  EWHC 971 (QB) has ordered two company directors to pay aggravated damages to a group of exploited migrant workers whose employer failed to pay them overtime, holiday pay and the applicable minimum wage under the Agricultural Wages Act 1948 and associated Orders.
The claimants had been employed as chicken catchers by DJ Houghton Catching Services Ltd. They brought High Court claims against the company for breach of contract relating to unpaid wages, unlawful deductions from wages and unpaid holiday pay. They also claimed against the company directors for the tort of inducing the breaches of their employment contracts by the company. In 2019, the court upheld the claims and ordered the assessment of damages at a separate quantum trial.
Following the quantum trial, the court awarded damages of the full amounts claimed by the employees for wages, overtime and holiday pay. However, since the claims against the directors were based in tort, the employees also asked the court to award aggravated and exemplary damages.
The court noted that aggravated damages are compensatory in nature. In this case, the court accepted that recovery of the monies due under the employment contracts would not compensate the employees for the exploitation, manipulation and abuse carried out by the employer and its directors that had been inflicted by the systematic denial of the employees’ statutory righ
ts. In respect of aggregated damages, the court therefore uplifted by 20% the damages awarded to the employees. Conversely, the court noted that exemplary damages are punitive in nature. Given the substantial aggravated damages already awarded and the lack of evidence that the profit made by the directors had exceeded this sum, the court declined to award exemplary damages.
This case is an interesting example of how employees could use tort claims to seek redress for breach of contract or certain statutory rights from the directors of their employer and to achieve compensation exceeding their actual financial loss. However, the underlying facts of this case are extreme and the circumstances in which such a claim may be brought are therefore likely to be limited.
COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair
In Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, an employment tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.
An employment tribunal has considered a COVID-19 related claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.
Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular:
- Despite Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- Mr Rodgers’ message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.
COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) (Week’s Pay Regulations) came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee’s normal week’s pay.
The Week’s Pay Regulations were amended in November 2020 and February 2021 to extend their duration to reflect subsequent extensions of the Coronavirus Job Retention Scheme.
On 20 April 2021, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) (No 2) Regulations 2021 (SI 2021/487) were made. They came into force on 30 April 2021 and ensure that the Week’s Pay Regulations will continue to operate until 30 September 2021, reflecting the further extension of the CJRS announced in the Spring 2021 Budget.
COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
HMRC has updated various guidance notes, in particular in relation to the calculation of furlough pay for non-fixed rate employees with a relevant reference day of 2 March 2021.
On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.
The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
COVID-19: Adjusted right to work check measures extended to 20 June 2021
The temporary COVID-19 adjusted right to work check measures will now end on 20 June 2021, not 16 May 2021 as previously announced by the Home Office (Home Office and Immigration Enforcement: Coronavirus (COVID-19): right to work checks (updated 12 May 2021).) This new date is the planned date for bringing in step four of the government’s roadmap out of lockdown and allows employers to continue with digital right to work checks while social distancing is still in place.
The temporary changes, in place since 30 March 2020, have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.
From 21 June 2021, employers must once again either:
- Check the applicant’s original documents.
- Check the applicant’s right to work online, if they have provided the employer with their share code.
Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.
National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
The Low Pay Commission (LPC) has published its fourth standalone report, Non-compliance and enforcement of the National Minimum Wage 2021. The LPC has adapted its approach to reflect the existence of the Coronavirus Job Retention Scheme (CJRS), which has prevented it from carrying out its usual analysis. In addition, the data it would normally consider only covers the period up to April 2020. Rather than looking at flawed data, the report attempts to assess the immediate challenges for National Minimum Wage (NMW) enforcement. It also considers the likely challenges that will affect enforcement over the coming year.
The report does not, on the whole, make new recommendations. It instead reviews progress in key areas identified in previous years. The following points may be of particular interest:
- The LPC notes that the government consulted in 2019 on proposals to create a single enforcement body. While the report mentions that legislation is expected to be brought forward in an Employment Bill, there is no current timetable for this. The Queen’s Speech of 11 May 2021 did not mention an Employment Bill.
- The LPC will continue to monitor emerging case law (noting, in particular, the Supreme Court’s decisions in Uber and Mencap) and their implications for NMW enforcement.
- As the CJRS is phased out, the LPC anticipates that shifts in the economy and labour market will make it more important than ever to ensure NMW compliance. The report notes that the complexity of the CJRS, coupled with a refocusing of HMRC’s targeted enforcement regime, is likely to have increased the risk of underpayment. HMRC has advised the LPC that complaints from workers have declined since April 2020, although the precise reasons for this are unknown.
The LPC anticipates that the impact of the CJRS on workers’ hours and pay will be a recurring feature for many years, noting that the low volume of complaints represents a serious barrier to an effective enforcement system. Consequently, it recommends a pro-active approach from the government to build confidence in the complaints process. It also considers that HMRC’s limited resources must be targeted effectively.
National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
On 23 April 2021, the Department for Business, Energy and Industrial Strategy (BEIS) updated its guidance on calculating the national minimum wage (NMW) to clarify the position for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others  UKSC 8.
The revised guidance on ‘Sleep-in’ shifts (which appears under the heading Special situations in the section entitled Working hours for which the minimum wage must be paid) confirms that, following Royal Mencap, sleep-in workers are only entitled to the NMW when they are awake for the purposes of working and not when they are permitted to sleep. However, the guidance explains that the position is different for workers who are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible. In such cases, it is likely that the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time. The guidance also confirms that the NMW will be payable for time spent asleep if the employer does not provide workers with suitable sleeping facilities.
To illustrate how the principles outlined by the Supreme Court in Royal Mencap may apply to particular scenarios, the guidance now includes five short examples which explain whether a worker would be entitled to the NMW if:
- They spend time awake but are woken only occasionally to perform tasks.
- They take night calls on a nightshift.
- They are permitted to nap during a work shift.
- They are woken to deal with an emergency but not required.
- They are woken frequently, contrary to original expectation.
The updated guidance and examples are a helpful starting point for employers grappling with the recent changes to this complex area of law. Nevertheless, as the guidance itself reiterates, to determine whether the NMW should be paid to sleep-in workers, employers will need to apply the relevant principles to the specific facts of the situation they are dealing with.
Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme
The Guardian reports that campaign groups including the TUC, Maternity Action and the Fawcett Society have joined forces in a bid for governmental reform of the “deeply flawed” and underused shared parental leave (SPL) scheme introduced in 2015. The campaigners are urging the government to reform SPL in its long-awaited Employment Bill, and to replace it with a new model of parental leave which would give both parents non-transferable paid leave to care for their child, encouraging fathers to share the burden of childcare which still falls largely on new mothers.
The groups also pushed for the publication of the government’s evaluation of the SPL scheme, which was due in 2019 and is now scheduled to be published in late 2021.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
- 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.
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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