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Employment Law General Update – February 2023
We bring you a month of reports and inquiries. Two reports from a think tank and the IES into how women’s finances are affected by their working life and what impact this can have on the gender pension gap. A new Bill has been given government backing to give zero hours workers more certainty by requesting a more predictable work pattern. A troubling and impactful inquiry has been published into the TSSA, with stark consequences, and a study finds that despite having whistleblowing policies in place, many require better implementation and training.
- Pensions: Think tank publishes two reports on the gender pension gap with recommendations
- Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
- Trade Unions: Inquiry finds Sexual harassment rife at TSSA
- Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds
Pensions: Think tank publishes two reports on the gender pension gap with recommendations
Two reports from think tank Phoenix Insights and the Institute for Employment Studies (IES) exploring women’s finances through the lens of the workplace, set out a number of recommendations to assist women’s ability to save thereby closing the gender pension gap. The gender pay gap already disadvantages women’s future finances because it means they are more likely to contribute less to their retirement savings than their male peers. The research found that this disparity is made worse by life events, including motherhood, menopause, divorce, childcare, menstruation and caring responsibilities which can all disproportionately affect a woman’s earnings, and therefore pension contributions.
Some of the key findings in the reports include that the gender pay gap is a significant contributor to the gender pension gap, yet women on average contribute a larger proportion of their salary to their pension. On average, women are contributing a higher percentage of their monthly income into their pension than men up until middle age – 6.1% compared to 5.8% aged 35-44 by middle age – where care responsibilities fall to one in four women in the UK – men are paying almost £80 more per month into their pension than women. Women are more likely than men to fall under the auto-enrolment threshold (women 35% : men 11%). Automatic enrolment closed the contribution gap in participation but increased the gap in terms of contribution. Women are more likely to be economically inactive due to long-term health conditions than men. There is limited awareness among employers of the causes and consequences of the gender pension gap, resulting in a lack of action over and above the statutory minimum allowances that seek to improve the savings capacity of women across the different life stages.
The think tank report recommends employers should be required to inform employees about the pensions impact that changes to their working hours and earnings may have, to help close the gender pension gap.
The opportunity for employers – five key recommendations:
- re-enrol workers into pension schemes annually, rather than the statutory three years, to give workers the opportunity to re-engage if they have taken career breaks or have opted out because of a lack of affordability
- ensure employer pension contributions continue during periods of parental leave
- adopt a minimum of five days unpaid leave per year for those with childcare responsibilities, and where possible, five days paid carer’s leave
- make flexible working the norm from day one and highlight this across all job roles
- ensure workplace health policies offer explicit and visible support for reproductive conditions such as miscarriage, fertility treatment, for those diagnosed with endometriosis and managing menopause symptoms
The role of government – five key recommendations:
- legally require employers to provide information on how contractual changes impact pension contributions
- revisit the Carer’s Leave Bill to ensure that unpaid careers can access up to ten days statutory paid leave
- the legal right to flexible working should be available from the first day of employment, and the number of reasons to reject flexibility should reduce from eight to two
- widen the coverage of auto-enrolment by lowering age and earnings eligibility threshold to 18 years and £0, respectively
- review the advice and guidance boundary so that a larger population can access tailored and reliable financial support
Zero Hours Contracts: Government backs law to give workers right to request more predictable work pattern
The Department for Business, Energy & Industrial Strategy (BEIS) has announced that the government is backing Blackpool South MP Scott Benton’s Workers (Predictable Terms and Conditions) Bill. The Bill seeks to ensure that all employees, even agency workers, receive more predictable working patterns.
‘Hard working staff on zero hours contracts across the country put their lives on hold to make themselves readily available for shifts that may never actually come’ said Labour Markets Minister, Kevin Hollinrake. ‘Employers having one-sided flexibility over their staff is unfair and unreasonable. This Bill will ensure workers can request more predictable working patterns where they want them, so they can get on with their daily lives.’ The Bill provides that if an employee’s existing working pattern lacks certainty in terms of the hours they work, the times they work, or if it is a fixed term contract for less than 12 months, they may make a formal application to change their working pattern to make it more predictable. The move comes as part of a package of policies designed to further workers’ rights, such as:
- paid neonatal care leave
- requiring employers to ensure that all tips, gratuities, and service charges are paid to workers in full
- entitling unpaid carers to a period of unpaid leave
- providing employees with a day one right to request flexible working, and a greater say over when, where, and how they work
Trade Unions: Inquiry finds sexual harassment rife at TSSA
A misogynistic, ‘mafia-like’ culture of sexual harassment, bullying and violent language has permeated one of Britain’s transport unions, a new independent inquiry has revealed. An investigation by Baroness Helena Kennedy KC into the Transport Salaried Staffs’ Association (TSSA) concluded on 8 February 2023 that ‘there has been sexual harassment, discrimination and bullying within the TSSA and that the leadership and culture has enabled these behaviours through wilful blindness, power hoarding and poor practices’.
Kennedy’s report called for sweeping changes in an organisation where absolute power was concentrated in ‘a very small number of hands’, and called for new leadership at the TSSA. The TSSA opened the investigation in September 2022 after its General Secretary at the time, Manuel Cortes, was accused of sexual harassment by several women. Cortes, who has since retired with an undisclosed payout, denies the allegations. Kennedy pointed out in her report that neither the internal leadership of the TSSA nor the executive committee understood that to say they had not witnessed inappropriate behaviour is not an acceptable response to an ‘atmosphere of fear’ and an environment of ‘open secrets’.
Only two of the 50 people who volunteered to speak to Kennedy as she carried out her inquiry had any positive words to say about the TSSA’s culture, according to her report. The rest described a ‘dysfunctional’ and ‘mafia-like’ culture across the TSSA. The organisation was sexist, racist and homophobic, they said.
Kennedy said that a ‘distressing element’ of her inquiry was realising how little senior leaders at the TSSA seemed to have ‘moved with the times’. Their approach to management was ‘controlling’ and described by many staff members as bullying. The barrister said that, combined with governance failings, meant the ‘outdated attitudes of scepticism and disbelief of women’ formed a ‘dangerous mixture’.
Kennedy noted that the recent history of ‘wage suppression’, particularly in the public sector, and the ‘casual erosion of employment rights’ through precarious work points to an urgent need for healthy trade unions. She recommended a sweeping change of leadership, a realistic time-frame for reform and ‘serious investment of time in culture change’ to make a success of the TSSA.
TSSA said in response that the report made ‘difficult reading’ and highlighted serious problems that the union had to tackle. A spokesperson said the TSSA recognised the need for sweeping reform and stated its commitment to tackle institutional issues and drive through a culture change. ‘As a union, TSSA fights for equality, fairness and social justice for all, regularly winning on equality issues for our members’, the spokesperson said. ‘But it is clear from this report that our union has not followed the values we aspire to for our members.’
The President and Treasurer of the TSSA have stood down with immediate effect and interim replacements had been appointed, the spokesperson added. The TSSA has confirmed it is committed to take comprehensive, considered and meaningful action to address [the report’s] findings, and to enable the necessary further investigation and decisions to be made, the TSSA has suspended all five senior members of staff named in the report, including former General Secretary, Manuel Cortes.
Responding to the report, the TUC stated that ‘sexual harassment and bullying have no place in the trade union movement or any workplace. The TUC believes the women who came forward to share their experiences’. The TSSA have been asked to meet with the TUC General Secretary and the TUC President to discuss next steps.
The Kennedy report comes after a similar 2020 investigation into the GMB, conducted by Karon Monaghan KC, concluded that the GMB is institutionally sexist, and bullying, misogyny, cronyism and sexual harassment are endemic within the GMB.
Whistleblowing: Majority of firms have whistleblowing policies, but lack formal training for those handling concerns, study finds
On 16 February 2023, an article by People Management reported that a study by whistleblowing and compliance services provider Safecall, which surveyed HR managers and directors from 222 organisations, found that that while 17 per cent of respondent organisations lacked a whistleblowing policy, the majority (83 per cent) did have one in place, and for those companies that provide internal whistleblowing services, only 58 per cent of their investigators had been formally trained.
The report also discovered:
- more than two fifths (42 per cent) of employees responsible for managing whistleblowing complaints have either self-taught, learned their skills through experience, or have no experience at all
- more than half (57 per cent) of HR professionals surveyed believed that their employees were actively encouraged to report wrongdoing.
- however, just 42.6 per cent said employees “generally feel safe” to do so,
- the majority (74 per cent) of HR professionals could not be certain that whistleblowers were confident in raising concerns, and
- one in five (20 per cent) organisations have whistleblowing processes that their employees would find to be “highly untrustworthy”.
The article goes on to discuss various aspects of having whistleblowing policies. A policy that emphasises how employees can bring matters to their employer’s attention, which may help employers avoid or at least reduce the risk of employment claims by increasing the likelihood that disclosures will be readily identified as qualifying as a protected disclosures.
However, problems arise where there is a fundamental lack of trust between an organisation and its workforce. Having a whistleblowing policy that ensures there is a clear procedure that must be followed by all staff when a complaint is made can support businesses in fostering a transparent and open company culture. The policy should also demonstrate that staff should not be victimised or subjected to any detrimental treatment as a result of bringing a complaint.
Last year, legal experts warned HR professionals of the consequences of workers whistleblowing on their former and current employers for coronavirus job retention schemes, with law firm Pinsent Masons reporting that 13,775 furlough fraud whistleblowing reports were made to HMRC.
Meanwhile, a previous People Management report found that one in five (20 per cent) employees who had gone to their bosses with concerns over furlough fraud and breaches of Covid-19 safety rules were sacked as result.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment Law Case Update – December 2022
This month the focus is on the details. The EAT considered the circumstances of a disabled employee’s redundancy selection interview, an employee’s claim for damages for asbestosis was increased as a result of the employer not accepting his Part 36 offer, and we delve into the Pensions Ombudsman’s error of law in not considering whether a man who took early ill-health retirement might have otherwise been able to redeploy as a reasonable adjustment and therefore could have suffered financial loss by retiring early.
- Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage
- Personal Injury: The importance of considering Part 36 offers when considering damages claims
- Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment
- Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text
Disability Discrimination: Whether requiring a disabled employee to attend a redundancy selection interview could put him at a substantial disadvantage
In Hilaire v Luton Borough Council [2022] EAT 166, the EAT ruled on the employee’s appeal against the employment tribunal’s decision, rejecting his claims which alleged that his selection for redundancy, without the employer having given adequate consideration to his disability, had amounted to a failure to make reasonable adjustments. The employee, who suffered from depression and arthritis, had been required to attend an interview in a redundancy situation and he had informed the employer that he had been too ill to attend. The employer relied on the fact that the employee had been granted two extensions to the deadline for submission of an application for a role in the new structure, and that he had had been offered an alternative date for his interview. The tribunal concluded that the employer had applied a ‘provision, criterion or practice’ (PCP) of requiring the employee to attend an interview, and that he had not been placed at a substantial disadvantage by that PCP.
The EAT held that the tribunal had erred in its approach to the first aspect of ‘disadvantage’ by engaging in a binary decision concerning whether the employee could have taken part in the interview or not. The relevant matters in considering disadvantage under s.20 of the Equality Act 2010 (the Act) were the effects of the disability which made it more difficult for the disabled employee to meet an expectation of the employer (the PCP). The EAT held that, where the tribunal had found that the employee had had problems with memory and concentration and with social interaction, such problems would, at the least, have hindered effective participation in the interview. Accordingly, the tribunal should then have considered whether the limitation on the ability to participate had been more than minor or trivial.
The EAT further ruled that the second aspect of disadvantage was causation, and that there was evidence supporting the tribunal’s conclusion that the employee would not have taken part in the interview for reasons unconnected with his disability. Therefore, the EAT held that his disability had not prevented him from complying with a PCP and that, on that basis alone, the appeal could not succeed. precover from the effects which would have hindered his participation in an interview, could be considered an adjustment within t7he meaning of the Act, but that, given the significant impairment in the present case, from which recovery would have been protracted, the short delay to the date of the interview which the employer had applied could not be considered an adjustment. However, the EAT ruled that, on the evidence, the tribunal had been entitled to consider that the surrounding circumstances and the impact on other employees had meant that no step, including ‘slotting in’, would have been a reasonable step for the employer to have taken. Accordingly, the appeal was also dismissed on that basis.
Personal Injury: The importance of considering Part 36 offers when considering damages claims
In Brown v G & K Manson Ltd [2022] EWHC 3004 (KB), the King’s Bench Division assessed damages in a claim brought against the claimant’s former employer, in circumstances where the claimant had developed asbestosis following his exposure to asbestos during his employment. Judgment on liability had been entered in earlier proceedings. Among other things, the court accepted the main elements of the submissions made on the claimant’s behalf, subject to a recalculation of the hourly rate for gratuitous care and assistance. The court accepted that the debilitating breathlessness which the claimant had begun to suffer from early 2019 from asbestosis had resulted in his wife undertaking an additional daily hour of assistance, and it took into account, among other things, the claimant’s extra energy costs as a result of the energy price cap increases, bearing in mind that his forced sedentary lifestyle required his domestic heating to be on for longer, so as to keep him warm. The court held that the appropriate total award of damages was £91,438.54, including interest.
However, the court was informed that the claimant had put forward a Part 36 offer of £72,500 in full and final settlement (meaning under Part 36 of the Civil Procedure Rules, whereby one party seeks to settle the claim for a fixed, whole amount, which if not accepted, can have consequences as to the award and costs). Accordingly, the EAT ruled that the consequences of CPR Pt 36.17(4)(d) came into effect, such that the claimant was entitled to an additional amount of £9,143.85, representing 10% of the amount the court had awarded, including interest. The court also awarded interest under Pt 36.17(4)(a).
Pensions: The Pension Ombudsman should have considered redeployment as a reasonable adjustment
In Andrew v Royal Devon and Exeter NHS Foundation Trust [2022] EWHC 2992 (Ch), the Chancery Division allowed in part Mr Andrew’s appeal from a decision of the Pensions Ombudsman which had determined that Mr Andrew’s claim for financial loss had failed on reliance. Mr Andrew was employed by the respondent trust as a specialist orthotic technician. He was a member of two pension schemes (the 1995/2008 scheme and the 2015 scheme). Having developed significant health problems, in August 2017 Mr Andrew had applied for both Tier 1 and Tier 2 ill-health retirement (IHR). It was approved on 28 December 2017 on the basis of Tier 1, but not Tier 2. Mr Andrew’s employment terminated on 18 February 2018. When he was sent the final calculation of his pension entitlement, however, on 29 March 2018, his entitlement under the 1995/2008 scheme and the annual pension did not coincide with the estimate given to him in August 2017.
Mr Andrew complained to the Ombudsman. The Ombudsman had decided that he was given the correct figures. The court held, among other things, that on the basis of the evidence available to the Ombudsman, it had concluded that but for the inaccurate IHR estimate Mr Andrew would have retired at the same time and, as such, had suffered no financial loss. There was an evidential basis for that conclusion in so far as it related to Mr Andrew’s role. In particular, while Mr Andrew might have chosen to remain on sick pay the evidence did not point inexorably towards that conclusion. In addition, the court held that there was no error in the Ombudsman deciding to proceed on the basis of the evidence before him rather than holding an oral hearing.
As to the possibility that Mr Andrew would have sought and been granted redeployment as a reasonable adjustment, the court held that the Ombudsman had not considered and rejected that possibility; rather, the Ombudsman had only considered the fact that it was still open for Mr Andrew to apply for another role. The fact that it could be a reasonable adjustment to redeploy an employee without there being a need for them to go through a competitive recruitment process had been confirmed in Archibald v Fife Council [2004] ICR 954. Failing to consider that possibility amounted to an error of law on the part of the Ombudsman and the case was remitted on that basis.
Tribunals: Appeal to EAT must attach the signed judgment, not copy and pasted text
In Richardson v Extreme Roofing Ltd [2022] EAT 173, the EAT held that an appeal from an employment tribunal judgment to the EAT must attach a copy of the actual signed judgment and written reasons not just text which has been copied and pasted from that judgment and reasons. If an appellant is unable to attach a copy of the written reasons or ET1 claim form or ET3 response to the appeal and instead supplies a written explanation as to why they are not included then that explanation must be genuine and set out why the appellant is unable to produce the necessary documentation.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
