Employment Law Newsletter – October 2021
- Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
- Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
- Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
- Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
- Data Protection: ICO data sharing code of practice under DPA 2018 in force
- Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
- New Legislation: Consultation response to tipping, gratuities, cover and service charges
- Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
- Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
- Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
In R (Cornerstone (North East) Adoption and Fostering Services Ltd) v Chief Inspector of Education, Children’s Services and Skills (Ofsted)  EWCA Civ 1390, Cornerstone, an independent fostering agency which operates as a charity adhering to evangelical Christian principles, had a recruitment policy requiring foster carers to refrain from “homosexual behaviour“. Cornerstone is regulated by Ofsted, which determined that the recruitment policy should be amended because it was a violation of the Equality Act 2010 (EqA 2010) and the European Convention on Human Rights (ECHR). Cornerstone unsuccessfully applied for judicial review of Ofsted’s decision, the High Court holding that Cornerstone was subject to the EqA 2010 and the ECHR as a hybrid public authority, and that the policy unlawfully discriminated, directly and indirectly, against gay men and lesbians.
Cornerstone appealed to the Court of Appeal. In a unanimous judgment it held that Cornerstone’s policy was a clear instance of direct and indirect discrimination because of sexual orientation. The Court of Appeal considered whether the policy could be justified, under section 19 of the EqA 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.
For reasons similar but not identical to the High Court, the Court of Appeal held the policy was not capable of being justified as a proportionate means of achieving a legitimate aim. It emphasised that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. The requirement that discrimination on the ground of sexual orientation required weighty reasons to justify differential treatment was heavily underscored by statute in the case of a religious organisation that provided services to the public. Cornerstone had failed to provide credible evidence to justify the policy.
In concluding comments, the Court of Appeal noted that the appeal was a collision between two protected characteristics and accepted the need to protect those who are discriminated against in small numbers to progress equality for wider communities.
Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
In Rooney v Leicester City Council (EA-2020-000070-DA and EA-2021-000256-DA) the EAT has held that a tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010, and in dismissing her disability and sex discrimination, harassment and victimisation claims. The tribunal’s judgment failed to properly analyse the claims and consider the evidence presented to it, and it was not Meek-compliant as it did not adequately explain why the claims were dismissed. The claims were remitted to a differently constituted tribunal.
This case is an example of the difficulties faced by menopausal women in the workplace and the challenges that can arise in establishing that their symptoms amount to a disability. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. This is only the second appellate case concerning menopause discrimination at work that we are aware of, illustrating that these decisions are rarely appealed. The Women and Equalities Committee have recently held an inquiry into this area and their recommendations are awaited.
A reminder that ACAS has produced guidance for employers on how to deal with the impact of the menopause on employees at work: https://www.acas.org.uk/menopause-at-work.
Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
In conjoined appeals in Pitcher v Chancellor, Masters and Scholars of the University of Oxford  9 WLUK 293 regardingProfessor Pitcher (an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John’s College) and Professor Ewart (an Associate Professor in Atomic and Laser Physics at the University), the EAT has upheld two opposing employment tribunal decisions on the objective justification of a directly discriminatory employer justified retirement age (EJRA) operated by Oxford University and St John’s College. In the first case, an employment tribunal found the EJRA to be justified and the retirement dismissal fair. In contrast, in the second case, a differently constituted employment tribunal upheld the direct age discrimination and unfair dismissal claims, finding that the EJRA was not objectively justified.
The EAT dismissed the appeals against both employment tribunal decisions. The EJRA facilitated the achievement of the legitimate aims (inter-generational fairness, succession planning, and equality and diversity) by ensuring vacancy creation was not delayed. In terms of objective justification, the EAT held that the nature of the assessment undertaken by employment tribunals means it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims. While acknowledging that that it is undesirable for an employer to be faced with conflicting tribunal decisions relating to a particular policy, the EAT’s task is not to strive to find a single answer, but to consider whether either tribunal erred in law.
There were two material differences in the way in which the evidence was presented to the tribunals. First, one tribunal had the benefit of statistical evidence on the impact of the EJRA upon the creation of vacancies, which was not available to the other tribunal. Second, the tribunals received different evidence on the detriment suffered by those to whom the EJRA applied and so were entitled to give different weight to the mitigating factors relied on. Following a detailed analysis of the evidence considered and the reasoning adopted by each tribunal, the EAT concluded that neither had erred in law in coming to the conclusions they had on objective justification.
While the upholding of opposing decisions is undesirable from a wider employment law perspective, particularly for employers seeking to justify their own compulsory retirement policy, it demonstrates the importance that such employers should place on evidence or, if unavailable, reasoned projections of the impact of a policy on the achievement of its legitimate aims.
Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
In Secure Care Ltd v Mott EA-2019-000977-AT (19 October 2021) the EAT has overturned a tribunal’s decision that an employee had been automatically unfairly dismissed in a whistleblowing case. The claimant, Mr Mott, had made a number of complaints to his employer about staff shortages, long working hours, rest breaks and other staffing difficulties, which he said endangered health and safety. He was dismissed, ostensibly for redundancy, and brought a tribunal claim for unfair dismissal under section 103A of the Employment Rights Act 1996, arguing that he had been selected for redundancy because he had made protected disclosures.
The tribunal found that three of his nine alleged disclosures were qualifying disclosures and that these met the test for protected disclosures. The tribunal found that “the fact that he had been ‘pointing out problems’ (in a number of communications some of which amounted to qualifying disclosures) clearly had a material effect on his selection [for redundancy]“. Although there was a genuine redundancy situation, Mr Mott’s dismissal was therefore automatically unfair.
On the employer’s appeal, the EAT held that the tribunal had erred in two respects. First, it had wrongly applied the test in Fecitt v NHS Manchester  ICR 372 (CA), in considering whether the protected disclosures “materially influenced” the employer’s treatment of the claimant. This test should only be applied to claims for detriment short of dismissal under section 47B. The unfair dismissal test under section 103A is whether the protected disclosures were the “sole or principal reason” for dismissal.
Second, the tribunal had failed to confine its consideration to the effect of the three protected disclosures. Rather, it had considered the combined impact and effect of the claimant’s communications about staffing levels and the associated problems this gave rise to.
Data Protection: ICO data sharing code of practice under DPA 2018 in force
The Information Commissioner’s Office (ICO) has updated its Data sharing information hub, confirming that a new version of its statutory data sharing code of practice came into force on 5 October 2021. The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and Data Protection Act 2018 (DPA 2018), including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements. Section 121 of the DPA 2018 requires the ICO to issue a data sharing code, either by way of amendments to an existing code or by way of a replacement code. The new code replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998. The code has been issued under section 125 of the DPA 2018; a failure to act in accordance with it does not of itself make a person liable to legal proceedings in a court or tribunal, but the code is admissible in evidence in legal proceedings.
Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
Website ‘Moneymarketing.co.uk’ reports that The Pensions Regulator has warned gig economy employers that they must “voluntarily and promptly” comply with their auto-enrolment obligations or risk enforcement action.
This comes after Uber recently announced its plan to offer a pension scheme provided by NOW: Pensions to all its eligible UK drivers, following the Supreme Court’s February 2021 ruling that Uber drivers were “workers” and therefore qualified for auto-enrolment.
Commenting on the news, a spokesperson for the Regulator welcomed the “landmark” initiative, adding that “we want to see all eligible workers in this sector have access to pensions saving“.
New Legislation: Consultation response to tipping, gratuities, cover and service charges
The government has responded to the 2016 consultation on tipping, gratuities, cover and service charges, and has confirmed its intention, first announced in 2018, to legislate to provide that tips left for workers are retained by them in full.
Measures to be included in the forthcoming Employment Bill will include:
- Requirements for employers in all sectors not to make any deductions from tips received by their staff, including administration charges, other than those required by tax law.
- Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
- Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but should respond within four weeks.
- Requirements for employers to have regard to a statutory Code of Practice on Tipping. It is expected that this would replace the existing voluntary code of practice, published in 2009.
Workers will be able to enforce these rights in the employment tribunals. The response states that the Employment Bill will be brought forward when Parliamentary time allows. The new rules are expected to come into force no earlier than one year after the Bill has been enacted.
Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
Two new reports show that many employers continue to struggle to recruit and retain Black employees. Many Black job applicants feel they are treated unfairly in the recruitment process and continue to face racism at work with inadequate support. The Institute of Student Employers reported that 54% of employers have a strategy to attract Black candidates to their business but only 44% of employers track retention. Another survey, Race at Work, has found that although job applicants from Caribbean (71%) and African (67%) backgrounds are more likely to use a recruitment agency than white people (47%), only 34% of Black candidates felt they are treated fairly, compared to 49% of white people.
Black employees continue to face specific challenges in the workplace, including explicit and covert racism and a lack of representation of Black people in senior positions. Black graduates have called for more support to help successfully transition into the workforce. Currently, less than a quarter of employers provide dedicated support to help their Black recruits address the challenges they face.
The Institute of Student Employers identified that to make a tangible difference, CEO backing is required, and set out five ways companies can support Black graduates before and during their careers, including:
- Being an ally
- Preparing all students for diverse workplaces and addressing racism and diversity as part of this
- Turning recruitment into a force for equality – ensuring that recruitment processes are overhauled to ensure that they are not biased and discriminatory
- Maximising the potential of hires from Black heritage backgrounds – Recognising that organisations need to support hires from Black heritage backgrounds during their early careers
- Transforming your organisation and influencing the world around you – Calling on all stakeholders to make more fundamental changes to ensure representation at all levels of their organisations and that they should lend their voices to wider campaigns for racial justice.
Additionally, the Race at Work report makes several recommendations for the recruitment industry and employers including:
- Critically examining entry requirements, focusing on potential achievement rather than which university or school the individual went to
- Drafting job specifications in plain English and providing an accurate reflection of essential and desirable skills to ensure applications from a wider set of individuals
- Larger employers ensuring that the selection and interview process is undertaken by more than one person, ideally including individuals from different backgrounds to help eliminate bias
- Seeking opportunities to provide work experience to a more diverse group of individuals and stopping the practice of unpaid or unadvertised internships.
Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
A new report published by the Fawcett Society, Tackling Sexual Harassment in the Workplace, shows that at least 40% of women experience sexual harassment during their career. Twenty-three per cent of those surveyed said that the sexual harassment increased or escalated while they were working from home during the COVID-19 pandemic. Disabled women surveyed were more likely to have experienced sexual harassment (68%) than women in general (52%). Employees from ethnic minority backgrounds, both men and women, reported experiencing sexual harassment at a higher level than white employees, with rates of 32% and 28% respectively. The report also found that 68% of LGBT employees had experienced harassment in the workplace.
Culture, policy, training, reporting mechanisms and the way employers respond to reports are five critical elements to help create a workplace intolerant of sexual harassment. The report recommends that employers should:
- Take all forms of sexual harassment seriously.
- Treat employees who report sexual harassment with respect and empathy and ensure women feel able to report harassment, including facilitating anonymous reporting.
- Increase gender equality within the organisation, especially at senior levels.
- Demonstrate leadership commitment to tackling harassment.
- Measure their organisational attitudes towards sexual harassment by conducting an employee survey.
- Provide managers dealing with reports with guidance and support.
- Have a clear and detailed sexual harassment policy that is separate to their general harassment and bullying policy.
The recommendations in the report will form the basis of a sexual harassment toolkit for employers which will be published next January. Employers can sign up to receive a copy of the toolkit (see Fawcett Society: Sexual Harassment Toolkit for Employers).
Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
On 8 October 2021, BEIS published a report prepared by PwC, The Potential Impact of Artificial Intelligence on UK Employment and the Demand for Skills. For the purposes of the report, artificial intelligence (AI) is a collective term for digital systems and machines that can, in at least some ways, sense their environment, think, learn and take action in response to what they are sensing and their objectives. The report considers two main questions:
- Whether AI and related technologies (such as robots, drones and autonomous vehicles) will follow historical patterns by triggering significant structural labour market change.
- How large the disruption to labour markets from AI will be and what form it will take.
The report concludes that, while AI and related technologies should not cause mass technological unemployment (by displacing large numbers of workers from their jobs), they may lead to significant changes in the structure of employment across occupations, sectors and regions of the UK. The effects may be relatively small over the next five years but could become more material over the next ten to 20 years. They may add to income inequalities by tending to favour people with higher education and skills levels, who also tend to have higher earnings levels.
PwC’s modelling estimates that professional occupations will experience the highest net job gains over time, with nearly half the increase being in jobs for health professionals and the other half spread between scientists, researchers, engineers, technologists, educators, businesspeople, media professionals and civil servants. AI in these occupations is likely to be largely labour-augmenting and used to perform specific tasks that increase productivity (for example, lawyers using AI to read large numbers of cases to search for precedents and other arguments to use in a current case). Managerial occupations, for which tasks involved are difficult to automate, and occupations requiring “human touch” (such as caring or leisure) are also likely to experience net job creation. Other occupations are likely to experience changing patterns over time, with sales and customer services experiencing the highest rate of job displacement over the next five years, administration experiencing particularly high displacement in five to ten years and manual occupations (including taxi drivers) experiencing high rates of displacement but probably not before the 2030s.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – February 2021
- 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.
The CIPD’s proposal echoes calls previously made by the Equality and Human Rights Commission and the TUC for the right to request flexible working to be a day-one right.
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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