Employment Law Case Update – October 2022
A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- TUPE: Can the benefit of share incentive plans transfer under TUPE?
- Trade Unions: Appearance of bias in disciplinary action
- Workers: Bolt drivers pursue worker benefits claim
Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust  EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.
The EAT noted that, as established in Williams v Compair Maxam  ICR 156 and Polkey v AE Dayton Services Ltd  IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.
Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.
TUPE: Can the benefit of share incentive plans transfer under TUPE?
In Ponticelli UK Ltd v Gallagher  EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.
At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.
Trade Unions: Appearance of bias in disciplinary action
In Simpson v Unite the Union  EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.
The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.
The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.
Workers: Bolt drivers pursue worker benefits claim
According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – January 2022
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – January 2021
A review of 2020’s biggest employment law issues and a look at what we should expect from the bright and glittery 2021.
Employment Law Newsletter – December 2020
- Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
- Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
- COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
- DBS Checks: New filtering rules for Standard and Enhanced DBS checks
- ACAS: Change to Early Conciliation Rules
- Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
- Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
- Minimum Wage: Just Eat couriers to receive NMW and other benefits
- Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
- Human Rights: Government launches independent review of Human Rights Act 1998
Redundancy: How a redundancy situation arises doesn’t affect whether it arises or not
In Berkeley Catering Limited v Jackson  UKEAT/0074/20/LA(V) the EAT looked at the effect of how the redundancy situation arises on whether a redundancy situation exists or not. In this case, the owner manager of a company named himself CEO and took over management decision-making and operations. As there was already a Managing Director (the claimant), it undermined her position, and the company claimed it no longer had a requirement for her and therefore the need to carry out work of that particular kind had diminished, and she was made redundant. As a result, Mrs Jackson claimed unfair dismissal.
The tribunal found that, as a matter of law and fact, there was no redundancy, and also that there was no business reorganisation constituting some other substantial reason for dismissal. The EAT disagreed and instead held that the tribunal erred in finding that there was no “genuine redundancy” where the employer had arranged matters so that its Director took over the claimant’s duties in addition to his own duties, because those facts established a redundancy situation under section 139(1)(b) Employment Rights Act 1996. The test was whether “one employee was now doing the work formerly done by two, [then] the statutory test of redundancy had been satisfied”, even where the amount of work to be done was unchanged. There was no error in the tribunal’s rejection of the employer’s alternative case of some other substantial reason, holding that if there was a business reorganisation it was not the employer’s true reason for dismissing the claimant. Justice Bourne said “A redundancy situation under section 139(1)(b) either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists.” (p.8 para E) He went on to say that even where a redundancy situation exists, it does not necessarily follow that the redundancy was the reason for the dismissal. Additionally, even if the employer proves that the reason was a potentially fair reason such as redundancy, section 98(4) ERA requires the tribunal to decide whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. A claim may succeed on the basis of substantive and/or procedural unfairness.
In this case, Berkeley arranged its affairs so that Mr Patel took over the work of the MD, there was a diminution in the requirement for employees to carry out work of that kind, ergo, a redundancy situation. That part of the appeal failed. The next question was whether the dismissal had been fair. A redundancy or some other substantial reason (such as business re-organisation) can be fair, however, the tribunal had not properly considered the unfair dismissal elements of this case because it had found no redundancy so the EAT remitted the questions regarding the fairness of the dismissal back to a new tribunal to be considered.
Freedom of Information: Employer withheld qualifications and training information from FOIA disclosure under personal data exemption
In Kol v Information Commissioner and another (EA/2020/0017P) (6 October 2020) the applicant asked Reigate and Banstead Borough Council (council), the second respondent, for information concerning four specified council officers (including its Head of Planning, a Conservation Officer, a Senior Enforcement Officer and a Graduate Planning Officer). This included their relevant professional qualifications, recent professional development training and training attendance record.
The council withheld the information under section 40(2) (with section 40(3A)(a)) of the Freedom of Information Act 2000 (FOIA) (the personal data exemption). The relevant academic qualifications of two of the officers were already in the public domain. The Information Commissioner (IC) rejected the applicant’s complaint.
On appeal, the First-tier Tribunal (Information Rights) (FTT(IR)) upheld the IC’s decision, holding that the council had been permitted to withhold the information. Disclosure was not necessary to meet the applicant’s (undisputed) legitimate interest in ensuring that council officers were appropriately qualified. Without satisfying the lawful basis in Article 6(1)(f) of the GDPR, disclosure would have breached the first data protection principle of lawful, fair and transparent processing (Article 5(1)(a), GDPR). The FTT(IR) considered that:
- If the applicant’s legitimate aim could be achieved “by something less” than disclosure, disclosure was not necessary. The IC had correctly adopted this approach and was not required to consider Article 8 of the European Convention on Human Rights (right to respect for private and family life).
- When considering the alternatives available, however, the IC was wrong to place much weight on the council’s complaints procedure for challenging the actions of individual officers. This was not a forum for challenging officers’ qualifications or training.
- Together with the publicly available information on two of the officers, the fact that the council required proof of qualifications from would-be employees as part of its recruitment process and that training was provided to officers as required, meant that the applicant’s legitimate interests were met (“by something less”).
The FTT(IR) also held that the IC had been permitted to take a different approach than in Decision notice FS50146907, in which section 40(2) did not prevent disclosure of the professional qualification details, among other information, of all lawyers in the Treasury Solicitor’s Department.
Employee information is commonly requested under FOIA and this decision presents a straightforward but relevant analysis of the framework under section 40 and the GDPR.
COVID-19: Occupational Health teams urged to consider cold working environments a transmission risk factor
Researchers at the St John’s Institute of Dermatology at Guy’s Hospital in London have written an article published in the Occupational Health Medical Journal which suggests that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of COVID-19.
In response to the data, the researchers recommend that employers and occupational health teams consider working in cold environments to be an independent occupational risk factor for developing COVID-19. Employers are advised to conduct risk assessments and individual health risk appraisals to identify staff who have pre-existing health conditions and may be predisposed to developing infections. They also noted that additional interventions should be implemented to protect against the cold and that airborne transmission can be reduced by improving ventilation.
DBS Checks: New filtering rules for Standard and Enhanced DBS checks
With effect from 28 November 2020, the criminal records disclosure regime has been amended by the catchily named ‘The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020’ (SI 2020/1364) (the Order). The changes were brought about following the decision by the Supreme Court in R (on the application of P) v Secretary of State for the Home Department 2019 UKSC 3. The Supreme Court identified that some elements of the existing filtering rules were disproportionate: the multiple conviction rule, and the warnings and reprimands given to young offenders.
A Disclosure Barring Service (DBS) check enables employers to check the criminal records of current and potential employees in order to ascertain whether or not they are suitable to work with vulnerable adults and children based on the applicant’s criminal record history. For certain positions, a valid DBS disclosure is a legislative requirement. The information disclosed by the DBS check is governed by Part V of the Police Act 1997 (in England and Wales), which sets out when a criminal record certificate (CRC) or an enhanced criminal record certificate (ECRC) must be issued. Both certificates must include any ‘relevant matter’ recorded on the Police National Computer as defined in S.113A(6) of the 1997 Act. The Order has narrowed the definition of ‘relevant matter’ by removing youth cautions (including youth warnings and reprimands) from the scope of the definition, as well as the ‘multiple conviction rule’, which provided that where a person had more than one conviction all their convictions (regardless of their nature) had to be disclosed. Neither of these two matters are now subject to mandatory disclosure.
This means that certificates produced after 28 November will be processed under the new filtering rules, and those issued prior to that date will be in line with the previous rules.
You can read the updated DBS guidance here: https://www.gov.uk/government/news/new-filtering-rules.
ACAS: Change to Early Conciliation Rules
The ACAS Early Conciliation Rules have been updated from 1 December to allow for a standard six weeks for the early conciliation talks. Prior to this, the provisions were one month with a possible extension of a further two weeks.
Diversity: Two-thirds of students and graduates do not believe employers recruit a truly diverse workforce
In a poll recently published by Milkround, 66% of 1,000 students and graduates revealed that they do not believe that employers recruit a truly diverse workforce. Interestingly, the majority stated that, from their perspective, recruitment decisions are based largely on physical appearance (58%), ethnicity (52%) and nationality (52%). These figures are a stark contrast with the fact that 59% of employers see their efforts to recruit a diverse workforce as sufficient.
Looking forward, 62% of students and graduates agreed that the introduction of blind recruitment practices could be effective in reducing unconscious bias. Although the poll revealed that only 14% of employers currently practice blind recruitment, 37% were planning to do so in the near future. For more information on how the blind recruitment process works, read the Milkround blog here.
Race Discrimination: First employer signs up to code of practice on race-based hair discrimination
Unilever is the first employer to sign up to the Halo Collective’s new pledge and code of practice to end race-based hair discrimination in schools and the workplace. It is hoped that the new Halo Code will tackle statistics which reveal that one in five Black women feel societal pressure to straighten their hair for work even though race-based hair discrimination is illegal under the Equality Act 2010.
Minimum Wage: Just Eat couriers to receive NMW and other benefits
Food delivery company, Just Eat, has announced that it will be introducing a range of measures designed to support its couriers and ensure that they receive the national minimum wage. This has been an ongoing issue with rival companies such as Uber and Deliveroo, whose drivers have been found to be workers, rather than self-employed contractors, by the courts. Just Eat will start its new policy in London, with a nationwide roll out in 2021, paying couriers by the hour rather than by the job. It will also pay pension contributions, holiday pay, sick pay and maternity and paternity pay. The move is intended to create a thousand jobs including full-time, part-time and zero-hour work, with couriers being given the choice to opt-in or out of the scheme.
Just Eat’s initiative follows a series of recent cases that have considered the employment status of drivers, couriers and other gig economy workers. The decision of the Supreme Court in Uber v Aslam, which was heard in June 2020, is awaited.
Contracts: Government consultations on extending the ban on exclusivity clauses, and reforming post-termination non-compete clauses
On 4 December 2020, BEIS opened two consultations: one on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week, and the other on measures to reform post-termination non-compete clauses in employment contracts.
The extension of the ban on exclusivity clauses in contracts would prevent employers from contractually restricting low earning employees from working for other employers. The government previously consulted on this proposal but decided to only introduce a ban on exclusivity clauses in zero hours contracts in 2015. It is revisiting the measure again as it is mindful that low earners have been particularly adversely affected by the COVID-19 pandemic, and many employers are currently unable to offer their employees sufficient hours for them to make ends meet.
The consultation on reform of post-termination non-compete clauses in employment contracts seeks views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The consultation follows a call for evidence on the use of non-compete clauses in 2016 which found that they worked well and were a valuable and necessary tool for employers in protecting their business interests.
Both consultations close on 26 February 2021.
Human Rights: Government launches independent review of Human Rights Act 1998
On 7 December 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998) and whether it requires reform.
The review will be undertaken by a panel headed by Sir Peter Gross (a former Court of Appeal judge) and will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR), including how the duty to take account of ECtHR case law has been applied in practice, and whether dialogue between domestic courts and the ECtHR works effectively.
- The impact of the HRA 1998 on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the HRA 1998 applies outside the territory of the UK and whether there is a case for change.
The government states that the UK remains committed to the European Convention on Human Rights (ECHR) and the review is limited to examining the structural framework of the HRA 1998, rather than the rights themselves.
The review is expected to report its recommendations in summer 2021. It runs alongside the independent review of judicial review as part of the government’s commitment to examine the constitution and relationship between the government, Parliament and the courts. Ultimately the reviews of the HRA 1998 and judicial review (alongside other workstreams) will deliver their findings to the Constitution, Democracy and Rights Commission.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – September 2020
- Breach of Contract: £1 damages for copyright infringement and breach of contract by former consultant
- Unfair Dismissal: Teacher suspected of possession of indecent images of children but not prosecuted was unfairly dismissed
- Unfair Dismissal: Lack of trust and confidence may be relevant to practicability of re-engagement
- Unfair Dismissal: No procedure, no problem – where the working relationship has broken down
- Disability Discrimination: Paranoid delusions not sufficient for definition of disability under Equality Act
- Equal Pay: Material factor needs to explain but not justify pay disparity
- COVID-19: HMRC publishes updates to CJRS guidance and template for large employers
- COVID-19: DHSC publishes new guidance for employers on COVID-19 testing
- COVID-19: Amended guidance on working safely, including mandatory Test and Trace
- COVID-19: New HMRC guidance on calculating furlough pay for employees who come off furlough partway through a claim period
- COVID-19: Pandemic leads to backlog of 45,000 employment tribunal cases
- ACAS: Updated ‘Guidance on Managing Staff Redundancies’ published
- Data Protection: ICO launches accountability framework
Breach of Contract: £1 damages for copyright infringement and breach of contract by former consultant
In DPA (London) Ltd v D’Aguanno and others  EWHC 2374 (IPEC) the Intellectual Property Enterprise Court (IPEC) has ruled against the claimant in proceedings for copyright infringement and breach of contract in relation to all but one head of claim, which the defendant admitted. It awarded a nominal sum of £1 in damages.
The claim was brought by a firm of architects against three defendants: two individuals who had worked for it as self-employed contractors, and the company those individuals set up after they stopped working for the claimant. The judge found that the pair had worked for the claimant as consultants rather than employees under a verbal agreement containing certain implied terms.
The first defendant admitted that he had copied and stored three three-dimensional models from the claimant’s projects onto his laptop in order to use them in his portfolio to show the quality of work he had carried out for the claimant. His actions amounted to a breach of the claimant’s requirements to return all copies of the claimant’s works to it when he stopped working for the claimant, and not to remove documents from the claimant’s possession. However, as the models were specific to the sites and jobs done for the claimant, and at least two of the three were from completed projects, it was hard to see what other use the defendant could have made of them, and the judge accepted that he did not in fact put them to any use other than moving them from his laptop to a storage device (which he had since surrendered to the claimant). The evidence did not convince the judge that the defendants had infringed any other copyright works belonging to the claimant, nor was there any evidence that the other defendants had authorised the infringement relating to the models.
Due to the limited scope of the infringement, the judge considered that it would be disproportionate to have a full quantum trial, so he went on to assess damages. The defendant’s actions had not given rise to any need to re-create the models, and as he had not put the material to commercial use, his retention of the material had not caused the claimant any commercial loss either. Since no loss had been suffered, the judge awarded nominal damages of £1 for copyright infringement and breach of contract.
Unfair Dismissal: Teacher suspected of possession of indecent images of children but not prosecuted was unfairly dismissed
In K v L  UKEAT 0014_18_2404 the EAT has held that a teacher was unfairly dismissed for misconduct after he was charged with possession of indecent images of children, but not prosecuted. The teacher admitted that a computer in his home was found to contain indecent images but denied that he was responsible for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but decided that he should be dismissed in any event because allowing the teacher to return to his post would pose an unacceptable risk to children. In its dismissal letter, the school also referred to the “serious reputational damage” which would be caused if the teacher was subsequently found guilty of this kind of offence and the school had been aware of the allegations.
Allowing an appeal, the EAT held that the complaint as set out in the disciplinary invitation was based solely on misconduct and gave no notice that reputational damage was a potential ground of dismissal. In these circumstances, the employer was bound to make a decision on whether the misconduct had been established. Had it done so, it would have been bound to conclude that misconduct had not been established. The EAT could not accept that an employee could be dismissed on the basis of a matter that was only mentioned in an investigatory report, not in the actual complaint. Although reputational damage may be regarded as a separate ground of dismissal (that is, dismissal for ‘some other substantial reason’), it raises separate considerations to those in a misconduct dismissal, and this must be made clear from the outset. In this case, the teacher had not been given an opportunity to address the reputational issue in any detail at the disciplinary hearing.
Considering whether a fair dismissal would have been possible, had the school referred to reputational damage in the original complaint as set out in the disciplinary invitation, the EAT found that the scant evidence available meant that the teacher was dismissed in the absence of any information about the nature or seriousness of the images, or the reasons why no prosecution was brought. In the EAT’s view, the evidence was insufficient to support a dismissal based on reputational damage.
Unfair Dismissal: Lack of trust and confidence may be relevant to practicability of re-engagement
In Kelly v PGA European Tour  UKEAT 0285_18_2608 the EAT has held that a tribunal erred in ordering re-engagement to a position for which an employee did not meet an essential requirement of the role and had impermissibly reached its own view on whether concerns about the employee’s capability and integrity had undermined trust and confidence.
Mr Kelly began employment with PGA in 1989 as Marketing Director, eventually becoming Group Marketing Director. A new Chief Executive was appointed in 2015. Within two months, he decided to dismiss Mr Kelly over concerns about his performance and willingness to “buy in” to his ideas. Exit terms could not be agreed. Mr Kelly was dismissed, subsequently bringing an unfair dismissal claim (among other claims). PGA conceded that the dismissal was unfair as a fair procedure had not been followed. When considering remedy, the tribunal decided that Mr Kelly should be re-engaged to the role of Commercial Director, China PGA European Tour. It considered that, while speaking Mandarin was an essential requirement of the role, Mr Kelly’s willingness to learn Mandarin and his proficiency in languages meant that re-engagement was practicable. Moreover, any trust and confidence issues arising from doubts about Mr Kelly’s capability and integrity (he had covertly recorded several meetings) were not so significant as to make re-engagement impracticable.
PGA appealed, arguing that the tribunal had impermissibly considered for itself whether trust and confidence had been damaged instead of asking whether PGA had a rational basis for believing that it had. The EAT allowed the appeal. The question for the tribunal was whether it was practicable to order PGA to re-engage Mr Kelly. It is the employer’s view of trust and confidence, tested by the tribunal as to its genuineness and rational foundation, that matters. The tribunal had therefore erred in reaching its own view. The EAT rejected the argument that trust and confidence is only relevant to practicability where dismissal is based on an employee’s conduct, not capability. The EAT also held that the tribunal had erred in substituting its own view on whether the ability to speak Mandarin was an essential requirement of the role. Requiring PGA to engage someone in a role for which they did not meet one of the essential requirements (genuinely and cogently determined by them and accepted by the tribunal) overstepped the mark and failed to give weight to the employer’s commercial judgment.
Unfair Dismissal: No procedure, no problem – where the working relationship has broken down
In Gallacher v Abellio Scotrail Limited  UKEATS/0027/19/SS the ETA has upheld a decision of a tribunal that, in rather unusual circumstances, an employee can be fairly dismissed without any procedure (including an appeal), after a breakdown in working relations.
The Claimant was a senior manager in the Respondent’s business. Her relationship with her line manager deteriorated at a critical juncture for the business of the Respondent. The Claimant’s manager decided, after consulting with HR, to dismiss her at an appraisal meeting with no procedure, forewarning or right of appeal as the reason for her dismissal was “some other substantial reason” (namely a breakdown of working relations between the two of them). The tribunal found the dismissal was not unfair and also that the Respondent did not know (and could not reasonably have been expected to have known) of her disability (symptoms related to the menopause and depression). The Claimant appealed.
The EAT dismissed the appeal, holding that although any contention by an employer that following a procedure would be futile would be approached with caution, this was one of those rare cases where it was open to the tribunal to conclude that dismissal without any procedure was within the band of reasonable responses. The Claimant was a senior manager whose continued good working relationship with her manager was critical during a difficult period for the Respondent’s business. Moreover, the evidence was that the Claimant recognised the breakdown in relations herself and was not inclined to retrieve the situation. The tribunal found that any procedures at this time would not only have served no purpose but would in fact have worsened the situation.
Disability Discrimination: Paranoid delusions not sufficient for definition of disability under Equality Act
In Sullivan v Bury Street Capital Limited  UKEAT 0317_19_0909 the EAT has upheld a tribunal decision that the Claimant’s disability of paranoid delusions was not sufficiently within the ‘long-term’ definition of disability under the Equality Act 2010 as it was not likely to recur, and therefore his claim for disability discrimination failed.
The Claimant was a sales executive with a small finance company. From about July 2013, following a split with a Ukrainian girlfriend, the Claimant suffered paranoid delusions that he was being followed and stalked by a Russian gang. These delusions affected his timekeeping, attendance and record-keeping (which were already a matter of concern even before 2013). However, things improved after September 2013. Whilst there were sporadic references to the Claimant’s poor attitude in that period, it was not until April 2017 that there was a worsening of the effect of the paranoid delusions on his day-to-day activities. The Claimant’s employment was terminated on 8 September 2017, ostensibly for reasons to do with capability and attitude. The Claimant lodged a claim complaining of unfair dismissal, disability discrimination and deduction of wages (amongst others). The tribunal held that he did not have a disability within the meaning of the Equality Act 2010. However, his claim of unfair dismissal was upheld.
In dismissing the appeal, the EAT held that the tribunal did not err in concluding that the long-term requirement in the definition of disability was not met. It found that the tribunal was entitled to conclude on the evidence that, although there was a substantial adverse effect in 2013 and again in 2017, in neither case was it likely that the adverse effect would last for 12 months or that it would recur. The tribunal had correctly applied “likely” as if it meant “could well happen”, and had approached the question of the likelihood of recurrence correctly. The tribunal also did not err in deciding that the Respondent did not know and could not reasonably be expected to know of the disability.
Equal Pay: Material factor needs to explain but not justify pay disparity
In Walker v Co-Operative Group and another  EWCA Civ 1075 the Court of Appeal has held that an employment tribunal adopted the wrong test when deciding whether an employer could establish a material factor defence to a pay differential between a female HR executive and other male executives. In this case, the tribunal had found that explanations for the differential were no longer material when a job evaluation study was carried out 12 months after their pay had been set and which determined that, at some point during that period, the value of the HR executive’s work had become equal to that of her comparators. This lack of materiality, in the tribunal’s view, led it to conclude that the pay differential could no longer be justified and that the employer could not establish a material factor defence.
However, the test is not whether the employer can prove that the pay disparity is justified, but whether the reason for the difference is causative and whether it is material. The court said that the tribunal’s conclusion overlooked the fact that in respect of each of the comparators there was at least one material factor which remained causative of or which explained the difference in pay at the end of the period in question. Whether the factor justified the difference was not a question for the tribunal.
The court also criticised the tribunal’s decision to leave the exact point at which the claimant’s work became equal to that of her comparators to be determined at the remedy hearing. This was unsatisfactory since it left the starting point of the claim unresolved. The tribunal should either have made a finding as to the date as from which the claimant was doing equal work or found that she had failed to prove this at any stage before February 2015.
Government guidance is being updated frequently and so we would strongly recommend that you check the current guidance at the point when you are making decisions on such guidance.
COVID-19: HMRC publishes updates to CJRS guidance and template for large employers
HM Revenue and Customs has further updated its guidance, Claim for wages through the Coronavirus Job Retention Scheme, and the accompanying claims form template for employers claiming through the Coronavirus Job Retention Scheme (CJRS) for 100 or more employees. The guidance and the “Details” section of the template now require employers to state whether an employee has returned from statutory leave before being put on furlough.
COVID-19: DHSC publishes new guidance for employers on COVID-19 testing
On 10 September 2020, the Department of Health and Social Care (DHSC) published Guidance for employers and third-party healthcare providers on COVID-19 testing and contact tracing. The guidance advises employers wanting to test non-symptomatic staff against using NHS Test and Trace, and to consider private alternatives. However, there is no obligation on employers to run testing programmes.
The guidance provides information about the types of testing available, as well as summarising relevant legal obligations (including when using apps) in Annex A. The following sections will be of particular interest to employers:
- Before deciding to test staff. Employers are advised, among other things, to consider the scope of any testing programme (for example, whether contractors will be tested), the frequency of testing, arrangements for individuals who refuse to be tested and how test results will be used.
- Communicating the intention to test staff. Employers are advised that any communications should be transparent and outline how any testing programme will operate in practice. Employers are “strongly advised” to consult with staff associations or unions before implementing any policy. They are also reminded of the need to comply with the GDPR and the Data Protection Act 2018, by ensuring that all data is processed lawfully, fairly and transparently and that staff are aware of how their personal data will be used, shared and kept.
- Contact tracing staff. The guidance anticipates that, although not compulsory, employers may want to introduce internal tracing systems alongside testing programmes. It states that any individual who has been identified as a contact by an internal tracing system, but not by NHS Test and Trace, will not qualify for Statutory Sick Pay (SSP). Provision should be made for them to work from home where possible. If this is not possible, the guidance advises that the individual may remain entitled to full pay unless their employment contract provides otherwise. Individuals do not have to self-isolate unless they are contacted by NHS Test and Trace but are advised to avoid contact with those at “high increased risk” of severe illness resulting from COVID-19.
The guidance also provides information on how to communicate test results and with whom, and what employers can and cannot do with the results. It encourages employers to keep staff informed about potential or confirmed COVID-19 cases but advises that individuals should not be named. The guidance applies to England only, but it states that “equivalent guidance” will be published for Scotland, Wales and Northern Ireland.
COVID-19: Amended Government guidance on working safely, including mandatory Test and Trace
The government has recently made several updates to its guidance on ‘Working safely during corona virus (COVID-19)’ for different types of workplace. The guidance applies to businesses in England.
The key changes address the following:
- The rule of six. New regulations restricting indoor or outdoor gatherings of more than six people (with some exceptions, including where the gathering is “reasonably necessary” for work or education) came into force on Monday 14 September.
- Test and Trace. The guidance on NHS Test and Trace has been strengthened. Whereas it previously advised that employers “should” keep records of staff working patterns for a period of 21 days, it now mandates that employers “must” do so. Some employers whose customers attend their premises, such as restaurants, hair salons, sports clubs and heritage locations (but not shops or banks), must now ask at least one member of each customer party visiting the site to provide contact details, “to ensure that businesses are able to remain open“.
- Priority actions. Each guidance document now starts with a list of “priority actions” and further key points to be aware of. Priority actions cover such things as risk assessments, cleaning, face coverings, social distancing, ventilation, Test and Trace records, and turning away anyone with symptoms of COVID-19.
Importantly, the guidance refers to “new regulations” on Test and Trace, with financial penalties for non-compliance, which came into force on 18 September 2020, as set out in a Press release on 10 September.
COVID-19: New HMRC guidance on calculating furlough pay for employees who come off furlough partway through a claim period
On 11 September 2020, HMRC amended its guidance on how employers should calculate the amount of a claim under the Coronavirus Job Retention Scheme (CJRS) to include a new method of calculation for employees whose furlough or flexible furlough ceases partway through a claim period.
To calculate how many furloughed hours they can claim for in respect of each employee, an employer must work out the employee’s usual working hours in the claim period as well as the number of these hours that the employee has worked and has not worked.
The guidance now states that, when claiming in respect of an employee who comes off furlough or flexible furlough partway through a claim period, an employer should:
- Only calculate the employee’s usual hours up to the last day of furlough, instead of to the end of the claim period.
- Not include any working hours after the last day of furlough.
This applies even if the claim period includes days after the employee’s last day of furlough (for example, because the employer is claiming for multiple employees and some of them stay on furlough).
The amended calculation should be used from 14 September 2020 but employers do not need to amend claims submitted prior to this date.
HMRC’s worked example of how to calculate 80% of wages for a fixed-rate employee who returns to working their usual hours during the claim period (set out in a document containing multiple worked examples based on different scenarios) has been updated to reflect the new method of calculation.
COVID-19: Pandemic leads to backlog of 45,000 employment tribunal cases
According to the Law Society Gazette, Ministry of Justice data shows a backlog of cases waiting to be heard at employment tribunal level that reached 45,000 in August 2020. This represents a 26% increase from the start of March. The Office for National Statistics revealed that the UK’s unemployment rate also rose during this period from 3.9% to 4.1% from April to July 2020. The growing tribunal backlog may be due in part to the increase in redundancies, and in part due to listing difficulties during the COVID-19 pandemic.
ACAS: Updated ‘Guidance on Managing Staff Redundancies’ published
ACAS has updated its ‘Guidance on Managing Staff Redundancies’. It covers matter such as how to make a redundancy plan, avoiding compulsory redundancies, carrying out consultations, how to select employees for redundancy and given them notice, and working out redundancy pay. It also includes a section on supporting your staff and planning for the future.
Data Protection: ICO launches accountability framework
On 10 September 2020 the Information Commissioner’s Office (ICO) published its accountability framework, designed as a practical tool to help organisations of every size understand what good accountability looks like. It has been launched in beta with the ICO keen to hear feedback on the tool.
The framework includes expectations and examples of how to demonstrate accountability. It also includes an accountability self-assessment tool. It is divided into ten categories which cover topics such as leadership and oversight, policies and procedures, training and awareness, individuals’ rights, transparency, record keeping, contracts and data sharing, risk assessments, record management and security, and breach response and monitoring.
The ICO notes that embedding accountability in an organisation will help to enhance its reputation as a business that can be trusted with personal data.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – November 2019
- Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
- Redundancy: Trial period and dismissal
- Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
- Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
- Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
- Data Protection: ICO publishes new detailed guidance for Data Protection Officers
- Gender Balance: Hampton-Alexander Review’s fourth annual report published
- Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
- Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
- National Minimum Wage: Rates for April 2020 delayed by general election
- Tribunals & Courts: Closures over Christmas and New Year 2019
Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
In a decision that will make every employer roll their eyes, the EAT has recently decided that receiving a negative verification notice from the Home Office in response to an Employer Checking Service (ECS) right to work check request was not sufficient to allow an employer to withhold pay from an employee.
In the case of Badara v Pulse Healthcare Limited UKEAT/0210/18 the employer held an honest but mistaken belief that a non-EEA national (Nigerian) had to provide documentary evidence of their right to work, and this was a clause written into their contracts. Mr Badara was, in fact, entitled to an automatic right to work as a result of being a family member of an EEA national – the strict legal position irrespective of documentary evidence. Given this, when the employer requested an ECS from the Home Office, it should have provided a positive result, but for some reason came back negative. The employer therefore refused to provide Mr Badara with work and wages for fear of breaching the Immigration Asylum and Nationality Act 2006. The tribunal concluded that it was not unreasonable in the circumstances for the employer to rely on the ECS checks. However, the EAT disagreed because had the tribunal applied the ‘Additional Information’ section of the Right to Work guidance from the Home Office and the appropriate case law (Okuoimose v City Facilities Management Ltd UK EAT 2011) then it would have followed that the right to work would have been established, although the guidance states that a statutory excuse might not be established. The act of dismissal was prima facie indirectly discriminatory. The tribunal’s decision that the dismissal was justified could not stand and the employee’s claims for unlawful deduction from wages and indirect race discrimination were remitted to the tribunal for reconsideration.
A note for employers: despite the threat of the penalty provisions in the Immigration Asylum and Nationality Act 2006, Home Office guidance (and case law) states that an ECS check is not always enough to determine eligibility to work. If in any doubt, read all the guidance and seek professional advice.
Redundancy: Trial period and dismissal
In a redundancy situation, s.138 of the Employment Rights Act states that an employee is entitled to an automatic four week ‘statutory’ trial period in an alternative position if they have been dismissed as a result of redundancy, they accept an alternative role before the old one comes to an end, the new contract begins either immediately after the old role, or within 4 calendar weeks of the end of the old role, and the terms of the new contract differ from the original contract. This means that if there is no dismissal (or notice of dismissal) from the old role, then there can have been no statutory trial period.
In the case of East London NHS Foundation Trust v O’Connor  UKEAT 0113_19_2910, Mr O’Connor was told in March 2017 that due to a reorganisation, his role of Psycho-Social Intervention Worker was going to be ‘deleted’ with effect from 3 July 2017, putting him at risk of redundancy. He was offered an alternative role on a trial basis as Care Coordinator, starting from 3 July 2017. There was a disagreement as to whether this was suitable alternative employment, following which Mr O’Connor pursued a grievance. When that proved unsuccessful, the employer re-offered him the Care Coordinator position, which he declined. Mr O’Connor was dismissed in December 2017.
Mr O’Connor claimed he was owed a redundancy payment but the employer refused. It argued that the statutory trial period had ended on 9 August 2017 and the Care Coordinator role was a suitable alternative employment which Mr O’Connor had unreasonably refused. Thus, he was not entitled to a redundancy payment.
The EAT upheld the tribunal’s finding that Mr O’Connor had not actually been dismissed in July, and that the deletion of his role did not, in fact, amount to notice of dismissal – there being no rule of law which said so. The tribunal found that it was a matter of considering all the facts and circumstances to establish what happened. In this case, the evidence pointed to Mr O’Connor having started a trial in July without having been dismissed, which happened in December. The result was that this matter was remitted to the tribunal to consider the question of whether it was in fact dismissal by way of redundancy and therefore what payment may be due.
Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
The European Court of Human Rights recently handed down its decision in López Ribalda and others v Spain. The matter concerned a supermarket where the manager noticed some inconsistencies between the stock level and the sales figures, running into thousands of Euros over a number of months. The manager launched an internal investigation and installed CCTV cameras, some visible and other hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. The employees were told that the manager suspected theft and about the installation of the visible cameras, but not the hidden ones. Prior to this, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked.
The CCTV did indeed show how the thefts were being carried out, which tallied with the stock reports and till receipts. The management informed the employees’ union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. Fourteen employees were dismissed with immediate effect, including the five applicants, of whom three signed settlement agreements in which it was agreed no criminal proceedings would be brought against them and other employment claims would be waived by both sides. Only the manager and the union representative watched the CCTV footage.
The five applicants then brought unfair dismissal claims against the supermarket. The applicants objected to the use of the covert video-surveillance, arguing that it had breached their Article 8 right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings. The employer opposed the proceedings brought by the 3 employees who had signed settlement agreements but those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.
The Spanish employment tribunal found that any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights – an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. Courts are supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In this case, it had found that the covert CCTV had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Spanish Constitution. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful. Further, there had been no evidence of coercion or manipulation by the employer regarding the settlement agreements.
The Grand Chamber of the European Court of Human Rights held by a majority of 14 to 3 upheld the decisions of the lower courts that a fair balance had been struck and the intrusion was proportionate because the employer had legitimate reasons. No violation of the Article 8 right to respect for private and family life had occurred. Not being informed in advance that they would be recorded did not violate the employees’ Article 8 right to private life. The Court held that employees should have a limited expectation of privacy at work on a supermarket floor (a public area) and found that the employer had taken steps to confine the circulation of the recordings to a very limited number of people. The surveillance was limited to ten days, had stopped once the responsible employees had been identified, and the recordings were targeted at a small group of individuals.
The three dissenting judges, however, were concerned by the
growing influence and control that technology has in our world, and more particularly, the collection and use of our personal data in our everyday activities. As a living instrument, the Convention, and therefore the Court, not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for the private life of individuals.
Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
It is often the case that when it comes to an employer offering an employee a settlement agreement, they agree to pay the costs of that employee taking advice. A common fee is £500+VAT. In order for the agreement to be fair, the employee needs to be given the opportunity to discuss the effect of signing a settlement agreement which in effect means they waive all rights to pursuing any claims against the employer in future.
In the case of Solomon v University of Hertfordshire  UKEAT 0258_18_2910, one of the EAT judges made an obiter comment at the end of the judgment, basically saying that £500+VAT was not enough for an employee to take full advice on settling their claim:
… We think it clear that the advice which the Claimant could expect to receive for this sum (or any sum remotely like it) would only relate to the terms and effect of the proposed settlement and its effect on her ability to pursue her rights thereafter (see section 203(3) of the Employment Rights Act 1996). Any advice as to the merits of the Claimant’s claim and the likely award of compensation would require reading and consideration on a quite different scale. So even if the Claimant had sought advice, she would still have had to make her own lay assessment as to the merits of her claim and the likely award of compensation. The ET said, in paragraph 10 of its reasons, that the offer of £500 plus VAT was for a solicitor “to advise on the merits of a settlement”. If so, the offer was wholly unrealistic.
This may be something to bear in mind when considering settlement agreements, given the amount of the settlement and the potential claims that may be involved. This case concerned a figure of £50,000 regarding claims of unlawful discrimination, victimisation and sexual harassment.
Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
In 2017, the case of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979, set out a two -stage test for determining the question of what is in the “public interest” for whistleblowing claims (i.e. to enable the disclosure to be a qualifying disclosure within s.43B(1) of the Employment Rights Act 1996, making it a “protected disclosure”). The test states that (1) the claimant must believe, at the time of making a disclosure, that it is in the public interest, and (2) that belief must be reasonable. This is a subjective belief, about which that person must be asked directly at tribunal so that they can be cross-examined. It is up to the tribunal to consider the evidence and make findings as to subjective belief and the reasonableness of that belief.
In the recent case of Ibrahim v HCA International Ltd  EWCA Civ 2007, Mr Ibrahim was an interpreter at a hospital. He asked his employer to investigate rumours that he had breached patient confidentiality, as he wanted to clear his name and reputation. The hospital investigated his complaint but his complaint was rejected and he was later dismissed. He brought several claims to the tribunal, among which was that he had suffered a detriment following making a protected disclosure. The tribunal dismissed his whistleblowing claim on several grounds, one of which was that he had not made it in the public interest but to clear his own name. The EAT agreed, finding that Mr Ibrahim had held no subjective belief in the public interest. Additionally, the judge confirmed that breach of a legal obligation under section 43B(1)(b) of the ERA 1996 can be broad enough to include tortious duties such as defamation and those statutory duties contained in the Defamation Act 2013. It was immaterial that Mr Ibrahim had not used the word ‘defamation’ himself.
Mr Ibrahim took the matter to the Court of Appeal. The Chesterton two-stage test had been handed down after the tribunal hearing but before the judgment, and so Mr Ibrahim claimed the tribunal had not applied the test correctly. The Court of Appeal found that the tribunal erred in that it should have specifically asked him about his subjective belief, although in this case, it was probably down to the timing of the case. In addition, a further onus was on the tribunal to ensure he explained his case as he was unrepresented. The decision in Chesterton made clear that motive and genuine belief in public interest are not the same thing. Mr Ibrahim had not said anything about public interest, which hampered his case, but did not dispose of the point. His appeal was therefore allowed and the case remitted back to the same tribunal to hear evidence from Mr Ibrahim and for consideration of this point.
Data Protection: ICO publishes new detailed guidance for Data Protection Officers
The Information Commissioner’s Office (ICO) has recently published a new set of detailed guidance on ‘Special Category Data’. This guidance is targeted at:
- those people for whom the existing Guide does not provide the answers you are looking for; or
- those needing a deeper understanding of the conditions for processing special category data to help you comply in practice;
- Data Protection Officers; and
- those with specific data protection responsibilities in larger organisations.
Special Category Data is a collection of types of personal data which are likely to be more sensitive, and which are therefore entitled to receive extra protection, for example: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; health, sexual orientation, etc.
This guidance contains practical examples of special category data and its processing requirements and is arranged in four sections:
- What is special category data?
- What are the rules on special category data?
- What are the conditions for processing?
- What are the substantial public interest conditions?
It goes into detail regarding the general prohibition on processing special category and the ten exceptions to the prohibition referred to as the conditions for processing special category. The guidance emphasises the importance of identifying special category data and approaching it carefully. If your purpose is not covered by any of the processing conditions and you cannot obtain valid explicit consent, you cannot process the special category data.
Gender Balance: Hampton-Alexander Review’s fourth annual report published
On 13 November 2019 the Hampton-Alexander Review announced it has published it fourth Annual Report on improving gender balance in FTSE leadership. The original report was published in 2016 and set a target of getting a minimum of 33% women’s representation on the boards and on the leadership teams (meaning those who either sit on a company’s executive committee or directly report to members of that committee) of FTSE 350 companies by the end of 2020. According to this year’s annual report, this has been the strongest year of progress since targets were first set:
- FTSE 100 on track to reach the 33% target for women on boards ahead of the 2020 deadline.
- FTSE 250 made strong gains during the year and with sustained effort, will also meet the 2020 deadline.
- Women now hold 32.4% of FTSE 100 board positions (up from 30.2% in 2018), but 51 FTSE 100 companies have not yet achieved the 33% target.
- Women now hold 29.6% of FTSE 250 board positions (up from 24.9%), but 139 FTSE 250 companies have not yet achieved the 33% target.
- The FTSE 350 still has 2 all-male boards (5 in 2018) and 39 companies that have only one woman on the board, 28 of which have had only one woman for the second year running.
- Women now hold only marginally more chair, senior independent director and CEO roles. Across the FTSE 350 there are only 25 female chairs (5 in the FTSE 100), 80 female SIDs (20 in the FTSE 100) and 14 female CEOs (6 in the FTSE 100). There are only 74 female executive directors (30 in the FTSE 100), being 11% of executive directors in the FTSE 350.
However, it also reported that a step-change is needed for senior leadership roles below board level: 50% of all appointments next year need to go to women, or the 2020 target will not be met.
Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
The government’s Office for National Statistics has released its ‘Families and the labour market, UK: 2019’ report. It shows the employment rates of men and women with dependent children in the UK, based on data from the Labour Force Survey and Annual Population Survey. This year’s figures demonstrate that:
- The number of mothers in the labour market has reached 75.1%, a significant increase compared with 66.2% of mothers in 2000.
- The number of working fathers has increased from 89.4% in 2000 to 92.6% in 2019.
- Almost 3 in 10 mothers (28.5%) with a child aged 14 years and under said they had reduced their working hours because of childcare reasons. This compared with 1 in 20 fathers (4.8%).
- The proportion of parents who faced an obstacle fulfilling responsibilities decreased as the age of the child increased; from 34.9% of parents whose youngest child was aged between 0 and 4 years to 20.4% of parents with a child aged 11 to 14 years.
This is good news for employers who are arguably getting access to a broader talent pool with more mothers returning to work, and demonstrates how much employers need to be aware of how much family life impacts their workforce – both male and female.
Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
Nuffield Health, working with the University of Manchester and Manchester Metropolitan University, have published a whitepaper on ‘The effects of remote working on stress, wellbeing and productivity’. The opinions of over 7,000 employees were used to gather the data. The paper looks at the varied effects of remote working on different demographics and begins to explore the future of flexible working.
From the basis of the data, the paper has also made some recommendations for employers who do already, or want to, use remote working. These include:
- Having an organisation-wide policy on remote-working.
- Understanding that remote working requires significant management time to ensure it works effectively.
- Consideration of the impact of remote working on the mental health of employees.
- Avoiding the feeling of isolation by helping managers to foster social and professional interaction, and providing the sense of belonging to a bigger group.
- Giving workers training so that they are able to navigate remote working and get the most out of it.
- Developing a relationship of trust between managers and workers.
- Ensuring their working space is adequate, wherever it may be.
- Communication between employers and workers is key to many of these considerations for example, agreeing work hours.
This is an important read for all employers now that technology is enabling us to have more flexibility. A one-size-fits-all approach could be damaging as workers should be treated on an individual basis to ensure the best working relationship, getting the best out of people, which depends on their individual circumstances.
National Minimum Wage: Rates for April 2020 delayed by general election
The Budget is the usual forum for the government to announce the latest National Minimum Wage Rates which are due to take effect from the following April. This year’s Budget has been cancelled due to the general election. Usually, the Low Pay Commission presents its recommendations to the government at the end of October, following which the government sets out its response and confirms any changes thereto in the Autumn Budget.
With no place for the Chancellor to make his announcement, this may mean it is delayed until January 2020. If your business carries out pay reviews in early January this may mean setting wages without knowing whether you will be able to comply in April.
The Low Pay Commission’s (LPC) recommendations are not yet known but the CIPD have produced their submission to the LPC earlier in the year, which may provide food for thought.
Tribunals & Courts: Closures over Christmas and New Year 2019
Details have now been published by Her Majesty’s Courts and Tribunals Service (HMCTS) of the closures of courts and tribunals over the Christmas holiday period, including Crown Courts, Magistrates’ Courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and Tribunals. For more information see here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org