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Employment Law Newsletter – December 2021
Cases:
- COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
- Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
- Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
- Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
- Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
- Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
Other news:
- Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
- Guidance: CIPD publishes new Effective Hybrid Working guidance
- Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
- Workers: Government call for evidence on umbrella company market
- Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
- Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
- Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
Cases:
COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
Under the SEISS (Self-Employment Income Support Scheme), grants were awarded to self-employed individuals based on average trading profits (ATP) in the three full tax years preceding 2019/20. The scheme was amended in July 2020 to include those who had not qualified because of the effect of childcare, pregnancy or maternity on their trading profits or total income for the tax year 2018-2019.
In R (on the application of Motherhood Plan) v HM Treasury [2021] EWCA Civ 1703 an application for judicial review of the scheme was brought by a self-employed mother and a maternity rights charity. They argued that, contrary to the ECHR, it was indirectly discriminatory to calculate grants based on ATP in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to. Alternatively, applying Thlimmenos v Greece [2000] ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court of Appeal held that the High Court had been wrong to find that the use of ATP did not constitute prima facie indirect discrimination. The judge had found that the disadvantage to new mothers was not “caused by the scheme itself” but by their reduced earnings while on maternity leave. However, that mis-identified the alleged disadvantage, which was that recent mothers’ earnings in the measured period would be disproportionately unrepresentative of their hypothetical earnings had there been no pandemic, resulting in lower payments under the scheme for recent mothers as a group. That disadvantage was caused by the use of ATP as the relevant measure.
However, the High Court had reached the correct conclusion on justification. The indirect discrimination was justified because the SEISS was devised in the extreme and unique circumstances of the pandemic, where time was of the essence. Obtaining additional information from recent mothers would have significantly delayed the implementation of the scheme and the information would have been difficult to verify. In addition, the choice of ATP to assess profits had legitimate aims, namely: effectiveness; speed of delivery; ease of verification to reduce the risk of fraud; and the need to avoid perverse effects and costs. The requirements of speed and simplicity meant that the government was justified in introducing the scheme in a form which did not contain special provision for new mothers.
Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
In Abdar and others v Wm Morrison Supermarkets plc and another (2021) ET/1811283/18 an employment tribunal has held that retail workers in Morrisons and Safeway supermarkets could compare themselves for equal pay purposes with logistics workers in their employer’s regional distribution centres. At a preliminary hearing, the tribunal held that the majority of the claimants were employed on common terms with the logistics workers for the purposes of section 79(4) of the Equality Act 2010 (EqA 2010). Further, the terms on which they were employed had a single source for the purposes of their directly effective rights under Article 157 of the Treaty on the Functioning of the European Union (TFEU).
Subject to any appeal, the next stage will be for the tribunal to determine whether the retail workers’ roles are of equal value to those of the logistics workers. The tribunal noted that there is a dispute between the parties as to whether the ECJ’s decision in K and others v Tesco Stores Ltd [2021] IRLR 699 is binding in this case, by virtue of Articles 86 and 89 of the Withdrawal Agreement and sections 6, 7A and 7C of the European Union (Withdrawal) Act 2018 (Withdrawal Act). In Tesco, the ECJ held that Article 157 of the TFEU extends to equal value claims. However, although the referral was made pre-Brexit, the decision was handed down after the UK left the EU. It is not disputed that if Tesco is not binding, the tribunal may have regard to it to the extent that it considers it relevant. It was accepted that the tribunal was bound by section 6 of the Withdrawal Act and the EAT’s judgment in Asda Stores Ltd v Brierley and others [2018] ICR 384 that Article 157 of the TFEU has direct effect in equal value cases. The supermarkets did not therefore advance any arguments as to the binding effect of Tesco in the tribunal proceedings, but may do so on any appeal.
Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
In Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restaurants Ltd and others [2021] UKEAT 2020-000110, the EAT has held that a tribunal erred in focusing on the behaviour adopted by a claimant in an attempt to manage her conditions when considering whether those conditions had an adverse effect on her day-to-day activities. The claimant suffered from epilepsy and vitiligo and avoided coffee, alcohol, cosmetics, cleaning products, sunlight and all medications (including those prescribed by her physicians to manage her conditions), believing that they would adversely trigger her conditions. However, there was no medical evidence to support the claimant’s beliefs, and she was acting contrary to medical advice in refusing to take medication.
The EAT held that the question of whether a claimant’s impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and could not be determined by a claimant’s subjective beliefs about how to manage their conditions. In this case, the claimant only relied on physical, not mental, impairments. The tribunal had to disregard the claimant’s coping mechanisms, even though her belief that they were necessary was strongly held. It should have considered the impact the actual conditions had on the claimant’s day-to-day activities, leaving aside the impact of her avoidance behaviours. The EAT remitted the question of disability to a fresh tribunal, noting that this was a novel point of law on which it believed there was no previous case law.
Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
In Gray v University of Portsmouth [2021] UKEAT 2019-000891, the EAT has allowed an appeal where a tribunal failed to provide sufficient reasoning in its judgment to demonstrate that it caried out a critical ev aluation on the question of objective justification in respect of a claim for discrimination arising from disability under section 15 of the Equality Act 2010.
Mr Gray was employed by a University in its Information Service department from 2009. He was dismissed in 2017 following a two-year sickness absence related to his disability. He complained to an employment tribunal that he had suffered discrimination arising from his disability, alleging that the University had treated him unfavourably by initiating a formal meeting under their absence process, stopping his sick pay, dismissing him and rejecting his appeal against dismissal.
The tribunal rejected the claim. It determined that the University had a legitimate aim in ensuring the efficient running of the Information Service department as part of its provision to students. The Tribunal considered each of Mr Gray’s complaints and held that the actions taken were a proportionate means of achieving the legitimate aim.
Mr Gray appealed to the EAT, arguing that the tribunal had erred in its approach to objective justification under section 15 and had not adequately explained its conclusions. The EAT noted that the critical evaluation required for the purpose of section 15 means the tribunal must carry out its own assessment of objective justification. Further, the tribunal is required to make clear how it had undertaken its assessment by demonstrating that critical evaluation in its reasoning.
The EAT took issue with the tribunal’s findings on Mr Gray’s dismissal and the decision to uphold that dismissal on appeal. In its judgment, the tribunal had stated that it was “obvious” that continuing to hold Mr Gray’s job open was significantly disruptive for the University but, critically, failed to explain why it reached that finding. The judgment had not included findings about how Mr Gray’s job was being covered, whether his absence was actually causing any disruption or whether the University incurred additional cost. The EAT allowed the appeal and remitted the matter to the original tribunal.
Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
In Hovis Ltd v Louton [2021] UKEAT 2020-000973, the claimant, a lorry driver for Hovis, was summarily dismissed for smoking while driving his company vehicle, which was a serious breach of the company’s smoking policy and a criminal offence. He denied smoking, and the investigator found no physical evidence of smoking in the vehicle. However, the evidence at his disciplinary hearing, which was accepted by the employer, included written statements by two eyewitnesses (a Hovis manager and his wife, who alleged that they saw the claimant smoking when they overtook him on the motorway). It also included dashcam footage confirming that it was indeed his vehicle.
A tribunal found the dismissal fair but wrongful. On the wrongful dismissal point, the tribunal noted that it had to undertake its own assessment of whether the claimant had been smoking. Neither of the eyewitnesses gave oral testimony, although their written statements from the internal investigation were put in evidence. The tribunal held that, without being able to assess their testimony, it could not conclude that the claimant was guilty on the balance of probabilities.
The EAT rejected Hovis’s first ground of appeal, that the tribunal had impermissibly fallen back on the burden of proof rather than making a positive finding. This was not a case where the evidence both ways had been equally compelling, leaving the tribunal unable to make a decision. Rather, the tribunal had held that there was insufficient evidence to support a finding that the claimant had been smoking.
However, the EAT upheld the second ground of appeal, namely, that the tribunal had wrongly attached no weight to the hearsay and documentary evidence. The employment judge had said that, without the eyewitnesses in attendance, she was “unable” to evaluate their credibility against that of the claimant, and therefore “cannot find” that the claimant had been smoking. In the EAT’s view the judge was wrong to say that she was “unable” to assess the credibility of the statements or that it was not open to her to find against the claimant. The statements were admissible as hearsay, and there was no rule that oral testimony must necessarily trump opposing hearsay or documentary evidence if the judge finds it more reliable or compelling.
For those reasons the EAT overturned the finding of wrongful dismissal and remitted it to a fresh tribunal.
Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
In Walsh v Network Rail Infrastructure Limited [2021] UKEAT 2020-000724, the claimant submitted a flexible working request in February 2019, which the employer rejected in March and the claimant appealed. Following much correspondence causing a delay in arranging the date of the appeal hearing, it was eventually agreed between the parties in late June 2019 to hold the hearing on 1 July. However, this meant the appeal hearing was outside the three-month ‘decision period’ for resolving the request.
Before the appeal hearing, on 25 June, the claimant submitted a tribunal claim alleging breaches of the flexible working legislation, including that the process had not been concluded within the decision period. The tribunal held that by agreeing to attend the appeal hearing he had, by implication, agreed to extend the decision period itself meaning his claim was made prematurely and therefore the tribunal did not (yet) have jurisdiction to hear the claim.
The EAT disagreed, holding that in order to extend the decision period it must be clear that there is an agreement to extend the decision period. Agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.
Other News:
Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
The BBC reported on 18 November 2021 that The Fawcett Society is urging employers to stop asking jobseekers about their previous salaries. The Fawcett Society is the UK’s leading membership charity campaigning for gender equality and women’s rights at work, at home and in public life and this is part of their “Equal Pay Day 2021 Briefing” campaign.
The question about past salaries is faced by almost half of working adults (47%) and affects 61% of women’s confidence to negotiate better pay. The Fawcett Society is calling on employers to stop this practice which contributes to pay inequality by replicating gaps from other organisations. Only a quarter of people surveyed believe their salary should be based on their previous rate of pay, but more than half (58% of women and 54% of men) think they have been offered a reduced salary because of this question.
Guidance: CIPD publishes new Effective Hybrid Working guidance
The CIPD (Chartered Institute of Personnel and Development) has published new guidance on 3 December 2021 around Effective Hybrid Working. The guidance was produced in partnership with the government’s Flexible Working Taskforce. The guidance focuses on the key areas of:
- People management
- Recruitment and induction
- Inclusion and fairness
- Health, safety and wellbeing.
They explain that hybrid working is a form of flexible working where workers spend some of their time working remotely (usually, but not necessarily, at home) and some of their time at their employer’s workplace. The Taskforce, which was relaunched earlier this year, is a partnership across unions, businesses, and government departments, and aims to improve public policy around flexible working. Members include the CBI, the Federation of Small Businesses (FSB), the British Chambers of Commerce (BCC) and Working Families.
The guidance was published on International Day of Persons with Disabilities, and is intended to encourage employers to train managers on how to ensure best practice in hybrid working. Inclusivity in the key to making hybrid working effective, allowing all employees access to flexible arrangements who are then treated equally regardless of how they work. It is also important to take into account people’s individual working preferences and personal circumstances. There could be unintended consequences for non-office based employees as they may miss out on things which happen in the office (such as training or learning opportunities), likewise promotions or other business opportunities may not be so obvious for those who choose to work from home more, leading to inequality. As such, hybrid working policies should be kept under regular review, with input from employees being key to maintaining working relationships.
The guidance also covers performance management, remote communication and effective collaboration, as well as ways to improve recruitment processes in order to accommodate flexible working practices.
Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
Personnel Today reports that, according to a study conducted by Flexonomics, refusing to accommodate flexible working requests is costing UK businesses £2 billion a year. The cost is attributed to the link between flexible working and employee morale, boosted productivity and lower employee absence. The study found that flexible working is currently contributing £37 billion to the UK economy and a 50% increase in flexible working could result in a net contribution of £55 billion to the UK economy and create 51,200 new jobs.
The report also looks at removing the myths around flexible working only being suitable for a few sectors and highlights how the construction and other “hard-to-flex” sectors could embrace flexibility through methods such as self-rostering.
Ahead of the government’s response to the consultation into flexible working, the report calls for more to be done to ensure businesses are being clear about flexible working opportunities in its job adverts and to be more proactive about communicating the benefits of flexible working to businesses.
Workers: Government call for evidence on umbrella company market
On 30 November 2021, HM Treasury, HMRC and BEIS published a call for evidence on the umbrella company market. It follows concerns about the tax and employment rights risks posed by umbrella companies. An umbrella company is a company that employs a temporary worker (an agency worker or contractor) on behalf of an employment agency. The agency will then provide the services of the worker to their clients.
Umbrella companies currently fall outside the regulation of the recruitment sector (Employment Agencies Act 1973, Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) and Agency Workers Regulations 2010 (SI 2010/93)). In April 2020, the government sought to address transparency on employer identity and pay for assignments of agency workers supplied through umbrella companies by introducing the Key Information Document (KID). The government proposes a multi-stage process of further action. Primary legislation will bring umbrella companies into the regulatory framework. Regulations will then set out minimum requirements and address common issues, including:
- Non-payment of wages and payroll skimming (where umbrella companies “skim” money from payslips or inflate deductions to retain money that should be received by a worker).
- Non-payment of holiday pay (by failing to inform workers of their entitlement or failing to pay the correct amount).
The Employment Agency Standards Inspectorate will continue to ensure compliance with the KID and enforce the regulations. Workers are invited to share their experiences of working through umbrella companies and the KID, to identify means of better protecting workers based on the most up-to-date market practices. Specifically, views are invited on the reasons for the increased use of “joint-employment” contracts in which an umbrella company and employment business both employ the worker (making it more difficult for workers to understand the nature of their relationship with either entity).
HMRC gives examples of tax (direct and indirect) non-compliance and evasion by umbrella companies and the steps that it has taken to combat such activities. However, HMRC seeks more evidence about the specific tax risks posed by umbrellas and how these risks might be mitigated. Evidence is sought from, among others, umbrellas and entities contracting with them, on their experiences, the steps they take to ensure tax compliance in their labour supply chains and the further steps HMRC and the government should take to prevent and tackle non-compliance.
Responses are requested, where possible by email (umbrellacompanyevidence@hmtreasury.gov.uk) by 11.45 pm on 22 February 2022.
Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
In a press release issued on 25 November 2021, the Minister for Employment called on employers to strengthen their support of the careers of women who suffer from serious menopause symptoms. The press release was issued alongside the publication of findings from the independent report commissioned by the government in July 2021, which found that almost one in four women are forced to leave work as a result of menopause symptoms and those who experience serious symptoms take an average of 32 weeks of leave. Without the support of employers, this could limit progression and lead to long-term unemployment. The Minister for Employment has urged employers to use a national network of advisors, “50 Plus Champions”, to support and retain their workers over the age of 50, including women experiencing the menopause.
The government will be responding to the recommendations of the report in the coming months. The recommendations of the Women and Equalities Committee’s inquiry into menopause in the workplace are also awaited.
As we have previously reported, ACAS now has guidance for employers on how to help women at work dealing with the menopause, which you can view here: Menopause at Work.
Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
According to a survey conducted by Virgin Money, six in ten parents or expectant parents would change jobs if offered better parental leave benefits, reports Personnel Today. Virgin Money The survey revealed that employees were also worried that they would miss out on promotions or career opportunities while on maternity leave (58%) or lose their job (52%). Most of those who responded believed that parental leave policies are an important factor when considering roles at a new organisation (92%) and one in seven (14%) had already left roles due to poor parental leave entitlements, whilst almost a third (29%) of working parents feel maternity and paternity leave in the UK is generally outdated. Virgin Money goes on to report on other benefits workers and parents expect their company to offer include 30 days annual leave (55%), wellbeing days (39%), private medical insurance (31%) and the opportunity to work remotely abroad each year (28%).
The survey coincides with the launch of Virgin Money’s new parental leave policy, which offers equal family leave to all employees from the first day of employment. David Duffy, CEO of Virgin Money, said: “The pandemic has permanently changed our approach to working life. It’s clear to us that by taking a purpose-driven approach to how we work, we can help colleagues achieve a work-life balance that brings out their best.”
Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
The Department for Work and Pensions (DWP) has published its proposed increases to a number of statutory benefit payments. The following rates are expected to apply from April 2022:
- The weekly rate of statutory sick pay (SSP) will be £99.35 (up from £96.35).
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £156.66 (up from £151.97).
- The weekly rate of statutory paternity pay (SPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory shared parental pay (ShPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory adoption pay (SAP) will be £156.66 (up from £151.97).
The rates will be confirmed once an Order is made and are due to come into effect on 11 April 2022. The national minimum wage rates that will apply from April 2022 were announced in the Autumn Budget.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment Law Newsletter – July 2021
Cases:
- Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
- Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
- COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
- Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
- COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
- Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
- Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
Other news:
- Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
- Data Protection: European Commission adopts UK adequacy decisions
- Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
- Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
- COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
- ACAS: New guidance published on hybrid working
- Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Cases:
Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
In Driscoll (née Cobbing) v V & P Global Ltd and another EA-2020-000876, the EAT has held that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (the Act), departing from its earlier contrary decision, Timothy James Consulting Ltd v Wilton [2015] ICR 764.
The harassment provisions in the Act must be construed purposively, so as to conform with all relevant EU directives, on which the original legislative wording was based. However, in Wilton, the EAT had not referred to the European law, simply holding that harassment in the context of employment, as prohibited by section 40 of the Act, did not expressly include resignation amounting to constructive dismissal. Having examined the relevant directives, the EAT was satisfied that each of them proscribes harassment on the grounds of their respective protected characteristics, including in relation to dismissals. It was notable that, under the directives, harassment is expressly deemed to be a form of direct or indirect discrimination, and should be treated as such. Further, the ECJ has long held that the term “dismissal” is to be construed widely to include, for example, termination as part of a voluntary redundancy scheme and reaching an age limit under an employer’s general retirement policy. There was therefore no principled basis for excluding constructive dismissal from the scope of the applicable directives.
The EAT also drew support from domestic case law, namely Meikle v Nottinghamshire County Council [2005] ICR 1, where the Court of Appeal held that a constructive dismissal could amount to a discriminatory act for the purpose of a disability discrimination claim.
In light of its analysis, the EAT held that Wilton was not correctly decided. As the decision was “manifestly wrong”, it was appropriate for the EAT to depart from its earlier decision. Accordingly, where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment related to a protected characteristic, the constructive dismissal is itself capable of constituting “unwanted conduct” for the purpose of section 26 of the Act.
Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
In IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594, the ECJ has bolstered existing case law on religious dress bans in the workplace, holding that an employer’s policy of political, philosophical and religious neutrality may justify indirect discrimination on the grounds of religion or belief caused by a rule prohibiting the wearing of any visible sign of such beliefs. An employer’s aim of preventing social conflicts may also be a legitimate aim.
However, a dress ban limited to conspicuous, large-sized signs of political, philosophical and religious belief is likely to be directly discriminatory, which cannot be justified. As such, an employer’s ban must apply to all such signs if its indirectly discriminatory effects are to be capable of objective justification.
To objectively justify indirect discrimination on the ground of religion or belief caused by an employer’s dress code, it is necessary for the employer to show that the rule meets a genuine need, taking account of the rights and legitimate wishes of customers or users as well as the adverse impact to the employer in the absence of such a policy. The aim must be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary. In the context of a policy of neutrality, this requires it to be applied in a consistent and systematic manner, to include all visible signs of political, philosophical or religious beliefs and to be limited in application to only those workers who come into contact with customers or users.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is objectively justified, the rights and freedoms recognised by the Charter of Fundamental Rights and the European Convention on Human Rights must be taken into account. In addition, a national rule that lays down an additional requirement for justifying an employer’s rule must also be considered.
COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
The employment tribunal in Montanaro v Lansafe Ltd ET/2203148/2020 held that an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger (section 100(1)(e), Employment Rights Act 1996).
Mr Montanaro (M) was employed by Lansafe Ltd (L) Ltd from 17 February 2020 and provided services to L’s client, B. M believed he had permission to take holiday on 9 and 10 March for his sister’s wedding in Italy. On 9 March, Italy went into lockdown and UK government guidance stipulated 14 days’ isolation on return from Italy. On 10 March, M was told to keep his mobile and laptop on and wait for instructions. On 11 March, L sent a letter to M in London (despite knowing he was in Italy) advising that he had been dismissed with effect from 6 March for failing to follow company procedures and taking unauthorised leave. In absence of communication from L, M was told by B to continue working remotely and M sent information to L about travel restrictions in Italy. On 1 April, L sent M’s P45 and final payslip by email. M successfully claimed automatic unfair dismissal under section 100(1)(e).
The tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that M reasonably believed the danger was serious and imminent. M had taken appropriate steps to protect himself and others. He had asked L for advice, instructions and assistance with documentation had L initially wanted him to fly to London. He had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop. When he didn’t hear from L he communicated direct with B and continued his work on a day-to-day basis. The purported dismissal letter had not been relevant to M’s circumstances and L’s evidence as to the reason for dismissal had not been credible. M had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
The Court of Appeal in Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 952 has unanimously held that Deliveroo riders do not fall within the scope of the trade union freedom right under Article 11 of the European Convention on Human Rights because they are not “in an employment relationship” with Deliveroo. The Central Arbitration Committee had been entitled to reach the conclusion it did given that Deliveroo riders are, genuinely, not under an obligation to provide their services personally and have a “virtually unlimited” right of substitution.
In reaching its decision, the court confirmed that the question of whether Article 11 is engaged in respect of the right to form and join trade unions should be determined having regard to the International Labour Organisation Recommendation 198 (2006). This broadly reflects the position taken in domestic law in identifying the characteristics not only of a contract of service but also a “worker contract”. In particular, it refers to the fact that work “must be carried out personally by the worker”. The absence of such an obligation, as in the case of Deliveroo riders, must therefore point away from worker status and an employment relationship. The decision reiterates the importance of personal service and the value of genuine and unfettered rights of substitution when seeking to argue that an individual is neither an employee nor a worker.
COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
If a respondent wishes to defend an employment tribunal claim, it must present its response (using the prescribed ET3 form) to the tribunal office within 28 days of the date on which it was sent a copy of the claim by the tribunal. If the 28-day deadline has expired the respondent must make a written application for an extension of time, copied to the claimant, setting out the reason why the extension is sought and stating whether it requests a hearing. The application must be accompanied by either a draft of the response, or an explanation of why it is not possible to attach a draft.
In Fyfe v Arcadis Human Resources Ltd ET/4102033/2020 Mr Fyfe submitted an ET1, claiming breach of contract and age discrimination, during the initial phase of the first COVID-19 lockdown. The tribunal’s notification of the claim was not received by Arcadis Human Resources Ltd despite it having an operational post room with skeleton staff throughout lockdown. On 15 July 2020, Mr Fyfe sent Arcadis an email attaching his evidence prior to a final hearing on 17 July 2020. Arcadis immediately instructed a solicitor who contacted the tribunal to put himself on the record, request copies of the ET1 and indicate that Arcadis wished to defend the claim and apply for an extension of time to do so. On 16 July 2020, a written application and draft ET3 were sent to the tribunal. The hearing on 17 July 2020 was converted to a preliminary hearing to hear the application.
The tribunal accepted that these events occurred at an unprecedented time, when many individuals and organisations were adjusting to new working practices, and that Arcadis had not received notification of the claim. It noted the guidance on the exercise of discretion given by the EAT in Kwik Save Stores Ltd v Swain [1997] ICR 49. Arcadis had acted swiftly once it knew of the claim. Considering the balance of prejudice, while Mr Fyfe would not now succeed on a “default judgment” basis, he might still prove his case. By contrast, if Arcadis was precluded from participating, it might have judgment against it in relation to serious matters. Given the overriding objective and interests of justice, the extension of time was allowed and the ET3 was accepted.
Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
The EAT, in Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20, has upheld an employment tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career-long loss. The employee suffered from PTSD, depression and symptoms of paranoia, as well as other functional impairments, and his conditions were likely to be life-long. His case was one of the rare cases where a career-long basis for assessment of financial loss was appropriate.
However, the EAT allowed appeals against various other aspects of the calculation, including the employment tribunal’s decision to apply only a 5% discount to reflect the possibility of employment being cut short for another reason (for example, due to early death, disability or other unforeseen circumstances) and its award of a 20% uplift for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The EAT accepted that the employment tribunal had not demonstrated that it had considered the absolute financial value of the award it was making, despite having evidence that would have given it a clear indication of the probable level of award in issue (likely to be over £2 million).
The case is a rare example of an individual being treated so badly in their employment that the resulting injury was likely to be permanent, meaning that it was very unlikely that they would be able to return to any work before retirement age and therefore justifying compensation on a career-long basis.
Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
In Brightman v TIAA Limited [2021] UKEAT/0318/19 the EAT has held that a tribunal erred in law by failing to consider a claimant’s challenge to her employer’s justification defence in respect of her discrimination arising from disability claim.
Mrs Brightman had various long-term conditions and was disabled for the purpose of the Equality Act 2010. This was not in dispute. On 11 January 2017, she was dismissed by reason of capability on the basis of the available medical evidence, the fact that no further adjustments were possible, her unacceptable level of attendance (which her employer concluded was likely to continue) and the lack of alternative roles. She unsuccessfully appealed and brought various claims, including unfair dismissal and discrimination arising from disability. The tribunal dismissed her claims. She appealed to the EAT.
The EAT noted the following:
- Mrs Brightman’s last day of sickness absence was 24 October 2016 (two and a half months before her dismissal was confirmed), and she attended work throughout the dismissal and appeal processes.
- By the date of her dismissal, her GP report was over a year old and her OH report was based on a consultation from six months earlier (the referral being to assess her fitness to work).
- At the time of dismissal, she had a new central line, was under the care of a new medical team and was optimistic about the future.
The case was not about dismissing an employee on long-term sickness absence but dismissing a working employee because of the risk that she would have further periods of sickness absence in the future. The EAT concluded that the tribunal had impermissibly relied on employer medical evidence that post-dated the dismissal, which it had allowed to be introduced to fill the evidential “gap” and was irrelevant to the liability hearing. Regarding the discrimination arising from disability claim, Mrs Brightman’s absence record was the “something arising“. Her employer’s legitimate aim seemingly concerned the “unpredictable nature” of her absence and the need for other employees to provide cover. However, the tribunal erred by not adequately engaging with her arguments on justification (notably, in circumstances where her employer had been sustaining her absence levels for years). Employers must tread carefully before dismissing, even where an employee has had multiple periods of prolonged absence. Medical evidence relied on should be current, and the employee’s condition and prognosis at the time of dismissal considered.
Other News:
Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
The Guardian reports that in a letter addressed to Cabinet Office minister Michael Gove, the Confederation of British Industry (CBI), the Trades Union Congress (TUC) and the Equality and Human Rights Commission (EHRC) have called for a clear timetable for the introduction of mandatory ethnic pay gap reporting. Citing the potential of data collection to solve racial inequality in the workplace, the signatories argue that mandatory reporting would highlight pay disparities and the lack of minority representation in senior positions with the hope that this would push employers towards action.
A government spokesperson indicated that the findings of the Commission on Race and Ethnic Disparities were still being considered and that the government would respond in due course. The Commission’s report did not recommend mandatory reporting.
Data Protection: European Commission adopts UK adequacy decisions
On 28 June 2021, the European Commission adopted the two UK adequacy decisions under the General Data Protection Regulation ((EU) 2016/679) and the Law Enforcement Directive. This means that personal data can now flow freely from the EU to the UK as the UK offers an equivalent level of protection to personal data as under EU law. The Department for Digital, Culture, Media and Sport has updated its guidance to confirm the decisions.
The decisions include sunset clauses that limit the decisions to four years, after which they will be reviewed.
The Information Commissioner, Elizabeth Denham, has welcomed the decisions as a positive result for UK businesses and organisations and a testament to the strength of the UK’s data protection regime, noting that “adequacy is the best outcome as it means organisations can carry on with data protection as usual“.
Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
Website, People Management, has reported on a league table prepared by the CIPD over access to flexible working using analysis by the HR body of the Office for National Statistics’ Labour Force Survey data. It reports that “the UK is at risk of becoming a two-tier workforce when it comes to who has access to flexibility with some regions of the country already becoming flexible ‘notspots’”, because some areas of the country have much better access to flexible working than others.
Flexibility was measured by looking at 1) where employees were permitted to work, 2) how informally flexible working policies were operated, including how start and end times were determined and 3) whether employees were able to take leave on short notice.
It turns out employees in the south-east of England have the best access to flexible working options, followed by the east of England and Northern Ireland, which the CIPD states reflects the predominance of certain sectors in different parts of the country, as well as areas with a higher concentration of higher-skilled and higher-paid jobs, which are concentrated in London and the south east.
Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
On 12 October 2020, the Department for Work and Pensions (DWP) launched a call for evidence seeking views on challenges to progression in low-pay sectors, benefits of progression to employers and localities, and examples of good practice across the country. On 1 July 2021, the DWP published the In-Work Progression Commission’s report ‘Supporting progression out of low pay: a call to action’. The report notes that people in low-pay sectors find it very hard to progress to, and stay in, higher earning work. The reasons for this include a lack of skills, logistical challenges, such as a lack of suitable transport or childcare arrangements, as well as confidence and motivational barriers. It recommends that employers play their role in minimising and removing these barriers and in establishing a culture of lifelong learning to support their workforces. Developing skills and an understanding of the value of continual learning is essential to help people in low pay sustainably progress in work.
Employers should adopt the “5-point progression checklist“:
- an individualised progression and learning plan,
- mentoring,
- flexibility,
- shadowing and work experience, and
- supporting professional development.
They should also develop transparent progression pathways to ensure that entry-level jobs are a stepping-stone. An appropriate senior leader should be responsible for embedding support for progression into management practice. Employers should know about the transport and childcare options available to their staff and use this to inform business practice.
The report recommends that the government works with employers to consider how employers can be supported to accurately monitor individual progression over time, increasing transparency around in-work progression, with particular focus on those in the lowest-skilled roles. This could include developing an appropriate metric to track individual progression and looking at whether, in the longer term, pay reporting data should be part of annual company reports. The report recommends that care workers in England should be registered under a central body (as in the Devolved Administrations) which can manage and certify their registration, training and ongoing professional and skills development.
COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
On 6 July 2021, HM Treasury issued a further Treasury direction under sections 71 and 76 of the Coronavirus Act 2020, modifying and extending the terms of the Self-Employment Income Support Scheme (SEISS) to cover the period beginning on 1 May 2021 and ending on 30 September 2021. In particular, the Treasury direction provides for claims for the fifth SEISS grant (SEISS 5) to be submitted on or before 30 September 2021 in respect of that period. A claim cannot be amended after 30 September 2021. Applications for SEISS 5 will open from late July 2021.
The amount of the grant will be determined by a turnover test. Individuals whose turnover has fallen by 30% or more will receive 80% of three months’ average trading profits, capped at £7,500. However, individuals whose turnover has fallen by less than 30% will receive a 30% grant, capped at £2,850.
ACAS: New guidance published on hybrid working
On 13 July 2021, ACAS published new guidance on hybrid working to help employers consider whether it could be an option for their workplace and how to fairly introduce it. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working. The advice includes tips for employers on how to:
- Consult with staff on the practical considerations regarding introducing hybrid working.
- Support and manage staff who are hybrid working and ensure all hybrid workers are treated fairly.
- Create a hybrid working policy.
- Handle hybrid working requests from staff.
It advises employers to consider whether technology could assist hybrid working, and issues such as health and safety, data privacy, cybersecurity, onboarding new joiners, and how teams will communicate remotely.
The guidance was developed after consultation with the government’s Flexible Working Taskforce which previously recommended that flexible working should be the default position for all workers.
Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Personnel Today reports that a briefing paper published by the Social Market Foundation (SMF) records that 80% of workers surveyed would not be in favour of a four-day working week, if it meant that they earned less. While workers in banking (14%), energy & water (13%), manufacturing (13%), transport & communication (13%), and construction (12%) were most likely to say they wanted to work less, those working in the hospitality (14%), other services (12%), and public administration sectors (8%) were most likely to say they wanted to work more hours.
The survey also found that the workers who stood to benefit most from a four-day week were more likely to be higher earners, those in higher occupational classes, and men.
The introduction of a four-day working week is one of the proposals currently being considered by the government’s flexible working taskforce following a call from cross-party MPs.
Further Information:
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