We bring you an update of some key pieces of information affecting employment law, and potentially employers, published over the last two months to help keep you up to date.
A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.
- Injunctions: Witnesses and disclosure of documents at disciplinary hearings
- Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
- Worker Status: Can a person have two different employers at the same time for the same work?
- Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
- Tribunals: Apparent bias in case of lay member posting on social media
Injunctions: Witnesses and disclosure of documents at disciplinary hearings
In Colbert v Royal United Hospitals Bath NHS Foundation Trust  EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.
This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.
In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.
On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).
In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.
The Claimant sent a letter before claim setting out:
1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].
2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.
3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.
4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.
The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.
In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.
The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
In R (on the application of ASLEF and others) v Secretary of State for Business and Trade  EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.
In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.
Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:
- that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
- it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).
The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).
The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.
Worker Status: Can a person have two different employers at the same time for the same work?
In United Taxis Ltd v Comolly  EAT 93, the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi. After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi. After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.
The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment. United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly.
However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it. There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise. The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.
The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
In Charalambous v National Bank of Greece  EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas  ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.
Tribunals: Apparent bias in case of lay member posting on social media
In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie)  EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.
The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter  UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.
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As we welcome in the fresh new year, there is a need to focus on helping employees with health issues as the NHS struggles more than ever. We highlight three areas where employers can make a real difference. Other challenges this year come from union strikes, and the government looks to balance the rights of strikers with continuing to provide minimum levels of service in specified public services in a new bill before the Commons, along with an update on the Neonatal Care Bill which covers parental leave. With people working more flexibly consultations have started on proposals to pro-rata holiday entitlement for part-year and irregular hours workers.
- Employee Health: Three wellbeing challenges employers will need to tackle in 2023
- Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
- Parental Leave: House of Commons publishes update on Neonatal Care Bill
- Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Website, People Management, published an article on 20 January 2023 by Imogen Cardwell (Clinical Operations Director at PAM OH) promoting a proactive approach from employers to address health challenges facing employees including soaring cancer rates, increasing work-related illness and NHS delays. You can read the full article [here] but below is a summarised version.
She reports that with an NHS backlog of more than 7.2 million, it will impact more than a million employees, with 15 per cent of employees affected being forced to go on long-term sick leave, and 40 per cent of cancer patients are having to wait more than the 62-day target for life-saving cancer treatment . At the same time, two-fifths of employees believe work has made them sick, primarily due to work-related stress and musculoskeletal (MSK) issues. All of which means the NHS backlog, rising cancer cases and increasing work-related illness are the three major wellbeing challenges employers will need to address in 2023.
Challenge 1: Supporting employees with cancer
Employers will need to do more to support terminally ill employees to stay in work, so long as it is safe to do so. This is both a legal duty, under the Equality Act 2010, but also a moral duty. Integral to this is supporting employees by making the reasonable adjustments needed to allow them to remain in work, such as allowing flexible working or changing working hours for a period to account for someone’s needs.
Managers should be encouraged to talk to employees about what they think would help them and an occupational health clinician can also advise on appropriate adjustments that would work for the individual and business, both now and as the employee goes through important milestones and treatments.
Challenge 2: Ongoing NHS delays
Before the pandemic, employees would typically get signed off work by their GP until after they had been treated and had some post-surgery rehabilitation, which might have been around 6 weeks. With wait times of up to a year, this might not be acceptable going forward. Be aware of the risk of financial hardship, and long-term absence which has been shown to lead to lack of confidence, isolation and an increased risk of future worklessness.
Again, reasonable adjustments to help keep people in work will be critical going forward. Workplace wellbeing initiatives or occupational health advisors might also be able to support the individual with linked conditions, for example, losing weight to reduce joint pain and need for an operation.
Challenge 3: Soaring work-related illness
Days lost to work-related ill health cost billions per year, primarily work-related stress, depression or anxiety and MSK issues. What drives these issues? Employers should review their health data, including referrals to occupational health and health screening insights. As well as conduct ‘employee listening’ with surveys designed to uncover the root causes of work-related stress. This can often be addressed with workshops and manager training based on the HSE’s Management Standards for reducing stress, which look at everything from workload to working relationships.
In the case of soaring MSK issues, workplace risk assessments can be used to identify where employees are setting themselves up for future injury. While body mapping workshops, where employees place stickers on body maps to reveal where they have injuries or niggles, can also be used. These encourage employees to share tips and advice with one another on how they’re using the same equipment, or doing the same job, in a way that prevents injury. As it’s often the smallest behavioural changes that make the biggest difference.
A free guide to Health at Work is available from PAM Wellbeing here.
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
The House of Commons (HoC) Library has published a research briefing on the Strikes (Minimum Service Levels) Bill, which was introduced to the House of Commons and given its first reading on 10 January 2023. The Bill enables regulations to be made by the Secretary of State at the Department for Business, Energy & Industrial Strategy (after consultation) setting minimum levels of service in specified public services so that those services do not completely shut down when there are strikes. For these purposes a strike does not include an overtime ban or a call-out ban. The Bill would grant the Secretary of State the power to set ‘minimum service regulations’ that could set minimum service levels for workers during strikes in the following sectors:
• health services
• fire and rescue services
• education services
• transport services
• decommissioning of nuclear installations and management of radioactive waste and spent fuel
• border security.
The Bill grants employers the power to give a ‘work notice’ to a trade union about any strike that affects a service subject to the Bill. The notice would have to specify which workers the employer to continue work in order to ensure service levels required by the minimum service regulations. Where a union fails to ‘take reasonable steps’ to ensure compliance with the work notice it loses protection from liability. Furthermore, the Bill removes automatic protection from unfair dismissal for any employee who strikes contrary to a valid work notice.
The second reading of the Bill was due to take place on 16 January 2023.
Parental Leave: House of Commons publishes update on Neonatal Care Bill
The House of Commons (HoC) has published a briefing paper on the Neonatal Care (Leave and Pay) Bill 2022–23, which was introduced by Stuart C McDonald MP as a Private Member’s Bill on 15 June 2022.
The Bill would introduce neonatal care leave and statutory neonatal care pay. As these are both new rights, they require the Minister to pass regulations to bring them into force. Parents whose children spend at least one week in neonatal care would qualify for the day one right to neonatal leave. The duration of the leave and when it must be taken would be set by regulations. It would be a minimum of one week and the period in which it could be availed of would last a minimum of 67 weeks starting from the date of the child’s birth. Employees with at least 26 weeks continuous service can avail of neonatal care pay during periods of neonatal leave. While limit and duration of pay would be set by regulations the minimum limit that could be claimed would be a minimum of 12 weeks.
There have been calls since 2014 for such a bill to be introduced. Following a consultation, the Government committed to introduce neonatal care and pay in March 2020. This was reiterated by the then Labour Markets Minister Paul Scully when he was responding to a parliamentary question on 25 May 2022. All MP’s who spoke during the second reading of the Bill were in favour of it passing. Similarly, all contributions at committee stage were in favour of the Bill and all amendments were accepted. However, concerns over the length of time the government were taking to implement the Bill were also raised.
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
The Department for Business, Energy & Industrial Strategy (BEIS) is conducting a consultation on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. The consultation follows the recent Supreme Court judgment in Harpur Trust v Brazel  IRLR 67.
As part of the consultation, BEIS proposes to introduce a holiday entitlement reference period for part-year and irregular hours workers. BEIS wants to ensure that holiday pay and entitlement is directly proportionate to the time part-year and irregular hours staff are working. The consultation also aims to understand how entitlement is currently calculated for agency workers and how the consultation proposal could be implemented.
The consultation may be of interest and impact employers, workers, business representative groups, unions, and those representing the interests of groups in the labour market.
Further information regarding the Calculating holiday entitlement for part-year and irregular hours workers Consultation can be accessed here. The Proposal to simplify Holiday Pay and Entitlement Consultation Impact Assessment can be accessed here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
This month’s news seems to be full of inequality as we report on the gender pay gap, perceptions and experiences of racism at work, menopause, striking transport workers, bias in recruitment, carer’s leave and new protection from redundancy measures for those on pregnancy-related leave.
- Gender Pay Gap: ONS 2022 gender pay gap data published
- Race Discrimination: 2021 survey considers perceptions and experiences of racism at work
- ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause
- Trade Unions: New Transport Strikes Bill introduced to House of Commons
- Technology: Research suggests using AI to reduce bias in recruitment is counter-productive
- Leave: Government backs Carer’s Leave Bill
- Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill
Gender Pay Gap: ONS 2022 gender pay gap data published
The Office for National Statistics (ONS) releases annual statistics on differences in pay between women and men by age, region, full-time and part-time work, and occupation as compiled from its Annual Survey of Hours and Earnings. The ONS analysis of the gender pay gap is calculated as the difference between average hourly earnings (excluding overtime) of men and women as a proportion of men’s average hourly earnings (excluding overtime) across all jobs in the UK. It does not measure the difference in pay between men and women doing the same job and is different from compulsory gender pay gap reporting.
The ONS encourages focus on long-term trends rather than year-on-year trends. It notes that the data for 2020 and 2021 was subject to uncertainty and should be treated with caution. This is due to earnings estimates being affected by changes in workforce composition and the furlough scheme during the COVID-19 pandemic, as well as disruption to data collection and lower response rates.
Over the past decade, the gender pay gap has fallen by approximately a quarter among full-time employees. In April 2022, the gender pay gap for full-time employees was 8.3%. While this is higher than the 2021 gap of 7.7%, it continues a downward trend since April 2019 when the gap was 9.0%.
In 2022, the occupation group for managers, directors and senior officials has seen the largest fall in its gender pay gap figure (10.6%) since the pre-pandemic April 2019 figure (16.3%). This reflects signs of more women holding higher-paid managerial roles. In terms of geography, the gender pay gap is higher in all English regions than in Scotland and Northern Ireland.
Other trends seen in 2021 remain:
- The gender pay gap is much higher for full-time employees aged over 40 years (10.9%) than those aged below 40 years (3.2%).
- Higher earners experience a much larger difference in hourly pay between the sexes than lower-paid employees.
Race Discrimination: 2021 survey considers perceptions and experiences of racism at work
Following a survey of 1,193 UK employees (507 White, 419 Asian, 267 Black), Pearn Kandola, a business psychology consultancy, has published a new report, Racism at Work in the UK 2021. The survey replicated the approach previously taken by Pearn Kandola in 2018 (see Racism at Work Survey Result, 2018), asking participants about their perceptions and experiences of racism at work and actions their employers have taken to combat racism.
Of the employees surveyed, 74.8% considered racism to be a problem in the workplace. Of the 52.2% who had witnessed racism at work, 29.8% confronted the perpetrator, 22.4% reported the incident to a manager or HR department while 28.3% took no action.
Racism at work was experienced by 34% of the respondents. Black respondents were 15.1 times more likely than White respondents, and 1.9 times more likely than Asian respondents, to experience workplace racism. Asian respondents were 8.1 times more likely to experience racism at workplace than White respondents. These results suggested that the likelihood of Black and Asian employees experiencing racism at work had generally increased between 2018 and 2021. For White respondents it had decreased.
Almost half of employees worked for organisations that had taken action to promote greater racial equality at work (49.7%). Most frequently this involved anti-racism training and general awareness raising. Internal policies and procedures were changed both to make them more inclusive and to make it easier to report racism to senior colleagues.
The report recommendations include recognition that experiences differ both between and within racial groups, and for employees to be trained to become active bystanders who know how to challenge racism.
ACAS: Survey finds 1 in 3 employers feel under-equipped to support women during menopause
ACAS has reported on the outcome of a survey in which it commissioned YouGov to ask British businesses how well equipped they felt their workplaces were to support women going through the menopause. Responses indicated that while 46% felt either very or fairly well equipped, 33% considered that they were either not that well equipped or not equipped at all, and 21% of respondents did not know. With regard to confidence in managers having the necessary skills to support staff, 46% felt either very or fairly confident, 37% were either not very or not at all confident and 17% did not know.
ACAS advises that employers:
- Develop a menopause policy that explains how the menopause can affect people differently and what support is available.
- Provide awareness training for managers on the menopause and how to deal with it sensitively and fairly.
- Consider making practical changes at work to help staff manage their symptoms, such as the availability of cold drinking water and temperature control.
Trade Unions: New Transport Strikes Bill introduced to House of Commons
On 20 October 2022, the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons. The Bill is intended to balance the right to strike with ensuring people can commute to work and make vital journeys to access education and healthcare during strikes. It will enable employers to ensure minimum service levels in specified transport services during strikes by requiring sufficient employees to work.
The Bill sets out the legal framework through which minimum service levels will be achieved using minimum service specifications, which include minimum service agreements, minimum service determinations and minimum service regulations. Employers and trade unions may negotiate and reach agreement on minimum service levels by entering into a minimum service agreement. Where the parties have failed to reach an agreement after three months, the matter will be referred to the Central Arbitration Committee (CAC) which will make a minimum service determination. The Bill provides that the Secretary of State may set minimum services levels through minimum service regulations which will apply where an agreement has not been entered into and a determination has not been made.
When a union gives an employer notice of a strike which relates to a specified transport service, and the employer and union are bound by a minimum service specification as regards the employer’s provision of that service, the employer may give a work notice to the union. That notice will identify the people required to work during the strike in order to ensure that minimum levels of service are provided and specify the work they will be required to carry out during the strike. Where an employer has given a work notice and the union fails to take reasonable steps to ensure that those identified in the notice do not take part in the strike, the union will not be protected from an action in tort by the employer.
The Transport Strikes (Minimum Service Levels) Act 2022, which will extend to England, Scotland and Wales, will come into force at the end of the period of two months beginning with the day on which it is passed.
Technology: Research suggests using AI to reduce bias in recruitment is counter-productive
Cambridge University researchers have suggested that using Artificial Intelligence (AI) to reduce bias in recruitment is counter-productive in their report Does AI Debias Recruitment? Race, Gender, and AI’s “Eradication of Difference”.
The research considered the suggestion that using AI in recruitment can objectively assess candidates by removing gender and race from their systems and, in doing so, make recruitment fairer and help organisations to achieve their DEI goals and establish meritocratic cultures. The researchers built their own simplified AI recruitment tool, to rate candidates’ photographs for the “big five” personality traits: agreeableness, extroversion, openness, conscientiousness and neuroticism. However, they found the software’s predictions were affected by changes in people’s facial expressions, lighting and backgrounds, as well as their choice of clothing.
Recommendations made as a result of the research include developers shifting from trying to correct individual instances of bias to considering the broader inequalities that shape recruitment processes. Those, such as HR professionals, tasked with using technology must understand the limitations of AI and need suppliers to explain where AI is being used in their systems and how it is being used to evaluate candidates. The research also suggested that there remains an insufficient contribution from AI ethicists, regulators and policymakers in the scrutiny of AI-powered HR tools.
The Chartered Institute of Personnel and Development’s Resourcing and talent planning report (September 2022) found that only 8% of employers used AI to interpret job requirements and scan databases or the open web for relevant candidates and that 5% of employers used AI to either screen candidates (shortlisting based on a job description) or select them (through analysis of interview responses to match hiring criteria or using chatbots for first-stage interviews).
Leave: Government backs Carer’s Leave Bill
On 21 October 2022, the government announced that it was backing the Carer’s Leave Bill, a Private Members’ Bill sponsored by Wendy Chamberlain MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.
The Bill will introduce a new and flexible entitlement of one week’s unpaid leave per year for employees who are providing or arranging care. It will be available to eligible employees from the first day of their employment. They will be able to take the leave flexibly to suit their caring responsibilities and will not need to provide evidence of how the leave is used or who it will be used for which, it is hoped, should ensure a smooth process. Employees taking their carer’s leave entitlement will be subject to the same employment protections that are associated with other forms of family-related leave, meaning they will be protected from dismissal or any detriment as a result of having taken time off.
Between 16 March and 3 August 2020, the government consulted on its proposal to give employees who are also unpaid carers a week of unpaid leave each year to provide care. On 23 September 2021, the government response to the consultation confirmed that it would introduce a statutory right of up to one week of unpaid carer’s leave when Parliamentary time allowed.
Redundancy: Government backs Protection from Redundancy (Pregnancy and Family Leave) Bill
On 21 October 2022, the government announced that it was backing the Protection from Redundancy (Pregnancy and Family Leave) Bill, a Private Members’ Bill sponsored by Dan Jarvis MP. The Bill had its first reading in the House of Commons on 15 June 2022 and its second reading was passed with government support on 21 October 2022.
Currently, the Employment Rights Act 1996 (ERA 1996) allows the Secretary of State to make regulations concerning redundancy “during” periods of maternity leave, adoption leave or shared parental leave. For example, under regulation 10 of the Maternity and Parental Leave etc Regulations 1999 (SI 1999/3312), before making a woman on maternity leave redundant, an employer must offer her a suitable alternative vacancy where one is available with the employer or an associated employer.
The Bill will amend the ERA 1996 to enable the Secretary of State to make regulations providing protection against redundancy “during or after” an individual taking the relevant leave. It will also add a new provision to the ERA 1996 allowing for regulations about redundancy “during, or after” a “protected period of pregnancy”. While the detail will be provided by the regulations, the explanatory notes to the Bill suggest that, by extending protection after a protected period of pregnancy, a woman who has miscarried before informing her employer of her pregnancy will benefit from the redundancy protection.
On 25 January 2019, BEIS published a consultation on extending this protection to apply from the date an employee notifies the employer in writing of her pregnancy, to six months after her return from maternity leave. The consultation also asked whether this protection should be extended to similar types of leave such as adoption leave and shared parental leave. On 22 July 2019, the government published its response to the BEIS consultation suggesting that it would bring forward legislation when Parliamentary time permitted.
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This month’s news highlights cover a variety of issues including consultations in redundancy, settlement agreements reaching too far, a substantial compensation award against Royal Mail, facts versus intentions in relation to employment status and a look at what’s next for Mercer v Alternative Future Group when the Supreme Court is asked to look at the legislative gap in protection for striking workers.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- Settlement Agreements: Unknown future claims cannot be settled in advance
- Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
- Employment Status: The parties’ intentions do not determine employment status
- Unions: Supreme Court to hear bid to protect striking workers
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 and Another  EAT 139, the EAT allowed the appellant’s appeal against the decision of the employment tribunal in relation to a claim of unfair dismissal by reason of redundancy. The EAT held, among other things, that the tribunal had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation was a fundamental aspect of a fair procedure. That aspect applied equally, with appropriate adaptation, to redundancy situations where there was no collective representation.
In order that consultation was ‘genuine and meaningful’ a fair procedure required that consultation took place at a stage when an employee or employee representative could still, potentially, influence the outcome. In circumstances where the choice of criteria adopted to select for redundancy had the practical result that the selection was made by that decision itself, consultation had to take place prior to that decision being made. It was not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decided the pool of employees and which employee was to be dismissed.
The implied term of trust and confidence required that employers would not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one could be fair in appropriate circumstances, it should not be considered, without prior consultation, where there was more than one employee.
Settlement Agreements: Unknown future claims cannot be settled in advance
In Bathgate v Technip UK Ltd  EAT 155, Scottish EAT has held that s.147 of the Equality Act 2010 does not allow a qualifying settlement agreement to settle future claims unknown to the parties at the time of entering into the agreement. The judge considered that the existing case law was not to contrary effect. While the decision concerns the interpretation of s.147(3)(b) of the Equality Act 2010, it applies to settlement agreements made under other statutes where there is a corresponding provision (for example, s.203(3)(b) of the Employment Rights Act 1996 (ERA 1996)).
S.147(3)(b) requires the agreement to identify “the particular complaint“. This is not satisfied by a long list of claims defined by reference to their legal character or section number. Parliamentary intention was that settlement should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties, and the purpose of the statutory provision is to protect employees when agreeing to relinquish the right to bring proceedings. The statutory words suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed, and the precision of those words is not apt to describe a potential future complaint.
The EAT also considered the territorial scope of the Equality Act 2010 as it applies to seafarers. It held that an employee does not cease to be a seafarer, within the meaning of s.81 of the Equality Act 2010, by working onshore for the last six months of employment, having worked for nearly 20 years on ships. S.108 of the Equality Act 2010, which deals with post-employment claims, is dependent on the employee’s rights during employment. Where an employee is excluded from the territorial scope of the Equality Act 2010 by s.81 during employment, they are also excluded post-employment.
Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
Following a remedies hearing, an employment tribunal has awarded substantial compensation for unfair dismissal and detriment in Jhuti v Royal Mail Group ET/2200982/2015 (3 October 2022), a whistleblowing case that had previously been subject to an appeal in the Supreme Court.
The tribunal found that the claimant had suffered a “lengthy and intense period of bullying” over five months prior to taking sick leave and being dismissed. This treatment had “destroyed the claimant’s life“, leaving her with PTSD and recurrent episodes of severe depression, and leading to the breakdown of her relationship with her teenage daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.
As well as financial compensation for total career loss to age 67, the tribunal awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings and £12,500 aggravated damages to reflect the respondent’s oppressive conduct at the remedies hearing. It also made a 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Employment Status: The parties’ intentions do not determine employment status
In Richards v Waterfield Homes Ltd and another  EAT 148, an employment tribunal erred in finding that, in a working relationship which had numerous indicators of employment status and only one in favour of self-employment, that the latter should be determinative of the issue. Self-employment (implicit in the use of the CIS scheme (a construction workers tax scheme) to pay the claimant, “under which registrants know they will be treated as self-employed”) was only one of the factors to be considered.
Looking at the findings as a whole, and consistent with case law, the only proper conclusion open to the employment tribunal was that the claimant was indeed an employee. The case was remitted to the employment tribunal for a remedy hearing on that basis.
Unions: Supreme Court to hear bid to protect striking workers
The Supreme Court will hear arguments from UNISON, the UK’s largest union, that a recent Court of Appeal decision unfairly allows employers to punish striking workers, as historic numbers take industrial action. UNISON will support Fiona Mercer, a former trade union representative, in her appeal at the Supreme Court against Business Secretary, Grant Shapps. His predecessor, Kwasi Kwarteng, had intervened in March 2022 to reverse Mercer’s win against her employer, Alternative Futures Group (AFG), a health and social care charity.
The EAT in Mercer v Alternative Future Group  IRLR 620, ruled that AFG had violated the European Convention on Human Rights when it suspended Mercer in a dispute over plans to cut allowances for sleep-in staff. But the government successfully argued to the Court of Appeal, in Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening)  EWCA Civ 379, that keystone labour legislation (the Trade Union and Labour Relations Consolidation Act 1992) does not protect striking workers from detrimental treatment.
Workers cannot be fired for taking part in industrial action, but that protection expires after 12 weeks—and there is a ‘legislative gap’ in what other protection is available to employees taking industrial action, the Court of Appeal said. That gap means ‘unscrupulous employers’ can make life difficult for workers who exercise their right to strike, UNISON said as it revealed that it had won permission to appeal to the Supreme Court. No date has been set for the hearing, although UNISON said it expects it in the second half of 2023.
The union is expected to argue that the UK is obliged by international labour law and precedents from the European Court of Human Rights to protect workers from detriment short of dismissal. The government is likely to counter that those standards exceed what is required under domestic legislation.
UNISON’s general secretary, Christina McAnea, said the appeal is “a chance to fix a glaring legal loophole“. “Employees only strike as a last resort and shouldn’t face punishment for protesting about their employer’s behaviour“, McAnea continued. “Hundreds of thousands of workers are thinking about industrial action as they struggle to cope with low pay in the face of soaring prices. Everyone must be able to exercise their rights without fearing they’ll be treated unfairly for standing up for themselves at work“.
Whilst strikes were temporarily abandoned in England as a mark of respect for the passing of Queen Elizabeth II and her funeral, the unions have not been resting. Several unions have started judicial review proceedings against the government in response to new regulations regarding the use of supply agency workers. The tribunals have been reviewing COVID-related employment issues, how far a belief in one’s football team can be stretched and protecting a woman’s right to a private life versus the rights of the claimant to a fair trial and freedom of expression. The Supreme Court, meanwhile, has been considering the matter of confiscating earnings received by a CEO who got the job by lying about his experience.
- Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
- COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
- COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
- Equality Act: Supporting a football club is not a protected philosophical belief
- Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
- Fraud: A confiscation order should strip the profit from fraudulently obtained employment
Strikes: Unions commence judicial review of regulations permitting supply of agency workers during strikes
Separate but similar judicial review proceedings have been issued by unions in response to new regulations that allow employment businesses to supply agency workers to replace striking staff.
The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) came into force on 21 July 2022 and have already resulted in a report by the TUC to the International Labour Organization over alleged infringement of workers’ rights to strike.
Unison issued proceedings in the High Court on 13 September 2022, arguing that the government’s decision is unfair and is based on unreliable and outdated evidence from a 2015 consultation. It also argues that the government has failed to consider Article 11 of the European Convention on Human Rights (ECHR) which protects the right to freedom of association, and international labour standards on the right to strike.
On 20 September 2022, the TUC began similar proceedings in collaboration with 11 other unions, arguing that the Secretary of State failed to consult unions, in contravention with the Employment Agencies Act 1973, and that the regulations violate Article 11 of the ECHR. The teachers’ union, NASUWT, has also announced its intention to issue proceedings. The claims are all likely to be heard together.
A response is required from the Business Secretary, Jacob Rees-Mogg MP, within 21 days of proceedings being issued.
COVID-19: Two and a half weeks is not long enough for long COVID to become a disability
In Quinn v Sense Scotland ETS/4111971/2021, an employment tribunal has determined that an employee who caught COVID-19 two and a half weeks before her dismissal did not have long COVID and was not disabled under section 6 of the Equality Act 2010 (EqA 2010) at the relevant time.
Mrs Quinn was employed as Head of People. She tested positive for COVID-19 on or around 11 July 2021. She subsequently experienced fatigue, shortness of breath, pain and discomfort, headaches, and brain fog. These symptoms affected her everyday life and disrupted her sleep. She struggled with shopping and driving and stopped socialising and exercising. On 26 July, she contacted her GP to arrange an appointment. On 27 July, she was dismissed from her employment. She consulted with her GP on 2, 8 and 22 August, during which time she was deemed unfit to work due to ongoing symptomatic COVID-19. On 12 September, she was deemed unfit to work due to post-COVID-19 syndrome and diagnosed with long COVID.
Mrs Quinn brought a direct disability discrimination claim, among other claims. As a preliminary issue, a tribunal had to determine whether she was disabled at the time of her dismissal. She relied on the impairment of long COVID including having COVID-19 for longer than normal. She submitted that COVID-19 and long COVID are part of the same condition, and that other 50-year-old women with no underlying health conditions recovered more quickly than her after two weeks. Consequently, it could have been predicted that she would experience long COVID.
An employment tribunal found that she was not disabled under the EqA 2010 for the following reasons:
- At the time of her dismissal, she did not have long COVID. She was not diagnosed with long COVID until some six weeks later.
- While the impairment of COVID-19 had a substantial adverse effect on her ability to carry out normal day-to-day activities, this effect had lasted only two and a half weeks at the relevant time and was not long term.
- The substantial majority of people who catch COVID-19 do not develop long COVID. Accordingly, it cannot be said that the risk of developing long COVID “could well happen“.
Mrs Quinn’s case could be distinguished from that of Mr Burke, who had been absent from work with COVID-19 for nine months at the time of his dismissal.
COVID-19: Requirement for employees to exhaust holiday and TOIL before receiving further paid leave for COVID-related absences was not discriminatory
In Cowie and others v Scottish Fire and Rescue Service  EAT 121 , the EAT (Eady P) has held that it was not discriminatory for the fire service to require employees to have used up accrued holiday and time off in lieu (TOIL) before being eligible to apply for additional paid “special leave” to cover COVID-19 related absences.
Two groups of employees brought discrimination claims in relation to this requirement. One group alleged indirect sex discrimination under section 19 of the Equality Act 2010 (EqA 2010) and the other alleged discrimination arising from disability under section 15 of the EqA 2010.
The tribunal dismissed the section 19 claims because there was no evidence of group disadvantage to women. It upheld the section 15 claims, agreeing that the requirement to exhaust holiday and TOIL was unfavourable treatment. However, it did not award any compensation since there was no evidence of any injury to feelings. The claimants and the employer appealed to the EAT.
The EAT allowed the employer’s appeal. In relation to the section 15 claims, the tribunal had identified the relevant treatment as being the requirement to use up holiday and TOIL. However, this requirement only arose when the claimants sought access to paid special leave. It was wrong to separate the conditions applicable to the benefit from the benefit itself. The relevant treatment was therefore the granting of paid special leave. This was clearly favourable treatment. The treatment could have been more favourable if the conditions were removed, but it did not become unfavourable simply because it could, hypothetically, have been more favourable.
The same error arose in relation to the section 19 claims. The PCP was defined as the requirement to exhaust TOIL or annual leave. However, the PCP only operated in the context of the paid special leave policy. Since the provision of paid special leave was clearly favourable, the PCP could only amount to a disadvantage if the conditions of entitlement were artificially separated from the benefit itself.
The EAT therefore found that neither the section 15 nor the section 19 claims could succeed. Nevertheless, it considered and rejected the claimants’ grounds of appeal, finding that the tribunal had been entitled to conclude that there was not sufficient evidence:
- To show group disadvantage in the section 19 claims.
- To justify an award of compensation for injury to feelings in the section 15 claims.
Equality Act: Supporting a football club is not a protected philosophical belief
At a preliminary hearing in McClung v Doosan Babcock Ltd and others  UKET/4110538, an employment tribunal has held that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).
Mr McClung had supported Rangers for 42 years, was a member of the club and received yearly birthday cards from them. He never missed a match and spent most of his discretionary income on attendance at games, as well as watching them on television. He believed supporting Rangers was a way of life and as important to him as attending church is for religious people.
The tribunal defined Mr McClung’s belief as being a supporter of Rangers but concluded that it was not capable of being a protected philosophical belief. While it was not in dispute that the belief was genuinely held, the tribunal concluded that the remaining Grainger criteria were not satisfied for the following reasons:
- The tribunal had regard to the explanatory notes to the EqA 2010 which provide that adherence to a football team would not be a belief capable of protection. The definition of “support” (being “actively interested in and concerned for the success of” a particular sports team) contrasted with the definition of “belief” (being “an acceptance that something exists or is true, especially one without proof”). Mr McClung’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
- Support for a football club is akin to a lifestyle choice. It did not represent a belief as to a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole. There was a wide range of Rangers fans with varying reasons behind their support, shown in different ways.
- There was nothing to suggest fans had to behave, or did behave, in a similar way. Support for the Union and loyalty to the Queen were not prerequisites of being a Rangers supporter as Mr McClung had submitted. The only common factor was that fans wanted their team to do well. It therefore lacked the required characteristics of cogency, cohesion and importance.
- Support for Rangers did not invoke the same respect in a democratic society as matters such as ethical veganism or the governance of a country, which have been the subject of academic research and commentary.
Human Rights: EAT makes anonymity order to protect non-party and non-witness who was subject of false lurid sexual allegations
In Piepenbrock v London School of Economics and Political Science  EAT 119, the EAT has held that the identity of a non-party and non-witness (Ms D) was entitled to the benefit of an anonymity order. False lurid allegations of a sexual nature had been made against her, and not granting the order would lead to a substantial risk of her right to a private life under Article 8 of the European Convention on Human Rights (ECHR) being infringed. Moreover, there was a substantial risk that the claimant, Dr Piepenbrock, who had made the allegations against Ms D, would abuse the court system in a manner contrary to the interests of justice, which would have a serious detrimental effect on Ms D.
HHJ Shanks held that these considerations substantially outweighed the principle of open justice, Dr Piepenbrock’s right to a fair trial under Article 6 of the ECHR and his right to freedom of expression under Article 10, as well as other parties’ rights under Article 10, including the press. Granting the order sought would not seriously impact these rights and principles, as it would remain open to anyone to describe the case in all its detail, save for the identity of Ms D. The fact that the central allegation against Ms D was lurid and found to be untrue substantially reduced the weight to be accorded to the Article 10 rights at play.
The EAT granted an indefinite order protecting Ms D’s identity from becoming public and maintaining Ms D’s anonymity in an earlier EAT judgment. The order also limited access to documents lodged with the EAT and prevented Dr Piepenbrock or anyone else from disclosing Ms D’s identity. This case serves to highlight the EAT’s power to act to protect individuals’ rights under the ECHR, even where there is no express rule of procedure in the EAT Rules to that effect.
Fraud: A confiscation order should strip the profit from fraudulently obtained employment
In R v Andrewes  UKSC 24, the appellant obtained a CEO position, falsely claiming he had qualifications and relevant experience. He was appointed in December 2004 and remained in post until March 2015. He would not have been appointed had the true position been known. During his time as CEO, he was regularly appraised as either strong or outstanding.
In January 2017, he pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment, and the Crown sought a confiscation order against him. His net earnings during the relevant period were £643,602.91. The available amount was agreed to be £96,737.24, and the judge ordered confiscation of that sum. The Court of Appeal allowed the appellant’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed to the Supreme Court.
Appeal allowed, and confiscation order restored, albeit for different reasons:
- It would be disproportionate to make a confiscation order of the full net earnings as not making any deduction for the value of the services rendered would amount to a further penalty.
- The legal burden of proof in respect of section 6(5) is on the prosecution who must establish that it would not be disproportionate to require the defendant to pay the recoverable amount.
- When considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud. This approach takes away the profit made by the fraud.
- The Court held a confiscation order of £244,568 would be proportionate as this represented the 38% difference between his pre-appointment earnings (£54,000 gross) and his post appointment income (£75,000 gross and £643,000 over the course of his fraudulently obtained employment). The recoverable amount was still £96,737.24.
This decision comes across as the kind of compromise more suited to civil litigation than confiscation. The court correctly distinguishes between a job that would have resulted in illegal performance, but acknowledges the appellant stood no chance of getting the job without the falsification of his qualifications. The court was explicit as to its justification for this pragmatic approach, “This is to adopt a principled ‘middle way’ in contrast to either a ‘take all’ approach or a ‘take nothing’ approach“. One wonders if this apparently principled approach will actually lead to fewer appeals on the issue of proportionality in such CV type cases.