Employment Law Case Update – October 2022
A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- TUPE: Can the benefit of share incentive plans transfer under TUPE?
- Trade Unions: Appearance of bias in disciplinary action
- Workers: Bolt drivers pursue worker benefits claim
Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust  EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.
The EAT noted that, as established in Williams v Compair Maxam  ICR 156 and Polkey v AE Dayton Services Ltd  IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.
Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.
TUPE: Can the benefit of share incentive plans transfer under TUPE?
In Ponticelli UK Ltd v Gallagher  EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.
At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.
Trade Unions: Appearance of bias in disciplinary action
In Simpson v Unite the Union  EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.
The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.
The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.
Workers: Bolt drivers pursue worker benefits claim
According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment News – Case Update April 2022
A round-up of the most significant employment law cases to be published over the last month including more definitions between workers and self-employed contractors, indirect discrimination and harassment, unfair dismissal and TUPE.
Employment Law Newsletter – March 2021
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd  UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority  EWCA Civ 255 and Page v Lord Chancellor and another  EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson  UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – July 2020
A review of July’s employment law cases and other important news, including variousemployment-related Covid-19 updates.
Employment Law Newsletter – December 2019
- Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave
- Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status
- Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?
- Unfair Dismissal: Automatically unfair if hidden reason is trade union activities
- TUPE: Protection could extend to workers, not just employees
- ICO: Find out if you need to pay the data protection fee
- ONS: Pay gap for disabled workers is 12.2%
- Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements
Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave
In City of London Police v Geldart UKEAT/0032/19/RN the EAT found in favour of a female claimant who was entitled to a ‘London Allowance’ payable to serving police officers in both the City of London and Metropolitan Police forces (pursuant to Part 6 of the Police Regulations 2003). This is a non-pensionable payment which is distinct from salary and ‘London Weighting’. The Police force had stopped paying her London Allowance when her maternity pay ceased during maternity leave.
Both the tribunal and the EAT found that there was nothing in the Police Regulations which meant the London Allowance should stop being payable during maternity leave, and cited the example that the allowance was also payable when an officer was suspended from duty. It was distinguished from certain allowances to cover expenses incurred when performing duties which were capable of being stopped. Failing to pay the London Allowance during maternity leave was therefore an act of direct sex discrimination contrary to section 39(2) of the Equality Act 2010.
In this matter, the claimant did not have to show that the Police force would have treated a male officer more favourably (i.e. used a comparator) because she was treated unfavourably on the ground of her pregnancy or maternity. As a result, she was the victim of sex discrimination and does not need to, and indeed cannot, prove that a man would have been treated differently (as set out in Webb v EMO Air Cargo (UK) Ltd  ICR 770).
Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status
In Stuart Delivery Ltd v Augustine UKEAT/0219/18/BA Mr Augustine was a delivery courier working for Stuart Delivery in fixed hours ‘slots’ (typically around 3 hours). During the slot Mr Augustine was under the control of Stuart Delivery, he was not able to leave the zone he had agreed to operate in and was required to undertake the deliveries offered to him in return for a guaranteed hourly wage. He could not hold himself out as available to other delivery companies during the period of a slot. Mr Augustine could release a slot he had signed up to back into the pool of approved couriers via Stuart Delivery’s Staffomatic app.
The tribunal, and the EAT, found that the use of the Staffomatic app to release a slot, and therefore extricate himself from work, was not of the character of a substitution clause which would deny him ‘worker’ status. The EAT held that the tribunal had correctly found that Mr Augustine would only be released from the obligation of performing the slot himself if another courier signed up for it. Therefore, he had no control over whether, or who, picked up the slot he had released. This did not amount to a ‘right’ of substitution, or a provision that was inconsistent with limb (b) worker status (as set out in s.230(3)(b) ERA1996).
Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?
The case of Royal Mail Group v Jhuti  UKSC 55 has been progressing for some time (we reported the decision of the EAT in July 2016, and the Court of Appeal in October 2017) and it has now been considered by the Supreme Court.
The facts are that having made a protected disclosure (whistleblowing) to her line manager, Ms Jhuti was dismissed due to capability (he had retaliated by scrutinizing her performance) following deliberate misleading of the investigating manager by the same line manager because of the disclosure. Ms Jhuti claimed unfair dismissal, which was rejected by the tribunal but on appeal, the EAT found in favour of the claimant on the basis that just because the HR department was ignorant of the full facts (the investigating manager didn’t know about the whistleblowing, so couldn’t have been motivated by it), the original line manager who had had the full facts had manipulated the decision by engineering the dismissal with the whistleblowing in mind. Given his position, that responsibility fell on the employer, and therefore she had been unfairly dismissed, even though the person with actual decision-making responsibility had been unaware of it.
The Court of Appeal reversed this decision but the Supreme Court agreed with the EAT, stating that “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”
Unfair Dismissal: Automatically unfair if hidden reason is trade union activities
In Cadent Gas Limited v Singh  UKEAT 0024_19_0810 Mr Singh was a gas engineer with 29 years’ service and an unblemished record. He was also a health and safety representative and trade union shop steward. He was required to respond to priority gas leaks without delay. One day, he was called out to a gas leak at 1.13am. He accepted the job despite having not slept or eaten much all day. Without informing dispatch he stopped for some food on the way to the call out, arriving at the premises 1 minute outside the hour stipulated in the service level agreement.
Mr Singh had previously had problems with Mr Huckerby, a senior manager, in relation to his trade union activities. Mr Huckerby noted that Mr Singh had been late, then played a leading role in the investigation, although this was not the norm, and told others that he wanted to keep the trade union activities “on the radar”. He also gave incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by another manager, who had not had any prior involvement. He decided to dismiss Mr Singh for gross misconduct. Mr Singh claimed unfair dismissal on the ground of his trade union activities contrary to s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Tribunal upheld his claim, concluding that the managers who conducted the disciplinary hearing and appeal were not motivated by prejudice against Mr Singh for his trade union activities, although Mr Huckerby was. The employer appealed but the EAT dismissed the appeal, holding that the investigation was inadequate and the dismissal automatically unfair. On the basis that even though the other managers were not motivated by prejudice, it did not preclude a finding that trade union activities played a part in their reasoning, following the decision in Royal Mail Group v Jhuti (see previous case review above) whereby the motivation and knowledge of someone who is not a decision-maker may be attributed to the employer if (as here) that person is engaged in and had manipulated the investigatory process.
TUPE: Protection could extend to workers, not just employees
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the definition of employee is given as “an individual who works for another person whether under a contract of service or apprenticeship or otherwise”. In the case of Dewhurst v Revisecatch Ltd t/a Ecourier  UKET 2201909/2018, Judge Joffe has interpreted the ‘or otherwise’ part to include workers, citing the Acquired Rights Directive which states that TUPE should be interpreted liberally.
Workers affected by a TUPE transfer have the right to be informed about and consulted on it, under the regulations, and failure to do so can result in compensation of up to 13 weeks’ pay per person. Transferor employers have to include details of the workers on the Employee Liability Information. Currently, only traditional employees benefit from the provisions on automatic unfair dismissal as a consequence of a TUPE transfer. However, whilst this is first instance case, and therefore not currently binding, it is likely to be appealed and could therefore impact future decisions if this interpretation is upheld. Employers are therefore warned to be alert to this case and if involved in a TUPE transfer may consider including any workers in order to minimise risk or may wish to seek additional indemnities from other parties to a transaction to deal with this potential risk.
ICO: Find out if you need to pay the data protection fee
The Information Commissioner has recently announced that it is contacting all UK registered companies reminding them of their legal responsibility to pay a data protection fee. Organisations processing personal information are required to pay a data protection fee unless they are exempt. Check their website (link above) to see if you need to pay or if you are exempt, and how you can contact them to pay or complete their exemption form.
ONS: Pay gap for disabled workers is 12.2%
The Office for National Statistics (ONS) recently published a report entitled ‘Disability pay gaps in the UK: 2018’. Using data from 2018, the report presents the first analysis of disability pay gaps in the UK using newly reweighted earnings data from the Annual Population Survey. The main points are these:
- Median pay was consistently higher for non-disabled employees than for disabled employees; median pay for non-disabled employees was £12.11 an hour whilst for disabled employees it was £10.63 an hour, resulting in a pay gap of 12.2%.
- The disability pay gap was wider for men than for women.
- London had the widest disability pay gap at 15.3% and the narrowest pay gap was in Scotland, at 8.3%.
- Disabled employees with a mental impairment had the largest pay gap at 18.6%, while for those with a physical impairment the pay gap was 9.7% and those with other impairments had the narrowest gap, at 7.4%.
- Around a quarter of the difference in mean pay can be accounted for by factors such as occupation and qualification.
Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements
In a shocking report produced by a collaborative partnership of philanthropic organisations and campaigners, a study of 71 global hotel companies in the UK shows that four years after the introduction of the Act, only 18 have met the minimum requirements of the UK Modern Slavery Act 2015. These requirements include publishing a modern slavery statement which should include information on the following:
- disclose their structure, business and supply chains providing information about risks in supply chains and in direct operations,
- having policies in relation to slavery and human trafficking,
- due diligence processes undertaken, assessing actual and potential human rights impacts,
- risk assessment and management.
Whilst this report highlights the problems with enforcement by the government, another issue in such a high-risk sector, is the threshold of a £36m annual turnover set by the Act, which means that most hotels in the UK are not even subject to the law. With such a vulnerable workforce, the report has made a number of recommendations. One of which is the creation of a monitoring body to survey corporate compliance with the Act.
Further information on Modern Slavery can be found on the government website: https://www.gov.uk/government/collections/modern-slavery.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – July 2019
- Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
- Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
- Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
- Disability Discrimination: Employers should make enquiries about an employee’s difficulties to avoid constructive knowledge
- Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
- TUPE: Obligation on transferee to keep and produce wage records for transferring employees
- Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
- ACAS: 2018-19 Annual Report Published
- Equality: Gender Equality Roadmap published
- Health at Work: Joint government consultation to reduce job losses
- Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
Discrimination: Can a tribunal use stereotypical assumptions on which to base its conclusions, even if the parties never raised them?
In Commerzbank AG v Rajput UKEAT/0164/18/RN the Claimant brought claims of direct sex discrimination, harassment (s.26 Equality Act 2010) and maternity leave discrimination. The ET upheld the claims. In its conclusion it held that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave. The Respondent appealed against the sex discrimination/harassment decisions because these stereotypical assumptions had not formed part of the Claimant’s case; nor had the tribunal made any suggestion to the Respondent or its witnesses that it had considered such matters when drawing inferences about the reasons for the conduct of which the complaint was made. The reference to stereotypical assumptions had appeared for the first time in the judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions or their application to the conduct of the decision-makers. This therefore constituted unfairness.
The Respondent challenged one of the two findings of maternity leave discrimination on the basis that the tribunal had wrongly substituted a ‘but for’ test of causation for the subjective test required by s.18(4) of the Equality Act.
The EAT dismissed the appeal on maternity leave discrimination, holding that on a fair reading of the judgment the tribunal had applied the correct test of causation. However, it upheld the appeal on sex discrimination/harassment. The EAT held that it was unfair of the tribunal to not give the Respondent and its witnesses prior notice and the chance to respond to the suggestion that they had acted on the basis of stereotypical assumptions. The claims were remitted to be heard before a new tribunal.
Contract drafting: Century old authority on restrictive covenants reversed by Supreme Court
In Tillman v Egon Zehnder Limited  UKSC 32 the Supreme Court was asked to consider an interesting contract drafting point. Ms Tillman worked for Egon Zehnder Limited, an executive search firm. When she left them, she sought to get out of her contractual six-month non-compete clause by arguing that the words “directly or indirectly engage or be concerned or interested in” any competing business was unenforceable as a restraint of trade because it had the effect of restraining her from even holding any shareholding in a competitor and was thus far too wide. The Supreme Court agreed with the finding of the Court of Appeal that the words “interested in” were unreasonably wide, but found that it had been wrong to conclude that the offending words could not be severed from the remaining, reasonable parts of the covenant, thus rendering the remainder enforceable. This decision by the Supreme Court reversed a Court of Appeal authority (Attwood v Lamont  3 KB 571) which had been in place for 99 years.The Supreme Court instead preferred the threefold approach laid down by the Court of Appeal in Beckett Investment Management Group Ltd v Hall  EWCA Civ 613:
- application of the blue pencil test – there can only be removal of words if upon removal there is no need to add to or to modify the wording that remains in order for it to remain enforceable;
- the remaining terms must continue to be supported by adequate consideration (i.e. payment or something of value); and
- the removal of the offending provision must not generate any major change in the overall effect of all the post-employment restraints in the contract.
Harassment: Is posting an offensive image on Facebook carried out ‘in the course of employment’?
In Forbes v LHR Airport Limited  UKEAT 0174_18_2802 an employee (DS) posted a picture of a golliwog on her Facebook page with the caption “Let’s see how far we can make him travel before Facebook takes him off”. Her friends list included some of her colleagues, but not the Claimant. One colleague (BW) showed it to the Claimant who found it offensive and raised a grievance at work. DS was disciplined. When the Claimant was rostered to be working with DS he complained to his union representative because his grievance had been upheld, and was moved to another location without explanation.
The Claimant brought claims against the employer for harassment, victimisation and discrimination on the grounds of race because he felt it was vicariously liable. The tribunal found differently, and dismissed the claims on the basis that DS had not been acting ‘in the course of her employment’. She had not posted the image while at work, had not used work equipment to do it, the image had been shared amongst a private group (of which the Claimant had not been part) and had made no reference to the employer. The Claimant appealed on the grounds that 1) the image had been shared in the workplace, 2) the tribunal had been swayed by DS’s motive and whether she intended to cause offence, rather than the effect of the conduct, and that 3) the Respondent did not take all reasonable steps to prevent the discriminatory act from occurring.
The EAT found that DS had not acted in the course of her employment and the fact that they acted to discipline her for it, whilst not being an act carried out at work, was entirely appropriate and reasonable for them to do. Since the act was not done ‘in the course of employment’, the Respondent employer could not be held vicariously responsible and it renders the other arguments academic. However, the EAT went on to hold that there was no error by the tribunal as it took into account all the matters it was required to do, and that the Respondent had taken DS’s conduct seriously and given her a final written warning to prevent further discriminatory behaviour. The appeal was dismissed.
Disability Discrimination: Employers should make enquiries of an employee’s difficulties to avoid constructive knowledge
In A Ltd v Z  UKEAT/0273/18/BA the Claimant suffered from mental and psychological problems – stress, depression, low mood and schizophrenia, but she had not disclosed these to her employer as reasons for her absences from work, instead citing other health related reasons. At tribunal it was accepted that the Claimant was disabled for the purposes of the Equality Act 2010. The employer had dismissed her due to poor attendance and time-keeping, and whilst the tribunal found that the employer had no actual knowledge of her disability, it found that the employer should have made further enquiries into the reasons for her problems at work. The Claimant had not been forthcoming about her real problems and the employer had therefore not known anything more than she was having personal problems, from which she also suffered stress as a result. The Claimant’s s.15 Equality Act claim (i.e. discrimination because she was treated unfavourably due to her disability) succeeded on the basis that the employer had constructive knowledge of her disability.
The employer appealed. The EAT held that the tribunal had erred in only asking itself what process the employer might have been expected to follow, but then failed to address the critical issue of what the employer ought to have known. It reasoned that if the tribunal found that if the employer had made further enquiries the claimant would probably have continued to hide her real condition and refused a referral to Occupational Health, therefore the EAT held that making further enquiries would not have produced any further information and so the case for constructive knowledge was not made. The EAT upheld this part of the claim.
Agency Workers: Agency workers not entitled to same number of contractual hours as directly-recruited comparators
In Kocur v Angard Staffing Solutions Ltd and another  EWCA Civ 1185 the Claimant was an agency worker at Royal Mail’s Leeds Mail Centre where there was a core of permanent staff supplemented by agency staff. He alleged he did not receive the same rest breaks or hours of work as the permanent employees. The tribunal dismissed these claims but on appeal, the EAT allowed the claim regarding breaks but dismissed the claim regarding equivalent hours. The claimant took the matter to the Court of Appeal.
In making its decision, the Court of Appeal looked at the statutory language and underlying purpose of the Agency Workers Regulations 2010 and the Agency Workers Directive. It found there was nothing in the legislation to suggest that they were meant to regulate the amount of work that employers are to provide to agency workers, specifically drawing attention to regulation 6(1)(b) of the Agency Workers Regulations 2010 which includes the duration of working time as a relevant term and condition which it found was intended to refer to terms which set a maximum length for any such periods. Accordingly, the Court held that the legislation entitle agency workers to the same working conditions as directly-recruited comparators, but does not entitle them to the same number of hours.
TUPE: Obligation on transferee to keep and produce wage records for transferring employees
S.9 of the National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records, including where an employee’s employment has ceased. In Mears Homecare Limited v Bradburn and others  UKEAT 0170_18_0205 the Claimants served 10 production notices under s.10 of the National Minimum Wage Act 1998 requesting wage information from the Respondent for the preceding 12 months. Out of that 12 months, 9 were spent with the Respondent as the employer and 3 months where the transferee was the employer because a TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006 – “TUPE”) transfer had taken place. The Respondent (the transferor) failed to produce the information within the 14 days required and therefore the Claimants brought their claims before the tribunal, as they were entitled to do so. The tribunal upheld their complaints and awarded them each the sum of £600, payable by the Respondent because where there has been a relevant transfer under TUPE, the duty to maintain wage records stays with the transferor. The Respondent appealed.
The EAT overturned the decision. A transferor was not required to maintain such age records and therefore did not need to comply with the s.10 production notices. The EAT held that because under TUPE a person’s employment does not cease for the purposes of the NMWA. Their employment continues with the transferee. The liability transfers as well, therefore it is incumbent upon transferees to insist that, as part of the transfer agreement, pay records are also delivered by the transferor.
Right to Privacy: WhatsApp messages used in Police disciplinary proceedings
In BC and others v Chief Constable Police Service of Scotland and others  CSOH 2019, 28 June 2019 the Outer House of the Court of Session (Scotland) considered whether or not WhatsApp messages were capable of being used as evidence in misconduct proceedings. An officer, during a criminal investigation into sexual offences, had his smartphone confiscated and examined. Certain WhatsApp messages were discovered between a group of police officers. The messages were not used in that investigation but were subsequently used by the Police Service of Scotland (i.e. their employer) as a legal basis for bringing separate misconduct proceedings against a group of officers who were members of the chat group. The officers argued that it was a breach of their right to privacy under common law and Article 8 of the European Convention on Human Rights to use messages for a purpose collateral to the original investigation.
The court held that in normal circumstances there would be an expectation of privacy of individuals for any messages sent via WhatsApp. However, the police are subject to high professional standards which apply both when they are on and off duty. Thus, their expectation of privacy is limited. Failure to meet and comply with those standards would be likely to interfere with the impartial discharge of that officer’s duties or at least give that impression to the public, and this was the case here.
This is the first time that a Scottish court has expressly declared that there is a common law right to privacy in Scotland (in England the courts recognised and developed the concept of a common law right to privacy – this was most clearly seen in Campbell v MGN Ltd  2 AC 457), though this is a decision of the Outer House and therefore only of persuasive authority in the Court of Session and lower courts. It does not apply in England but it is useful to see how technology is permeating the law as its influence and reach grows, and this issue may yet be considered before the English courts.
ACAS: 2018-19 Annual Report Published
ACAS has recently published its latest Annual Report and Accounts for 2018-19. It discusses ACAS’s three strategic aims (below), how it has managed these over the last year and its plans to develop them more in the future.
- To advise on good practice in everyday working life
- To resolve disputes and manage conflict
- To influence employment policy and debate
There are also performance indicators showing how they have delivered against target over the last two years. It also includes figures showing where matters have been referred to ACAS for early conciliation from the tribunals, which are increasing year on year.
Equality: Gender Equality Roadmap published
On 3 July, Penny Mordaunt (Minister for Women and Equalities) launched the Government Equalities Office’s Roadmap for change: “Gender equality at every stage: a roadmap for change”. The plan is to financially empower women from school to retirement, by including measure such as a review of enforcement of equal pay legislation, and improved information for parents around family friendly entitlements. At the same time, the Women’s Business Council is to be refreshed. There will be a new chair – Fiona Dawson, the Global President of Mars Food, Multi-sales and Global Customers . The aim will be tackling individual sectors to ensure they are closing their gender pay gaps and at the same time that female staff have the same opportunities as their male counterparts.
Some of the proposals of the roadmap include:
- a consultation on strengthening measures to tackle sexual harassment (including clarifying the rules on third party harassment, exploring whether protections need to be extended to interns and volunteers,and considering whether to extend the three-month time limit for bringing discrimination and harassment claims)
- consulting on a new right to carers’ leave
- reviewing the enforcement of equal pay legislation
- assessing the effectiveness of gender pay gap reporting and consulting on any changes by 2021
- completing the government’s evaluation of the shared parental leave and pay scheme by the end of 2019, after which it will consider whether to modernise the existing system.
Health at Work: Joint government consultation to reduce job losses
This month, the Department for Work and Pensions and the Department of Health and Social Care launched a joint consultation: Health is everyone’s business: proposals for reducing ill health-related job loss. It sets out proposals which aim to reduce ill health-related job loss. Whilst the government sees that there is much more employers can do to support employees who are managing health conditions, or who are experiencing a period of sickness absence, it recognises that it can and should provide more help for employers, recognising the differences in employers’ capacity and capability to act.
Key proposals include:
- Improving the information and advice the government provides to employers.
- Improving the occupational health market and look at what financial support the government could provide to improve access to occupational health for smaller businesses.
- Encouraging early and supportive action by employers for their employees with health conditions.
- A new right for non-disabled employees to request workplace modifications to assist their return from sick leave, supported by a new Code of Practice and enforceable in the employment tribunal.
- Reforms to the statutory sick pay system, including pro rata payments for phased return to work after sickness absence, changing eligibility requirements.
The consultation seeks views on measures to reduce ill health-related job loss with the emphasis on employers taking more responsibility and having more involvement. You can submit your views online, without having to answer all the questions, here: https://getinvolved.dwp.gov.uk/work-and-health/consultation/. The consultation closes on 7 October 2019.
Employment Rights: ‘Good Work’ continues – new consultation on enforcement body for employment rights
On 16 July 2019, BEIS published a consultation (‘Good Work Plan: establishing a new Single Enforcement Body for employment rights’) on its proposal to change the way employment rights are enforced and therefore protected by creating a single enforcement body. At the moment, the enforcement of employment rights are carried out by the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority, HM Revenue and Customs and the Health and Safety Executive. The Director of Labour Market Enforcement oversees the enforcement priorities of the first three, but not the HSE.There are also other areas, such as umbrella companies and holiday pay for vulnerable workers which it would seek to enforce.
The government recognises that moving to a single body risks losing the benefits of specialisation and expertise built up in existing bodies. There would therefore be a transitional period while the new body becomes fully operational. It also cites the examples of other bodies which have combined to produce more powerful single entities: the National Crime Agency and the Competition and Markets Authority.
Among other things, the consultation also seeks views on:
- should the single body have a role in enforcing rights in relation to statutory sick pay, supporting the Equality and Human Rights Commission and a role in enforcing unpaid tribunal awards;
- extending the civil penalties regime used to enforce payment of the national minimum wage;
- transparency in supply chains;
- enforcing joint responsibility for labour market breaches.
You can respond online or by contacting BEIS. See the link here: https://www.gov.uk/government/consultations/good-work-plan-establishing-a-new-single-enforcement-body-for-employment-rights. The consultation closes on 6 October 2019.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – March 2019
- TUPE: Dismissal due to difficult working relationship may be automatically unfair
- Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
- Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
- Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
- Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
- Indirect Discrimination: Justification of rule more important than application of rule to individual
- Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
- BREXIT: ICO website contains SME Brexit preparation tools
- Data Protection: Vote Leave Ltd fined £40,000 by ICO
- Immigration: Seasonal workers pilot opens
- Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
- Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
- Wages: National Minimum Wage and National Living Wage set to increase from 1 April
TUPE: Can a dismissal due to difficult working relationship be automatically unfair?
In Hare Wines Ltd v Kaur  EWCA Civ 216 the question before the Court of Appeal was whether the Claimant’s dismissal for purely ‘personal reasons’, was a sufficient reason to prevent the dismissal from being automatically unfair as it related to a TUPE transfer. In this case, Mrs Kaur was a cashier for a wine wholesaler, which had been run by several different businesses during the time she had worked there, with common directors/shareholders. In 2014, the business was transferred under TUPE to Hare Wines Ltd. Mrs Kaur and Mr Chatha were colleagues with a strained working relationship. Mr Chatha became a director of Hare Wines Ltd. On the day of the transfer, Mrs Kaur was dismissed, and all the rest of the employees transferred under TUPE to Hare Wines Ltd. Mrs Kaur claimed this was automatically unfair as it was related to the transfer, and the tribunal agreed.
Hare Wines Ltd argued that Mrs Kaur had objected to the transfer because she did not wish to work with Mr Chatha, who was to become a director. However, the tribunal held that this was not the case, and that the real reason was that the business did not want her because it may have continuing difficulties between the individuals. On appeal to the EAT and then the Court of Appeal, the tribunal’s finding that she had not objected was upheld and that the reason for the dismissal was not that she had been dismissed because of her difficulties with Mr Chatha with the transfer being coincidental, it was that the employer did not want her because she and Mr Chatha did not get on. This was the principal reason. The relationship had been strained for some time and she had not been dismissed until the transfer was to happen, therefore the two were linked. The Court of Appeal noted that dismissals for economic, technical or organisational (aka ‘ETO’) reasons connected with transfers can be fair, but the law does not recognise any category of ‘personal’ reason for dismissal as preventing a transfer-related dismissal from being automatically unfair.
Contract: When ‘Bad Leaver’ provisions may be considered a penalty or an unlawful deduction from wages
In Nosworthy v Instinctif Partners Ltd UKEAT/0100/18, Miss Nosworthy had entered in to a Share Purchase Agreement and Articles of Association with the company, which contained some common bad leaver conditions. The conditions meant that a shareholder who is also an employee who voluntarily resigns is considered to be a bad leaver . In this case, the bad leaver provisions meant that when Miss Nosworthy resigned she was forced to forfeit deferred earn-out shares and loan notes – i.e. transfer her shares – with the value of the shares being determined at the acquisition cost (which was £143 for her 2% share). Miss Nosworthy claimed this forced transfer was a contract connected with employment and therefore could be considered to be unconscionable, a penalty or an unlawful deduction from wages
The tribunal disagreed, and this finding was upheld by the EAT. The criteria for setting aside an agreement as unconscionable were not satisfied – there had been no serious disadvantage. It was not a penalty as a result of a breach of contract, because it was a term of the Articles of Association which applied to any bad leaver, regardless of breach, and was not a breach of contract. Furthermore, the company’s remuneration committee, which had the power to reclassify her as a good leaver, had not failed to exercise its discretion in good faith because there were no exceptional circumstances for it to take into account. Lastly, it was not an unlawful deduction from wages, because the definition only covers payments made in respect of her capacity as a worker, whereas the shares were provided to her as a shareholder.
Employment Status: Is a quarterly ‘exclusivity’ payment evidence that an individual is an employee?
In Exmoor Ales Ltd & Another v Herriot UKEAT/0075/18/RN theEAT Mrs Herriot had provided accountancy services for Exmoor Ales, a brewery, for nearly three decades, submitting invoices from her partnership. Since 2011, the brewery had paid her £1,000 each quarter, which Mrs Herriot claimed was an exclusivity payment, but which the respondents denied. In 2017 Mrs Herriot brought claims against the brewery just before her work relationship with it ended. The claims were for unfair dismissal, age discrimination, holiday pay, failure to provide a statement of written particulars of employment, harassment and victimisation.
The tribunal found, on the evidence, that the quarterly payment did indeed change the nature of the relationship from that point onwards and that she did in fact, stop working for other clients. The brewery had also given her allocated seating in their premises, she was fully integrated into their business, and exercised a high level of control over her whilst at work. It was also noted that there was mutuality of obligations between the parties from April 2011 onwards, and she had no right to appoint a substitute. The tribunal therefore held that until that time, Mrs Herriot had been an independent contractor providing accountancy services to the brewery but after the quarterly payments started, she was in actual fact an employee.
The brewery appealed arguing that the tribunal had not looked at all the relevant factors on employment status, including her tax arrangements, and that she had prepared employment contracts for other staff but not herself, and was not a member of the employee share scheme. These were rejected by the EAT, however, because the tribunal had considered these elements but found the factors highlighted by it had overridden those identified by the Respondents. In this instance, the quarterly exclusivity payment had been an influencing factor although in reality it was the effect it had on their respective behaviours that led the tribunal and EAT to find her to be a de facto employee.
Worker Status: Pimlico plumber ‘worker’ loses holiday pay claim
Last year the Supreme Court ruled in Pimlico Plumbers Ltd & Another v Smith that the plumbers had been employed by Pimlico Plumbers as workers rather than being hired as independent contractors. As workers, this meant they were entitled to some basic employment rights such as the right to be paid the national minimum wage and holiday pay. At the end of his successful seven year battle with Pimlico Plumbers, Mr Smith began proceedings in the Croydon employment tribunal for backdated holiday pay. However, the tribunal ruled that he had not filed his claim quickly enough – the regulations state that claims for missed pay should be filed within 3 months of each holiday period, dating back to 2005. His claim amounted to £74,000. He is going to appeal this decision because he did not know he was entitled to paid leave while he was employed by Pimlico Plumbers so did not bring a claim until after his contract was terminated in May 2011.
Equality Act: Is it unfair to send woman on maternity leave an important email she cannot access?
In South West Yorkshire Partnership NHS Foundation Trust v Jackson UKEAT/0090/18/BA the claimant was on maternity leave when she became part of a number of staff at risk of redundancy who were then sent an email by the HR department to their work email addresses, which the claimant could not access, setting out redeployment opportunities. She was not able to open the email for several days but this in itself did not cause her substantial harm. However, it raised a legitimate concern that such behaviour was unfavourable treatment (s.18(4) of the Equality Act) because she was exercising her right to take maternity leave, and it is on this ground that she made a claim.
The tribunal upheld her claim. However, the EAT found that the tribunal had erred in its approach to the causation test. Although the unfavourable treatment would not have happened “but for” the fact that the Claimant was on maternity leave, the tribunal had not considered whether this was the “reason why” she had been treated unfavourably. There was no finding by the tribunal as to why the Claimant was not able to access her emails, as she had in fact attended a meeting a few days before despite being on maternity leave.
Mr Justice Shanks said, the “ET must ask itself the standard “reason why” question in relation to why the unfavourable treatment took place and that it is not sufficient for the “but for” test to be satisfied for there to be a finding of discrimination under section 18.” He went on to say that it did not seem as if the tribunal had found that the characteristic of being on maternity leave had been on anyone’s mind, nor had the tribunal decided that an inherently discriminatory rule had been applied in this case. It seems to have been pure administrative error and therefore the test used by the tribunal was that ‘but for being on maternity leave, the Claimant would not have been disadvantaged’, which was not sufficient for a finding of discrimination. As a result the case was remitted back to the tribunal for further findings.
Contract: Suspending an employee does not always breach the implied term of trust and confidence
In The Mayor and Burgesses of the London Borough of Lambeth v Agoreyo  EWCA Civ 322 a primary school teacher was accused of using excessive force with two pupils with special educational needs, and suspended pending investigation as a result. The teacher, Ms Agoreyo, resigned the same day. She claimed that the suspension had been a knee-jerk reaction and that an investigation did not require suspension. The suspension was a repudiatory breach of contract – a breach of the implied term of mutual trust and confidence between them, and she was entitled to resign and claim constructive dismissal.
At first instance, the County Court found that the school had reasonable and proper cause for her suspension. The claim was dismissed. Ms Agoreyo appealed. The High Court allowed the appeal on the basis that suspension should not be the default option – an individual should be suspended only if there is no reasonable alternative. The school had said the suspension was a neutral act but the High Court disagreed and said that it is never a neutral act. Ms Agoreyo’s resignation letter neither negated nor undermined the case on breach of the implied term as to trust and confidence.
On further appeal however, the Court of Appeal agreed with the County Court, and held there was no breach of trust and confidence. It found the High Court had erred in its test of whether it was necessaryto suspend was setting the bar too high and the correct legal test was whether the school had had reasonable and proper cause to suspend Ms Agoreyo. The County Court judge was entitled to hold that it did and Ms Agoreyo’s claim that her suspension was a breach of contract failed.
Indirect Discrimination: Justification of rule more important than application of rule to individual
In The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey UKEAT/0171/18/JOJ a bus company had instituted a rule in the rostering system that bus drivers had to work 5 out of 7 days, including Saturdays or Sundays. Mr Harvey was a Seventh Day Adventist who asked not to work between sunset on Friday and sunset on Saturday so that he could observe the Sabbath. The bus company had given him a service that was able to take this into account but it was not a permanent arrangement and so he subsequently had to swap shifts or call in absent from work on the days when he was required to work a shift on Friday evening or Saturday daytime. They had also offered him flexible working but in the meantime he had brought a claim of indirect discrimination on the grounds of religion or belief.
The bus company argued that it feared that if it agreed to this as a permanent arrangement, more drivers would ask for time off for other religious reasons, particularly events and festivals, and this might result in industrial unrest. At tribunal it was accepted that the bus company’s working arrangements imposed a ‘provision, criterion or practice’ (“PCP”) that placed Mr Harvey at a disadvantage. So, the question then was, whether the PCP was a proportionate means of achieving a legitimate aim. The tribunal found that the bus company had established legitimate aims of ensuring efficiency, fairness to all staff, and recruitment and retention. In upholding Mr Harvey’s claim, however, the tribunal ruled that the PCP was not justified becausethere was insufficient evidence to support one of the legitimate aims – maintaining a ‘harmonious workforce’.
On appeal to the EAT the decision was overturned the decision. It was incorrect of the tribunal to focus on the particular application of the rule on the claimant rather than the general justification for the rule. The tribunal had recognised that the bus company’s problems arose not from granting the Mr Harvey’s request, but from granting many such requests, and in doing so meant it had failed to balance the general aims of the bus company with the potentially discriminatory impact of the rule. The judge remitted the case back to the original tribunal to reconsider this issue.
Data Protection: ICO and Insolvency Service work together to disqualify directors in new record
The Information Commissioner’s Office (ICO) has carried out investigations into nuisance marketing which, by working with the Insolvency Service, has led to 16 company directors being banned from running a company for more than 100 years in total. One of the worst offenders was Richard Jones who has been barred from being a company director for eight years after his two companies, Your Money Rights Ltd and Miss-Sold Products UK Ltd were responsible for 220 million automated nuisance calls, most of which were in respect of PPI claims. The companies’ breaches resulted in total fines of £700,000 in 2017, which Mr Jones then tried to avoid by applying to wind up the companies. This was blocked by the ICO which then referred the case on to the Insolvency Service.
New legislation which came into force in December 2018 means that the ICO now has powers to make company directors and other company officers personally liable for the fines imposed for illegal marketing.
BREXIT: ICO website contains SME Brexit preparation tools
Who knows what the next few weeks have in store, but that’s not very helpful for businesses. Whilst most businesses may well be more prepared than the government, the ICO has produced guidance and practical tools to help organisations prepare in terms of their data, including: Data Protection and Brexit Law enforcement processing: Five steps to take, Data protection in the event of a no-deal Brexit, aimed at UK based businesses or organisations to which the GDPR or Part 3 of the Data Protection Act 2018 currently applies to their processing of personal data.
Data Protection: Vote Leave Ltd fined £40,000 by ICO
Vote Leave Limited has recently been fined £40,000 by the Information Commissioner’s Office (ICO) for sending out thousands of unsolicited text messages run up to the 2016 EU referendum. An ICO investigation found that Vote Leave sent 196,154 text messages promoting the aims of the Leave campaign with the majority containing a link to its website. Vote Leave claimed the contact information it had used to message people was obtained from enquiries which had come through their website; from individuals who had responded via text to promotional leaflets; and from entrants to a football competition. However, the organisation said that following the conclusion of the referendum campaign it had deleted evidence of the consent relied upon to send the messages. Also deleted were details of the phone numbers the messages were sent from, the volume of messages sent, and the volume of messages received. Being unable to provide evidence that the people who received the messages had given their consent (a key requirement of electronic marketing law) made them liable for this fine.
This latest fine is part of the ICO’s ongoing investigation into the use of data in political campaigns. As a result of the investigation the ICO has taken action against a number of different organisations engaged in campaigning for breaches of direct marketing and data protection laws.
Immigration: Seasonal workers’ pilot opens
In September 2018, the Home Secretary and Environment Secretary announced that, having listened to farmers, they were introducing a nationwide pilot scheme seasonal workers to bring seasonal migrant workers to UK farms. The pilot opened on 6 March meaning that UK fruit and vegetable farmers will be able to employ migrant workers for seasonal work for up to 6 months. Subject to recruitment and visa application processes, the pilot, which runs until the end of December 2020, will allow up to 2,500 workers from outside the EU into the UK each year. Concordia and Pro-Force are the two scheme operators who have been licensed to manage the pilot. It is their responsibility to identify suitable workers who they will then match to UK farmers, as well as ensuring the welfare of the workers whilst they are in the UK.
The aim is to test the effectiveness of the immigration system at alleviating labour shortages during peak production periods.The pilot will be reviewed before any decisions are taken on running a future scheme.
Modern Slavery: Annual anti-slavery audit will result in naming and shaming the non-compliers
In October 2018, the Home Office was moved to action following pressure from numerous groups frustrated by what they see as ‘blatant compliance failures’. It began with the Home Office writing directly to the chief executives of 17,000 businesses telling them to open up about modern slavery in their supply chains, or risk being named as in breach of the Modern Slavery Act. The letter gave the companies a grace period to comply – which ends on 31 March 2019.
Those businesses which do not comply by the deadline date will be “named and shamed” in a public report. The ‘naming and shaming’ is seen as a prelude to strengthening the reporting requirements under the legislation and, possibly, introducing sanctions for non-compliance.
The government reports that:
Businesses with a turnover of more than £36 million must publish annual transparency statements, known as a Modern Slavery Statement, setting out what they are doing to stop modern slavery and forced labour practices occurring in their business and supply chains. At the moment, it is estimated that 60% of companies in scope have published a statement. Whilst there are many examples of good practice, some of these statements are poor in quality or fail to even meet the basic legal requirements.
Holiday Pay: BEIS publishes guidance and online calculator for workers without fixed hours/pay
The Department for Business, Energy and Industrial Strategy (BEIS) has published guidance and an online calculator on how to calculate holiday pay for workers whose hours or pay are not fixed. This guidance is intended to help employers pay the correct amount of holiday pay for all their workers.
In simple terms, the Working Time Regulations 1998 mean that almost all workers are legally entitled to 5.6 weeks’ paid holiday per year, with the pay being calculated based on the amount of hours they work and how they are paid for those hours. For workers who do not work fixed or regular hours, and therefore do not receive the same amount of pay each week, month or other pay period, it can be more complicated. This guidance helps employers calculate holiday for such workers, using the holiday pay reference period (a worker’s previous 12 week paid period) and gives examples of what to do if you don’t have 12 weeks of data, when the reference period starts, what the definition of week is, etc.
Wages: National Minimum Wage and National Living Wage set to increase from 1 April
In the Budget 2018, in response to the Low Pay Commission’s recommendations the Chancellor, Philip Hammond, announced new National Minimum/Living Wageincreases from 1 April 2019 as follows:
- from £7.83 to £8.21 for workers aged 25 and over (the National Living Wage)
- from £7.38 to £7.70 for 21-24 year olds
- from £5.90 to £6.15 for 18-20 year olds
- from £4.20 to £4.35 for 16-17 year olds
- from £3.70 to £3.90 for apprentices aged under 19 or in the first year of their apprenticeship.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.