- Disability Discrimination: Dismissal for poor performance was not disability discrimination
- Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
- Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
- Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
- Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
- Autumn Budget: Key employment law points
- Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
- Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
- Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
- Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
- Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Disability Discrimination: Dismissal for poor performance is not disability discrimination
In Stott v Ralli Ltd  UKEAT 2019-000772, the EAT has upheld a tribunal’s decision that the dismissal of a paralegal for poor performance was not an act of discrimination arising from disability (a mental health impairment) contrary to section 15 of the Equality Act 2010 (EqA 2010).
The claim had been brought solely in relation to the claimant’s dismissal and the tribunal had been entitled to find that the respondent did not have knowledge (actual or constructive) of the claimant’s disability before the dismissal. Further, the tribunal had correctly directed itself in relation to the justification defence and had made sufficient findings of fact to support its conclusion that the defence had been made out.
In relation to knowledge, the claimant argued that the tribunal should have regarded the grievance she brought after her dismi ssal, and her appeal from the outcome of the grievance, as an integral part of the dismissal process. She submitted that the tribunal should have found that, by the end of that process, the respondent had knowledge of her disability. She relied on the EAT’s decision in Baldeh v Churches Housing Association of Dudley and District Ltd UKEAT/0290/18, which held that, where an employer had not known about an employee’s disability at the time of their dismissal but had been told about it at an appeal hearing, the dismissal could be discriminatory under section 15 of the EqA 2010.
The EAT noted that, for the purposes of an unfair dismissal claim, dismissal is regarded as a process which includes the appeal stage. It held that Baldeh does not establish any legal principle to the effect that the same approach universally applies in a discrimination claim. The approach in Baldeh was in fact similar to that in CLFIS (UK) Ltd v Reynolds  ICR 1010 in which it was held that a claim that a decision to dismiss was discriminatory, and a claim that a decision on appeal was discriminatory, were distinct claims which must be raised and considered separately. The claimant in this case had not brought a claim of disability discrimination in relation to her grievance; her claim was limited to the respondent’s dismissal decision.
Whistleblowing: It is not automatically unfair to dismiss for redundancy based on reasons materially influenced by protected disclosures
In Secure Care UK Limited v Mott  EA-2019-000977-AT, the EAT had to consider whether a dismissal by reason of redundancy (carried out after the employee had made protected disclosures) would be automatically unfair if the decision to dismiss had been ‘materially influenced’ by such disclosures. The EAT held that it would not.
The claimant was employed by the respondent as a logistics manager, providing transport services for NHS patients with mental health issues, including those detained under the Mental Health Act. He made nine protected disclosures about his employer (including insufficient staffing levels), who subsequently made him redundant. The claimant claimed under section 103A Employment Rights Act 1996 that he had been unfairly dismissed by reason of making protected disclosures. The tribunal, finding that three of the nine communications relied upon by the claimant were protected disclosures, upheld his claim, stating that while there was a genuine redundancy situation, the disclosures made by the claimant had had a material impact on his selection.
At appeal the case was remitted on the issue of causation as the EAT found that the tribunal had erred in two respects. Firstly, in applying the wrong causation test, namely the ‘materially influences’ test applicable to section 47B claims for detriment by reason of making a protected disclosure (Fecitt v NHS Manchester  ICR 372), rather than the ‘sole or principal reason’ test required by the terms of section 103A. Secondly, in failing to distinguish the impact of the three protected disclosures, from the impact of all nine of the claimant’s communications about staffing levels, when considering the reason for the dismissal.
Unfair Dismissal: Employee must be allowed chance to respond to allegation relied upon in disciplinary hearing
In London Borough of Hammersmith and Fulham v Keable  UKEAT 2019-000733 the EAT had to consider a Council employee who had been dismissed for serious misconduct arising out of comments he made in a conversation with another individual when they each attended different rallies outside Parliament in his time off. The employee was pulled into a disciplinary process because, although his role at the Council was non-political, the conversation had been about events around the time of the Haavara Agreement of 1933 prior to WWII. Not only had the words spoken included reference to anti-Semitism, Nazis and the Holocaust, but it had been filmed and made its way around social media, resulting in an MP tweeting about it and identifying the claimant as a Labour Party member and Momentum organiser. Once identified as a Council employee, the MP caused the respondent to investigate and a disciplinary process was begun, following which, the claimant was dismissed for serious misconduct. The claimant had never known about the video or been told which specific allegation had led to his dismissal. He brought a claim of unfair dismissal.
At tribunal, the judge determined that the dismissal was both procedurally and substantively unfair. She made an order for reinstatement. The respondent employer appealed.
In dismissing the appeals, the EAT found that the tribunal judge was entitled to conclude that the dismissal was unfair. She concluded that there were relevant and significant errors in the procedure adopted by the Council employer, including the fact that the claimant was not informed of the specific allegation which led to his dismissal and the fact that the possibility of a lesser sanction, a warning, was not discussed with him. In reaching her conclusions the Judge did not substitute her own views for that of the employer. Whilst the Judge should have raised a relevant authority with the parties, on the facts of this case, that did not vitiate the decision. As to remedy, on the evidence before her, the Judge was entitled to conclude that reinstatement was practicable and to make the order she did. It was noted that in conduct cases, re-instatement can be ordered even if the dismissing manager genuinely believed misconduct had occurred; a conduct dismissal does not automatically mean that re-instatement is impracticable.
Unfair Dismissal: Tribunal cannot impose reason for dismissal not raised by parties
In Stone v Burflex (Scaffolding) Ltd  UKEAT 2019 001183 the appellant raised a grievance about his level of pay; following a meeting with the respondent’s management he was summarily dismissed. The appellant brought a claim for unfair dismissal under s.104 of the Employment Rights Act 1996 (ERA). The respondent’s primary case had been that he was not dismissed but had resigned. The employment judge found that the appellant had been dismissed. The employment judge decided that he had not asserted a statutory right (namely the right not to suffer unauthorised deductions from pay) and that the principal reason for his dismissal was not such an assertion but related to the availability of work and was the withdrawal of a concession to provide him with alternative work and was therefore redundancy or some other substantial reason.
The EAT considered that, on all the evidence, the finding that the appellant had not asserted a statutory right was perverse and so it substituted a finding to the contrary. The finding as to the reason for dismissal involved errors of law in that (a) the employment judge had not asked himself why the respondent had decided to withdraw the concession, and (b) the employment judge had identified a reason for dismissal which neither party had contended for without raising the matter with the parties before making a decision, when there were a number of submissions the appellant might have made if the matter had been raised (in particular relating to s.105 ERA).
Human Rights: Conduct at preliminary hearing held in private does not form part of claimant’s private life and engage Article 8
In Ameyaw v PricewaterhouseCoopers Services Ltd  UKEAT 2019-000480, the EAT held that a tribunal had not erred in law by refusing a claimant’s application for an anonymity or restriction order under rule 50 of the Employment Tribunal Rules of Procedure 2013 (ET Rules) and had correctly held that her rights under Article 8 of the European Convention on Human Rights (ECHR) were not engaged.
The claimant had previously brought another rule 50 application as part of wide-ranging litigation against her former employer. This appeal concerned her application for an order that her identity be anonymised or that the contents of the reasons for an order made by an employment judge at a private preliminary hearing not be disclosed to the public. The reasons recorded the disruptive behaviour of her and her mother, and she was concerned about harm to her reputation. The EAT agreed with the tribunal that the claimant’s Article 8 rights were not engaged, for the following reasons:
- The claimant was not relying on conduct external to the legal proceedings and forming part of her private life, but conduct at a hearing recorded in writen reasons issued by the tribunal.
- Conduct at a tribunal hearing must not be taken to form part of a claimant’s private life protected by Article 8, even if members of the public are excluded from the hearing. A private hearing should not be conflated with the sphere of a claimant’s private life; the two are not the same.
- The claimant had no reasonable expectation of privacy in relation to her conduct at the hearing. A reasonable person of oridnary sensibilities would not consider the public disclosure of the nature of their conduct at a hearing, even a private one, to be offensive. It was a foreseeable conseuqence that a claimant who misconducts themselves at a hearing will have the nature andextent of their misconduct set out in the tribunal’s decision.
The EAT concluded that, even if Article 8 were engaged, the tribunal was correct to find that the balancing exercise was against the making of an order under rule 50 and in favour of the open justice principle.
Autumn Budget: Key employment law points
On 27 October 2021, the Chancellor, Rishi Sunak, delivered the Autumn 2021 Budget. The government has wound down much of the emergency support it put in place to deal with the COVID-19 pandemic and the budget announcements address the government’s shift in focus to economic recovery. We set out below the salient points in relation to employment.
Ongoing risks from COVID-19
It is noted that risks remain from COVID-19, especially through the coming months. On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan which sets out how, through use of Plans A and B, it intends to address the challenges that may be posed by COVID-19 over the autumn and winter period. It is suggested that the government is monitoring the data closely and will only introduce further measures if needed.
Skills and apprenticeships
On 4 October 2021, the Chancellor announced a £500 million expansion of the government’s Plan for Jobs initiative which would target support to workers leaving the furlough scheme, the unemployed aged over 50, the lowest paid and young people. The Chancellor announced further investment intended to boost opportunities for people to upskill and retrain, and an increase in apprenticeships funding. In particular, there will be increased funding for the National Skills Fund to expand the Lifetime Skills Guarantee so more adults in England can access funding for in-demand Level 3 courses and Skills Bootcamps will be scaled up.
As a result of increased apprenticeships funding, the government will continue to meet 95% of the apprenticeship training cost for employers who do not pay the apprenticeship levy and will deliver apprenticeship system improvements for all employers. These include:
- An enhanced recruitment service by May 2022 for small and medium-sized enterprises (SMEs), helping them hire new apprentices.
- Supporting flexible apprenticeship training models to ensure that apprenticeship training continues to meet employers’ needs. By April 2022, the government will consider changes to the provider payment profiles aimed at giving employers more choice over how the apprenticeship training is delivered and explore the streamlining of existing additional employer support payments so that they go directly to employers.
- Introducing a return-on-investment tool in October 2022 to ensure employers can see the benefits apprentices create in their business.
The Chancellor confirmed the extension of the £3,000 apprentice hiring incentive for employers until 31 January 2022 and announced investment in the Sector Based Work Academy Programme (SWAPs) which give unemployed people the opportunity to undertake work experience, learn new skills and retrain into high-demand sectors in their local area.
National minimum wage
On 3 March 2021, the government published its remit for the Low Pay Commission (LPC) for 2021. The remit asks the LPC to make recommendations for the National Living Wage (NLW) and National Minimum Wage (NMW) rates that should apply from April 2022. The LPC submitted its recommendations on 22 October 2021 and these were accepted by the government.
The Chancellor announced that the following rates (per hour) will apply from 1 April 2022:
- NLW for those over 23: from £8.91 to £9.50.
- NMW for those aged 21 to 22: from £8.36 to £9.18.
- NMW for those aged 18 to 20: from £6.56 to £6.83.
- NMW for those aged under 18: from £4.62 to £4.81.
- Apprentice Rate: from £4.30 to £4.81.
- Accommodation offset rate: from £8.36 to £8.70.
Workers who live in their employer’s family home, are treated as a member of the family and are not charged for food or accommodation do not qualify for the NMW (regulation 57, National Minimum Wage Regulations 2015 (SI 2015/621)). In submitting its recommendations, the LPC noted that this exemption, which was introduced to facilitate au pair placements, has given rise to longstanding concerns that it has provided a loophole for the exploitation of migrant domestic workers. The LPC recommends that the exemption is removed.
Contracts: Government blocks “fire and rehire” bill but encourages ACAS to produce guidance instead
The BBC reported on 22 October that the government has blocked a Private Member’s Bill which aimed to curb the practice of “fire and rehire” that has been the subject of recent high-profile disputes. Employers who wish to make detrimental changes to employees’ terms and conditions will, in the absence of employees agreeing to those changes, dismiss them and offer to re-engage them on the detrimental terms.
On 8 June 2021, responding to a report published by ACAS, the government stated that it would not yet legislate to prevent this practice but had requested that ACAS prepare more detailed guidance on how and when dismissal and re-engagement should be used.
Labour MP Barry Gardiner sponsored the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill which would discourage the use of fire and rehire practices and grant additional protection to those affected by it. The government ordered Conservative MPs to oppose the Bill at its second reading on 22 October 2021, as reported in Hansard. While it regards the practice as “unacceptable as a negotiating tactic“, the government intends to await the ACAS guidance. ACAS duly obliged by publishing this new guidance on 11 November 2021.
Working From Home: Employer monitoring of homeworkers prompts calls for strengthened regulation
On 5 November 2021, the BBC reported how some employers are monitoring their employees at home. The trade union, Prospect, has called for the regulation of employer’s use of technology to monitor employees to be strengthened. This comes as new polling suggests that nearly a third (32%) of employees working from home are being monitored by their employers, rising to nearly half (48%) for younger employees aged 18 to 34. The poll also shows that monitoring of homeworkers by camera has more than doubled since April 2021, from 5% to 13%. In addition to strengthened regulation, Prospect has called for the monitoring of employees through webcams to be made illegal, except during calls and meetings. This follows a recent consultation by the Information Commissioner’s Office (ICO) for views to inform new data protection and employee practices guidance, including to reflect changes in the way employers use technology, which will replace the existing Employment Practices Code.
Artificial Intelligence: New AI legislation proposed to counter negative impacts of use of surveillance technologies on workers
The All-Party Parliamentary Group (APPG) on the future of work published a report on 11 November 2021 that calls for an “Accountability for Algorithms Act (the AAA)” to curb employers’ use of technologies that monitor workers and setting performance targets determined by algorithms. The AAA is proposed to counter the negative impacts of the use of surveillance technologies which has increased significantly during the COVID-19 pandemic.
The report found that workers’ experience of these technologies amounts to “extreme pressure of constant, real-time micro-management and automated assessment“, and the APPG is particularly concerned about the impact this has on workers’ mental health and wellbeing. The report suggests the AAA would create a new corporate and public duty to undertake an “Algorithmic Impact Assessment“. It would also update digital protection for workers, offer additional collective rights for unions and specialist third sector organisations, and extend enforcement powers to the joint Digital Regulation Cooperation Forum (DRCF).
On 19 November 2021, People Management published its exploration of the contents of the proposed Accountability for Algorithms Act, and what it might mean for employers. For a more in depth review, read the full article here: How new artificial intelligence legislation affects businesses.
Gender Pay Gap: Analysis of 2021 GPG figures shows slight narrowing of gap
On 15 November Personnel Today reported that PwC’s analysis of the most recent gender pay gap statistics shows a minimal decline of the gap from 13.3% in 2019/2020 to 13.1% in 2020/2021. According to PwC, the changes to the reporting deadline, due to the COVID-19 pandemic, impacted the disclosure rate significantly. Only a quarter of the employers that reported this year did so by the original reporting deadline of 5 April 2021. Analysis of those figures showed a decrease in the gender pay gap to 12.5%. By the extended deadline of 5 October 2021, 80% of the employers that reported in 2018/2019 had submitted their figures and the gap had risen to 13.1%. When the figures were released by ONS they noted comparisons ought be treated delicately due to the impact the pandemic had on wages and hours worked. PwC repeated this concern and added that the slight decrease in the gap, while positive, may be “masking other workforce patterns that are detrimental to gender diversity and inclusion in the workplace“.
Mental Health: Conflicted workers struggling with childcare responsibilities can be more productive with support and flexibility
Research carried out by Dr Deng at Durham Business School, and colleagues from other universities around the world, has found that parents who feel ashamed when something at work calls into question their parenting role, are less productive than those who do not feel ashamed. It also showed that staff struggling to balance work and parental responsibilities inevitably prioritise family commitments, at the expense of their work commitments. Those parents who already had lower levels of emotional stability were more likely to feel that their identity as a parent was under threat.
“Working parents not only experience pressure to exemplify an ‘ideal’ worker role, but they are also expected to engage in intensive parenting practices to raise successful children. Although the roles can complement each other, many find achieving this balance challenging, and therefore end up prioritising childcare as it is deemed more important.”Dr Deng
Dr Deng and colleagues explained that in today’s remote working world, the lines between professional and personal responsibilities are becoming blurred. More often than not, working parents are struggling to cope with the pressure of juggling the two, something which has been highlighted by the pandemic.
All is not lost though, as more and more organisations are finding out, good mental health is the cornerstone to a healthy and productive workforce. To help working parents tackle this imbalance, Dr Deng suggests organisations can, and should, be doing more to help their workers balance both their working role and their parental role too, saying:
“Organisations can train managers to recognise when employees are struggling with these issues, and work through those vulnerabilities by helping them to identify ways to proactively bounce back from their self-despair without withdrawing from their work roles.”Dr Deng
Dr Deng also suggests employers can also help employees further by giving them more flexibility to attend to their children’s needs, in exchange for employers gaining more focused and hardworking employees whilst on the job.
Speaking to People Management, Simon Kelleher, head of policy and influencing at Working Families said that flexible working practices are often beneficial for productivity and talent retention, but called on the government to deliver on the recent flexible working consultation.
“We continually hear from working parents and carers who are denied even modest flexible working requests and are having to make unenviable trade-offs to manage from going into debt to pay for childcare or leaving careers they had worked hard to build due to inflexibility,” he said.Simon Kelleher, Working Families
Currently, the law only allows for employees to take a ‘reasonable’ (which is undefined) amount of unpaid time off for unexpected events involving dependents. Some employers may provide further contractual benefits but this is entirely at the employer’s discretion.Simon
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
- COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
- COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
- Contract: Employer liable to pay income protection payments not covered by insurance
- Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
- COVID-19: Adjusted Right to Work checks extended until April 2022
- COVID-19: Government publishes Autumn and Winter Plan: employment aspects
- National Insurance: Increase to pay for health and social care
- Immigration: Changes to UK Immigration Rules announced
- Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
- Flexible Working: Consultation published on making flexible working a “day one” right for employees
- Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
COVID-19: Employee able to proceed with victimisation claim concerning employer’s failure to furlough him
An employment tribunal has allowed an employee’s victimisation claim that his employer subjected him to a detriment contrary to section 27 of the Equality Act 2010 (EqA 2010) by not furloughing him under the Coronavirus Job Retention Scheme (CJRS) to proceed, as amended. The employee’s other claims and proposed amendments were struck out or not allowed.
In Jimenez v Firmdale Hotels Plc ET/2203194/2020 (12 February 2021) Mr Jimenez had previously brought various claims against his employer, Firmdale Hotels Plc (Firmdale). These claims were dismissed following a final hearing in March 2021. The outcome of that hearing was unknown at the time that the preliminary judgment in the present case was handed down. However, it was not disputed that presentation of the earlier claims was a protected act within the meaning of section 27 EqA 2010. It was also not disputed that Mr Jimenez was excluded from the group of employees furloughed by Firmdale under the CJRS, whether in late March 2020 or subsequently. His exclusion was because he was on long-term sick leave and not in receipt of Statutory Sick Pay, meaning that Firmdale considered him “ineligible” under the CJRS. It subsequently considered it too late to furlough him because he had not been furloughed before June 2020.
Without purporting to make a judicial determination of the point, the employment judge at the preliminary hearing considered that Firmdale was mistaken in its understanding of the CJRS and could have furloughed Mr Jimenez. In addition, despite his requests, it had not explained to him in sufficient detail why it considered him ineligible for furlough. Firmdale submitted that other employees on long-term sick leave were treated in the same way as Mr Jimenez. The judge noted that if this was correct and there was no other indication of differential treatment, it would be compelling evidence that Mr Jimenez had not been subjected to a material detriment because of the protected act. However, with sufficient evidence to shift the burden of proof to Firmdale, his claim could proceed given that he had also attempted to present it in time. The judge advised Mr Jimenez to consider any comparator documents disclosed by Firmdale, as they were likely to inform his decision on whether to pursue his claim to a final hearing or apply to amend it to a discrimination arising from disability claim.
COVID-19: Employment tribunal cases consider alleged discrimination of pregnant worker and dismissal of employee who refused to attend self-isolating manager’s home
Two non-binding employment tribunal decisions have provided guidance on how measures taken to protect pregnant workers during the height of the pandemic might be viewed and when dismissing an employee who refuses to obey a management instruction due to COVID-related risks might be automatically unfair.
In Prosser v Community Gateway Association Ltd ET/2413672/2020 (13 May 2021), Ms Prosser, a pregnant zero hours worker, was sent home at the start of the pandemic because her employer viewed her as clinically vulnerable. Her return to work was delayed following a risk assessment and while her employer implemented social distancing measures (spacing of desks and Perspex screens). She was advised that she would not be asked to undertake night shifts, which involved lone working, unaccompanied travelling to tenants’ homes and the provision of physical support. This was deemed unsafe for her as a pregnant worker. During her absence, she was paid “generously” in excess of her contractual entitlement and was not left out of pocket. A payment was mistakenly made late but not because of her pregnancy. A tribunal dismissed her discrimination and victimisation claims, noting that her treatment was appropriately informed by the available public health advice and relevant COVID regulations. A formal risk assessment had been completed and the employer’s motive was to protect her and her unborn baby.
In Ham v Esl Bbsw Ltd ET/1601260/2020 (14 April 2021), Mr Ham was dismissed from his cleaning service job when he refused to deliver equipment to his self-isolating manager’s home, who had COVID-19 symptoms and was unvaccinated because it was the start of the pandemic. He offered to bring the equipment to another location, where it could be stored securely. In his internal appeal against his dismissal, he expressed concern for his and his family’s health. A tribunal concluded that his dismissal was for the principal reason that he had raised health and safety concerns, making it automatically unfair contrary to section 100(1)(c) and (e) of the Employment Rights Act 1996. While his inexperienced manager was dealing with huge uncertainty at the start of the first lockdown, when a lot was unknown, her reaction to his legitimate concerns was not excusable. It was inconceivable that an employee being instructed to go to the home of two self-isolating individuals (his manager and her daughter) during late March 2020 was not raising legitimate health and safety concerns or taking appropriate steps to protect himself.
Contract: Employer liable to pay income protection payments not covered by insurance
In Amdocs Systems Group v Langton UKEAT/0093/20 and UKEAT/0210/20 (24 August 2021), the EAT has held that an employer was liable to pay an employee the level of income protection payments (IPP) set out in an offer letter and summary of benefits provided by his original employer prior to a TUPE transfer. The EAT held that those documents had contractual force as they contained clear and certain terms and were intended to be incorporated. The employer was bound to pay the additional “escalator” payment of 5% per annum that they referred to, regardless of the fact that this was not covered by its insurance. From a review of the relevant authorities the EAT held that it was clear that, if there was any ambiguity or uncertainty as to whether an employer’s obligation to provide benefits was limited by reference to the specific terms of its insurance cover, any such ambiguity would be resolved against the employer and in favour of the employee. To be effective, any limitation of the employer’s exposure should have been unambiguously and expressly communicated to the employee. However, the employee had not been given, nor given access to, the insurance policy terms, or any other document setting out the specifics of what those terms were.
This case is a reminder to transferee employers on a TUPE transfer to carefully check the level of permanent health insurance benefits provided by the transferor to any transferring employee, and whether this will be fully covered by their existing insurance policy.
Unfair Dismissal: EAT confirms narrow scope of Jhuti principle
In Kong v Gulf International Bank (UK) Ltd  EA-2020-000357-JOJ and EA-2020-000438-JOJ (10 September 2021) the EAT has clarified that, when determining the reason for dismissal in an unfair dismissal claim, it will rarely be possible to attribute to the employer the motivation of any person other than the one who decided to dismiss.
Ms Kong was employed by Gulf International Bank (UK) Limited (GIB) as Head of Audit. She raised several concerns with GIB’s Head of Legal, Ms Harding, about an agreement relating to one of GIB’s financial products. It was accepted that these concerns were protected disclosures. Ms Harding disagreed with Ms Kong and confronted her. During this conversation, Ms Kong questioned Ms Harding’s legal awareness. Ms Harding was upset and complained to GIB’s Head of HR and CEO that Ms Kong had questioned her “integrity“. She subsequently limited interaction with Ms Kong. The Head of HR and CEO informed the Group Chief Auditor of the incident. The three managers collectively decided that Ms Kong should be dismissed because her manner meant that colleagues did not want to work with her.
Ms Kong brought claims for unlawful detriment and automatic unfair dismissal for having raised protected disclosures. The claim for unlawful detriment as a result of Ms Harding’s treatment would have succeeded, but was out of time. The claim for automatic unfair dismissal failed: the tribunal found that the decision makers dismissed Ms Kong because of her conduct, not her protected disclosures.
Ms Kong appealed to the EAT in relation to the automatic unfair dismissal claim. She argued that Ms Harding had sought her dismissal because of the protected disclosures, and that Ms Harding’s motivation should therefore be attributed to GIB pursuant to Royal Mail Group Ltd v Jhuti  UKSC 55.
The EAT held that:
- The tribunal had been right not to attribute Ms Harding’s motivation to GIB. The principle in Jhuti will rarely apply. Ms Harding’s complaint that Ms Kong had criticised her integrity, as opposed to her legal awareness, was not sufficient manipulation for Jhuti purposes. Further, there was no finding that Ms Harding had sought Ms Kong’s dismissal.
- The tribunal was clear that what motivated the decision makers was not the content or fact of Ms Kong’s disclosures, but the way in which she conveyed her personal criticisms to Ms Harding. The former was properly separable from the latter.
COVID-19: Adjusted Right to Work checks extended until April 2022
The government announced at the end of August that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. Given positive feedback on the ability to carry out checks remotely, the government has decided to continue using the following temporary changes (originally introduced on 30 March 2020) until 5 April 2022 (inclusive):
- checks can currently be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
You can be fined up to £20,000 for employing illegal workers so this is very important to get right.
See our Immigration note for more information on this: Checking a job applicant’s right to work.
COVID-19: Government publishes Autumn and Winter Plan: employment aspects
On 14 September 2021, the government published COVID-19 Response: Autumn and Winter Plan. The Plan sets out how the government intends to address the challenges that may be posed by COVID-19 through autumn and winter while ensuring that the National Health Service is not put under unsustainable pressure.
Plan A is described as a comprehensive, five-point approach designed to steer the country through autumn and winter. In addition to continued use of pharmaceutical interventions (including further vaccine deployment), managing pressures on the NHS and social care and managing risks at the border, the government intends to continue with Test, Trace and Isolate and to provide guidance on how people can protect themselves. Existing requirements and support for self-isolation will remain in place. The government intends to review these by the end of March 2022. Guidance on how employers can reduce risks in their workplaces will be kept up to date.
Plan B is provided in outline and will only be enacted if the data suggests further measures are necessary to protect the NHS. The steps anticipated here involve advising the public of the need to behave more cautiously given an increased level of risk, introducing mandatory vaccine-only COVID-status certification in certain settings, legally mandating face coverings in certain settings (which would be determined at the time) and instructing those who can to work from home. The Plan concludes that beyond Plan B “more harmful economic and social restrictions would only be considered as a last resort“.
National Insurance: Increase to pay for health and social care
Prime Minister Boris Johnson announced on 7 September 2021 a new UK wide ‘health and social care levy’ to address the funding crisis in this sector. See our full article on this for more detail: National Insurance increase to pay for health and social care.
Immigration: Changes to UK Immigration Rules announced
On 10 September 2021, the government published Statement of changes to the Immigration Rules: HC617, most of which comes into force on 1 October 2021. The statement:
- Introduces coronavirus (COVID-19) concessions on Tier 1 (Entrepreneur), the EU Settlement Scheme (EUSS), Skilled Worker and Tier 2 Sportsperson routes into the Immigration Rules.
- Extends the Youth Mobility Scheme to include nationals of Iceland and India.
- Introduces a dedicated International Sportsperson route to replace the T2 and T5 Temporary Worker routes for professional sporting workers.
- Expands the list of eligible prizes under the Global Talent route.
- Makes changes to the EUSS to allow a joining family member to apply to the EUSS while in the UK as a Visitor.
Gender Pay Gap: EHRC and CMI publish toolkit to help employers tackle gender pay gap
People Management has reported how the Equality and Human Rights Commission (EHRC) is preparing to restart “enforcing gender pay gap reporting requirements again next month as a temporary suspension of enforcement, put in place to help employers through the coronavirus crisis, comes to an end”. With this in mind, the Chartered Management Institute (CMI) has partnered with the EHRC to create a practical toolkit to support organisations drive action in tackling their gender pay gap. The publication of practical guidance follows a warning from the ECHR that the gender pay gap disparity has widened during the pandemic, and that employers risk de-prioritising the issue close to the extended deadline of pay gap reporting of 5 October 2021. Government figures indicate that currently, only 5,000 employers of around 12,500 that meet the reporting requirements have filed figures for the year.
The toolkit itself contains case studies, recommended actions for employers, and tried and tested “how to” guides from the Behavioural Insights team.
Flexible Working: Consultation published on making flexible working a “day one” right for employees
The government has published a consultation document, Making flexible working the default, proposing various reforms to the right for employees to request flexible working, taking into account changes in working practices brought about during the COVID-19 pandemic.
The proposals do not introduce an automatic right for employees to work flexibly. Instead, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs. The main change would be making the right a “day one” right, removing the requirement for 26 weeks’ qualifying service. The consultation also considers:
- Making changes, if necessary, to the eight business reasons for refusing a request to work flexibly.
- Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
- Changing the administrative process underpinning the right to request flexible working. In particular, the government wants to explore whether to allow employees to make more than one statutory request each year.
- Raising awareness of the existing right of employees to request a temporary flexible working arrangement.
The government has decided not to proceed with the proposal, put forward in an earlier consultation, to introduce a requirement for large employers to publish their flexible working policies.
You can complete the online survey here. The consultation will remain open until 1 December 2021.
Home Working: ONS figures suggest that older workers and disabled workers may retire later if they can work from home
Website, peoplemanagement.co.uk, reported on 31 August 2021 that figures released by the Office for National Statistics (ONS) show how working from home has affected the older generation. For example, in June and July 2020, workers aged 50 and over who worked from home during the COVID-19 pandemic instead of in their usual workplace were more than twice as likely to say they planned to retire later (11%) than those in the same age category who did not work from home (5%). Similarly, the statistics show that workers with a long-standing illness, disability or infirmity who work from home are nearly twice as likely to say they plan to retire later (10.9%) than those who do not work from home (5.9%). Jonathan Boys, labour market economist at the CIPD, suggested that working from home could extend working lives and may be appreciated more by older workers than younger ones.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
- Equal pay: Retail employees can compare themselves to distribution employees working at different establishments
- Sex Discrimination: An employer who pays a man on shared parental leave less than a woman on statutory adoption leave is not discriminating
- Equality Act: How to determine substantial adverse effect of disability using Equality Act 2010 definition
- COVID-19: Calculation of a Week’s Pay Regulations do not have retrospective effect
- Unfair Dismissal: Failing to receive ACAS early conciliation certificate did not mean time limit should have been extended
- COVID-19: Government launches four roadmap reviews including consultation on workplace social distancing measures
- COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
- COVID-19: TUC survey reveals that employers are failing to follow COVID-secure rules
- Racial Equality: Commission on Race and Ethnic Disparities publishes its first report
- Racial Equality: Competition and Markets Authority publishes ethnicity pay gap data for 2019-2020
- Discrimination: Number of trans people hiding identity at work rises to 65%, survey says
- Discrimination: Dress code prohibiting large-scale signs of political, philosophical or religious belief indirectly discriminatory but allowing small-scale signs can be justified
- Technology: TUC pushes for restrictions on use of artificial intelligence in workplace
Equal pay: Retail employees can compare themselves to distribution employees working at different establishments
The Supreme Court has upheld the decisions of the tribunal, the EAT and the Court of Appeal in Asda Stores Ltd v Brierley and others  UKSC 10 that a group of predominantly female retail employees could compare themselves to a group of mainly male distribution employees for the purposes of an equal pay claim.
Even though the two groups worked at completely separate establishments, such that no distribution worker would have done distribution work at a retail site, and no retail worker would have done retail work at a distribution depot, a comparison could be made because the employer observed broadly common terms and conditions for the relevant groups across its sites.
When claimants and comparators are based at different establishments, determining whether the statutory requirement for common terms is satisfied boils down to asking a single question: would the comparator have been employed on the same or substantially the same terms if they had been employed in the same role at the claimants’ establishment? Cases that do not pass this threshold test will likely be exceptional.
For the benefit of future cases, the court provided a comprehensive summary of the current law relating to the common terms requirement under section 79(4)(c) of the Equality Act 2010. The court also provided guidance for future equal pay cases involving similar preliminary issues over the common terms requirement, confirming that:
- It is a threshold test only. Tribunals should not tolerate a prolonged enquiry into it and appeals are to be discouraged.
- Inference from the facts and circumstances may more readily provide an answer to the test than the opinions of individuals employed in the business. There is no requirement for any form of line-by-line comparison of different sets of terms and conditions.
- The threshold test should not be elevated into a major hurdle nor used as a proxy for other elements of an equal pay claim.
The case can now proceed to the next stage to determine whether the work of the two groups was of equal value.
Sex Discrimination: An employer who pays a man on shared parental leave less than a woman on statutory adoption leave is not discriminating
In Price v Powys County Council UKEAT/0133/20/LA (V), the EAT has upheld the decision of an employment tribunal that it is not discriminatory for an employer to provide enhanced adoption pay but no enhanced shared parental pay.
The claimant, a man, alleged that such a policy was direct discrimination on the grounds of sex, since a man on shared parental leave (SPL) would receive less pay than a woman on statutory adoption leave (SAL).
However, the EAT found that the underlying purpose of SPL and SAL is materially different. SPL is aimed at the facilitation of childcare and giving parents greater choice, whereas the purpose of SAL goes well beyond childcare alone and includes matters such as encouraging the formation of a parental bond and the taking of steps to prepare and maintain a safe environment for the child.
In addition, the EAT held that the tribunal had been correct to find that SPL and SAL operated in materially different ways. For example, SAL could only be taken in one continuous period, could begin before the placement of a child and was an immediate entitlement on the placement of a child, all of which contrasted with the regime for SPL.
Taking all the above into account, the EAT concluded that the tribunal had been right to determine that a woman on SAL was not an appropriate comparator for a man on SPL. The correct comparator was a woman on SPL. Since a woman on SPL would have received the same pay as a man on SPL under the employer’s policy, there was no sex discrimination.
Equality Act: How to determine substantial adverse effect of disability using Equality Act 2010 definition
In Elliott v Dorset County Council  UKEAT/0197/20, the EAT has allowed an appeal against an employment tribunal’s finding that a claimant was not disabled, holding that the tribunal had failed to adopt the correct approach to determining whether the admitted impairment had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities.
Section 6(1) of the Equality Act 2010 sets out the statutory definition of disability:
“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.
The EAT held that the statutory definition of “substantial” meaning “more than minor or trivial”, as set out in section 212 of the Equality Act 2010, prevails over any guidance. If the adverse effect has a more than minor or trivial effect on the ability of a person to carry out day to day activities, the definition is met. A tribunal should only consider the guidance in the Equality Act 2010: Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”) and the EHRC Employment Statutory Code of Practice (“the Code”) if the statutory definition fails to provide a conclusive answer.
If it is necessary for the tribunal to take into account the Guidance or the Code, the suggestion they contain that “substantial” means that an impairment has a greater effect than the “normal differences in ability which might exist among people” requires a comparison with people who are broadly similar to the claimant, other than not having the alleged disability.
The EAT encouraged consideration of the context of the whole provision, and statute, in order to properly analyse and apply individual sections. The focus of the test of whether an impairment has a “substantial” adverse impact is to look at what a person cannot do, or can do only with difficulty, rather than on the things that the person can do. To assess whether an impairment has a substantial adverse effect on day-to-day activities, the employment judge must first determine what the day-to-day activities are.
The EAT remitted the question of whether the claimant was disabled to a new tribunal.
COVID-19: Calculation of a Week’s Pay Regulations do not have retrospective effect
An employment tribunal in Bayliff v Fileturn Ltd ET/2304837/20 has held that the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) did not apply retrospectively to the calculation of an employee’s notice pay for the period before the regulations came into force. Where an employee was given notice before the regulations came into force on 31 July 2020, and their notice continued after that date, their notice pay only had to be calculated in accordance with the regulations after that date.
We believe that this is the first available decision on this issue. Although the decision will not be binding on other employment tribunals, it provides some helpful clarification for employers who only had one day’s notice of the regulations coming into force, and had to quickly determine how to calculate employees’ notice pay in the light of them.
Unfair Dismissal: Failing to receive ACAS early conciliation certificate did not mean time limit should have been extended
In Stratford on Avon District Council v Hughes  UKEAT/0163/20, the EAT has allowed an appeal against an employment tribunal’s finding that it was not reasonably practicable for a claimant to have presented his claim in time, where he had not received the early conciliation certificate by the expiry of the relevant limitation period.
The claimant was dismissed on 29 March 2019 and contacted ACAS on 25 June 2019. ACAS informed him on 2 August 2019 that the employer did not wish to continue with the conciliation process and emailed him a certificate that day. However, the claimant did not receive the certificate. Under section 207B(4) of the Employment Rights Act 1996, the primary limitation period expired on 2 September 2019, that is “one month after day B”. By the time the claimant had obtained a copy of the certificate and presented his claim, on 5 September 2019, it was three days out of time.
An employment tribunal extended time on the basis that it had not been reasonably practicable for the claimant to have presented his claim in time because he needed the early conciliation certificate in order to lodge the claim. The EAT found that this reasoning was flawed. The question which the tribunal should have asked was whether, in all the circumstances, it would have been reasonably practicable for the claimant to have obtained the early conciliation certificate sooner, not whether he behaved reasonably in waiting until after the expiry of the primary limitation period to contact ACAS. The concept of “reasonable practicability” involves a heavier onus than just behaving reasonably, but is not to be equated with what is physically possible.
COVID-19: Government launches four roadmap reviews including consultation on workplace social distancing measures
On 5 April 2021, the government updated its Roadmap Reviews policy paper to provide clarity on how the COVID-19 pandemic will be managed after the final step of the government’s roadmap out of lockdown is reached on 21 June 2021. The four roadmap reviews are as follows:
- The COVID-Status Certification Review will consider the possibility of COVID-status certification as a way of reopening the economy and reducing social distancing restrictions.
- The Global Travel Taskforce will explore how and when the re-opening of non-essential international travel will take place.
- The Events Research Programme will work with national and local public health authorities to develop approaches to social distancing, ventilation, test-on-entry protocols and COVID-status certification in different venues.
- The Social Distancing Review will establish how social distancing measures can be reduced in different settings, including the workplace. The government’s ability to relax social distancing measures will be tied to decisions made by the COVID-Status Certification Review, particularly whether COVID-status certification could enable changes to social distancing.
As part of the Social Distancing Review, a spokesperson for the Department for Business, Enterprise and Industrial Strategy (BEIS) has announced that it is consulting with businesses about the introduction of long-term social distancing measures to bring workers back into the office. Possible strategies include the implementation of six months of social distancing each year and the longer-term use of masks and see-through plastic screens. On 8 April 2021, business department officials hosted a conversation with professional services to discuss potential strategies.
COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:
- New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
- New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.
- When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
- Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.
The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
A further Treasury Direction in respect of the extension of the CJRS from 1 May to 30 September 2021 dated 15 April 2021 was published on 19 April 2021 and can be found here.
See the updated guidance for more information:
- HMRC: Guidance, Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme (updated 8 April 2021);
- Calculate how much you can claim using the Coronavirus Job Retention Scheme (updated 8 April 2021);
- Steps to take before calculating your claim under the Coronavirus Job Retention Scheme (updated 8 April 2021).
COVID-19: TUC survey reveals that employers are failing to follow COVID-secure rules
The TUC’s biennial survey of over 2,100 workplace safety representatives has revealed that workers are being placed at risk by employers who are failing to meet COVID-secure rules.
Despite there being a legal obligation for employers to consult with safety representatives, more than a quarter (27%) of those surveyed were not involved at all in their employer’s risk assessments. In relation to COVID-19 risk assessments in particular, 34% of representatives said that neither they nor other safety representatives were consulted.
The survey also revealed that only 31% of representatives believe that social distancing rules and physical barriers between colleagues in the workplace were being implemented by their employer all of the time. Only 29% said that their employers were implementing appropriate distancing measures between employees and customers, clients or patients all of the time. 40% of representatives said that adequate PPE was either not always provided or not provided at all to workers.
Alarmingly, the survey states that 65% of workplace safety representatives have had to respond to growing numbers of mental health concerns since the pandemic began, with70% citing stress as a workplace hazard.
Racial Equality: Commission on Race and Ethnic Disparities publishes its first report
On 31 March 2021, The report of the Commission on Race and Ethnic Disparities was published. The Commission was set up by the Prime Minister in 2020 to identify racial disparities and inequalities in Britain and ways to address them. A number of its recommendations will have a direct impact on the work of employment lawyers. These include:
- Recommendation 1: challenge racist and discriminatory actions by funding the Equality and Human Rights Commission (EHRC) to use its compliance, enforcement and litigation powers to address policies or practices which cause racial disadvantage or are produced by racial discrimination.
- Recommendation 3: improve the transparency and use of artificial intelligence by publishing guidance on applying the Equality Act 2010 to algorithmic decision-making and requiring transparency from public sector bodies when it is used.
- Recommendation 8: advance fairness in the workplace by developing resources and evidence-based approaches readily available to employers.
- Recommendation 9: investigate what causes existing ethnic pay disparities by requiring the publication of a diagnosis and action plan for organisations who voluntarily publish ethnicity pay figures. The Department for Business, Energy and Industrial Strategy (BEIS) has been tasked with producing guidance for employers to draw on. The government’s response to its consultation on introducing mandatory ethnicity pay gap reporting is still awaited. It had been expected that the Commission would call for mandatory ethnicity pay gap reporting to be introduced.
- Recommendation 16: open up access to apprenticeships by creating a targeted apprenticeships campaign to inform marginalised young people of the career pathways open to them.
- Recommendation 17: encourage innovation by creating an enterprise programme for entrepreneurs from underrepresented and low-income backgrounds across the UK.
The report also flagged the term BAME as “unhelpful”, stating that it is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups.
The EHRC has recognised the report as a step towards targeting Britain’s “sources of inequality” and has welcomed the prospect of additional funding. However, the report has also been widely criticised for downplaying institutional racism in the UK.
Racial Equality: Competition and Markets Authority publishes ethnicity pay gap data for 2019-2020
The Competition and Markets Authority (CMA) has voluntarily published its Competition and Markets Authority: Ethnicity Pay Gap Report: 1 April 2019 to 31 March 2020, using the same principles that apply to statutory gender pay gap reporting. The report, which contains data recorded as at 31 March 2020, shows that the ethnicity profile of CMA staff was 22% BAME (Black, Asian and Minority Ethnic) and 69% non-BAME. Acknowledging that there are too few BAME employees in senior roles, the median pay gap (difference between the midpoints of the average hourly pay of BAME and non-BAME staff) was reported as 34.8%. By contrast, the equivalent gender pay gap figure reported for the same snapshot date was 2.9%
The CMA’s ethnicity bonus gap (calculated using the median average) was 44.2%. By contrast, the gender bonus gap calculated using the median average was -2.5%. The high ethnicity bonus gap can be explained by a number of factors, including the lack of BAME employees in senior roles. In addition, a number of key individuals attracted pivotal role allowances during the year, and all recipients of such allowances were non-BAME.
The report sets out a number of action points to close the ethnicity pay gap at the CMA, which include the creation of an internal development programme for under-represented groups, using data to challenge and check progress on improving diversity in recruitment, and the creation of a Positive Action Steering Group. This group will oversee the implementation of the CMA’s Race Action Plan.
The government consultation on introducing mandatory ethnicity pay gap reporting was launched in 2018. The consultation closed on 11 January 2019 and a response has yet to be issued. However, it is expected that the Commission on Race and Ethnic Disparities, which was set up by the Prime Minister in 2020, will shortly call for annual ethnicity pay reporting to be made mandatory for larger employers.
Discrimination: Number of trans people hiding identity at work rises to 65%, survey says
65% of trans employees feel they need to hide their trans status at work according to a survey published by YouGov on behalf of Totaljobs. The figure, which represents a pool of 410 people, signals a 13% increase compared with statistics published in 2016, and corresponds with a 7% rise in the number of trans employees who quit their jobs as a result of an unwelcoming work environment in the same period, reaching 43% this year.
Katie Budd, head of indices and resources at LGBT+ charity Stonewall, has urged employers to take a zero-tolerance approach to trans exclusion, recommending the development of transitioning at work policies, as well as ensuring that organisations become public trans allies.
Discrimination: Dress code prohibiting large-scale signs of political, philosophical or religious belief indirectly discriminatory but allowing small-scale signs can be justified
Advocate General Rantos has given an Opinion in IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:144 that a German employer’s rule prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace is not direct discrimination based on religion or belief. Direct discrimination cannot occur where all religions or beliefs are covered in the same way by the rule.
Indirect discrimination caused by such a rule can be justified by the employer’s intention to pursue a policy of political, philosophical and religious neutrality in the workplace in order to take account of the wishes of its customers. This is distinguished from the situation where an employer imposes such a rule in direct response to a request from a customer.
The potential to justify indirect discrimination is not limited to rules prohibiting the wearing of any visible sign of political, philosophical or religious belief; a rule limited to the prohibition of wearing conspicuous, large-scale signs of political, philosophical or religious beliefs can also be justified if it is implemented in a consistent and systematic manner.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is appropriate and necessary, the right to freedom of thought, conscience and religion recognised by the Charter of Fundamental Rights and the European Convention on Human Rights may not be taken into account. However, a national court may apply national constitutional provisions that protect the freedom of religion which, in effect, lay down an additional requirement for justifying an employer’s rule, provided those provisions do not undermine the principle of non-discrimination laid down in the Equal Treatment Framework Directive (2007/78/EC).
Technology: TUC pushes for restrictions on use of artificial intelligence in workplace
On 25 March 2021, the TUC published a report urging the government to introduce new legal protections for workers exposed to the use of artificial intelligence (AI) in the workplace. The report, based on a study by the AI Law Consultancy, claims that workers are currently at risk of being “hired and fired” by potentially discriminatory algorithms. Indeed, the TUC’s general secretary Frances O’Grady has warned that algorithms, which have been used more widely since the start of the COVID-19 pandemic, could lead to “widespread discrimination and unfair treatment”, particularly for gig economy workers and those in insecure work.
This issue was highlighted recently when Uber was criticised after its AI software for facial identification reportedly failed to accurately identify dark-skinned faces, resulting in many workers being unable to access its app and find jobs. The software uses a photo comparison tool to compare pictures of drivers with photos held on its database when the contractors open the app, to prove they are the person who has logged on. Tests have shown that the software used by Uber has a failure rate of 20.8% for darker-skinned female faces and 6% for males.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
- Worker Status: Supreme Court rules Uber drivers ARE workers
- Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
- Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
- Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
- Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
- Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
- Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
- Intellectual Property: Employer owned copyright relating to software
- COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
- COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
- Flexible Working: CIPD calls for flexible working to be day-one right for employees
- Mental Health: Commission reveals £8,400 mental health income gap in the UK
- Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
- Pensions: Pension Schemes Act 2021 gains Royal Assent
Worker Status: Supreme Court rules Uber drivers ARE workers
As we reported last month, the Supreme Court heard the case of Uber BV and others v Aslam and others on 21 and 22 July 2020 but has only recently published its judgment. The two questions before the initial tribunal were:
- Do the drivers whose work is arranged through the Uber app work for Uber under workers’ contracts (and so qualify for the national minimum wage, paid annual leave and other workers’ rights), or do they work for themselves as independent contractors, performing services under contracts made with passengers through Uber as their booking agent (and therefore do not qualify for any of these rights)?
- If drivers work for Uber under workers’ contracts, then were the drivers/claimants working under such contracts whenever they were logged into the Uber app within the territory in which they were licensed to operate and ready and willing to accept trips; or were they working only when driving passengers to their destinations?
The Court of Appeal had upheld the decision of the tribunal and found, by a majority, that Uber drivers were workers, and not independent contractors, and therefore were entitled to the statutory rights afforded to workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. The Supreme Court judges unanimously upheld this decision. It also found that they were working from the time they switched on the app.
In reaching their conclusion, the Judges highlighted the following points which all indicated that Uber was in the more dominant position, like an employer, and unlike in a self-employed contractor situation where there is more equality:
- Uber sets the fares for each ride the drivers carry out and the drivers are not permitted to set their own prices as they would if they were self-employed.
- Uber sets the terms and conditions of using its service.
- Drivers face penalties for cancelling or not accepting rides – sometimes preventing them from working, such as being unable to access the app for a limited time.
- Uber has significant control over the way that drivers work, as they face a rating system. Should a driver’s Uber rating fall below a certain level they face penalties or termination of their contract.
- Uber takes active steps to prevent drivers and passengers from having an agreement outside of the Uber app.
Additionally, the case once again highlights that in determining whether a worker or self-employed contractor situation exists, it will always examine the reality of the actual relationship between the parties over whatever documentation may have been prepared between them.
The Court also decided that the drivers became ‘workers’ from the time they switched on the app and were available to work in their designated area, to the time they switched off the app. This means there will now be a significant number of minimum wage, backpay and holiday pay claims made against Uber. It will undoubtedly open the floodgates for other ‘gig-economy’ workers to make claims against employers.
Sex discrimination: Maternity charity’s application for judicial review of SEISS dismissed
An application for judicial review of the Self-Employment Income Support Scheme (SEISS) on the basis that it was indirectly discriminatory has been rejected by the High Court. Under the SEISS, grants were awarded to self-employed individuals based on average trading profits in the three full tax years preceding 2019/20. The application was brought by a self-employed mother and a maternity rights charity, The Motherhood Plan. They argued that the SEISS breached Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1, in two ways:
- It was indirectly discriminatory to calculate grants based on average trading profits in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to.
- Applying Thlimmenos v Greece  ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court was not persuaded that there was any indirect discrimination. The disadvantage complained of was not caused by the SEISS itself; rather, it flowed from an absence of or reduction in past income. There were no hidden barriers to eligibility and it was not harder for women on maternity leave to quantify their earnings than for others. The fact that some claimants received lower grants than others reflected the fact of lower earnings in past years; in the context of the SEISS with its stated purpose, the reasons for the lower earnings in past years were irrelevant.
In relation to Thlimmenos, the Court noted that the claimants’ arguments would be to demand redress under the SEISS in relation to their unique situation in the past. There was no authority to support the proposition that uniqueness or difference in the past is a basis on which to require different treatment in the present, such that failure to accord that different treatment amounts to unlawful discrimination. Even if there had been discrimination, the court found that this would have been justified. The government had a broad margin of appreciation in this context and the design of the SEISS was not manifestly without reasonable foundation. Additionally, the government had not breached the public sector equality duty in section 149(1) of the Equality Act 2010.
Harassment: No defence of taking all reasonable steps to prevent harassment as equality and diversity training was “stale”
In Allay (UK) Ltd v Gehlen  UKEAT/0031/20 the EAT has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another and could not rely on section 109(4) of the Equality Act 2010. The employment tribunal was entitled to find that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale“, there was evidence that the training was insubstantial and that employees had forgotten it. It was also appropriate to find that a further reasonable step could have been to offer refresher training. Therefore, the employer could not show that all reasonable steps had been taken.
There are few reported cases that consider the reasonable steps defence. This case illustrates that in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately, it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination.
Indirect discrimination: Tribunal failed to consider whether more women than men were put to a particular disadvantage by a PCP
In, Cumming v British Airways plc  UKEAT/0337/19 the EAT has held that, when determining whether a provision, criterion or practice (PCP) was indirectly discriminatory against women due to their greater childcare responsibilities, the tribunal should consider whether the PCP put women at a particular disadvantage, not whether the PCP applied to all employees in the pool equally. British Airways plc had a policy that aircrew who took three days’ unpaid parental leave would lose one paid rest day that month. Ms Cumming argued that the PCP was indirectly discriminatory against women, as a higher proportion would take parental leave than men. It was common ground that the correct pool for comparison was all aircrew with childcare responsibilities. An employment tribunal rejected her claim on the basis that the PCP applied equally to all aircrew so there was no particular disadvantage to women.
The EAT held that this was an error of law. The fact that the PCP affected all employees who took parental leave in the same way did not mean that there was no particular disadvantage to women. Not all employees with childcare responsibilities would take parental leave. There was statistical evidence to show that more female than male aircrew took parental leave and therefore more women were adversely impacted by the PCP. Further, in Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice  UKSC 27, Lady Hale observed that women tended to “bear the greater responsibility for caring for the home and family than…men“. The tribunal had therefore failed to consider whether more women were put to a particular disadvantage by the PCP than men in the same circumstances. The EAT remitted the case to a fresh tribunal.
Discrimination: Clear words required for allegation to amount to protected act under Equality Act 2010
In Chalmers v Airpoint Ltd and others  UKEATS/0031/19 the EAT has upheld a tribunal’s decision that an employee’s comment in her written grievance that the employer’s actions “may amount to discrimination” was not sufficient in the circumstances to amount to a protected act under section 27(2)(d) of the Equality Act 2010 for the purposes of her victimisation claim. The employee’s statement related to the fact that the employer had arranged a Christmas event on a date she could not attend. The EAT held that the tribunal was entitled to take into account the factual context surrounding the allegation. The employee worked in the human resources field and was articulate and well-educated. The use of the word “may“, and the failure to refer explicitly to sex discrimination, could be contrasted with the fact that the employee had complained in clear terms about other matters. Further, the tribunal had found that no discrimination had occurred in relation to the Christmas event and, on the day of the event, the employee had expressed her dissatisfaction to the managing director but had not complained of discrimination.
While a tribunal was not required to interpret the words used by an employee literally and there would be circumstances in which the use of equivocal language would amount to a protected act, this would depend on the context and the tribunal’s assessment of the evidence, including whether the employee was the type of person likely to express themselves cautiously. On the evidence before it, the tribunal was entitled to conclude that an allegation of sex discrimination had not been made, the word “may” usually signifying doubt or uncertainty, and given her background and experience, the employee’s failure to refer to sex discrimination was intentional.
Whistleblowing: EAT holds tribunal misapplied public interest test in detriment case
The EAT has overturned an employment tribunal’s finding that two disclosures made by a consultant solicitor about alleged overcharging by the firm for which he worked, had not, in the solicitor’s reasonable belief, been made in the public interest, and so were not protected disclosures under the whistleblowing legislation.
In Dobbie v Felton t/a Feltons Solicitors  UKEAT/0130_20_1102 the EAT found that the guidelines set out by the Court of Appeal in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979 had not been properly considered. If the solicitor held a genuine and reasonable belief that his disclosures were in the public interest, that did not have to be his predominant motive in making them. If he reasonably believed that he was disclosing information that tended to show the firm was overcharging the client, in breach of the Solicitors Accounts Rules or other regulatory obligations, the disclosures did not cease to be protected merely because they were made in the context of concerns about the client’s prospects of recovering litigation costs from its opponent. The tribunal had limited its reasoning to consideration of only one of four relevant factors in Chesterton: the numbers in the group whose interests the disclosure served. This had led the tribunal to determine that it was a private matter between the client and the firm. The tribunal had not considered whether the protection of one client alone could have constituted the protection of a “section of the public“.
A disclosure of information relevant to only one person can be a matter of public interest, such as in the case of a one-off error in the medical treatment of a patient. In this case, the disclosures could have advanced the general public interest in solicitors’ clients not being overcharged, and solicitors complying with their regulatory requirements.
The tribunal had also applied the wrong legal test for causation in concluding that the solicitor’s disclosures had had little influence on the firm’s decision to terminate his consultancy agreement. The correct test was whether the disclosure had a material influence on the firm’s decision to terminate the agreement. If the making of one or both of the protected disclosures was an effective cause of the termination, a detriment would be made out, even if the agreement would have been terminated in any event.
Unfair Dismissal: Employer not entitled to dismiss employee for conducting surveillance in workplace
In Northbay Pelagic Ltd v Anderson  UKEATS/0029/18 the EAT has held that an employer was not entitled to dismiss an employee who was conducting surveillance in the workplace, noting that the employer had failed to conduct a balancing exercise between the right to privacy and the employee’s desire to protect his confidential information. The employee had set up a camera to monitor whether anyone had entered his office to access his computer. However, the case was remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis he failed to follow a management instruction.
The EAT also held that if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be “sealed off” from one another. It further highlighted the need to ensure evidence is adduced from relevant witnesses, suggesting the employer’s failure to do so in this case may have led to the tribunal preferring the employee’s evidence over that of the employer.
Intellectual Property: Employer owned copyright relating to software
In Penhallurick v MD5 Ltd  EWHC 293, the Intellectual Property Enterprise Court found in favour of the defendant, MD5 Ltd, in copyright infringement proceedings, granting a declaration that MD5 was the owner of copyright in various literary works relating to software created by the claimant, Mr Penhallurick, who was MD5’s employee from November 2006 until April 2016.
The works in issue were various versions of the software, a graphical user interface and a user guide. The judge’s decision on ownership, and therefore infringement, turned on whether each of the works was created in the course of Mr Penhallurick’s employment with MD5.
Judge Hacon said that it was clear from the evidence that making the software was the central task for which MD5 was paying Mr Penhallurick at the relevant times. Where there was such a strong and primary indication, the fact that some of the work was done in his home and using his own computer would not make any difference to the fact that it formed part of his employment duties. All versions of the software were created by Mr Penhallurick with the knowledge and encouragement of MD5 and in return for payment, and all were directed to making and improving the software product sold by MD5. MD5 was therefore also the first owner of copyright in all the versions. Copyright in these (along with copyright in the other works in issue) was also assigned to MD5 under an intellectual property clause in an agreement between the parties made in November 2008. MD5 was therefore the owner of copyright in all the works. The fact that Mr Penhallurick had identified himself as the copyright owner on each version of the software and in the user guide did not create any presumption of ownership under section 104 of the Copyright, Designs and Patents Act 1988.
The judge granted a declaration of MD5’s copyright ownership in relation to all the works in issue, other than two pleaded works which he had found to be of doubtful existence and of no relevance to the claim.
COVID-19: EHRC urged to investigate government’s pandemic response amid growing concern of disproportionate gender equality impact
The TUC, Amnesty International and dozens of other organisations have called on the Equality and Human Rights Commission (EHRC) to investigate the alleged disproportionate equality impact of the government’s response to the COVID-19 pandemic, particularly on women and minority groups. In response, the EHRC said that “While government focuses on the current crisis we do not consider it appropriate to use our legal powers“. However, it added that it will seek input and monitor the government’s response to the ongoing inequality and human rights issues, and “where necessary take the appropriate action“.
This follows a report entitled ‘Unequal Impact? Coronavirus and the gendered economic impact‘ published this month by the Women and Equalities Committee. The report addresses a number of areas including labour market and employment, benefits and social security, young people, pregnancy and maternity discrimination, childcare, the extent to which gender equality has been embedded into policy responses to the COVID-19 pandemic, and how to improve equality data.
The report made wide-ranging recommendations, including that the government should:
- Remove the 26 weeks’ service threshold for employees to request flexible working arrangements.
- Publish the draft Employment Bill by the end of June 2021 and that the Bill must take into account the recommendations of the report.
- Introduce legislation in this parliamentary session to extend redundancy protection to pregnant women and new mothers.
The committee made further recommendations in relation to pay gap reporting. It urged that gender pay gap reporting be reinstated with reporting for the financial years 2019/20 and 2020/21 required in April 2021, and that the government should publish proposals for introducing ethnicity and disability pay gap reporting within six months.
The report highlights the need for equality impact analyses to be undertaken in relation to key schemes, such as the Coronavirus Job Retention Scheme and the Self-Employment Income Support Scheme.
COVID-19: Survey finds apprenticeship starts fell by 45.5% during pandemic
Personnel Today reports that a survey conducted by Small Business Prices, to mark this year’s partnership week (8-14 February), has revealed that apprenticeship starts fell by 45.5% overall since the beginning of the initial lockdown compared to the same period in 2019, with health and social care suffering the biggest blow with 11,063 (46%) fewer starts. Starts in administration, business management, and hospitality and catering apprenticeships were also adversely affected by the pandemic, suffering a fall in starts of 9,783 (62%), 7,031 (40%) and 5,411 (70%) respectively.
Flexible Working: CIPD calls for flexible working to be day-one right for employees
The CIPD has launched a new campaign calling for the right to request flexible working to be a day-one right for all employees and for employers to advertise jobs as flexible. This comes after its research found that 50% of employees surveyed did not have flexible working arrangements, such as flexitime and part-time working. Furthermore, 20% of respondents revealed that their organisation did not offer any flexible working arrangements.
While the survey also saw a huge increase in working from home amid the COVID-19 pandemic, CIPD noted that more than two in five employees were not able to work from home, largely due to the nature of their employment.
Mental Health: Commission reveals £8,400 mental health income gap in the UK
The Mental Health and Income Commission, a collaboration of businesses, trade unions and charities led by the Money and Mental Health Policy Institute, has published a report revealing that the UK’s current mental health income gap is £8,400. The Commission’s report, ‘Closing the gap‘, also found that one in five people with mental health problems in the UK have faced workplace discrimination.
In response, the Commission calls on employers and the government to introduce ameliorative measures and systemic reforms to reduce the pay gap and improve working conditions for workers with mental health problems. These include the right to flexible working for all employees during the COVID-19 pandemic, an increase in Statutory Sick Pay and a broadening of its eligibility criteria, as well as introducing a legal pay gap reporting requirement for larger companies to reveal the inequalities and discrimination faced by employees with mental health problems.
Notably, three in ten people with mental health problems experienced an income reduction during the pandemic. More generally, the Commission found that one in five respondents with mental health problems said that they had suffered workplace discrimination due to their condition, including being passed over for promotion or being made redundant. Further, more than two-thirds had their requests for reasonable adjustments rejected or only partly met.
Discrimination: Over 40% of LGB+ workers experienced conflict at work last year
A research report published by the CIPD entitled ‘Inclusion at work: Perspectives on LGBT+ working lives’, has revealed that, over a twelve-month period, more than 40% of LGB+ workers and 55% of trans workers faced conflict in the workplace (use of the term LGB+ in the report’s findings relates to specific ways in which the research was conducted).
The report’s classifications of “conflict situations” include those in which workers were humiliated or undermined, faced discriminatory behaviour, or experienced physical or sexual assault. 18% of trans workers reported feeling psychologically unsafe at work (unable to be accepted, valued, or voice their concerns) and 16% of LGB+ workers felt the same way. This figure fell to 10% for heterosexual workers. The data revealed that trans workers are particularly unsafe in the workplace, with 12% of trans workers experiencing unwanted sexual attention at work and 2% experiencing sexual assault, and at least 50% of workplace conflicts experienced by trans people remaining unresolved.
The CIPD has suggested a range of steps that organisations can take to improve support for LGBT+ staff in the workplace, including initiating company-wide education on inclusion, and the creation of safe spaces and networks for LGBT+ employees and allies.
Pensions: Pension Schemes Act 2021 gains Royal Assent
The Pension Schemes Act 2021 has completed its progress through the parliamentary procedure and received Royal Assent on 11 February 2021 in what the government has called “the biggest shakeup of UK pensions for decades”. The Act contains major changes for both defined benefit and defined contribution pension schemes, including new powers for the Pensions Regulator, and the regulatory frameworks for collective defined contribution schemes and pensions dashboards.
The majority of the Act’s provisions will be brought into force following subsequent statutory instruments and consultations that are expected in the coming months, although several sections containing regulation-making powers take effect from 11 February 2021. The headline issues are tougher powers for the Pensions Regulator, with two new criminal offences with a wide scope and include unlimited fines and up to seven years in jail. There will shortly be a consultation on how it will apply these new powers, with the aim for these to be in use by the autumn. Companies and trustees may need to seek legal advice to ensure they don’t fall foul of any of these new powers. There will also be a new regime for defined benefit contributions with detailed regulations aimed to be published in the second quarter of the year. Certain occupational schemes will need to address climate change risks and opportunities. Again, regulations are to be published. For individuals, there will be a new pensions dashboard. The aim is for this to be provided by the Money and Pensions Service by 2023.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.