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Employment Law Newsletter – June 2021
Cases:
- Contracts: Prior period of illegal performance did not prevent subsequent enforcement of contract
- Discrimination: Gender critical belief was a “philosophical belief” under the Equality Act 2020
- Discrimination: Absence of interim relief remedy for discrimination cases not incompatible with ECHR
- Vicarious Liability: Both original employer and company to whom employees loaned held vicariously liable for traders’ tortious acts
- Fiduciary Duties: No-conflict rule and fully informed consent
- COVID-19: Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic
- COVID-19: Dismissal of employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not automatically unfair
- COVID-19: Dismissal automatically unfair for raising concerns about lack of COVID-secure workplace measures
- Worker Status: Employment tribunal to decide whether postmasters are workers
Other news:
- COVID-19: Employers join pledge to promote vaccine uptake amongst staff
- Gender Inequality: Government publishes response to Women and Equalities Committee report on gendered economic impact of COVID-19
- Flexible Working: Government to commence consultation on flexible working while National Rail catches up with the times
- Parental Leave: Maternity Action publishes proposals to reform shared parental leave and John Lewis leads the way
- Diversity: Report suggests firms with targeted support for ethnic minority workers have higher revenues
- Legislation: Skills and Post-16 Education Bill introduced in Parliament
- Employment Rights: Government publishes response to consultation on single enforcement body
- ACAS Update: In response to ACAS report, government confirms no current intention to ban “fire and rehire” practices
Cases:
Contracts: Prior period of illegal performance did not prevent subsequent enforcement of contract
In Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi [2021] EWCA Civ 862, the Court of Appeal has restated the correct approach for common law illegality as a defence to claims for unfair dismissal. This case arose out of a dispute as to who was responsible for paying tax and national insurance contributions. For seven years Ms Robinson had received an income from the Sheikh and neither party had paid the necessary taxes due. From 2014, the money was paid less deductions equal to what was due if Ms Robinson were self-employed but the parties continued to dispute the preceding seven years. This continued until 2017 when the Sheikh dismissed Ms Robinson for failing to account for her taxes (an illegal act). She brought claims for automatic unfair dismissal for making a protected disclosure, unfair dismissal and wrongful dismissal.
The law is that parties to an employment contract that is affected by illegality may be prevented from bringing claims in an employment tribunal or elsewhere. The effect of illegality on an employment contract will depend on the way in which the illegality arises. Where an employment contract is lawful when made but is illegally performed, the contract’s enforceability will depend on the knowledge and participation of the parties; this is referred to as “common law illegality”. “Statutory illegality” is where the employment contract has been expressly or impliedly prohibited by statute; it is void and unenforceable in line with the statutory prohibition, and the parties’ knowledge and intentions are not relevant.
The Court of Appeal relied upon the Supreme Court’s judgment in Patel v Mirza [2016] UKSC 42, where it held that tribunals should have regard to the three considerations set out below and whether there was a sufficient causal link between the illegal conduct and the claim being made to the tribunal. The Supreme Court held that, to determine if the defence of illegality will succeed, a court should consider the policy factors involved and the nature and circumstances of the illegality:
- The underlying purpose of the prohibition which had been breached and whether the purpose would be enhanced by denial of the claim.
- Any other relevant public policy on which the denial of the claim may have an impact.
- Whether denial of the claim would be a proportionate response to the illegality.
The mere fact that one of the parties to the contract had performed it illegally was not a sufficient test for the doctrine of illegality to apply.
Discrimination: Gender critical belief was a “philosophical belief” under the Equality Act 2020
In Forstater v CGD Europe and others [2021] UKEAT/0105/20, the EAT has overturned an employment tribunal’s decision that a gender critical belief (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men) was not a philosophical belief under the Equality Act 2010. The tribunal had held that the claimant’s belief failed the fifth criterion in Grainger v Nicholson [2010] IRLR 4 (EAT) that the belief must be “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others“. In the EAT’s view, taking account of the European Convention on Human Rights, a belief would have to be akin to Nazism or totalitarianism, or espouse violence and hatred in the gravest of forms, to fall foul of that part of the test. It is only in extreme cases involving the “gravest violation of other Convention rights” that a belief would fail to qualify for protection at all. The claimant’s gender critical beliefs, which were widely shared in society and did not seek to destroy the rights of trans persons, clearly did not fall into that category.
The EAT also held that the tribunal had failed to follow the principle that courts and tribunals should not inquire into the validity of a belief and must remain neutral as between competing beliefs. Furthermore, the tribunal had been wrong to rely on the “absolutist” nature of the claimant’s belief. The firmness with which a belief is held (even if others might think it irrational or offensive) is not a reason to deny protection.
This appeal was only about the preliminary issue of whether the claimant’s belief qualified for protection. The merits of the claim (including the question of whether her treatment amounted to unlawful discrimination) remain to be determined. Mr Justice Choudhury was at pains to point out that the judgment was not to be taken as expressing any view as to the merits of the transgender debate. Nor did the judgment mean that trans individuals have no protection from discrimination or harassment, which may include misgendering.
Discrimination: Absence of interim relief remedy for discrimination cases not incompatible with ECHR
In Steer v Stormsure Ltd [2021] EWCA Civ 887, the Court of Appeal has dismissed a claim that the lack of interim relief remedy for discrimination cases is incompatible with the right to a private life under Article 8 of the European Convention on Human Rights (ECHR) read with Article 14 of the ECHR (which prohibits discrimination). The court held that the claimant did not have the necessary status for protection under Article 14. The fact that interim relief is available to a dismissed whistleblower but not to a discrimination claimant who has been dismissed does not constitute discrimination on the ground of sex, and the status of being a litigant in a particular type of case is not a protected status. Even if that was not the case, the court found that the available remedies for discrimination cases, taken as a whole, are not any less favourable than those available to a dismissed whistleblower. Even if they were less favourable, the difference in treatment as regards the availability of interim relief is objectively justified.
Vicarious Liability: Both original employer and company to whom employees loaned held vicariously liable for traders’ tortious acts
In Natwest Markets Plc and another v Bilta (UK) Ltd and others [2021] EWCA Civ 680, the Court of Appeal has held that, due to a 19 month delay in the giving of judgment at first instance, it could not be satisfied that the trial judge had reached the right conclusions. It allowed an appeal against the decision of Justice Snowden and ordered a re-trial. In this case, the claimants alleged that the defendants were liable for dishonestly assisting a large VAT fraud relating to the sale of carbon credits.
The second defendant (formerly RBS SEEL) also brought a discrete ground of appeal, arguing that the judge was wrong to find that it was vicariously liable for the wrongdoing of the individual traders, alongside the first defendant (formerly RBS). The traders were originally employed by RBS SEEL but had been loaned to RBS. The Court of Appeal dismissed this ground of appeal, on the basis that the traders were so much a part of the work, business and organisation of both companies that it was just to make both employers answer for their tortious acts and omissions in the course of their employment.
Regarding the test for “blind eye knowledge“, the Court of Appeal agreed, obiter, that it was not enough that the defendant merely suspected something to be the case, or that he negligently refrained from making further inquiries.
The re-trial is no surprise here, given the general rule that judgments should be delivered within three months of the hearing. More significant is the decision about vicarious liability, rejecting the bold argument that the shift to the organisation to whom the employee was loaned was so complete that the original employer should have no liability at all.
Fiduciary Duties: No-conflict rule and fully informed consent
In Reader v SPIE Ltd & another [2021] EWHC 1221, the High Court has considered whether an employee director of a target company had breached his fiduciary duty when negotiating an enhanced bonus for a transferring employee when moving him onto the buyer’s standard employment terms.
G had sold his company, G&L, to S. Under the Share Purchase Agreement, G would be liable if a key employee, R, did not agree to S Group’s employment terms, including its less favourable bonus scheme. R moved onto S Group’s standard terms as part of a contract negotiated by G on behalf of G&L. A side letter enhanced R’s bonus for the relevant financial year. G&L did not pay the enhancement and R started proceedings in the County Court. S claimed that G would be liable to it in respect of any award in R’s favour. S settled R’s claim, but proceedings continued between S and G. Judgment was entered for S on the basis that, as part of his fiduciary duty not to act in a position of conflict of interest, G should have done more to draw the enhanced bonus to the attention of Y, the director of G&L making the decision. G appealed.
The High Court allowed G’s appeal holding, among other things, that:
- It is an inflexible rule of equity that a fiduciary must not act in a position where his interest and duty conflict, or may possibly, conflict. There are few exceptions, but one is that there can be no breach where there is fully informed consent. The burden of proving informed consent is on the fiduciary.
- The judge had erred in holding that, as part of the no-conflict<a id=”contract”></a>duty, G was obliged to explicitly invite Y’s attention to the enhanced bonus provision. No such obligation existed. Having decided that the enhanced bonus term was plainly disclosed by G, the correct conclusion was that there was no breach.
- The only thing Y needed to know from G, to make a fully informed decision, was the set of terms proposed for R (including the enhanced bonus). Y had been aware of the bonus due to R under his previous employment terms, and of G’s personal interest in getting R to accept the new terms. By authorising G to sign the documents on behalf of G&L, Y must be taken to have understood what they meant.
COVID-19: Solicitor unfairly dismissed for refusing to agree changes to employment contract during pandemic
In Khatun v Winn Solicitors Ltd ET/2501492/2020 the employment tribunal has found that a solicitor was unfairly dismissed for refusing to agree to changes to her employment contract as part of the firm’s response to the COVID-19 pandemic. The firm had required all staff to agree to a variation giving it the freedom to place them on furlough or to unilaterally reduce their pay and hours to 80%, potentially for up to nine months. The claimant, who was not among the employees earmarked for immediate furlough, was the only one to refuse. She told the firm that, if it became necessary to furlough her or to reduce her hours at some point in the future, she would consider a variation then.
The tribunal accepted that the firm had “sound, good business reasons” for the variation, and therefore had the potentially fair “some other substantial reason” for dismissing an employee who would not agree to it. However, the tribunal considered the dismissal unfair in the circumstances of this case, due to lack of consultation and failure to reasonably consider solutions other than dismissal.
The firm’s directors had decided at the outset that the new terms were non-negotiable and that anyone refusing to sign would be dismissed. The claimant’s attempts to discuss the matter had not resulted in any meaningful discussion, simply a re-stating of the firm’s position. The firm had acted too quickly in dismissing the claimant only two days after sending her the new terms. It had also failed to offer any right of appeal, which might have provided an opportunity for both sides to cool off and reach an agreement.
COVID-19: Dismissal of employee who expressed concerns about commuting and attending the office during lockdown and asked to be furloughed was not automatically unfair
In Accattatis v Fortuna Group (London) Ltd 3307587/2020 an employment tribunal has found that an employee who said he felt uncomfortable commuting and attending the office during lockdown and asked to be furloughed was not automatically unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996).
Mr Accattatis worked for Fortuna Group (London) Ltd, a company which sells and distributes PPE. During March and April 2020, Mr Accattatis repeatedly asked to work from home or be placed on furlough, explaining that he was uncomfortable using public transport and working in the office. Fortuna told Mr Accattatis that his job could not be done from home, and that furlough was not possible because the business was so busy, but that he could instead take holiday or unpaid leave. Mr Accattatis declined and asked three more times to be furloughed. After the final request on 21 April 2020, he was dismissed by email the same day.
Mr Accattatis did not have sufficient service to claim ordinary unfair dismissal. He instead alleged he had been automatically unfairly dismissed under section 100(1)(e) of the ERA 1996 for having taken steps to protect himself from danger.
The tribunal observed that the government had announced on 14 February 2020 that COVID-19 posed a serious and imminent threat to public health. This, together with Mr Accattatis’ emails expressing concern about commuting and attending the office, showed he reasonably believed there were circumstances of serious and imminent danger.
However, it was a requirement under section 100(1)(e) for Mr Accattitis to have taken appropriate steps to protect himself from danger or to have communicated the circumstances of danger to Fortuna. Fortuna had reasonably concluded that Mr Accattatis’ job could not be done from home and that he did not qualify for furlough but had instead suggested taking holiday or unpaid leave. Mr Accattatis’ response was not only that he wanted to stay at home (which was agreed), but also to demand that he be allowed to work from home (on full pay) or be furloughed (on 80% of pay). These demands were not appropriate steps to protect himself from danger, so his claim failed.
Although not binding, this case is a reminder that the pandemic may not on its own justify a refusal to attend work under section 100(1)(e) if employers have reasonably tried to accommodate employees’ concerns and reduce transmission risk.
COVID-19: Dismissal automatically unfair for raising concerns about lack of COVID-secure workplace measures
In the case of Gibson v Lothian Leisure ET/4105009/2020, the claimant, Mr Gibson, worked as a chef in a restaurant owned by Lothian Leisure. The restaurant closed temporarily in March 2020 due to the first COVID-19 lockdown, and Mr Gibson was furloughed. Before re-opening the restaurant, the employer asked Mr Gibson to come into work. Mr Gibson was concerned about catching COVID-19 at work and passing it onto his father, who was clinically vulnerable. When Mr Gibson raised concerns about the lack of PPE or other COVID-secure workplace precautions, the employer’s response was robustly negative, and he was told to “shut up and get on with it“.
With no prior discussion, the employer dismissed Mr Gibson summarily by text message on 30 May 2020. It did not pay him any notice pay or accrued holiday pay. The message said that Lothian Leisure was changing the format of the business and would be running it with a smaller team after the lockdown.
An employment tribunal held that Mr Gibson had been unfairly dismissed under section 100(1)(e) of the Employment Rights Act 1996 (ERA 1996) because he had taken steps to protect his father in what he reasonably believed to be circumstances of serious and imminent danger. Alternatively, since the wording of the employer’s text message suggested a possible redundancy situation, Mr Gibson had been unfairly selected for redundancy under section 105(3) because he had taken those steps. The circumstances of danger were the growing prevalence of COVID-19 and the potential significant harm to Mr Gibson’s father if he contracted the virus. Mr Gibson reasonably believed that this was a serious and imminent danger, leading him to raise concerns regarding the lack of PPE. Until Mr Gibson had raised those concerns, he had been a successful and valued member of staff.
The tribunal also awarded Mr Gibson pay in lieu of notice and untaken holiday, underpaid furlough pay, and pension contributions that had been deducted but not paid into the pension scheme. It dismissed his claim under the whistleblowing provisions of the ERA 1996. His concern had only been for the health of his father and the tribunal was not satisfied that this met the public interest test under section 43B, although the point was arguable.
Worker Status: Employment tribunal to decide whether postmasters are workers
Website Personnel Today, has revealed that over 100 postmasters and sub-postmasters are bringing an employment tribunal claim against the Post Office in a bid to be classified as workers under the Employment Rights Act 1996, entitling them to benefits including holiday and sick pay. The claimants, who run Post Office franchises, will deploy arguments based on the level of control exerted by the Post Office, in a similar vein to those raised in Uber and others v Aslam and others [2021] UKSC 5.
The case will be heard at the London Central employment tribunal later this month and will have an impact on thousands of postmasters and sub-postmasters across the country.
Other News:
COVID-19: Employers join pledge to promote vaccine uptake amongst staff
Employers of over one million workers have pledged to promote a positive safety message and signpost staff to NHS providers in a bid to improve the UK’s vaccine uptake. Nine of the UK’s biggest employers, including IKEA, Asda and Nationwide, have signed the pledge which will also mean that employees will be able to get their vaccines during working hours. Interestingly, this announcement follows the publication of a poll by the British Chambers of Commerce (BCC) which found that 78% of employers had no plans to implement “vaccine certification” for employees returning to the office.
Gender Inequality: Government publishes response to Women and Equalities Committee report on gendered economic impact of COVID-19
On 14 May 2021, the government published its response to the Women and Equalities Committee report ‘Unequal Impact? Coronavirus and the gendered economic impact’. The report found that government policies had consistently overlooked women’s caring responsibilities and the employment inequalities experienced by them and made wide-ranging recommendations.
The government’s response, however, rejects many of the recommendations, including a review of the adequacy of Statutory Sick Pay, amendments to Form HR1 to capture protected characteristic information, funding of training schemes aimed at women in certain fields and the publication of a gender equality plan for apprenticeships. However, it does state the following:
- Amendments to the Flexible Working Regulations 2014 (SI 2014/1398), removing the 26-week service requirement for making a flexible working request, will be considered. The government wants to make it easier for people to work flexibly and is committed to encouraging flexible working. It will consult on making flexible working the default position, with a consultation to be issued in due course.
- The government is committed to bringing forward an Employment Bill “when parliamentary time allows“. However, there was no mention of an Employment Bill in the Queen’s Speech of 11 May 2021. Consequently, the government will not publish the draft Employment Bill by the end of June 2021, as the report recommends.
- The government still intends to extend the redundancy protection period afforded to mothers on maternity leave. This protection will apply to pregnant women and for six months after a mother has returned to work, and will cover those taking adoption and shared parental leave. The measures will be brought forward “as soon as Parliamentary time allows“. No specific timeframe is provided. Notably, the measures were mentioned in the 2019 Queen’s Speech following a BEIS consultation in January 2019. The government is also considering proposals to require large employers to publish their parental leave and pay policies, with its formal response to a consultation from July 2019 awaited.
Finally, while calls for disability pay gap reporting are rejected, the government states that it is continuing to analyse relevant data and will respond to the ethnicity pay gap consultation in due course.
Flexible Working: Government to commence consultation on flexible working while National Rail catches up with the times
The Guardian reports that the government has confirmed it plans to commence a consultation which would consider whether flexible working would become the default option unless there are good reasons not to (a proposal originally set out in the Conservative Party’s 2019 election manifesto and subsequently included in the Employment Bill outlined in the Queen’s Speech). According to The Guardian, a government spokesperson has stated that this would not go as far as giving staff a legal right to work from home.
The government has stated on numerous occasions that it intended to consult on flexible working, including in its recent response to the Women and Equalities Committee report on gendered economic impact of COVID-19. A government advisory group, made up of business associations, charities and trade unions from ACAS to the CBI, has also recently recommended that flexible working should be the default position.
Following hot on the heels of this, National Rail recently announced a new ‘Flexi Season ticket’ which offers 8 days of peak time travel Monday to Fridayin a 28 day period, any time between two stations. The tickets will be on-sale from 21 June 2021, for use from 28 June 2021.
Parental Leave: Maternity Action publishes proposals to reform shared parental leave and John Lewis leads the way
Maternity Action has published a report recommending reform of shared parental leave (SPL). The report follows the campaign it started in April 2021 with other groups including the TUC and the Fawcett Society, and the government’s failure to include the long-awaited Employment Bill in the Queen’s Speech which could have included proposals for SPL reform (see our May newsletter).
Maternity Action considers that the current scheme is not fit for purpose. Data provided by business minister Paul Scully, in response to a parliamentary question in February 2021, indicated that take-up among eligible fathers was just 3.6% in 2019/20, well below the government’s 25% target, and only 2% of all new fathers took SPL in 2019. The pandemic has only increased the problem, with the Women and Equalities Committee February 2021 report on the gendered impact of COVID-19 finding that the gender childcare gap increased during the pandemic (see above).
The report proposes that a new system should be introduced that provides individual, non-transferable, rights for each parent, as sharing or transferring of leave between parents has not worked, being too complex and poorly understood by parents and employers. A “6+6+6” model is proposed, replacing both the existing statutory maternity leave and SPL schemes. The first six months of leave being reserved for the mother, and then six months of non-transferable parental leave for each parent. This could be taken concurrently or consecutively, all in one go, or in smaller blocks of weeks or months, up to 18 months after the birth.
The report also recommends that:
- Maternity, paternity and parental leave and pay should be day one rights for all working parents, regardless of employment status.
- The right to return to the same job after any period of leave should be strengthened.
- Statutory leave pay should be increased to at least the national minimum wage level, and should in time be increased to the real living wage level and then wage-replacement levels.
In autumn 2021, John Lewis will introduce what is thought to be the UK’s first equalised parental pay policy, offering 26 weeks’ paid leave to all employees who have been at the company for a year when they have a baby. This will constitute 14 weeks of full pay and 12 weeks of 50% contractual pay. Employees who lose pregnancies will also receive greater support; being granted two weeks of paid leave alongside emotional support provisions including free counselling and mental health services.
John Lewis’ new policies come as part of efforts to redefine its responsibilities towards equality, one of its founding principles.
Diversity: Report suggests firms with targeted support for ethnic minority workers have higher revenues
People Management reports that Henley Business School has published a report revealing that businesses with targeted measures to support their ethnic minority workers have an average revenue of £5.6 billion; 58% higher than the £3.6 billion made by firms that do not.
The report, which analysed the earnings of 100 firms in the FTSE 350, also found that the market capitalisation for companies who have targeted measures was an average of £4.3 billion higher than companies that have failed to introduce any. In the introduction to the report, lead researcher Dr Naeema Pasha suggests that the research demonstrates that adopting an inclusive culture can help organisations improve wellbeing, engagement, sustainability and innovation, leading to better outcomes for all employees.
Legislation: Skills and Post-16 Education Bill introduced in Parliament
On 18 May 2021, the Skills and Post-16 Education Bill 2021-22 (the Bill) was introduced in Parliament. It contains measures aimed at creating more routes into skilled employment and ensuring that the training on offer meets the needs of local areas.
The Bill provides the legislative underpinning for the reforms set out in the ‘Skills for Jobs White Paper’. It is intended to improve the functioning of the post-16 education system and support the introduction of the Lifetime Skills Guarantee, aimed at transforming the training and skills system to ensure more people gain skills to progress their employment prospects.
The following measures introduced by the Bill are likely to be of interest to employers:
- A power for the Secretary of State for Education to designate employer representative bodies to lead the development of local skills improvement plans.
- A duty for education and training providers to co-operate with employer representative bodies to develop and review local skills improvement plans, and to have regard to them when making decisions on the provision of post-16 education and training.
- Additional functions for the Institute for Apprenticeships and Technical Education in relation to new categories of technical qualifications that relate to employer-led standards and occupations.
The Bill is scheduled to have its second reading on 15 June 2021.
Employment Rights: Government publishes response to consultation on single enforcement body
On 8 June 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the government’s response on the proposal to create a single enforcement body for employment rights. The proposal was made in the government’s Good Work Plan policy paper published in December 2018 and consulted upon in the latter half of 2019.
As a result of the consultation responses received, the government proposes to create a single enforcement body which will bring three existing bodies into one organisation with a significant remit to enforce employment rights and improve employers’ compliance. The body will have an extensive remit to protect workers in relation to national minimum wage, labour exploitation and modern slavery, holiday pay for vulnerable workers and statutory sick pay. The government will legislate to implement the single enforcement body “when parliamentary time allows”.
ACAS Update: In response to ACAS report, government confirms no current intention to ban “fire and rehire” practices
On 8 June 2021, ACAS published its report into so-called “fire and rehire” practices. The report was commissioned by BEIS and delivered to minsters in February 2021.
Intended as a fact-finding exercise, rather than to recommend reforms to the practice, the report notes a wide range of opinions amongst participants over the use by employers of fire and rehire. Although use of the practice has increased during the COVID-19 pandemic, participants did not agree over whether this was because employers were using the pandemic opportunistically as a “smokescreen” to diminish employees’ rights or whether it was merely a response to the scale of the challenges faced by businesses during this time.
There was a similar divergence of views amongst participants over whether reform to the practice was needed and, if so, what these reforms should be. Some participants in the report felt that fire and rehire is never reasonable and should be outlawed by legislation. Others felt that the practice can be reasonable if used as a genuine and unavoidable last resort. Concerns were also expressed that any reform could lead to less flexibility for employers, resulting in more businesses failing, and consequently to more redundancies.
Responding to the report in the House of Commons, Paul Scully MP, Parliamentary Under-Secretary of State for BEIS, confirmed that the government does not propose to devise “heavy-handed legislation” to ban fire and rehire at this stage. Instead, Mr Scully confirmed that the government has instructed ACAS to prepare clearer guidance on when fire and rehire should be used and good practice for employers. However, Mr Scully said the government will continue to work with ACAS on this issue, and confirmed that “nothing is off the table“.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
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Employment Law Newsletter – October 2020
Cases:
- Age discrimination: Establishing group and individual disadvantage for indirect discrimination
- Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
- Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
- Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
- Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
Other news:
- COVID-19: New regulations make self-isolation legal requirement and introduce fines
- COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
- HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
- Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
- Equality: The number of executive positions occupied by women remains “stubbornly low”
- Anti-racism: MHFA England guidance on creating anti-racist workplaces published
- Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
- Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
Cases:
Age discrimination: Establishing group and individual disadvantage for indirect discrimination
In Ryan v South West Ambulance Services NHS Trust [2020] UKEAT/0213/19 the EAT has held that an employee was indirectly discriminated against on grounds of age on the basis that she was excluded from applying for a promotion because, while it was open to her to apply, she was not in the employer’s “talent pool“. The pool had been established as a quick way of finding talented employees to fill vacancies at short notice and without having to advertise externally.
The employee established that there had been a group disadvantage since there were statistics to show that there was a reduced likelihood, due to age, of employees aged 55 and above being in the pool. The EAT also held that she was personally disadvantaged because she was not considered for roles that she would otherwise have been considered for because the employer had looked to fill the vacancies from the pool. The employer argued that she had not tried to access the pool by all routes available to her, but having failed to adduce evidence of this, could not prove that the discriminatory effect of the rule was not at play in her particular case.
The EAT also reminded the parties of the importance of accuracy in how discrimination claims are articulated and of the need to identify group disadvantage before considering individual disadvantage. In this case, neither of the parties had identified in the case management summary or at any time after, that there was inconsistency between the group and the individual disadvantage which was the subject of the complaint.
Vicarious Liability: Employee’s practical joke in the workplace goes too far for vicarious liability
In Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 (QB) the High Court has upheld a county court decision that an employer was not negligent or vicariously liable for the actions of an employee whose practical joke unintentionally caused injury to a contractor at work. The court held that it was expecting too much of an employer to devise and implement a health and safety policy, or other policy or site rules, which descend to the level of horseplay or the playing of practical jokes. It accepted that the contractor had previously made his supervisor aware that there were rising tensions between employees and contractors on-site. However, there was no foreseeable risk of injury as tensions were not so serious as to suggest the threat of violence or confrontation. Increased supervision to prevent horseplay, ill-discipline or malice was therefore not a reasonable step to expect this employer to have identified and taken.
Following the Supreme Court’s decision in WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (in which the Supreme Court held that Morrisons was not vicariously liable for the actions of an employee who, without authorisation and in a deliberate attempt to harm his employer, uploaded payroll data to the internet using personal equipment at home) the court held that, although the incident happened in the workplace, the employer was not vicariously liable for the employee’s actions. Those actions were unconnected with any instruction given to the employee in connection with his work and did not in any way advance the purpose of his employer. The workplace merely provided the opportunity to carry out the prank, rather than it being within the employee’s work activities.
Equality Act: Christian employee’s beliefs against gender fluidity were protected beliefs
In the case of Higgs v Farmor’s School ET/1401264/19 an employment tribunal has held that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010. However, the tribunal held that the employee had not been directly discriminated against or harassed because of those protected beliefs. Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s School. She had been disciplined and dismissed for gross misconduct for breaching the school’s conduct policy because of the inflammatory language used in her Facebook posts which could have led readers to believe that she held homophobic and transphobic beliefs. Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her beliefs had resulted in her mistreatment.
The tribunal considered that it could distinguish this case from the earlier tribunal decisions of Forstater v CGD Europe and others ET/2200909/2019 and Mackereth v Department for Work and Pensions and another ET/1304602/18 because the employee’s beliefs in this case were not likely to result in discrimination against members of the trans community. In the Mackereth case, the tribunal held that a Christian doctor’s beliefs that God only created males and females and that a person cannot choose their gender, his lack of belief that an individual can be trans, and his conscientious objection to the concept of trans people, were views incompatible with human dignity which conflicted with the fundamental rights of others and so were not protected religious or philosophical beliefs under the Equality Act 2010. In the Forstater case, the tribunal held that similar beliefs held by a consultant were not worthy of respect in a democratic society and therefore failed the test in Nicholson (i.e. guidance as to what beliefs should be protected, such as genuinely held, a belief not an opinion or viewpoint, weighty and substantial aspect of human life and behaviour, have a certain level of cogency, seriousness, cohesion and importance, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others).
The tribunal noted that those decisions were not binding on it and considered that it was a major consideration of the tribunal in both of those cases that the belief held could result in the claimant unlawfully discriminating against a trans person. The tribunal held that it “could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her” and that “there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them”.
Equality Act: Gender fluid employee awarded £180,000 in compensation following landmark discrimination case
In Taylor v Jaguar Land Rover Limited [2020] UKET 1304471/2018, Ms Taylor was an engineer at Land Rover who underwent gender reassignment and became a gender fluid employee. Gender Reassignment is a protected characteristic under the Equality Act 2010. She was treated so badly as a result of this, she subsequently made claims of harassment, direct discrimination, victimisation, and constructive unfair dismissal against Land Rover.
In his judgment for the Claimant, Judge Hughes said it was appropriate
to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again. The claimant’s compensation shall be uplifted by 20% because of respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance about short term measures to assist her transitioning.
Judge Hughes in Taylor v Jaguar Land Rover Limited [2020] UKET 1304471/2018On 2 October 2020, Ms Taylor was awarded £180,000 in compensation at a remedy hearing following the judgment where it was held that gender fluid and non-binary people were protected from discrimination in the workplace under the Equality Act 2010. Jaguar Land Rover has apologised to Ms Taylor and stated that it will use the outcome to inform its diversity and inclusion strategy.
Whistleblowing: Imposing new contract was a one-off act, not an act extending over a period
In Ikejiaku v British Institute of Technology Ltd [2020] UKEAT/0243/19 the EAT has upheld a tribunal’s finding that imposing a new contract on a senior lecturer following a protected disclosure he had made about suspected tax evasion was a “one-off” act with continuing consequences, rather than an act extending over a period. This meant that time started to run on the whistleblowing detriment claim at the point when the contract was imposed, not when the lecturer was dismissed. The EAT considered the authorities on what constitutes a continuing act, which showed that a typical, but not exhaustive, example is where the employer’s act constitutes a policy or rule. It concluded that the “act” in the present case did not constitute a policy or rule, nor was there any basis for concluding that it was an act “extend[ing] over a period” under section 48(4)(a) of the Employment Rights Act 1996.
However, the EAT allowed an appeal against the tribunal’s finding that the lecturer was not entitled to an uplift on the compensatory award for an automatic unfair dismissal claim, because disciplinary procedures, both generally and those contained in the ACAS Code of Practice on Disciplinary and Grievance Procedures, have no application to a dismissal on the ground of a protected disclosure. While the tribunal had been correct insofar as the application for an uplift related to disciplinary procedures, on a fair reading the application also extended to the grievance section of the ACAS Code, which refers to “concerns, problems or complaints” raised by employees. The employer had accepted that a protected disclosure made the day before dismissal fell into this category and so potentially engaged the provisions of section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.
Other News:
COVID-19: New regulations make self-isolation legal requirement and introduce fines
The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 (SI 2020/1045) came into force on 28 September. The Regulations (which only apply in England) require anyone who has tested positive for COVID-19, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has, to self-isolate for ten or 14 days respectively.
Self-isolating workers (including agency workers) who are due to go into work must notify their employer (or the employment business or client in the case of an agency worker) that they are required to self-isolate, as soon as reasonably practicable and not later than their next working day. In the case of agency workers, the recipient of the notification must inform others in the agency chain.
Where an employer of a self-isolating worker or self-isolating agency worker is aware of the worker’s requirement to self-isolate, they must not knowingly allow them to come into work.
Anyone who unreasonably fails to self-isolate is liable to be fined between £1,000 and £10,000 for repeat offences and serious breaches. Employers also risk the same level of fines where they knowingly allow self-isolating staff to come to work without reasonable excuse.
COVID-19: Two-thirds of employers see rising interest in flexible working from male employees and better relationships all round
Two-thirds of employers have noticed a growing interest in flexible working from their male employees since the beginning of the COVID-19 pandemic. This is according to a poll conducted by Working Families, which collected data from a small sample of 26 UK employers in September 2020. Experts say that increased homeworking during the pandemic may have reduced the negative stigma sometimes associated with men requesting less conventional, flexible working arrangements.
The data also suggests a longer-term shift in working practices, with more employees likely to be working flexibly or remotely for at least part of their working week, even after the pandemic has ended. The vast majority of employers also found that productivity had either remained at the same level or even improved with employees working from home. All of the employers found that relationships had improved with employees following lockdown as they now had a better understanding of their employees’ lives. In addition, all employers had offered employees with children the opportunity to work from home and flex their hours, as well as offering wellbeing support, paid leave, acceptance of children appearing on video calls, and changed deadlines and objectives to reflect caring responsibilities. It seems there can be a positive stance to be found out of these tough times, after all.
HR Guidance: CIPD and EHRC publish guide on supporting employees suffering domestic abuse
On 29 September 2020, the CIPD and EHRC published ‘Managing and supporting employees experiencing domestic abuse: a guide for employers’. The guide recommends that employers have a clear policy in place to support employees and a framework of support made up of four steps: recognise the problem, respond appropriately to disclosure, provide support and refer to the appropriate help. It calls for an empathetic, non-judgmental approach and flexibility (for example in working hours or concerning work tasks) as two key areas for employers to focus on. In particular, as many more people are working from home as a result of the COVID-19 pandemic and related restrictions, employers will need to consider how to maintain support when escape routes or time apart from an abuser may be dramatically curtailed.
The guide notes that it is not for employers to solve the problem, but they should enable their employees to access professional support, whether in the form of legal or financial advice, housing support, counselling or arranging childcare. It calls for employers to provide paid leave for those struggling to do their work or who need to access essential services. The guide addresses the need for open workplace cultures to break the silence around domestic abuse and for roles and responsibilities, such as those of HR and line management, to be clear when it comes to providing support.
On 9 June 2020, BEIS launched a review of how employers and the government could better support domestic abuse survivors in the workplace. Submissions were required by 9 September 2020 and the review is expected to report by the end of 2020.
Gender Pay Gap: UK Gender Pay Gap legislation much less ”robust” than in other countries, report finds
A report entitled ‘Gender Pay Gap Reporting: a comparative analysis‘ has been published by the Fawcett Society and the Global Institute for Women’s Leadership at King’s College London, which analysed the gender pay gap reporting legislation of ten countries. The report has revealed that the UK is “unique in its light-touch approach” to tackling the gender pay gap. In particular, the related research highlighted the UK’s failure to require private employers to produce action plans for reducing their gender pay gap, with only one other country, Austria, also not requiring this.
Interestingly, the report placed the UK ahead of its peers in terms of transparency and compliance; in 2019, 100% of eligible employers reported their statistics. However, the report did call for the pay gap reporting requirement currently applicable in England, Scotland and Wales to be extended beyond companies with 250 employees or more.
Equality: The number of executive positions occupied by women remains “stubbornly low”
The ‘Female FTSE Board Report 2020’, published by Cranfield School of Management and EY, which looks at trends in female representation on FTSE 100 and FTSE 250 boards each year, has found that the record number of women on boards is failing to translate into genuine equality in senior roles. Despite significant progress in the number of non-executive directors on FTSE 100 boards (where women now account for a record 40.8% of non-executive directors), the increase in the number of executive positions being awarded to women remained “stubbornly low“. In June 2020, less than one in seven executive director roles (13.2%) were held by women, with women filling just five out of 100 chief executive roles. Women fared worse in the FTSE 250, where they held 11.3% of executive director roles.
The report warns that the COVID-19 pandemic threatens to reverse gender equality progress and notes that the unequal burden of care placed on working women during the lockdown was likely to exacerbate existing gender inequalities and the gender pay gap.
Anti-racism: MHFA England guidance on creating anti-racist workplaces published
Mental Health First Aid England (MHFA England) has collaborated with the Chartered Management Institute (CMI) and Business in the Community (BITC) to publish guidance as part of the ‘My Whole Self campaign’. The guidance promotes the mental health and wellbeing of People of Colour and Black people in the workplace through the creation of an anti-racist environment. The guidance provides practical advice on how organisations, managers and colleagues can be better allies to People of Colour and Black people.
Ethnic diversity: CBI sets new targets to increase racial and ethnic diversity while Legal & General use their vote to force boardroom change
On 12 October 2017, the Parker Review Committee published its final report into the ethnic diversity of UK boards. It recommended that there should be at least one racially and ethnically diverse director on each FTSE 100 board by 2021 and on each FTSE 250 board by 2024. On 5 February 2020, in an update report, the Committee noted that, while companies were not yet up to speed, there had been movement and it might still be possible to meet the targets.
On 1 October 2020, the CBI announced that at the end of October it will be launching ‘Change the Race Ratio’ campaign, a campaign to increase racial and ethnic participation in British businesses. The campaign will identify four Commitments to change which are to:
- Increase racial and ethnic diversity among board members by taking action to ensure that FTSE 100 companies have at least one racially and ethnically diverse board member by the end of 2021 and FTSE 250 companies do so by 2024.
- Increase racial and ethnic diversity in senior leadership by setting clear and stretching targets and publishing them within 12 months of making the commitment.
- Be transparent by publishing a clear action plan to achieve targets and sharing progress through Annual Reports or on company websites. This should include disclosing ethnicity pay gaps by 2022 at the latest.
- Create an inclusive culture through recruitment and talent development processes, fostering safe, open and transparent dialogue, provision of mentoring, support and sponsorship, working with a more diverse set of suppliers and partners (including minority owned businesses) and through data collection and analysis.
Following this announcement, in a letter to FTSE 100 companies, Legal & General Investment Management (LGIM), the UK’s biggest fund manager with a 2% to 3% stake in nearly every FTSE 100 listed company, has warned firms that there will be “voting and investment consequences” for companies who fail to diversify their senior leadership team by 2022. Currently, approximately 37% of FTSE 100 companies have all-white boards. LGIM wants all FTSE 100 boards to include at least one black, Asian or other minority ethnic (BAME) member by January 2022. If companies fail to meet that target, it has said that it would openly vote against the re-election of their chairperson or the head of their nomination committee.
Data Protection: H&M fined EUR35 million in Germany for GDPR breach after storing “extensive” employee data
On 2 October 2020, H&M received a fine of EUR35 million for monitoring and recording “extensive details” about hundreds of its employees in Nuremburg, in breach of the General Data Protection Regulation (GDPR). The Hamburg Commission for Data Protection and the Freedom of Information revealed that the information included details of absences for vacations and sick leave, symptoms of illness and diagnoses, family issues and religious beliefs.
The Commission found that the data was able to be read by up to 50 managers and that this data was used to “obtain a detailed profile of employees for measures and decisions regarding their employment“.
H&M has also agreed to pay out compensation to employees who worked at the Nuremburg site for at least a month since May 2018.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
