Employment Law Case Update – November 2022
This month’s news highlights cover a variety of issues including consultations in redundancy, settlement agreements reaching too far, a substantial compensation award against Royal Mail, facts versus intentions in relation to employment status and a look at what’s next for Mercer v Alternative Future Group when the Supreme Court is asked to look at the legislative gap in protection for striking workers.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- Settlement Agreements: Unknown future claims cannot be settled in advance
- Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
- Employment Status: The parties’ intentions do not determine employment status
- Unions: Supreme Court to hear bid to protect striking workers
Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust and Another  EAT 139, the EAT allowed the appellant’s appeal against the decision of the employment tribunal in relation to a claim of unfair dismissal by reason of redundancy. The EAT held, among other things, that the tribunal had overlooked aspects of the issue of consultation in its deliberations, conflating consultation on alternative employment with the broader consultation required in a redundancy situation. Consultation was a fundamental aspect of a fair procedure. That aspect applied equally, with appropriate adaptation, to redundancy situations where there was no collective representation.
In order that consultation was ‘genuine and meaningful’ a fair procedure required that consultation took place at a stage when an employee or employee representative could still, potentially, influence the outcome. In circumstances where the choice of criteria adopted to select for redundancy had the practical result that the selection was made by that decision itself, consultation had to take place prior to that decision being made. It was not within the band of reasonable responses, in the absence of consultation, to adopt one criterion which simultaneously decided the pool of employees and which employee was to be dismissed.
The implied term of trust and confidence required that employers would not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one could be fair in appropriate circumstances, it should not be considered, without prior consultation, where there was more than one employee.
Settlement Agreements: Unknown future claims cannot be settled in advance
In Bathgate v Technip UK Ltd  EAT 155, Scottish EAT has held that s.147 of the Equality Act 2010 does not allow a qualifying settlement agreement to settle future claims unknown to the parties at the time of entering into the agreement. The judge considered that the existing case law was not to contrary effect. While the decision concerns the interpretation of s.147(3)(b) of the Equality Act 2010, it applies to settlement agreements made under other statutes where there is a corresponding provision (for example, s.203(3)(b) of the Employment Rights Act 1996 (ERA 1996)).
S.147(3)(b) requires the agreement to identify “the particular complaint“. This is not satisfied by a long list of claims defined by reference to their legal character or section number. Parliamentary intention was that settlement should only be available in the context of an agreement which settles a particular complaint that has already arisen between the parties, and the purpose of the statutory provision is to protect employees when agreeing to relinquish the right to bring proceedings. The statutory words suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed, and the precision of those words is not apt to describe a potential future complaint.
The EAT also considered the territorial scope of the Equality Act 2010 as it applies to seafarers. It held that an employee does not cease to be a seafarer, within the meaning of s.81 of the Equality Act 2010, by working onshore for the last six months of employment, having worked for nearly 20 years on ships. S.108 of the Equality Act 2010, which deals with post-employment claims, is dependent on the employee’s rights during employment. Where an employee is excluded from the territorial scope of the Equality Act 2010 by s.81 during employment, they are also excluded post-employment.
Whistleblowing: Tribunal awards compensation for career loss, psychiatric injury and substantial injury to feelings against Royal Mail
Following a remedies hearing, an employment tribunal has awarded substantial compensation for unfair dismissal and detriment in Jhuti v Royal Mail Group ET/2200982/2015 (3 October 2022), a whistleblowing case that had previously been subject to an appeal in the Supreme Court.
The tribunal found that the claimant had suffered a “lengthy and intense period of bullying” over five months prior to taking sick leave and being dismissed. This treatment had “destroyed the claimant’s life“, leaving her with PTSD and recurrent episodes of severe depression, and leading to the breakdown of her relationship with her teenage daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.
As well as financial compensation for total career loss to age 67, the tribunal awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings and £12,500 aggravated damages to reflect the respondent’s oppressive conduct at the remedies hearing. It also made a 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Employment Status: The parties’ intentions do not determine employment status
In Richards v Waterfield Homes Ltd and another  EAT 148, an employment tribunal erred in finding that, in a working relationship which had numerous indicators of employment status and only one in favour of self-employment, that the latter should be determinative of the issue. Self-employment (implicit in the use of the CIS scheme (a construction workers tax scheme) to pay the claimant, “under which registrants know they will be treated as self-employed”) was only one of the factors to be considered.
Looking at the findings as a whole, and consistent with case law, the only proper conclusion open to the employment tribunal was that the claimant was indeed an employee. The case was remitted to the employment tribunal for a remedy hearing on that basis.
Unions: Supreme Court to hear bid to protect striking workers
The Supreme Court will hear arguments from UNISON, the UK’s largest union, that a recent Court of Appeal decision unfairly allows employers to punish striking workers, as historic numbers take industrial action. UNISON will support Fiona Mercer, a former trade union representative, in her appeal at the Supreme Court against Business Secretary, Grant Shapps. His predecessor, Kwasi Kwarteng, had intervened in March 2022 to reverse Mercer’s win against her employer, Alternative Futures Group (AFG), a health and social care charity.
The EAT in Mercer v Alternative Future Group  IRLR 620, ruled that AFG had violated the European Convention on Human Rights when it suspended Mercer in a dispute over plans to cut allowances for sleep-in staff. But the government successfully argued to the Court of Appeal, in Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening)  EWCA Civ 379, that keystone labour legislation (the Trade Union and Labour Relations Consolidation Act 1992) does not protect striking workers from detrimental treatment.
Workers cannot be fired for taking part in industrial action, but that protection expires after 12 weeks—and there is a ‘legislative gap’ in what other protection is available to employees taking industrial action, the Court of Appeal said. That gap means ‘unscrupulous employers’ can make life difficult for workers who exercise their right to strike, UNISON said as it revealed that it had won permission to appeal to the Supreme Court. No date has been set for the hearing, although UNISON said it expects it in the second half of 2023.
The union is expected to argue that the UK is obliged by international labour law and precedents from the European Court of Human Rights to protect workers from detriment short of dismissal. The government is likely to counter that those standards exceed what is required under domestic legislation.
UNISON’s general secretary, Christina McAnea, said the appeal is “a chance to fix a glaring legal loophole“. “Employees only strike as a last resort and shouldn’t face punishment for protesting about their employer’s behaviour“, McAnea continued. “Hundreds of thousands of workers are thinking about industrial action as they struggle to cope with low pay in the face of soaring prices. Everyone must be able to exercise their rights without fearing they’ll be treated unfairly for standing up for themselves at work“.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – January 2022
Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.
Hot topics of 2021:
The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.
Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.
Equal Pay and the Gender Pay Gap
Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.
The Employment Bill
The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.
The Big Issues for 2022:
Changes to traditional 9-5 office-based working
Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, 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, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.
Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.
Vaccinations at work
On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.
New duty to prevent sexual harassment
On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.
Review of gender pay gap reporting regulations
By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.
Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.
We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.
Human Rights Act 1998
In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.
Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.
Potential developments to look out for:
Single enforcement body for the labour market
In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.
Confidentiality and non-disclosure agreements
In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.
This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.
In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.
Tipping, gratuities, cover and service charges
Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.
Neonatal leave and pay
On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.
Extending redundancy protection for women and new parents
On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.
Leave for unpaid carers
On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.
Ethnicity pay gap reporting
In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.
Disability workforce reporting
The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.
Whistleblowing review and new EU Directive
BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.
Post-termination non-compete clauses
On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.
Extending ban on exclusivity clauses
Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.
Working conditions in digital labour platforms
The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.
On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.
On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.
In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.
In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.
The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.
Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com.
Employment Law Newsletter – November 2021
- 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: firstname.lastname@example.org
Employment Law Newsletter – October 2021
- Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
- Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
- Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
- Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
- Data Protection: ICO data sharing code of practice under DPA 2018 in force
- Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
- New Legislation: Consultation response to tipping, gratuities, cover and service charges
- Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
- Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
- Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
Sex Discrimination: Charitable fostering agency policy on homosexual behaviour is unlawful
In R (Cornerstone (North East) Adoption and Fostering Services Ltd) v Chief Inspector of Education, Children’s Services and Skills (Ofsted)  EWCA Civ 1390, Cornerstone, an independent fostering agency which operates as a charity adhering to evangelical Christian principles, had a recruitment policy requiring foster carers to refrain from “homosexual behaviour“. Cornerstone is regulated by Ofsted, which determined that the recruitment policy should be amended because it was a violation of the Equality Act 2010 (EqA 2010) and the European Convention on Human Rights (ECHR). Cornerstone unsuccessfully applied for judicial review of Ofsted’s decision, the High Court holding that Cornerstone was subject to the EqA 2010 and the ECHR as a hybrid public authority, and that the policy unlawfully discriminated, directly and indirectly, against gay men and lesbians.
Cornerstone appealed to the Court of Appeal. In a unanimous judgment it held that Cornerstone’s policy was a clear instance of direct and indirect discrimination because of sexual orientation. The Court of Appeal considered whether the policy could be justified, under section 19 of the EqA 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.
For reasons similar but not identical to the High Court, the Court of Appeal held the policy was not capable of being justified as a proportionate means of achieving a legitimate aim. It emphasised that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. The requirement that discrimination on the ground of sexual orientation required weighty reasons to justify differential treatment was heavily underscored by statute in the case of a religious organisation that provided services to the public. Cornerstone had failed to provide credible evidence to justify the policy.
In concluding comments, the Court of Appeal noted that the appeal was a collision between two protected characteristics and accepted the need to protect those who are discriminated against in small numbers to progress equality for wider communities.
Sex Discrimination: Tribunal erred in striking out menopause disability and sex discrimination claims
In Rooney v Leicester City Council (EA-2020-000070-DA and EA-2021-000256-DA) the EAT has held that a tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010, and in dismissing her disability and sex discrimination, harassment and victimisation claims. The tribunal’s judgment failed to properly analyse the claims and consider the evidence presented to it, and it was not Meek-compliant as it did not adequately explain why the claims were dismissed. The claims were remitted to a differently constituted tribunal.
This case is an example of the difficulties faced by menopausal women in the workplace and the challenges that can arise in establishing that their symptoms amount to a disability. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. This is only the second appellate case concerning menopause discrimination at work that we are aware of, illustrating that these decisions are rarely appealed. The Women and Equalities Committee have recently held an inquiry into this area and their recommendations are awaited.
A reminder that ACAS has produced guidance for employers on how to deal with the impact of the menopause on employees at work: https://www.acas.org.uk/menopause-at-work.
Age Discrimination: EAT upholds opposing tribunal decisions on justification of the same compulsory retirement policy
In conjoined appeals in Pitcher v Chancellor, Masters and Scholars of the University of Oxford  9 WLUK 293 regardingProfessor Pitcher (an Associate Professor of English Literature at Oxford University and an Official Fellow and Tutor in English at St John’s College) and Professor Ewart (an Associate Professor in Atomic and Laser Physics at the University), the EAT has upheld two opposing employment tribunal decisions on the objective justification of a directly discriminatory employer justified retirement age (EJRA) operated by Oxford University and St John’s College. In the first case, an employment tribunal found the EJRA to be justified and the retirement dismissal fair. In contrast, in the second case, a differently constituted employment tribunal upheld the direct age discrimination and unfair dismissal claims, finding that the EJRA was not objectively justified.
The EAT dismissed the appeals against both employment tribunal decisions. The EJRA facilitated the achievement of the legitimate aims (inter-generational fairness, succession planning, and equality and diversity) by ensuring vacancy creation was not delayed. In terms of objective justification, the EAT held that the nature of the assessment undertaken by employment tribunals means it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims. While acknowledging that that it is undesirable for an employer to be faced with conflicting tribunal decisions relating to a particular policy, the EAT’s task is not to strive to find a single answer, but to consider whether either tribunal erred in law.
There were two material differences in the way in which the evidence was presented to the tribunals. First, one tribunal had the benefit of statistical evidence on the impact of the EJRA upon the creation of vacancies, which was not available to the other tribunal. Second, the tribunals received different evidence on the detriment suffered by those to whom the EJRA applied and so were entitled to give different weight to the mitigating factors relied on. Following a detailed analysis of the evidence considered and the reasoning adopted by each tribunal, the EAT concluded that neither had erred in law in coming to the conclusions they had on objective justification.
While the upholding of opposing decisions is undesirable from a wider employment law perspective, particularly for employers seeking to justify their own compulsory retirement policy, it demonstrates the importance that such employers should place on evidence or, if unavailable, reasoned projections of the impact of a policy on the achievement of its legitimate aims.
Whistleblowing: Tribunal applied wrong causation test and failed to distinguish between qualifying and non-qualifying disclosures
In Secure Care Ltd v Mott EA-2019-000977-AT (19 October 2021) the EAT has overturned a tribunal’s decision that an employee had been automatically unfairly dismissed in a whistleblowing case. The claimant, Mr Mott, had made a number of complaints to his employer about staff shortages, long working hours, rest breaks and other staffing difficulties, which he said endangered health and safety. He was dismissed, ostensibly for redundancy, and brought a tribunal claim for unfair dismissal under section 103A of the Employment Rights Act 1996, arguing that he had been selected for redundancy because he had made protected disclosures.
The tribunal found that three of his nine alleged disclosures were qualifying disclosures and that these met the test for protected disclosures. The tribunal found that “the fact that he had been ‘pointing out problems’ (in a number of communications some of which amounted to qualifying disclosures) clearly had a material effect on his selection [for redundancy]“. Although there was a genuine redundancy situation, Mr Mott’s dismissal was therefore automatically unfair.
On the employer’s appeal, the EAT held that the tribunal had erred in two respects. First, it had wrongly applied the test in Fecitt v NHS Manchester  ICR 372 (CA), in considering whether the protected disclosures “materially influenced” the employer’s treatment of the claimant. This test should only be applied to claims for detriment short of dismissal under section 47B. The unfair dismissal test under section 103A is whether the protected disclosures were the “sole or principal reason” for dismissal.
Second, the tribunal had failed to confine its consideration to the effect of the three protected disclosures. Rather, it had considered the combined impact and effect of the claimant’s communications about staffing levels and the associated problems this gave rise to.
Data Protection: ICO data sharing code of practice under DPA 2018 in force
The Information Commissioner’s Office (ICO) has updated its Data sharing information hub, confirming that a new version of its statutory data sharing code of practice came into force on 5 October 2021. The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation ((EU) 2016/679) (UK GDPR) and Data Protection Act 2018 (DPA 2018), including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements. Section 121 of the DPA 2018 requires the ICO to issue a data sharing code, either by way of amendments to an existing code or by way of a replacement code. The new code replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998. The code has been issued under section 125 of the DPA 2018; a failure to act in accordance with it does not of itself make a person liable to legal proceedings in a court or tribunal, but the code is admissible in evidence in legal proceedings.
Gig Economy: Pensions Regulator welcomes Uber pension scheme but warns gig economy
Website ‘Moneymarketing.co.uk’ reports that The Pensions Regulator has warned gig economy employers that they must “voluntarily and promptly” comply with their auto-enrolment obligations or risk enforcement action.
This comes after Uber recently announced its plan to offer a pension scheme provided by NOW: Pensions to all its eligible UK drivers, following the Supreme Court’s February 2021 ruling that Uber drivers were “workers” and therefore qualified for auto-enrolment.
Commenting on the news, a spokesperson for the Regulator welcomed the “landmark” initiative, adding that “we want to see all eligible workers in this sector have access to pensions saving“.
New Legislation: Consultation response to tipping, gratuities, cover and service charges
The government has responded to the 2016 consultation on tipping, gratuities, cover and service charges, and has confirmed its intention, first announced in 2018, to legislate to provide that tips left for workers are retained by them in full.
Measures to be included in the forthcoming Employment Bill will include:
- Requirements for employers in all sectors not to make any deductions from tips received by their staff, including administration charges, other than those required by tax law.
- Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
- Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but should respond within four weeks.
- Requirements for employers to have regard to a statutory Code of Practice on Tipping. It is expected that this would replace the existing voluntary code of practice, published in 2009.
Workers will be able to enforce these rights in the employment tribunals. The response states that the Employment Bill will be brought forward when Parliamentary time allows. The new rules are expected to come into force no earlier than one year after the Bill has been enacted.
Diversity: Many employers struggle to recruit Black graduates and fail to provide adequate support in the workplace
Two new reports show that many employers continue to struggle to recruit and retain Black employees. Many Black job applicants feel they are treated unfairly in the recruitment process and continue to face racism at work with inadequate support. The Institute of Student Employers reported that 54% of employers have a strategy to attract Black candidates to their business but only 44% of employers track retention. Another survey, Race at Work, has found that although job applicants from Caribbean (71%) and African (67%) backgrounds are more likely to use a recruitment agency than white people (47%), only 34% of Black candidates felt they are treated fairly, compared to 49% of white people.
Black employees continue to face specific challenges in the workplace, including explicit and covert racism and a lack of representation of Black people in senior positions. Black graduates have called for more support to help successfully transition into the workforce. Currently, less than a quarter of employers provide dedicated support to help their Black recruits address the challenges they face.
The Institute of Student Employers identified that to make a tangible difference, CEO backing is required, and set out five ways companies can support Black graduates before and during their careers, including:
- Being an ally
- Preparing all students for diverse workplaces and addressing racism and diversity as part of this
- Turning recruitment into a force for equality – ensuring that recruitment processes are overhauled to ensure that they are not biased and discriminatory
- Maximising the potential of hires from Black heritage backgrounds – Recognising that organisations need to support hires from Black heritage backgrounds during their early careers
- Transforming your organisation and influencing the world around you – Calling on all stakeholders to make more fundamental changes to ensure representation at all levels of their organisations and that they should lend their voices to wider campaigns for racial justice.
Additionally, the Race at Work report makes several recommendations for the recruitment industry and employers including:
- Critically examining entry requirements, focusing on potential achievement rather than which university or school the individual went to
- Drafting job specifications in plain English and providing an accurate reflection of essential and desirable skills to ensure applications from a wider set of individuals
- Larger employers ensuring that the selection and interview process is undertaken by more than one person, ideally including individuals from different backgrounds to help eliminate bias
- Seeking opportunities to provide work experience to a more diverse group of individuals and stopping the practice of unpaid or unadvertised internships.
Sexual Harassment: Fawcett Society report shows significant levels of sexual harassment at work
A new report published by the Fawcett Society, Tackling Sexual Harassment in the Workplace, shows that at least 40% of women experience sexual harassment during their career. Twenty-three per cent of those surveyed said that the sexual harassment increased or escalated while they were working from home during the COVID-19 pandemic. Disabled women surveyed were more likely to have experienced sexual harassment (68%) than women in general (52%). Employees from ethnic minority backgrounds, both men and women, reported experiencing sexual harassment at a higher level than white employees, with rates of 32% and 28% respectively. The report also found that 68% of LGBT employees had experienced harassment in the workplace.
Culture, policy, training, reporting mechanisms and the way employers respond to reports are five critical elements to help create a workplace intolerant of sexual harassment. The report recommends that employers should:
- Take all forms of sexual harassment seriously.
- Treat employees who report sexual harassment with respect and empathy and ensure women feel able to report harassment, including facilitating anonymous reporting.
- Increase gender equality within the organisation, especially at senior levels.
- Demonstrate leadership commitment to tackling harassment.
- Measure their organisational attitudes towards sexual harassment by conducting an employee survey.
- Provide managers dealing with reports with guidance and support.
- Have a clear and detailed sexual harassment policy that is separate to their general harassment and bullying policy.
The recommendations in the report will form the basis of a sexual harassment toolkit for employers which will be published next January. Employers can sign up to receive a copy of the toolkit (see Fawcett Society: Sexual Harassment Toolkit for Employers).
Artificial Intelligence: PwC reports on the likely impact of AI on the UK labour market
On 8 October 2021, BEIS published a report prepared by PwC, The Potential Impact of Artificial Intelligence on UK Employment and the Demand for Skills. For the purposes of the report, artificial intelligence (AI) is a collective term for digital systems and machines that can, in at least some ways, sense their environment, think, learn and take action in response to what they are sensing and their objectives. The report considers two main questions:
- Whether AI and related technologies (such as robots, drones and autonomous vehicles) will follow historical patterns by triggering significant structural labour market change.
- How large the disruption to labour markets from AI will be and what form it will take.
The report concludes that, while AI and related technologies should not cause mass technological unemployment (by displacing large numbers of workers from their jobs), they may lead to significant changes in the structure of employment across occupations, sectors and regions of the UK. The effects may be relatively small over the next five years but could become more material over the next ten to 20 years. They may add to income inequalities by tending to favour people with higher education and skills levels, who also tend to have higher earnings levels.
PwC’s modelling estimates that professional occupations will experience the highest net job gains over time, with nearly half the increase being in jobs for health professionals and the other half spread between scientists, researchers, engineers, technologists, educators, businesspeople, media professionals and civil servants. AI in these occupations is likely to be largely labour-augmenting and used to perform specific tasks that increase productivity (for example, lawyers using AI to read large numbers of cases to search for precedents and other arguments to use in a current case). Managerial occupations, for which tasks involved are difficult to automate, and occupations requiring “human touch” (such as caring or leisure) are also likely to experience net job creation. Other occupations are likely to experience changing patterns over time, with sales and customer services experiencing the highest rate of job displacement over the next five years, administration experiencing particularly high displacement in five to ten years and manual occupations (including taxi drivers) experiencing high rates of displacement but probably not before the 2030s.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com
Employment Law Newsletter – January 2021
A review of 2020’s biggest employment law issues and a look at what we should expect from the bright and glittery 2021.
Employment Law Newsletter – October 2020
- 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
- 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
Age discrimination: Establishing group and individual disadvantage for indirect discrimination
In Ryan v South West Ambulance Services NHS Trust  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  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  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  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  UKET 1304471/2018
On 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  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.
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.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
Employment Law Newsletter – November 2019
- Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
- Redundancy: Trial period and dismissal
- Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
- Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
- Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
- Data Protection: ICO publishes new detailed guidance for Data Protection Officers
- Gender Balance: Hampton-Alexander Review’s fourth annual report published
- Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
- Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
- National Minimum Wage: Rates for April 2020 delayed by general election
- Tribunals & Courts: Closures over Christmas and New Year 2019
Withholding Wages: Employer cannot rely on Home Office negative right to work check notice
In a decision that will make every employer roll their eyes, the EAT has recently decided that receiving a negative verification notice from the Home Office in response to an Employer Checking Service (ECS) right to work check request was not sufficient to allow an employer to withhold pay from an employee.
In the case of Badara v Pulse Healthcare Limited UKEAT/0210/18 the employer held an honest but mistaken belief that a non-EEA national (Nigerian) had to provide documentary evidence of their right to work, and this was a clause written into their contracts. Mr Badara was, in fact, entitled to an automatic right to work as a result of being a family member of an EEA national – the strict legal position irrespective of documentary evidence. Given this, when the employer requested an ECS from the Home Office, it should have provided a positive result, but for some reason came back negative. The employer therefore refused to provide Mr Badara with work and wages for fear of breaching the Immigration Asylum and Nationality Act 2006. The tribunal concluded that it was not unreasonable in the circumstances for the employer to rely on the ECS checks. However, the EAT disagreed because had the tribunal applied the ‘Additional Information’ section of the Right to Work guidance from the Home Office and the appropriate case law (Okuoimose v City Facilities Management Ltd UK EAT 2011) then it would have followed that the right to work would have been established, although the guidance states that a statutory excuse might not be established. The act of dismissal was prima facie indirectly discriminatory. The tribunal’s decision that the dismissal was justified could not stand and the employee’s claims for unlawful deduction from wages and indirect race discrimination were remitted to the tribunal for reconsideration.
A note for employers: despite the threat of the penalty provisions in the Immigration Asylum and Nationality Act 2006, Home Office guidance (and case law) states that an ECS check is not always enough to determine eligibility to work. If in any doubt, read all the guidance and seek professional advice.
Redundancy: Trial period and dismissal
In a redundancy situation, s.138 of the Employment Rights Act states that an employee is entitled to an automatic four week ‘statutory’ trial period in an alternative position if they have been dismissed as a result of redundancy, they accept an alternative role before the old one comes to an end, the new contract begins either immediately after the old role, or within 4 calendar weeks of the end of the old role, and the terms of the new contract differ from the original contract. This means that if there is no dismissal (or notice of dismissal) from the old role, then there can have been no statutory trial period.
In the case of East London NHS Foundation Trust v O’Connor  UKEAT 0113_19_2910, Mr O’Connor was told in March 2017 that due to a reorganisation, his role of Psycho-Social Intervention Worker was going to be ‘deleted’ with effect from 3 July 2017, putting him at risk of redundancy. He was offered an alternative role on a trial basis as Care Coordinator, starting from 3 July 2017. There was a disagreement as to whether this was suitable alternative employment, following which Mr O’Connor pursued a grievance. When that proved unsuccessful, the employer re-offered him the Care Coordinator position, which he declined. Mr O’Connor was dismissed in December 2017.
Mr O’Connor claimed he was owed a redundancy payment but the employer refused. It argued that the statutory trial period had ended on 9 August 2017 and the Care Coordinator role was a suitable alternative employment which Mr O’Connor had unreasonably refused. Thus, he was not entitled to a redundancy payment.
The EAT upheld the tribunal’s finding that Mr O’Connor had not actually been dismissed in July, and that the deletion of his role did not, in fact, amount to notice of dismissal – there being no rule of law which said so. The tribunal found that it was a matter of considering all the facts and circumstances to establish what happened. In this case, the evidence pointed to Mr O’Connor having started a trial in July without having been dismissed, which happened in December. The result was that this matter was remitted to the tribunal to consider the question of whether it was in fact dismissal by way of redundancy and therefore what payment may be due.
Privacy: Does covert monitoring of employees suspected of theft amount to a breach of privacy?
The European Court of Human Rights recently handed down its decision in López Ribalda and others v Spain. The matter concerned a supermarket where the manager noticed some inconsistencies between the stock level and the sales figures, running into thousands of Euros over a number of months. The manager launched an internal investigation and installed CCTV cameras, some visible and other hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. The employees were told that the manager suspected theft and about the installation of the visible cameras, but not the hidden ones. Prior to this, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked.
The CCTV did indeed show how the thefts were being carried out, which tallied with the stock reports and till receipts. The management informed the employees’ union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. Fourteen employees were dismissed with immediate effect, including the five applicants, of whom three signed settlement agreements in which it was agreed no criminal proceedings would be brought against them and other employment claims would be waived by both sides. Only the manager and the union representative watched the CCTV footage.
The five applicants then brought unfair dismissal claims against the supermarket. The applicants objected to the use of the covert video-surveillance, arguing that it had breached their Article 8 right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings. The employer opposed the proceedings brought by the 3 employees who had signed settlement agreements but those applicants sought the annulment of the agreements, arguing that they had signed them under the threat of criminal proceedings and that their consent had been vitiated by duress and by the deceitful manipulation of the employer with the complicity of the union representative.
The Spanish employment tribunal found that any employer was entitled to use monitoring and surveillance measures to verify that employees were fulfilling their employment duties, provided those measures were compatible with their “human dignity” and thus respected their fundamental rights – an employer’s right to adopt monitoring measures in the exercise of its management power and for the purpose of ensuring the smooth running of the company was limited by the respect due to the employees’ right to their privacy and to the protection of their image. Courts are supposed to strike a balance between the various interests of constitutional value by applying a proportionality test to the employer’s measures. In this case, it had found that the covert CCTV had been proportionate and had not breached the employee’s fundamental right to privacy guaranteed by Article 18 of the Spanish Constitution. In the tribunal’s view, the applicants’ conduct amounted to a breach of the principle of good faith and entailed the employer’s loss of trust, thus rendering their dismissals lawful. Further, there had been no evidence of coercion or manipulation by the employer regarding the settlement agreements.
The Grand Chamber of the European Court of Human Rights held by a majority of 14 to 3 upheld the decisions of the lower courts that a fair balance had been struck and the intrusion was proportionate because the employer had legitimate reasons. No violation of the Article 8 right to respect for private and family life had occurred. Not being informed in advance that they would be recorded did not violate the employees’ Article 8 right to private life. The Court held that employees should have a limited expectation of privacy at work on a supermarket floor (a public area) and found that the employer had taken steps to confine the circulation of the recordings to a very limited number of people. The surveillance was limited to ten days, had stopped once the responsible employees had been identified, and the recordings were targeted at a small group of individuals.
The three dissenting judges, however, were concerned by the
growing influence and control that technology has in our world, and more particularly, the collection and use of our personal data in our everyday activities. As a living instrument, the Convention, and therefore the Court, not only needs to recognise the influence of modern technologies, but also has to develop more adequate legal safeguards to secure respect for the private life of individuals.
Contracts: Is £500+VAT enough for an employee to take full advice on a settlement agreement?
It is often the case that when it comes to an employer offering an employee a settlement agreement, they agree to pay the costs of that employee taking advice. A common fee is £500+VAT. In order for the agreement to be fair, the employee needs to be given the opportunity to discuss the effect of signing a settlement agreement which in effect means they waive all rights to pursuing any claims against the employer in future.
In the case of Solomon v University of Hertfordshire  UKEAT 0258_18_2910, one of the EAT judges made an obiter comment at the end of the judgment, basically saying that £500+VAT was not enough for an employee to take full advice on settling their claim:
… We think it clear that the advice which the Claimant could expect to receive for this sum (or any sum remotely like it) would only relate to the terms and effect of the proposed settlement and its effect on her ability to pursue her rights thereafter (see section 203(3) of the Employment Rights Act 1996). Any advice as to the merits of the Claimant’s claim and the likely award of compensation would require reading and consideration on a quite different scale. So even if the Claimant had sought advice, she would still have had to make her own lay assessment as to the merits of her claim and the likely award of compensation. The ET said, in paragraph 10 of its reasons, that the offer of £500 plus VAT was for a solicitor “to advise on the merits of a settlement”. If so, the offer was wholly unrealistic.
This may be something to bear in mind when considering settlement agreements, given the amount of the settlement and the potential claims that may be involved. This case concerned a figure of £50,000 regarding claims of unlawful discrimination, victimisation and sexual harassment.
Whistleblowing: Public interest test is subjective so claimant must be given opportunity to give evidence
In 2017, the case of Chesterton Global Ltd (t/a Chestertons) v Nurmohamed  EWCA Civ 979, set out a two -stage test for determining the question of what is in the “public interest” for whistleblowing claims (i.e. to enable the disclosure to be a qualifying disclosure within s.43B(1) of the Employment Rights Act 1996, making it a “protected disclosure”). The test states that (1) the claimant must believe, at the time of making a disclosure, that it is in the public interest, and (2) that belief must be reasonable. This is a subjective belief, about which that person must be asked directly at tribunal so that they can be cross-examined. It is up to the tribunal to consider the evidence and make findings as to subjective belief and the reasonableness of that belief.
In the recent case of Ibrahim v HCA International Ltd  EWCA Civ 2007, Mr Ibrahim was an interpreter at a hospital. He asked his employer to investigate rumours that he had breached patient confidentiality, as he wanted to clear his name and reputation. The hospital investigated his complaint but his complaint was rejected and he was later dismissed. He brought several claims to the tribunal, among which was that he had suffered a detriment following making a protected disclosure. The tribunal dismissed his whistleblowing claim on several grounds, one of which was that he had not made it in the public interest but to clear his own name. The EAT agreed, finding that Mr Ibrahim had held no subjective belief in the public interest. Additionally, the judge confirmed that breach of a legal obligation under section 43B(1)(b) of the ERA 1996 can be broad enough to include tortious duties such as defamation and those statutory duties contained in the Defamation Act 2013. It was immaterial that Mr Ibrahim had not used the word ‘defamation’ himself.
Mr Ibrahim took the matter to the Court of Appeal. The Chesterton two-stage test had been handed down after the tribunal hearing but before the judgment, and so Mr Ibrahim claimed the tribunal had not applied the test correctly. The Court of Appeal found that the tribunal erred in that it should have specifically asked him about his subjective belief, although in this case, it was probably down to the timing of the case. In addition, a further onus was on the tribunal to ensure he explained his case as he was unrepresented. The decision in Chesterton made clear that motive and genuine belief in public interest are not the same thing. Mr Ibrahim had not said anything about public interest, which hampered his case, but did not dispose of the point. His appeal was therefore allowed and the case remitted back to the same tribunal to hear evidence from Mr Ibrahim and for consideration of this point.
Data Protection: ICO publishes new detailed guidance for Data Protection Officers
The Information Commissioner’s Office (ICO) has recently published a new set of detailed guidance on ‘Special Category Data’. This guidance is targeted at:
- those people for whom the existing Guide does not provide the answers you are looking for; or
- those needing a deeper understanding of the conditions for processing special category data to help you comply in practice;
- Data Protection Officers; and
- those with specific data protection responsibilities in larger organisations.
Special Category Data is a collection of types of personal data which are likely to be more sensitive, and which are therefore entitled to receive extra protection, for example: personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; health, sexual orientation, etc.
This guidance contains practical examples of special category data and its processing requirements and is arranged in four sections:
- What is special category data?
- What are the rules on special category data?
- What are the conditions for processing?
- What are the substantial public interest conditions?
It goes into detail regarding the general prohibition on processing special category and the ten exceptions to the prohibition referred to as the conditions for processing special category. The guidance emphasises the importance of identifying special category data and approaching it carefully. If your purpose is not covered by any of the processing conditions and you cannot obtain valid explicit consent, you cannot process the special category data.
Gender Balance: Hampton-Alexander Review’s fourth annual report published
On 13 November 2019 the Hampton-Alexander Review announced it has published it fourth Annual Report on improving gender balance in FTSE leadership. The original report was published in 2016 and set a target of getting a minimum of 33% women’s representation on the boards and on the leadership teams (meaning those who either sit on a company’s executive committee or directly report to members of that committee) of FTSE 350 companies by the end of 2020. According to this year’s annual report, this has been the strongest year of progress since targets were first set:
- FTSE 100 on track to reach the 33% target for women on boards ahead of the 2020 deadline.
- FTSE 250 made strong gains during the year and with sustained effort, will also meet the 2020 deadline.
- Women now hold 32.4% of FTSE 100 board positions (up from 30.2% in 2018), but 51 FTSE 100 companies have not yet achieved the 33% target.
- Women now hold 29.6% of FTSE 250 board positions (up from 24.9%), but 139 FTSE 250 companies have not yet achieved the 33% target.
- The FTSE 350 still has 2 all-male boards (5 in 2018) and 39 companies that have only one woman on the board, 28 of which have had only one woman for the second year running.
- Women now hold only marginally more chair, senior independent director and CEO roles. Across the FTSE 350 there are only 25 female chairs (5 in the FTSE 100), 80 female SIDs (20 in the FTSE 100) and 14 female CEOs (6 in the FTSE 100). There are only 74 female executive directors (30 in the FTSE 100), being 11% of executive directors in the FTSE 350.
However, it also reported that a step-change is needed for senior leadership roles below board level: 50% of all appointments next year need to go to women, or the 2020 target will not be met.
Workplace Diversity: ONS figures reveal number of mothers in the workforce reaches a record 75%
The government’s Office for National Statistics has released its ‘Families and the labour market, UK: 2019’ report. It shows the employment rates of men and women with dependent children in the UK, based on data from the Labour Force Survey and Annual Population Survey. This year’s figures demonstrate that:
- The number of mothers in the labour market has reached 75.1%, a significant increase compared with 66.2% of mothers in 2000.
- The number of working fathers has increased from 89.4% in 2000 to 92.6% in 2019.
- Almost 3 in 10 mothers (28.5%) with a child aged 14 years and under said they had reduced their working hours because of childcare reasons. This compared with 1 in 20 fathers (4.8%).
- The proportion of parents who faced an obstacle fulfilling responsibilities decreased as the age of the child increased; from 34.9% of parents whose youngest child was aged between 0 and 4 years to 20.4% of parents with a child aged 11 to 14 years.
This is good news for employers who are arguably getting access to a broader talent pool with more mothers returning to work, and demonstrates how much employers need to be aware of how much family life impacts their workforce – both male and female.
Mental Health: Nuffield publishes whitepaper on effects of remote working on stress, wellbeing and productivity
Nuffield Health, working with the University of Manchester and Manchester Metropolitan University, have published a whitepaper on ‘The effects of remote working on stress, wellbeing and productivity’. The opinions of over 7,000 employees were used to gather the data. The paper looks at the varied effects of remote working on different demographics and begins to explore the future of flexible working.
From the basis of the data, the paper has also made some recommendations for employers who do already, or want to, use remote working. These include:
- Having an organisation-wide policy on remote-working.
- Understanding that remote working requires significant management time to ensure it works effectively.
- Consideration of the impact of remote working on the mental health of employees.
- Avoiding the feeling of isolation by helping managers to foster social and professional interaction, and providing the sense of belonging to a bigger group.
- Giving workers training so that they are able to navigate remote working and get the most out of it.
- Developing a relationship of trust between managers and workers.
- Ensuring their working space is adequate, wherever it may be.
- Communication between employers and workers is key to many of these considerations for example, agreeing work hours.
This is an important read for all employers now that technology is enabling us to have more flexibility. A one-size-fits-all approach could be damaging as workers should be treated on an individual basis to ensure the best working relationship, getting the best out of people, which depends on their individual circumstances.
National Minimum Wage: Rates for April 2020 delayed by general election
The Budget is the usual forum for the government to announce the latest National Minimum Wage Rates which are due to take effect from the following April. This year’s Budget has been cancelled due to the general election. Usually, the Low Pay Commission presents its recommendations to the government at the end of October, following which the government sets out its response and confirms any changes thereto in the Autumn Budget.
With no place for the Chancellor to make his announcement, this may mean it is delayed until January 2020. If your business carries out pay reviews in early January this may mean setting wages without knowing whether you will be able to comply in April.
The Low Pay Commission’s (LPC) recommendations are not yet known but the CIPD have produced their submission to the LPC earlier in the year, which may provide food for thought.
Tribunals & Courts: Closures over Christmas and New Year 2019
Details have now been published by Her Majesty’s Courts and Tribunals Service (HMCTS) of the closures of courts and tribunals over the Christmas holiday period, including Crown Courts, Magistrates’ Courts, County and Family Courts, the Royal Courts of Justice and the Rolls Building, and Tribunals. For more information see here.
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