Employment Law Newsletter – March 2021
- COVID-19: Driver who refused to wear face mask was fairly dismissed
- Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
- Working time: When standby periods can count as working time
- TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
- Workers: Uber commits to paying drivers a minimum hourly wage during trips
- Spring Budget: Employment issues
- COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
- COVID-19: ACAS updates working safely guidance regarding testing and vaccination
- COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
- Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
- Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
- Racism: Rise in BME unemployment is double that of white Britons
- Flexible working: Minister for Women and Equalities calls for flexible working to be normalised
COVID-19: Driver who refused to wear face mask was fairly dismissed
In Kubilius v Kent Foods Ltd  UKET 3201960/2020 Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Its driver’s handbook required customer instruction regarding PPE to be followed. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).
Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held that the dismissal had been fair. Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute. It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Kent had been entitled to take account of the importance of maintaining good relationships with its clients, Mr Kubilius’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct) and the practical difficulties arising from his being banned from Tate’s site.
Discrimination: Christian’s removal from office for being publicly outspoken against homosexuality and same-sex couple adoption was not discriminatory
Two cases were brought before the Court of Appeal based on the same sequence of events and with the same Appellant, Mr Richard Page. The appeals were heard consecutively at the same hearing but two separate judgments were given. (Page v NHS Trust Development Authority  EWCA Civ 255 and Page v Lord Chancellor and another  EWCA Civ 254.) Mr Page was a Non-Executive Director of the Kent and Medway NHS and Social Care Partnership Trust, which is responsible for the delivery of mental health services in Kent. He gave media interviews, including two on national television, in which he expressed his personal views based on his devout Christianity that, it is always in the best interests of every child to be brought up by a mother and a father, and therefore he did not consider it was appropriate for a child to be adopted by a single parent or same sex couple. He also made it clear that he thought that homosexual activity was wrong and that he did not agree with same-sex marriage.
His appointment with the NHS Trust was for a four-year term. Following an investigation the authority that dealt with terminations made findings which would normally have led to the termination of Mr Page’s appointment as a Director. In fact, by the time that it made its decision his current term had expired, but the practical effect of its findings was to prevent him from applying to serve a further term or serving as a Non-Executive Director of a different Trust.
Mr Page was also a magistrate, sitting on the Central Kent bench, where he was a member of the family panel. In December 2014, following a formal disciplinary process, he was reprimanded by the Lord Chief Justice as a result of an incident in which he declined to agree to the adoption of a child by a same-sex couple. The reprimand was reported in the press, and it is clear that Mr Page had spoken to reporters about it and expressed his views about same-sex adoption. Mr Page did not inform the NHS Trust or the authority about the disciplinary action taken against him by the Lord Chief Justice or about his contacts with the press.
Mr Page commenced proceedings against the authority on the basis that the termination decision, and the suspension and investigation which led to it, constituted unlawful discrimination and harassment by reference to his religion or belief, and also victimisation, contrary to Part 5 of the Equality Act 2010.
The Court of Appeal held that the employment tribunal was entitled to find that the authority did not discriminate against a Christian non-executive director, Mr Page, on religious grounds when it decided not to renew his term after he spoke out in public against homosexuality and same-sex couple adoption. The Court also held that the tribunal had been entitled to find that Article 9 of the European Convention of Human Rights (freedom of religion) was not engaged but, if it had been, it would not have been breached because any limitation placed on the right to freedom of religion in this case was justified as being necessary and proportionate in the circumstances. There was no direct discrimination because Mr Page was removed for repeatedly speaking to the media without first informing the Trust, despite repeated requests to seek permission, and not because of his religious belief. There had been no indirect discrimination because however a provision, criterion or practice may have been formulated, it was hard to see how the tribunal’s conclusion on justification in relation to Article 9 would not similarly apply to the indirect discrimination claim. There had been no victimisation because the protected acts relied on by Mr Page had not been the reason for the action taken against him.
In concluding remarks, the court observed that there are circumstances in which it is right to expect Christians (and those of other faiths) who work for an institution, especially if they hold a high-profile position, to accept some limitations on how they express their beliefs in public on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the relevant circumstances in order to strike a fair balance between the rights of the individual and the legitimate interests of the institution they work for.
In the other case before the Court of Appeal, Mr Page argued he had suffered victimisation when he was removed from office as a magistrate following his media interviews. The Court, however, found that the only issue on the appeal was whether Mr Page had been removed as a magistrate because he had complained about potential religion and belief discrimination in relation to earlier disciplinary proceedings against him. The Court upheld the finding that this had not been the reason for his removal. He had been removed because he had declared publicly that, in dealing with cases involving adoption by same-sex couples, he would proceed not on the basis of the law and the evidence, but on the basis of his own preconceived beliefs about such adoptions. His removal was lawful under the Equality Act 2010 and involved no breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court reached its decision without needing to hear the respondents’ submissions. Permission to appeal to the Supreme Court was refused.
Working time: When standby periods can count as working time
In DJ v Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182 the ECJ has held that a period of standby would not, in its entirety, be working time under the Working Time Directive (2003/88/EC) only because a worker was required to be contactable by telephone and able to return to their workplace, if necessary, within a time limit of one hour, while being able (but not required) to stay in accommodation provided by their employer. However, it would be for the referring national court to assess the facts of the case, including the consequences of the time limit and the average frequency of activity during standby periods, since these might establish that the constraints imposed on the worker objectively and very significantly affected their ability to manage their time and devote that time to their own interests. Limited opportunities to pursue leisure activities within the immediate vicinity of the workplace was not relevant to that assessment.
The constraints that may be taken into account when deciding whether a period of standby is working time are those imposed on the worker by national law, a collective agreement or by the employer pursuant to either the worker’s contract or the employer’s system of dividing standby time between workers. By contrast, organisational difficulties that a period of standby may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of the worker’s own free choice, may not be taken into account.
In this case, a worker who spent time at two television transmission centres situated in mountains in Slovenia argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. While he was not required to remain at the workplace, the geographical location of the transmission centres meant that he had to do so while he was on standby. Consequently, he had limited opportunities for leisure activities and stayed in on-site accommodation provided by his employer that he was entitled (but not required) to use.
TUPE: Tribunal erred in ordering re-engagement by new service provider it identified as successor employer
In Greater Glasgow Health Board v Neilson  UKEATS/0013/20 the EAT has held that a tribunal made a number of errors when, in a claim for unfair dismissal in the context of a TUPE transfer, it ordered re-engagement of the claimant by the new service provider who had not been a party to proceedings on the basis that it was a successor employer.
Given the tribunal’s finding that the claimant had been assigned to an organised grouping that had transferred to the new service provider, there was no basis in law on which the tribunal could have properly ordered any remedy against the respondent in respect of the claimant’s dismissal. The case was remitted for a fresh tribunal to consider remedy in connection with which the claimant would need to consider whether to apply to join the new service provider as a respondent.
The tribunal had also erred when it made an order that the claimant should be re-engaged by the new service provider as a successor employer as defined by the provisions of the Employment Rights Act 1996. Referring to the EAT’s decision in Dafiaghor-Olomu v Community Integrated Care and Cornerstone Community Care UKEATS/0001/17, the EAT noted that the circumstances in which there is a successor employer following a TUPE transfer will be very limited.
Workers: Uber commits to paying drivers a minimum hourly wage during trips
Following last month’s landmark Supreme Court ruling that its drivers are workers under UK employment legislation, Uber has announced that from 17 March 2021 all of its drivers, irrespective of their age, will receive at least the National Living Wage (NLW), after expenses, once they have accepted a trip request (see February’s newsletter). No mention has been made of compensation for past entitlements and drivers will not be paid at this rate when they are not carrying out trips.
The pay rate, amounting to £8.72 per hour, will create an earnings floor (not an earnings ceiling) and has been introduced alongside automatic enrolment into a pension plan, which both Uber and its drivers will contribute to. All drivers will receive paid holiday time based on 12.07% of their earnings, paid on a fortnightly basis, as well as free insurance to cover sickness, injury and parental payments. This insurance cover was introduced in 2018. Uber has confirmed that drivers will still be able to choose when and where they drive.
The Independent Workers Union of Great Britain is calling on HMRC to enforce the Supreme Court ruling and ensure that drivers receive a minimum rate of pay from the moment they log onto the app, not only when they are carrying out trips.
Spring Budget: Employment issues
On 3 March 2021, the Chancellor, Rishi Sunak, delivered the Spring 2021 Budget. The announcements relevant to those involved in employment law mainly concern ongoing support during the COVID-19 pandemic:
- The Coronavirus Job Retention Scheme (CJRS) is being extended until the end of September 2021. Furloughed employees will continue to receive 80% of their salary for hours not worked but employers will be required to make a contribution towards the cost of unworked hours of 10% in July and 20% in August and September.
- The Self-Employment Income Support Scheme (SEISS) is also being extended with a fourth grant covering the period February to April 2021 and a fifth and final grant covering May to September 2021.
- The Chancellor also announced investment in a Taxpayer Protection Taskforce to combat fraud within COVID-19 support packages, including the CJRS and SEISS.
- There will be temporary continuation of tax exemptions for COVID-19 tests and home office expenses (see below), and of the Statutory Sick Pay (SSP) Rebate Scheme while sickness levels remain high.
- Looking to the future, the Chancellor made announcements about increased support for traineeships and apprenticeships.
COVID-19: Temporary tax and NICs exemptions extended and vehicle benefit charges increased
As promised in the Spring 2021 Budget, on 8 March 2021, Regulations were made extending the temporary tax exemption for employer reimbursement of home office expenses to the tax year 2021-22. The exemption covers the cost of equipment purchased by the employee for the sole purpose of enabling the employee to work from home due to COVID-19. Corresponding Regulations (NICs Regulations), ensuring that such reimbursement is disregarded for NICs purposes, were also made on 8 March 2021.
The NICs Regulations also extend the temporary disregard of employer-reimbursed coronavirus antigen test costs to the tax year 2021-22. The corresponding income tax exemption for that reimbursement will be introduced in the Finance Bill 2021.
Additionally, as anticipated following the government’s written statement on 4 March 2021, an Order was made to increase the van benefit charge and fuel benefit charges for company vehicles. The increased charges take effect from 6 April 2021 as follows:
- Flat-rate van benefit charge: £3,500 (increased from £3,490).
- Multiplier for the car fuel benefit charge: £24,600 (increased from £24,500).
- Flat-rate van fuel benefit charge: £669 (increased from £666).
COVID-19: ACAS updates working safely guidance regarding testing and vaccination
ACAS has updated its “Working Safely During Coronavirus” guidance to provide further information about workplace testing and vaccination for COVID-19. The page entitled “Testing staff for coronavirus” contains a new section setting out what it would be good practice for employers to discuss with staff when agreeing to implement workplace testing. This includes how testing would work, how staff will get their test results and how the employer plans to use and store testing data in line with the UK GDPR. If staff are concerned about testing, the guidance suggests that it may help for employers to consider paying them their usual rate of pay for time off after a positive test or furloughing them. However, some have suggested it is unclear whether the CJRS can be used in this way.
The guidance now also contains a page dedicated to “Getting the coronavirus vaccine for work” which includes a section on how to support staff to get the vaccine. This highlights similar points for discussion as in relation to workplace testing and suggests that employers could consider offering paid time off for vaccination appointments and full pay (rather than SSP) if staff are off sick because of vaccine side effects. The guidance advises that, in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it is important for staff to be vaccinated, they should consult with staff. Where further steps are necessary, these should be recorded in writing (for example, in a policy).
Interestingly, several points which were previously contained in the guidance have now been removed. In particular, the guidance no longer states that:
- Employers cannot force staff to be vaccinated.
- Employers should only make getting the vaccine mandatory if it is necessary for someone to do their job.
- That, if an employer believes that an employee’s reason for refusing a vaccine is unreasonable, this may in some circumstances be a disciplinary issue.
The removal of these points perhaps suggests an acknowledgement that they are not straightforward. Nevertheless, these are still likely to be issues that employers will need to grapple with over the coming months.
COVID-19: EHRC suspends enforcement of 2020-21 gender pay gap reporting deadlines for six months
In light of the continuing effects of the COVID-19 pandemic, the Equality and Human Rights Commission (EHRC) has confirmed that gender pay gap enforcement action for the reporting year 2020-21 will be suspended until 5 October 2021.
Under the Equality Act 2010 (Specific Duties) Regulations 2011 (SI 2011/2260) and the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI 2017/172), public sector bodies and private sector employers would have been required to submit their gender pay gap reports by 30 March and 4 April respectively. The suspension of enforcement action effectively means that employers have an additional six months to meet their reporting obligations for 2020-21.
The EHRC has described the delay as striking a balance between supporting businesses through challenging times and enforcing the important gender pay gap reporting obligations. Employers are encouraged by the EHRC to report before October 2021 where possible.
Gender Pay Gap: Female financial services directors earn 66% less than male counterparts
Research conducted by law firm Fox & Partners has revealed that female directors working in the UK’s biggest financial services firms earn an average yearly wage of £247,100, 66% lower than the £722,300 earned by male directors.
The research suggests that the significant gender pay gap is indicative of the limited opportunities open to women looking to secure higher paid executive roles at FTSE 100 and 250 firms. According to the data, 86% of the female company directors accounted for were in non-executive roles which receive lower pay and encompass fewer daily responsibilities.
Equality: Fifth Hampton-Alexander report on gender balance in FTSE leadership
On 24 February 2021 the Hampton-Alexander Review published its fifth and final annual report on improving gender balance in FTSE leadership.
The report states that as at 11 January 2021:
- Women held 36.2% of FTSE 100 board positions (up from 32.4% in 2019), but 32 FTSE 100 companies had not yet achieved the 33% target.
- Women held 33.2% of FTSE 250 board positions (up from 29.6%), but 139 FTSE 250 companies had not yet achieved the 33% target.
- Across the FTSE 350 there were only 39 female chairs (11 in the FTSE 100), 89 female SIDs (23 in the FTSE 100) and 17 female CEOs (8 in the FTSE 100). There were only 76 female executive directors (31 in the FTSE 100), being 12.1% of executive directors in the FTSE 350.
As of 28 January, the FTSE 350 no longer had any all-male boards, but still had 16 companies with only one woman on the board.
Racism: Rise in BME unemployment is double that of white Britons
The TUC’s analysis, as reported by the Guardian, of recently published ONS data has revealed that the overall unemployment rate for BME (black and minority ethnic) groups rose from 5.8% in the final quarter of 2019 to 9.5% in 2020. This growth rate is double that recorded for white people whose unemployment figures rose from a much lower 3.4% to 4.5% in the same period. It argues that the data serves as a “mirror to the structural racism” currently at play in Britain.
Charitable trust ‘Hope Not Hate’ has emphasised the role of COVID-19 in escalating the BAME (Black, Asian and Minority Ethnic) unemployment crisis. According to a poll it recently conducted, one in five BAME people had lost their jobs, with 22% blaming the pandemic for their unemployment.
Flexible Working: Minister for Women and Equalities calls for flexible working to be normalised
The Government Equalities Office has published a report by the government-backed Behavioural Insights Team and jobs website Indeed, Encouraging employers to advertise jobs as flexible, which revealed that job adverts which offer flexible working increase applications by up to 30%.The research, which analysed nearly 20 million applications and is the largest of its kind ever conducted in the UK, shows greater transparency in job adverts would create at least 174,000 flexible jobs to the UK economy per year.
Almost 40% of employees worked from home in 2020, and the appetite for flexibility hit new heights during the COVID-19 pandemic. Research has shown that 9 out of 10 jobseekers want increased flexibility, be it remote working (60%), flexitime (54%) or reduced hours (26%).
Minister for Women and Equalities, Liz Truss MP, called for employers to make flexible working a standard option for employees. She argues this would boost productivity and morale and improve the employment prospects of women (who are twice as likely as men to work flexibly) and those who live outside major cities.
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