COMPLAINTS POLICY

Our approach to complaints and concerns

1.1. LexLeyton is the trading name of Leyton UK Partners LLP.

1.2. We are committed to providing high quality legal advice and client care. We hope that all our clients will be completely satisfied with our service. If, however, you are unhappy about any aspect of the service you have received, or about your bill, we want to help you resolve that concern or complaint to your satisfaction wherever possible.

Informal complaints procedure

1.3. If you are unhappy about any aspect of the service you have received, you should contact the solicitor dealing with your service in the first instance. Your solicitor will do their best to resolve the matter with you.

1.4. If the matter is not resolved at this stage, you should contact their supervisor, as detailed in your Engagement Letter, who will then review your complaint and concern and attempt to resolve it to your satisfaction.

1.5. If you are not satisfied with the solution or outcome proposed by your solicitor or their supervisor, then you are invited to use our formal (non-contractual) complaints procedure below.

Formal complaints procedure

1.6. To progress a formal complaint, you should contact our Client Care team, who will record the details of your complaint or concern and engage the process outlined below in order to remedy or resolve your complaint or concern.

1.7. You can contact our Client Care team using the following contact details.

• Phone: 0203 917 1486
• Email: client@lexleyton.co.uk
• Post: LexLeyton, Harmsworth House, 13-15 Bouverie Street, London, EC4Y 8DP

1.8. To understand your complaint or concern, it would be helpful if you would provide the following details when contacting us.

• Your name and contact details and preferred method of contact.
• Your client reference number.
• The details of your complaint or concern, to include the events leading up to or causing the complaint or concern to arise.
• How you would like us to put things right.

How our Client Care team will resolve your formal complaint or concern

1.9. Upon taking your call or receiving your email or letter, we will write to you within three working days. We will acknowledge receipt of your complaint or concern. We will set out who will be investigating it and when they will reply to you.

1.10. A member of our Client Care team will then conduct an investigation. This process may involve contacting you again in order to clarify certain aspects of your complaint or concern; or the details or events associated with it.

1.11. This member of our Client Care team will then write to you with their findings and discuss any proposed action plans or proposed resolutions. In doing so, they will identify for you which LLP is most directly associated with your compliant or concern.

1.12. If this initial investigation/outcome process does not resolve your concern or complaint, you can then write to our Head of Client Care using the same details as set out above for our Client Care team.

1.13. We will then write to you within three working days. We will acknowledge receipt of your complaint or concern. We will then seek to clarify with you the nature of the outstanding issue, complaint or concern. A further investigation/review will then take place. You will then receive our final response in writing.

1.14. We aim to conclude this process within 21 days of receiving your formal complaint. Where this is not possible, you will be provided with regular updates and given realistic timescales. We will take all reasonable steps to ensure that this process does not extend beyond eight weeks of receiving your formal complaint.

Taking your complaint further

1.15. It is open to you review the following options in relation to complaints or concerns regarding:

• the service of Leyton UK Partners LLP;
• the conduct of a solicitor working for Leyton UK Partners LLP;
• the adequacy of the internal complaints procedure used by Leyton UK Partners LLP.

1.16. Your options are as follows.

• Referral to the Legal Ombudsman. If we are unable to resolve your complaint within 8 weeks of receiving full details, you may have the right to refer it to the Legal Ombudsman. They will look at your complaint independently and it will not affect how we handle your case. Before accepting a complaint for investigation, the Legal Ombudsman will check that you have tried to resolve your complaint with us first. If you have, then you must take your complaint to the Legal Ombudsman:

• within six months of receiving a final response to your complaint; and
• no more than six years from the date of act/omission; or
• no more than three years from when you should reasonably have known there was cause for complaint.

1.17. The Legal Ombudsman deals with complaints by consumers and very small businesses. This means some clients may not have the right to complain to the Legal Ombudsman, e.g. charities or clubs with an annual income of more than £1m, trustees of trusts with asset value of more than £1m and most businesses (unless they are defined as micro-enterprises). This does not prevent you from making a complaint directly to us about the service you have received or about a bill.

1.18. If you would like more information about the Legal Ombudsman, please contact them. The contact details for the Legal Ombudsman are as follows.

Legal Ombudsman,
PO Box 6806,
Wolverhampton
WV1 9WJ.
0300 555 0333
enquiries@legalombudsman.org.uk
www.legalombudsman.org.uk

1.19. Referral to the Solicitors Regulation Authority. The Solicitors Regulation Authority can help you if you are concerned about our behaviour. This could be about dishonesty, taking or losing your money or treating you unfairly because of your age, a disability or other characteristic. Contact details for the Solicitors Regulation Authority are as follows.

SRA Contact centre
The Cube
199 Wharfside Street
Birmingham
B1 1RN
DX 720293 BIRMINGHAM 47
0370 606 2555
contactcentre@sra.org.uk

1.20. Referral to the Financial Ombudsman Service. If your unresolved complaint relates to an insurance policy covering your matter (as opposed to the conduct of a solicitor arranging it), then you may contact the Financial Ombudsman Service using the following details.

Phone: 0800 023 4657

Email: complaint.info@financial-ombudsman.org.uk

Post: Financial Ombudsman Service, Exchange Tower, London, E14 9SR

1.21. Applying to court for a detailed assessment of a bill. You will have the right to challenge any interim bill and the final bill by applying to the court to assess the bill under Part III of the Solicitors Act 1974. Please be aware that the time limits run from the date of each individual bill.

1.22. If the application is made after one month but before twelve months from delivery of the bill, the court's permission is required for the bill to be assessed.

1.23. Unless there are special circumstances, the court will not usually order a bill to be assessed after 12 months from delivery of the bill or after a judgment has been obtained for the recovery of the costs covered by the bill. Please note that the Legal Ombudsman may decline to entertain a complaint regarding a bill if you are pursuing this route.

1.24. Alternative Dispute Resolution. We are aware that alternative approved complaints bodies such as ProMediate do exist, which are competent to deal with complaints about legal services and can be used if we both agree. However, as you are able to use the services of the Legal Ombudsman we do not intend to use their scheme.

1.25. Useful details regarding Leyton UK Partners LLP

1.26. Leyton UK Partners LLP is a limited partnership registered in England and Wales (number OC388386) with a registered address at Harmsworth House, 13-15 Bouverie Street, London EC4Y 8DP.

1.27. Leyton UK Partners LLP is an Alternative Business Structure (ABS) authorised and regulated by the Solicitors Regulation Authority (SRA) under licence number 619453 in respect of legal work.

2. APPLICABLE LAW GOVERNING THESE TERMS

2.1. Any dispute or legal issue arising from our Terms in respect of the conduct of Leyton UK Partners LLP will be determined by the law of England and Wales and considered exclusively by the English and Welsh courts.

Employment law update – November 2021

Welcome

There have been a number of gig economy cases examining whether individuals satisfy the definition of ‘worker’ under s230(3)(b) of the Employment Rights Act 1996.  The latest case in front of the Court of Appeal, Stuart Delivery Ltd v Augustine, involved a moped courier. 

A ‘worker’ is defined as someone who works under a contract of employment, or under other contract, express or implied, where the individual undertakes to personally do or perform any work or services for another party who is not a client or customer of any profession or business carried on by the individual.  If they do not satisfy that test, they will usually be deemed to be a self-employed independent contractor with no employment law rights.

As can be seen from this definition, personal service or performance is pivotal to being a worker, and so it follows that someone with an unfettered right to provide a substitute will not satisfy the test.  This was the key consideration in the Court of Appeal’s judgement.

Mr Augustine delivered goods by moped.  He was subject to ‘general conditions of use’ between himself, the company and the user, but the court took into account all the evidence in relation to the realities of how the arrangement operated. 

Mr Augustine could accept individual delivery jobs via the company’s app, and be paid for that job. He also signed up for slots covering the zones with the highest concentration of users, committing to be in a certain area for 90% of the time.  In return, he was guaranteed a minimum of £9 an hour, even if he did no deliveries.  He could lose that guaranteed fee if he did not abide by certain availability provisions.

Mr Augustine was able to indicate via the app that he wished to give up a particular slot he had signed up to and another driver on the app could take it up.  If no-one offered to do so, Mr Augustine had to complete the slot or face penalties.

Mr Augustine brought proceedings in the Employment Tribunal contending he was an employee, or a worker.  He was found to be a worker on the basis that he did not have an unfettered right to substitute, and that he did not have any choice over who, if anyone, would accept a slot which he returned.  All he could do was release it back to the system and hope that another approved courier accepted it.   The EAT dismissed the company’s appeal.

The Court of Appeal clarified that the Pimlico Plumbers judgement had created only two categories to consider when deciding whether someone had to provide personal service or not (and not five as the company had argued).  The first was an unfettered right to substitute, in which case there would not be personal service (and hence, the definition of worker would not be satisfied) and the second was a conditional right to substitute which may or may not be inconsistent with personal service, depending on the conditions.

The Court of Appeal in the Augustine case found that the Employment Tribunal was correct to find that the system Mr Augustine worked under was set up to ensure that he did carry out the work, and did turn up for the slots he had signed up to do.  That was necessary for the company’s business model to work. 

This case shows, once again, that companies which seek to closely control how and when a person works, with limited rights to substitute, are unlikely to succeed in arguing that the individual is not a worker.  Further cases are likely given that a firm of solicitors are currently seeking drivers to join a group action against Amazon, a claim which they estimate could be worth over £100 million, owed to at least 3,000 drivers.

Collective rights

Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits an employer from making an offer to a worker who is a member of a trade union which is recognised, or seeking to be recognised, if the offer would result in the worker’s terms of employment not being, or no longer being determined by collective agreement negotiated by the union, and that result was the employer’s sole or main purpose.  This is referred to as ‘the prohibited result’.

In a judgement released at the end of October, Kostal UK Ltd v Dunkley and others, the Supreme Court examined the meaning of section 145B for the first time, ruling that the company made an unlawful direct pay offer to its employees before exhausting the process contained in a non-legally binding recognition and procedural agreement which it had entered into with Unite. 

The agreement, which stated that it did not constitute a legally binding agreement, gave Unite sole recognition and bargaining rights.  It set our four stages to seek to avoid a dispute, the final stage being reference to ACAS by joint agreement. 

Pay negotiations between the company and the union commenced in October 2015, and an offer by the company was rejected by the members in early December.  The company then wrote to the employees directly, making the same offer, but stating that if it was not accepted, they would not get the 2015 Christmas bonus.  A further unsuccessful negotiation meeting was then held, and an agreement was then reached to refer the matter to ACAS.  By January 2016, 91% of workers had accepted the direct offer, and the company wrote to the remaining employees stating that, if no agreement was reached, “this may lead to the company serving notice on your contract of employment”.

A number of employees brought successful complaints to the Employment Tribunal, securing £421,800 in awards.  An appeal to the Employment Appeal Tribunal by the Company was unsuccessful.  However a further appeal to the Court of Appeal overturned the decisions of the Employment Tribunal and the EAT.  The claimants then appealed to the Supreme Court.

In a careful analysis of the wording of the legislative provision, their Lordships unanimously held that the offer had resulted in the prohibited result, although they were split 3-2 as to the reasons.  The key point to emerge from this judgement is that an employer can make direct offers to employees once the collective bargaining process has been exhausted. But if it has not been, it can make direct offers only where the purpose of the offers is not solely or mainly to determine workers’ terms outside of the collective bargaining process; in other words, if it had some other, genuine business reason. 

Whistleblowing

In Secure Care UK Limited v Mr R Mott, an employment tribunal found that when an employee is dismissed by reason of having made a protected disclosure in accordance with the whistleblowing legislation, that dismissal will be automatically unfair, even if the employee doesn’t have the requisite continuity of employment to otherwise bring a claim of unfair dismissal. 

The EAT disagreed, holding that the Tribunal had made two errors in its reasoning.  An examination of the EAT’s judgement shines a light on what an employee has to show to get a whistleblowing dismissal claim over the line.

Mr Mott worked as the logistics manager for a company which provided transport services to NHS Trusts for people with mental health problems.  Mr Mott made nine disclosures during his employment, three of which were accepted by the Employment Tribunal as protected disclosures.  They related to Mr Mott’s concerns about inadequate staffing and, the day after the final one was made, he was told he was at risk of redundancy.  He was dismissed around six weeks later.

The Employment Tribunal judge found that there was a genuine redundancy situation, but that the selection process was questionable, and the fact that Mr Mott had been “pointing out problems” clearly had a material effect on his selection for dismissal.  The judge had relied on a Court of Appeal decision, Fecitt v NHS, to support her finding that causation is established if the protected disclosure materially influences the treatment in question. 

However, the EAT pointed out that the test in Fecitt only applies to claims of detriment under s47B of the Employment Rights Act, not dismissal.  The test for unfair dismissal is that the protected disclosure must be the sole or principal reason for the dismissal.  Therefore, the Employment Tribunal judge used the wrong test.

The EAT also found that, when she was considering what had caused the dismissal, the Employment Tribunal judge did not confine her consideration to the three protected disclosures, but rather considered the combined impact and effect of all of Mr Mott’s communications about staffing levels and the associated problems he considered that gave rise to. 

In the light of these errors, the appeal was successful, and the case was sent back to the Employment Tribunal to decide whether the three protected disclosures were the sole or principal reason for the dismissal. 

This case highlights the different considerations that need to be taken into account when arguing a whistleblowing detriment compared to a whistleblowing dismissal.

Age discrimination

Unlike other acts of direct discrimination, age discrimination can be justified by an employer where they can show that the otherwise prohibited treatment was a proportionate means of achieving a legitimate aim.

The EAT has delivered judgements in two cases (Pitcher v the University of Oxford and another, and the University of Oxford v Ewart) in which the EAT upheld the decisions of two Employment Tribunals, even though the two decisions were seemingly at odds with one another.  A closer look reveals why this happened.

The University operates an Employer Justified Retirement Age (EJRA) which it says is based on three legitimate aims: inter-generational fairness, succession planning and equality and diversity.  The EJRA is said to facilitate other measures in achieving those aims by ensuring that vacancy creation is not delayed and recruitment into senior academic roles might take place from a younger, more diverse cohort.

Professor Pitcher had two roles; one with the University and one at St John’s College.  He was compulsorily retired at 67 from both roles, and was refused an extension of tenure with St John’s under the EJRA.  Professor Ewart, on the other hand, obtained an extension, vacating his substantive post at the University and taking up a fixed term position, but was later refused a further extension.  An Employment Tribunal dismissed Professor Pitcher’s claims of direct age discrimination and unfair dismissal, holding that the EJRA was justified, whereas a differently constituted Tribunal upheld Professor Ewart’s claims of direct age discrimination and unfair dismissal, finding that the University had not shown the EJRA to be justified. 

In the Pitcher case, the Tribunal had concluded that the limited evidence demonstrating the impact of the EJRA was because it was relatively new.  It gave weight to survey evidence regarding those who would have continued in employment if the EJRA had not been in place, and to the mitigating effects of the extension provisions and post retirement opportunities for senior academics.  It also found that the University had dismissed Professor Pitcher for a fair reason, and had acted within the band of reasonable responses.

In the Ewart hearing, the Tribunal had been presented with a statistical analysis which showed that the rate of vacancies created by the EJRA (the focus of the University’s case) was trivial (2-4%), and so concluded that there was insufficient evidence to show the EJRA would contribute to the realisation of the legitimate aims.  In addition, the discriminatory impact was severe, and not sufficiently mitigated by the extension provisions, and so the EJRA was not shown to be proportionate. 

The EAT heard the appeals of Professor Pitcher and the University against the respective judgements.  The reason for the EAT upholding both decisions stems from the fact that the EAT’s task is to consider whether the respective Employment Tribunals had erred in law, not to strive to find a single answer.  The two Employment Tribunals had heard different evidence, with a different focus.  Professor Pitcher’s evidence had focussed on his rejected extension at St John’s College, whereas Professor Ewart’s had concentrated on continuing to work at the University.

Two Tribunals may reach opposing conclusions on the same broad facts without having made errors of law.  Given that the burden of proof lies on the employer to show that a direct age discriminatory policy is justified, this case really brings home the importance of an employer presenting robust evidence to show how their legitimate aims are achieved by the means they adopt.  They need to show how they measure the effectiveness of their policy and what actions they take to mitigate the discriminatory effects. 

Mandatory Covid 19 vaccination for staff in care homes

The Department of Health and Social Care has issued detailed operational guidance in relation to staff working in care homes.  From 11 November 2021 all care home workers and anyone entering a care home needs to be fully vaccinated, unless they are medically exempt.  Exceptions to the rule will include residents, people providing emergency assistance or urgent maintenance, friends and relatives visiting residents (including visiting the dying or giving comfort or support in relation to a resident’s bereavement) and those under 18 years old. It will be for the ‘registered person’ (usually the manager of the facility) to ensure the rules are abided by.

Anonymity orders in the Employment Tribunal

In the overwhelming majority of cases, Employment Tribunal hearings are held in public, and their decisions made available on the internet for everyone to read.  However, there are occasions when it is appropriate to prevent or restrict the public disclosure of certain aspects of the proceedings, usually by anonymising the identities of specified parties, witnesses or others.

The tribunals and courts often have to carry out a difficult balancing act when deciding whether to grant such orders.  On the one hand there is the common law principle of open justice, and the rights to a fair trial and freedom of expression under the European Convention of Human Rights (ECHR).   On the other hand, there is the right to privacy enshrined in Article 6 of the ECHR.  Considerations such as the risk of being wrongly believed of having committed a crime, and being handicapped in finding new employment have not been found to be sufficient to engage an anonymity order in the past (See BBC v Roden and Ameyaw v Pricewaterhousecoppers Services Ltd). 

In the recent case of A v Burke and Hare, a stripper failed to overturn a decision of the Employment Tribunal to grant an anonymity order.  Ms A was claiming for unpaid holiday pay against her former employer (a strip and lap dancing bar).  She sought to keep her identity secret in the proceedings because she was intending to pursue a career outside of the industry.  She argued before the Employment Tribunal that she would be at risk of stigmatisation and sexual violence if she was identified. She said she had performed under a stage name and other staff did not know her name, but that she had been threatened when working as a stripper and called insulting sexualised names.

The Employment Tribunal judge rejected her application, saying that she should have known a public judgement would be issued in her name, and that she should have foreseen that working as a stripper could harm her career prospects.

Ms A appealed to the EAT, arguing that strippers are stigmatised and that she had a right to preserve her honour and reputation.  She said that her choice to work as a stripper was irrelevant, and that she wished to leave her life as a stripper behind her, and her employment prospects would suffer if her name was published in a judgement.  She also said that she would discontinue her claim if an order was not granted.

The EAT held that stigmatisation alone was not enough, and reiterated the principle from a Court of Appeal case (R v Legal Aid Board ex parte Kaim Todner) that embarrassment and reputational damage are ordinary concomitants of litigation.  The EAT did acknowledge that if there was a material risk of continuing verbal abuse and sexual assault different considerations would arise, but that Ms A had not appealed the Tribunal’s conclusion that there was not enough evidence that she would suffer such harm.  There was no clear and cogent evidence of the harm that would be done, and so the appeal failed.

The EAT also did not set great store on the contention that there was a high likelihood that her past would become widely known if there was a judgement issued in her real name.  No evidence was given about how widespread the practice was of employers and recruitment agents using the online register of Tribunal and EAT judgements.

The EAT did, however, agree that Ms A had not forfeited her right to rely on her Article 8 right of privacy because she had worked as a stripper given that she had worked under a stage name and withheld her name from her co-workers.

Ms A's threat to withdraw her claim if she did not get the order, which would deny her access to justice, cut no ice with the EAT.  It held that the law did not provide access to justice whatever the cost.  In addition, the Employment Tribunal had to find a reason why Ms A should not be identified and had to assume that it was in the public interest to publish her name.  That was the default position.  The EAT did grant Ms A’s application for anonymity in relation to her appeal though, given that public interest to open justice is at its strongest in relation to the merits of a case, and less so at the stage of a preliminary application.

This case is a reminder that the principle of open justice is a high hurdle to jump, and that compelling evidence is needed to obtain an anonymity order.

Sexual harassment in the workplace

The Fawcett Society, a charity campaigning for gender equality and women’s rights at work, has published recommendations for employers to tackle sexual harassment in the workplace.  Their report states that at least 40% of women have experienced workplace harassment, and that women who are marginalised for other reasons, such as race and disability, face an increased risk, and different forms of sexual harassment.

The Society also reports that nearly a quarter of women who had been sexually harassed said that the harassment had increased or escalated since working at home due to the pandemic, and that 68% of disabled women reported being sexually harassed at work, the same percentage as the proportion of LGBT workers who had experienced harassment in the workplace. 

The report blames the way that many employers respond to complaints, trying to minimise liability, for women facing retaliation and victimisation, and so choosing not to report at all. 

The Society’s response is to identify five key requirements to create a workplace that does not tolerate sexual harassment:

  • Organisation wide culture change, which addresses misogynistic norms and makes clear that sexual harassment is unacceptable.
  • Having a clear and detailed sexual harassment policy that is separate to a general harassment and bullying policy.  The policy should define sexual harassment, describe who it applies to, give guidance on how to report sexual harassment, outline the responsibilities of managers and staff, describe the complaint and investigation procedure, describe sanctions, forbid victimisation and commit to reviewing and evaluating the policy.
  • Tailored anti-sexual harassment training, which the report recognises would be only one component of the means to prevent sexual harassment.  Effective training would not only increase employees’ knowledge of the workplace policy, and change attitudes, but it would also actively reduce or prevent sexual harassment, a result which often does not occur. 
  • Creating multiple avenues for reporting sexual harassment.  This envisages giving the victim the choice of whether to pursue an informal or formal process, although a formal process may be more appropriate in serious cases.  The multiple avenue approach also refers to having multiple people who may be told about concerns. 
  • The way employers respond to reports.  The survey found that women rarely feel supported when they report their experiences, and harassers are rarely proportionately disciplined.  A thorough and sensitive investigation must be instigated if a formal complaint is raised, and all employees who make a report must be treated with respect and empathy.  A clear process should be outlined, and confidentiality maintained.  Ongoing support should be provided, both to the complainant and to the managers dealing with the matter.  A clear paper trail needs to be kept and specialist help obtained if necessary. 

The Fawcett Society and its partners intend to publish an employer toolkit next year, which should be very useful for employers struggling to tackle this difficult but important issue.  You can apply to receive a copy on the Society’s website: https://www.fawcettsociety.org.uk/forms/sexual-harassment-toolkit.

Menopause disability

The recent EAT case of Rooney v Leicester City Council appears to be only the second case at appeal level addressing disability discrimination arising from menopause symptoms. 

In order to be classified as disabled under the Equality Act, a person must have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities. 

Ms Rooney’s solicitors made a claim to the Employment Tribunal on her behalf for constructive dismissal and unpaid holiday pay, overtime and expenses.  Unbeknownst to Ms Rooney, her solicitors had included a statement that, amongst other things, she accepted that her work-related stress and menopause symptoms were not disabilities.  Ms Rooney then made a second claim herself for disability and sex discrimination, harassment and victimisation related to her treatment arising from her menopause symptoms.  She applied to have her first claim amended to remove the statement that she accepted she was not disabled.

The Tribunal then decided to hold a preliminary hearing to decide, amongst other things, whether her constructive dismissal, disability and sex discrimination claims should be struck out.  The employment judge decided that Ms Rooney was not suffering from a disability in relation to her symptoms of menopause, her depression or her anxiety, and her claims of harassment and victimisation were also dismissed.  Her sex discrimination claim was struck out as having no reasonable prospect of success.  She appealed to the EAT.

The EAT allowed the appeal, finding that the Tribunal has fallen into several errors.  One of the errors was the process adopted by the Tribunal when it decided that Ms Rooney’s symptoms did not have more than a minor or trivial effect on her day to day activities, despite Ms Rooney having given detailed evidence to the employment judge about both the physical symptoms (sweating, hot flushes, palpitations, fatigue, headaches and urinary problems) and the impact upon her day to day activities, including forgetting to attend events, meetings and appointments, losing items, forgetting to lock her car, or apply the handbrake, leaving her house unlocked and leaving the cooker and iron on.  The employment judge had not stated that he found that these claimed adverse effects were untrue.

The EAT remitted the case back to a differently constituted Employment Tribunal to carry out a careful factual analysis of whether Ms Rooney was a disabled person at the relevant time.  It also found that the employment judge had misapplied the law in weighing what Ms Rooney could do against what she could not, and had not directed himself as to the statutory definition of ‘long-term’.  The EAT also upheld the appeal against the striking out of the sex discrimination, harassment and victimisation claims. 

It does appear that the Employment Tribunal significantly overstepped the mark in this case.  A discrimination claim should only be struck out as having no reasonable prospect of success in the clearest of cases, and it is hoped that this EAT decision will assist Tribunals to treat menopause symptoms seriously. 

Recognising the benefits of Neurodiversity

Personnel Today has reported that Rolls-Royce has sponsored a new category in the Undergraduate of the Year Awards, that fully recognises the achievements of neurodiverse university students.  Rolls-Royce is seeking “inspiring” students who have autism (ASD), ADHD, dyslexia and dyspraxia, amongst other neuro minorities, as part of a drive to celebrate their strengths in analysis, complex problem solving, design and strategic thinking.

The winner of the category will gain a 10 week paid summer internship, a day shadowing a Rolls-Royce leader and an Apple watch. 

It is estimated that one in seven people have conditions linked to neurodiversity, where the brain learns and processes information in a different way from neurotypical people.  In 2017 just 16% of people with autism were in full time employment in the UK and, last year, half of UK businesses were found by the Institute of Leadership and Management to be reluctant to employ someone who is neurodiverse. 

Students can enter via the Undergraduate of the Year Awards website.  The deadline is 31 January 2022.  Sixty students will be shortlisted, and a winner will be announced at an awards ceremony on 29 April 2022.

Back to working from home?

HR Review has recently reported that the British Medical Association (BMA) has argued that working from home, the wearing of face masks and other measures contemplated in the Government’s ‘Plan B” should now become compulsory again, in light of the rising number of positive cases of Covid-19 being detected during October.  The Health Secretary has, however, ruled this out “at this point”.

This divergence in approach between the country’s leading medical association and government is arguably unhelpful for employers who have been trying to implement a safe return to the workplace over the past several weeks.  Despite the government’s stance, employers still owe a duty of care to their staff, and must assess health and safety risk in the light of the prevailing conditions, including high levels of community transmission.  Appropriate measures to contemplate for staff coming into the workplace may include compulsory vaccination, mask wearing, social distancing, hand sanitation, increased ventilation, and regular lateral flow tests.  A contingency plan in the event of an outbreak, and clear processes would also need to be developed and communicated to managers and staff.

Collective redundancy consultation and compulsory liquidation

It has been a requirement for many years to carry out collective consultation when contemplating a redundancy programme that proposes to make 20 or more employees redundant at an establishment within the period of 90 days.  A failure to do so can result in protective awards being made in favour of the affected employees.  However, there are some limited exceptions to the requirement; namely when there are “special circumstances which render it not reasonably practicable” for an employer to comply with the collective consultation requirements, so that the employer is only required to take such steps as are reasonably practicable. 

In Carillion Services Ltd (In Compulsory Liquidation) and others v Benson and others, the EAT found that there were no “special circumstances” absolving the employer from its collective consultation obligations where the employer had gone into compulsory liquidation and dismissed the claimants on various dates thereafter.

Carillion Group employed around 18,000 employees as at 15 January 2018, the date it entered compulsory liquidation, which was described as the largest and most complex insolvency of its kind in UK history.   Around 1,000 dismissed employees lodged claims in the Employment Tribunal seeking protective awards.  The company did not deny it had failed to collectively consult, but relied on the exception, contending that the circumstances giving rise to, and the order for the compulsory liquidation were special circumstances.

The group company had been suffering serious financial difficulties from around July 2017, but it states that it was inevitable and unavoidable that the claimant employees would be dismissed by reason of redundancy when its key stakeholders decided on 13 and 14 January 2018 not to approve short-term lending arrangements which precipitated the need to place various group companies in liquidation.  The duty to consult collectively was therefore triggered on 14 January 2018.  Were there special circumstances as at that date?

The Court of Appeal in a 1978 case (Clarks of Hove v Bakers Union) had held that whether circumstances can be held to be special depended on the cause of the insolvency.  A sudden disaster may be, whereas a gradual run down of the company would not be. 

The Employment Tribunal held that there were no such special circumstances in this case, and so collective consultation should have occurred.  The Company appealed.

The EAT found that there was no evidence, as contended by Carillion, that the government had given it cause to believe that it would not allow it to fail, and that even if the Board had believed that, that was not enough to constitute special circumstances.  It was not out of the ordinary or uncommon for key stakeholders such as banks or the government to refuse to fund administrations.  There were no sudden intervening events, and the company had been considering compulsory liquidation even before the government had refused to provide financial support.

Furthermore, the fact that a compulsory liquidation always resulted in redundancies did not mean there were special circumstances.  The EAT pointed out that, even where avoiding dismissals is impossible, consultation on mitigating the consequences of the dismissals is still valuable.

This is another reminder that it will be only in exceptional circumstances that an employer will be able to avoid collectively consulting when the requirement is triggered.  A compulsory liquidation may amount to special circumstances, but each case will be examined on its own merits.

Employment law update – September 2021

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Covid-19

The government has published new guidance for employers to guide them in encouraging their employees to take up the vaccine. A special toolkit has been developed which can be shared with staff including information, common Q&As, scripts for internal conversations and other communication tools to help distribute information on vaccination in the workplace. Employers are also asked to share practical information with employees about where they can get vaccines locally and where to access reliable information  on vaccination more generally.

The guidance also recommends internal publicity via the internet, email or newsletter about the importance of vaccination and use departmental ‘champions’ to promote vaccination on the ground.  They also recommend that employers allow staff to have time off to get their vaccinations during working hours and review absence policies to ensure they do not act as a disincentive (for example, by not allowing time off for vaccination). There is no recommendation about paid time off to get a vaccine, but clearly this would act as a greater incentive for employees.

The highest possible levels of vaccination are in the best interests of everyone, including employers. There is evidence that vaccines not only reduce the link between Covid-19 and serious illness or death, but also that vaccination can reduce the likelihood of becoming infected and the levels of infectiousness if someone who is vaccinated contracts the virus. All those things mean fewer employees getting ill and less sickness absence at work. It is also clear that many people will feel more comfortable working alongside those who have been vaccinated. Whilst most employers will not be able to mandate vaccination for its staff, all employers can encourage employees and play a small but vital part in countering fear and disinformation and maximising vaccine take up.

Dress Codes and Discrimination

The European Court of Justice cast its judgment in two German cases where Muslim employees were banned from wearing headscarves in the workplace. Although the judgment isn’t binding in the UK, courts and tribunals may take the decision  into account when deciding whether employer dress codes are directly or indirectly discriminatory under the Equality Act 2010. An indirectly discriminatory dress code – for example, one which bans religious or philosophical symbols and negatively impacts Muslim employees who aren’t allowed to wear a headscarf – can potentially be justified if the policy is a legitimate business aim and the employer’s means of achieving that aim are proportionate and necessary. Direct discrimination happens when someone is treated less favourably because of a protected characteristic.

In IX v WABE, both employees were Muslim and wore head scarves. WABE ran secular children’s day care centres. They introduced a policy of political and religious neutrality to guarantee the children’s free development regarding religion and belief. That policy included a ban on all religious or philosophical signs including the headscarf, Christian crosses and the Jewish kippah. Only employees who worked at head office were exempt because they had no contact with parents or children. In the second case, MH Müller Handels v MJ, Muller instructed the employee to attend work without any conspicuous or large scale political or religious signs, including her headscarf, to maintain neutrality in a workplace which had previously experienced conflict arising out of employees’ religious and cultural differences.

The CJEU said that the ban on any visible sign of religious, philosophical or religious belief was not directly discriminatory, as long as it is applied to everyone in the same way, because every person might have a religious or philosophical belief. WABE applied its rule to Christian crosses in the same way as Muslim head scarves, and this was not directly discriminatory. However, because WABE’s rule applied almost exclusively to female workers who wore the Islamic head scarf, it was indirectly discriminatory. In order to justify the policy as a legitimate aim, an employer must show a genuine need for it in terms of the rights and wishes of customers and users - in this case the parents’ rights and wishes in terms of their children’s care. Such a policy must also be applied consistently (as it was here between religions) and limited to what is strictly necessary (here it did not apply to employees who did not have contact with parents or children). However, the CJEU said that a ban only on large or conspicuous signs was likely to be directly discriminatory because it was likely to be seen as targeting certain religions like Islam which have conspicuous religions signs such as the hijab. Direct discrimination cannot be justified. If such a policy were not directly discriminatory, it would still be indirectly discriminatory unless objectively justified. Muller’s aim of avoiding social conflict may constitute a legitimate aim but limiting the policy only to large sized signs undermined the aim of neutrality being pursued. The CJEU concluded that indirect discrimination can only be justified if the ban covers all visible signs of religious belief, not just large or conspicuous ones.

This case is useful clarification that a dress code which bans religious, philosophical or political signs will only be objectively justified if the employer can show a genuine need for it, applies it consistently to all visible signs, and only applies it to those workers necessary to meet the need (in the WABE case, only those employees who would come into contact with parents and children, not those who worked remotely from childcare sites). What isn’t clear, is how this judgment fits with the decision of the European Court of Human Rights in Eweida v British Airways – where BA’s blanket ban on jewellery violated the employee’s right to wear a discrete cross under Article 9 of the ECHR (freedom of religion and belief). In addition, the EHRC’s advice in ‘Religion or belief: dress codes and religious symbols’ says that a policy of neutrality is unlikely to amount to a legitimate aim in the UK. We will have to wait for future employment tribunal judgments to see just how influential this CJEU decision will be.

Constructive dismissal and harassment

Harassment is where someone engages in unwanted conduct in relation to a protected characteristic (such as race or sex) which has the purpose or effect of either violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (section 26 Equality Act 2010). Section 39 of the Equality Act 2010 says that employers must not discriminate or victimise employees by dismissing them, including constructive dismissals. However, the terms in section 40 relating to harassment do not refer to constructive dismissal. In Timothy James Consulting v Wilton, the EAT held that a constructive dismissal could not amount to harassment precisely because of the differences between sections 39 and 40. The EAT has now revisited this issue in Driscoll v V & P Global.

The employee claimed that she had been harassed during her employment which eventually led her to resign. She claimed that her constructive dismissal was also an act of harassment. That harassment claim was struck out  by the employment tribunal because it was bound by Wilton. The employee appealed.

The EAT looked at the European law which underpins the Equality Act 2010 and said it was clear that the intention was for harassment provisions to also cover dismissals. The term must be construed widely and there was no good reason to exclude constructive dismissals from that remit. The EAT said that the fact of whether there is a dismissal cannot depend on whether an employee is told to get out or is driven out instead. Wilton was wrong. Where an employee resigns in response to harassment which is repudiatory conduct, the constructive dismissal itself is capable of being ‘unwanted conduct’ too.

This case clears up a legislative anomaly which stemmed from the historical treatment of harassment as acts of discrimination or victimisation before the statutory definition of harassment was added to the statute books in 2005. It is now clear that constructive dismissal can be an act of harassment as well as other forms of discrimination.

Burden of proof – discrimination

The wording which sets out the burden of proof rules in a discrimination case changed when the Equality Act 2010 brought all the laws on discrimination together in one place. The discrimination legislation previously said that if the employee proves facts which, in the absence of a reasonable explanation, the tribunal could conclude was discrimination, the burden of proof shifts to the employer who must then show that there is another, non-discriminatory explanation for their treatment of the employee. If the employee didn’t prove those facts then the claim failed. This was often referred to as the employee showing a ‘prima facie’ case. In reality, tribunals would hear all the evidence, including the employers, before deciding about whether the burden of proof shifted to the employer to explain their behaviour, not least because the employer’s evidence may completely contradict the employee’s.  The Equality Act 2010 wording is slightly different – it says where there are facts rather than where the employee proves facts, which has caused confusion and some people to think that the rules have changed. The Supreme Court has now clarified the position in Royal Mail Group v Efobi.

The employee was Black African and born in Nigeria. He had computer qualifications from two universities. He worked as a postman but sought promotion to management or IT roles which used his qualifications. He applied for over 30 jobs but didn’t get any of them. He brought a claim for race discrimination. The tribunal dismissed his direct discrimination claim, saying he had not got over the initial hurdle of proving facts which pointed to discrimination. He appealed to the EAT which said the employment tribunal had interpreted the burden of proof rules incorrectly. The EAT said the new wording meant the rules had changed – there was now no requirement for the employee to prove a prima facie case. The tribunal should hear all the evidence and decide whether the facts supported discrimination, in the absence of another explanation. The EAT also said that the employer’s failure to call any of the individuals who decided on the employee’s job applications was capable of supporting that prima facie case. The employer appealed to the Court of Appeal. The Court of Appeal said the tribunal had not applied the test wrongly and that the tribunal had had enough evidence to support its decision that the employee had not proven facts which shifted the burden of proof to the employer.

The Supreme Court said the new wording in the Equality Act 2010 had not changed the legal test. Case law showed that the tribunals had never been limited only to hearing employee evidence and could hear all relevant evidence before deciding whether the burden shifted to the employer to explain themselves. In fact, the only thing to be ignored at this stage was the employer’s explanation for the treatment. The new wording simply confirmed that well established position, rather than changing the law. The employee still bears the burden for proving facts at the first stage, but the tribunal must also consider any facts from the employer which may undermine that evidence.

This case provides welcome confirmation at the highest level that the law has not changed. The employee is still required to prove facts that support their allegations – assertions or allegations on their own will not be enough.

Worker status

In July 2021, the Labour Party revealed its plans for a single definition of worker to establish a whole suite of day 1 rights, and which would apply to all categories of worker and employee apart from the genuinely self-employed. The plan is aimed at ending insecure employment which has been the subject of much litigation in recent years with high profile companies such as Uber and Deliveroo in the gig economy.

The new single worker status would attract employment rights such as statutory sick pay, the national minimum wage (likely £10 per hour), holiday pay, paid parental leave and protection from unfair dismissal, all from the first day of employment. Labour have also said there would be an automatic right to flexible working from day 1, with employers being subject to a legal responsibility to accommodate flexible working  - including flexible hours, compressed hours, and flexibility around school run and childcare during school holidays – unless they can show it is not workable.

The proposals have been welcomed by some, saying they would put an end to the zero-rights model of employment that has sprung up with the advent of the gig economy. Others are worried about practicalities, the cost of the extra rights in the pockets of cash strapped businesses in a post-pandemic era, and practical questions such as how to deal with tax implications for some gig economy workers who still pay tax on a self-employed basis. The finer detail remains to be clarified.

The proposals would be a major shake-up in employment law, but Labour would need to get voted in first. Although they have closed the gap significantly since March 2020, they remain behind the Conservative party in the polls. Even if they are elected and the proposals get pushed through, it could be many years before any change on the statute books. Plenty of time to iron out the finer detail.

Discrimination – compensation

There is no upper limit on the amount of compensation that an employment tribunal can award in discrimination cases. Compensation is awarded based on the employee’s losses and what is just and equitable based on what happened. Compensation aims to put the employee in the position they would have been in had the discrimination not occurred. Career long loss is rare but in Secretary of State for Justice v Plaistow, the EAT has looked recently at one such case, where discrimination turned out to be very costly indeed.

The employee had been a prison officer since 2003. He moved to a new prison in 2014 and was subject to discrimination/harassment based on his sexual orientation or perceived sexual orientation. He raised grievances which were not addressed and eventually complained to his MP and requested a transfer. He was then victimised as a result of his complaints, with allegations of gross misconduct raised against him. His employment was terminated in 2016 when he was 38. He brought discrimination claims which he won. The tribunal described his treatment as a ‘campaign’ of direct discrimination and harassment. In relation to future losses, the diagnoses of PTSD, depression, paranoia and functional impairment were not disputed. However, the experts did not agree about his prognosis. The employee’s medical evidence said these conditions would last for life. The employer’s medical evidence said there was not enough evidence to say the condition was permanent. The tribunal decided that the employee would not be able to return to work before retirement age. They discounted the award by 5 per cent to account for the risk the employee would have left the prison service anyway or would go on to secure work before retirement age. They also awarded a 20 per cent uplift for failing to follow the Acas code of practice in relation to his dismissal. The employer appealed the decision on life-long losses, the 5 per cent discount and Acas uplift.

The EAT said the tribunal had followed the right legal process when deciding on life-long losses. The issue here was about prognosis not diagnosis, and the evidence on that issue was in dispute. The tribunal had resolved the dispute by deciding it preferred the employee’s evidence on the point. This was a rare case where career long losses were appropriate. On the 5 per cent discount, the tribunal had considered evidence about high retention rates in the prison service as well as the employee’s own evidence and found that he would have been highly unlikely to leave of his own accord. However it allowed an appeal on this point as the tribunal had not considered the more general uncertainties about future losses, such as early death, disability or other uncertainties. It also allowed the appeal on the 20 per cent uplift, because there wasn’t enough evidence that the tribunal had considered the totality of the award (over £2 million) when making it. The EAT sent the case back to the tribunal to consider these issues again.

Career long losses will be rare in discrimination cases. Assessments of loss in discrimination cases are based on the evidence. In cases where evidence is in dispute, tribunals are entitled to choose between two possible versions. This happens all the time in tribunals, where the panel must decide between two conflicting versions of workplace events. The severity and duration of the ‘campaign’ of discrimination was also relevant in this case. The decision is also a sage reminder of the importance of following the Acas code of practice, to ensure grievances are properly addressed and dismissals dealt with fairly. Although the EAT allowed the appeal on the Acas uplift, it was due to a technical issue about the tribunal’s methodology. There is no suggestion  that the 20 per cent uplift was wrong in high value cases like this. The lack of an upper limit on compensation means that Acas Code failings can be devastatingly expensive for employers.

Disability discrimination – reasonable adjustments

The duty to make reasonable adjustments is triggered if an employee meets the definition of disability contained in the Equality Act 2010. The employee must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to do normal day to day activities. There is a common misconception that disabled employees can ask for any changes they like and say they are ‘reasonable adjustments’. The reality is somewhat different. The duty to make reasonable adjustments only arises in specific circumstances, and the requirement is to make ‘reasonable’ - rather than any - adjustments.  In the recent case of Aleem v E-Act Academy Trust Limited, the EAT has looked at whether permanent pay protection is a reasonable adjustment when the employee can  no longer do the job for which they were originally employed.

The employee was a science teacher who had mental health problems which amounted to a disability and resulted in significant sickness absence. She was no longer able to do her teaching job. She was offered an alternative role of cover supervisor, at lower pay, but her pay was protected at the teacher’s level for three months while she tried it out and to allow a grievance process to conclude. The employee had agreed to the new job at the lower rate of pay. When her pay was reduced she brought a discrimination claim saying she should be permanently paid at the higher salary as a reasonable adjustment.

The employment tribunal did not agree. Whilst the duty to make reasonable adjustments arose, paying her at the teacher’s higher salary for doing another job was not a reasonable adjustment, especially given that the employer was public sector and in financial difficulties. The temporary pay protection was a reasonable adjustment. The EAT agreed that protecting the employee’s pay temporarily to support her return to work had been a reasonable adjustment. Once her return to work had been achieved, those considerations no longer applied. In deciding that permanent pay protection was not a reasonable adjustment, it was relevant that the employer was providing state education, was in financial difficulties and had problems recruiting science teachers which had resulted in educational standards dipping at the school. The cost was relevant too as the requested pay protection until the employee’s retirement ran to six figures.

This case appears to go against a previous EAT decision  - G4S Cash Solutions v Powell – where it was suggested that maintaining pay while moving an employee to a new role could be a reasonable adjustment. The facts were different in Powell though, because the employee in that case had been told his pay would be protected when he returned to work in a new role. In Aleem, the employee accepted the new job knowing that her pay would be reduced to the level of the new role after a probationary period and the conclusion of her grievance. This case also shows that many factors are relevant to what is reasonable in terms of adjustments, including the cost of adjustments,  the employer’s financial resources and the practicability of the adjustment including any disruption it might cause to the business. One size does not fit all here because what is reasonable will be different in each case.

Unfair dismissal – final written warnings

Poor performance – or capability – is one of the five potentially fair reasons for dismissing an employee. Having a potentially fair reason is not enough - a dismissal won’t be fair unless the decision to dismiss was reasonable overall, including a fair procedure. Many capability procedures involve the issue of warnings in relation to the required improvement and timescale within which to improve. In Fallahi v TWI, the EAT has looked at whether an employment tribunal can look at the fairness of a final written warning which preceded the dismissal, as well as the dismissal itself.

Mr Fallahi was a senior project leader in technology whose employer raised issues about his performance regularly throughout his first two years of employment. An informal performance management process started on 26 January 2016. Objectives were set and specific targets scheduled for June and October 2016 and January 2017. Weekly meetings took place. In May 2016, his manager became frustrated with the lack of progress and invited him to a capability meeting where he was given a final written warning which the employee did not appeal. A further three-month review was set. After two months the employer was still not happy with the employee’s progress - after two thirds of the review period he was nowhere near meeting two thirds of his objectives. The employee was offered a month’s pay to leave or the option to return and complete the third month of review. He decided to leave, collected his belongings and left but no settlement was concluded. When asked to return to work he went off sick leave. He was invited to performance management and capability hearings but did not attend because of sickness, despite Occupational Health saying he was fit to attend. He was dismissed for capability in November 2016. The employee claimed unfair dismissal, saying the employer hadn’t properly followed its own procedures and the final written warning had been unfair.

The employment tribunal said the decision to dismiss was reasonable. Even if it had been procedurally unfair, a fair process would inevitably have led to his dismissal. The tribunal was not prepared to go behind the final written warning because it was not ‘manifestly inappropriate’. The employee appealed. The EAT agreed that the dismissal was fair. A tribunal must judge the overall reasonableness of the dismissal, not the final written warning. The warning was just one relevant factor among many in the process which led up to his dismissal. The long-term underperformance and the lack of improvement was far more relevant than the final written warning. On the facts found by the tribunal, the employer’s ability under its own procedures to move to a final written warning were in this case justified. The warning was not manifestly inappropriate and within the range of reasonable responses open to the employer at the time.

The facts of this case may sound all too familiar to some employers. This case shows just how difficult managing poor performance can be. Following your own procedures is vital, at every stage of the process, and avoids arguments being played out in the courts. This judgment also shows that a tribunal will only go behind a final written warning if it is manifestly inappropriate. The focus in an unfair dismissal case is on the dismissal, with any warnings being individual factors in the overall process followed.

Menopause – are you talking about it enough?

Do you talk about menopause enough in your office? If you employ women aged between 45 and 55, and the issue doesn’t really come up, then the answer is no. Recent statistics from the employment tribunal show that more women are citing menopause in employment tribunal claims for unfair dismissal and sex discrimination than ever before. Menopause can also be a disability if it meets the legal test - if symptoms are long lasting and have a substantial adverse effect on an employee’s ability to day-to-day activities – meaning reasonable adjustments must be made. In 2018, there were five employment tribunal cases which cited menopause; in the first half of 2021 there were 10. These figures are still small but remember when equal pay cases could be measured in single figures? And look how that kind of litigation snowballed.

Employers shouldn’t wait for the appeal courts to give guidance on this issue. Menopause can cause a wide range of debilitating and unpleasant symptoms. These symptoms can have a huge impact on employee performance and attendance, so help and support is good for both staff and business. Menopause policies can help to break the taboo and make it easier for employees to talk about the issue at work. A good policy will:

  • Give information about what the menopause is and the different ways it can affect women.
  • Encourage open conversations on the issue in the workplace.
  • Set out the importance of workplace risk assessments to support the health and wellbeing of women going through the menopause.
  • Propose specific support and adjustments for common symptoms to help guide managers and employees.
  • Act as a prompt for training and education for managers and a guide for what to do when an employee seeks help.

These policies aren’t rocket science. They are a conversation starter and a helpful guide for everyone to follow. Menopause is something which happens to half the population which means it could happen to half of your workers. We need to stop being squeamish and start talking about it.

Unfair dismissal – appeals

A fair procedure is the backbone of a fair dismissal. The right to appeal against any dismissal is an integral part of most fair dismissal procedures. The EAT has looked at a case recently where, unusually, the lack of an appeal did not mean that the dismissal was unfair.

The employee invented a water-efficient toilet and founded the respondent company in order to make and sell the product. He was the CEO of the small company for many years. When he stepped down, staying on as a director and employee, he found it difficult to step back. Relationships soured because he found it difficult to accept that he was no longer in charge. Although he met with the new CEO and agreed to make things work, he still behaved inappropriately, and was combative, aggressive and confrontational. He was dismissed for SOSR (some other substantial reason) due to the irretrievable breakdown in relationships. He was not given the right to appeal. He brought an unfair dismissal claim.

The employment tribunal said his dismissal was not unfair. The breakdown in relations had been entirely the employee’s own making and an appeal would have been pointless. The EAT agreed. Whilst this right to appeal is normally required for a dismissal to be fair, that isn’t always the case. The facts of the case are relevant. Here, the employer was a small business and the employee was a senior figure. Relationships had badly broken down due to the employee’s bad behaviour, about which he was unrepentant. The EAT agreed that an appeal would have been pointless and that was a relevant consideration when deciding whether the dismissal was fair.

This case is a victory of substance over form. However, the facts are very specific and quite extreme, including the employee’s seniority and inappropriate behaviour. Most dismissals will not fall to be considered in the same way. Employers should always offer the right to appeal, even in cases where they appear to be futile.

Ageism – the unspoken workplace discrimination

Last year Citibank lost an age discrimination claim brought by ex-employee Niels Kirk. The former senior manager was 55 when the bank made him redundant. Kirk had worked at the bank for 26 years and was regarded as a  high performer. He attributed the bank’s decision to make him redundant to a culture in which managers who hit their fifties were expected to make way for younger staff.

If Employment Tribunal statistics are anything to go by, there are many other employees in Niels Kirk’s boat. Age discrimination claims at the Employment Tribunal rose 74% over the last year. October to December 2020 saw a staggering 176% rise in age discrimination claims compared to the same period the year before. It appears that the pandemic has worsened ageism in the workplace.

Niels Kirk was in no doubt that his redundancy was due to ageism. He said he had been told “you’re old and set in your ways”, and that his age and many years’ service counted against him. The bank needed a more “agile approach”, they told Kirk. He assumed they meant youthful. Although Kirk complained to Citibank that his redundancy selection was age discrimination, he never received a meaningful response. 

In Citibank’s handling of Niels Kirk, they made a number of common mistakes that can cause or contribute to age discrimination:

  1. Not taking the employee’s concerns seriously. The Tribunal found that the bank appeared to have dismissed Kirk’s complaints without making any real attempt to investigate them. Many employers are alert to potential complaints of discrimination on the well-known protected characteristics of race, disability and religion. Age discrimination complaints often fly under the radar. They should be treated as seriously as any other discriminatory complaints and a formal grievance process should be followed.
  • Derogatory comments about the employee’s age. The negative remarks about Kirk’s age were humiliating and insulting. The Tribunal found they amounted to age harassment. Employers should be aware that the perception of the complainant is key when deciding if particular conduct is harassment. It does not matter if comments were not intended to offend.
  • Relying on inaccurate assumptions about older workers. Kirk was made redundant because the bank thought his age made him stuck in his ways. This was based on the fallacy that older workers have less interest in exploring new ideas or developing new skills. Employers should avoid sidelining older workers over outdated perceptions about their abilities as this could be discriminatory.
  • Using discriminatory redundancy selection criteria. The Tribunal found that Kirk’s age was one of the reasons for his redundancy. Employers should take care not to use discriminatory criteria when selecting employees for redundancy. Objective selection criteria are preferable.
  • Using discriminatory language to describe desirable qualities for employees. Citibank prioritised “agility” among its managers, a term which equates to youth. To avoid age discrimination during recruitment, employers should avoid showing a predetermined bias for applicants with a particular characteristic. Such language might deter older applicants. The focus should instead be on skills and experience that demonstrate an objective approach to recruitment.

Employers should treat age as an asset, not a hindrance. A more diverse workforce includes having employees of different generations, in addition to other markers of diversity. Each age group will contribute different perspectives which can give an organisation a competitive advantage. Employers should therefore ensure they have strategies in place to make their workplaces age inclusive.

LexLeyton can assist employers with advice and training on any particular issues arising from older employees in the workplace. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

Employment law update – June 2021


Are You Furloughing between 16 to 99 People? Are You Furloughing between 16 to 99 People?

If the answer is yes, from the 27th May 2021, you are no longer able to claim for furloughed wages under CJRS without completing this excel sheet and uploading the file with your claim containing the following information for each employee. 

  • full name
  • National Insurance number (or payroll reference number if you do not have this)
  • payroll reference number (sometimes called a pay identify or staff number)
  • furlough start and end date (using the format DD/MM/YYYY)
  • full amount claimed (pounds and pence)
  • normal hours (using decimals, for example 7.5)
  • actual hours worked (using decimals)
  • furloughed hours (using decimals)
  • if they have returned from statutory leave and you then put them on furlough

You will need to make sure that you submit one line per employee for the whole period and that all of the worker’s information requested is provided in the requested format.

Read the rules on what is required very carefully as your claim won’t be processed if the file isn’t completed properly or if you upload it in a wrong format.


Constructive dismissal

An employee is constructively dismissed if an employer fundamentally breaches their employment contract, entitling the employee to resign in response and say they were dismissed. The employee must not ‘affirm’ the contract, for example by delaying too long before resigning. Previous case law has shown that a fundamental breach of the implied contractual term of mutual trust and confidence cannot be cured (Buckland v Bournemouth University), but an employer can prevent a situation escalating into a breach of trust and confidence by apologising and correcting the previous behaviour (Assamoi v Spirit Pub Company). In Flatman v Essex County Council, the Employment Appeal Tribunal has reaffirmed the principle that a fundamental breach of contract cannot be repaired.

The employee was a learning support assistant whose duties including lifting a disabled child. Over many months, she repeatedly asked for manual handling training which was not forthcoming. She developed back pain and was signed off work. On her return, the employer told her that she would not have to lift the pupil, she would be assigned to another class and training would be provided. The employee resigned and claimed constructive dismissal. The employment tribunal dismissed her claim. They said that, at the point of resignation, the employer had showed concern for the employee’s health and safety and had not fundamentally breached the implied duty to take reasonable care of her health and safety.

The EAT said the tribunal was wrong. They had looked at the overall position at the point of resignation, rather than whether there had been a fundamental breach of the implied term at some point previously. The EAT said there had been a breach which had become fundamental at the latest by the time the employee resigned because of the increased and continuing risk to health and safety and the actual harm caused in terms of the back pain. The employee had not affirmed the contract. An employer’s intention to provide training may be relevant if action is taken as well but is less relevant in implied terms relating to health and safety than mutual trust and confidence. It was also relevant here that the breach was not a one off but continued over a period of time. The breach had already become fundamental, so couldn’t be cured. The EAT said the employee had been constructively dismissed.

This case hasn’t changed the law, but it has highlighted the importance of applying the legal test correctly. Constructive dismissal cases are complex but what is clear is that employers cannot roll back from a fundamental breach of contract once it has occurred. Unless the employee affirms the contract, the breach can be acted on and resignations can become constructive dismissal claims. In this case, the employer should have sorted the relevant training out at the beginning of the job. That would have prevented the injury, stopped any breach becoming fundamental, and saved the employer the time, cost and hassle of the litigation process.


Indirect discrimination

EU law requires all member states to ensure that individuals suffering discrimination receive appropriate remedies, including compensation. If an employee wins a discrimination claim, section 124(2) Equality Act 2010 (EA) says that an employment tribunal can make a declaration (i.e. that the employee has been the victim of discrimination), order compensation or issue a recommendation to the employer (aimed at reducing the discriminatory effect on the employee). If there has been unintentional indirect discrimination, section 124(4) and (5) EA say that the tribunal must consider a declaration or recommendation first before deciding whether to order compensation. These provisions build on and change the original legal positions under the Sex Discrimination Act 1975 and Race Relations Act 1976, which originally prevented tribunals from awarding compensation for unintentional indirect discrimination.

In Wisbey v City of London Police, the Court of Appeal has looked at whether section 124 provisions are compatible with EU law. The employee was a police officer who had a form of colour blindness. He was an authorised firearms officer. Despite his impairment having no obvious effect on work, in March 2017 he was removed from his firearms officer responsibilities as well as any advanced rapid response driving. In February 2018, after more tests, he was reinstated to these roles. He brought a claim for indirect sex discrimination against his employer. 8% of men suffer colour vision defects but only 0.25% of women. The employee argued that the requirement to pass certain colour vision tests put men at a disadvantage compared to women. In his evidence, the employee’s injury to feelings was linked to his ban from firearms work rather than the driving duties.

The employment tribunal said he had been indirectly discriminated against but only in relation to the removal from advanced driving and not firearms work. The tribunal did not award injury to feelings as it said the discrimination was unintentional – the employer didn’t know men would be disadvantaged in the tests and did not intend the consequences. The EAT did not uphold his appeal so he appealed to the Court of Appeal, saying that sections 124(4) and (5) EA were incompatible with European law. The Court of Appeal dismissed his appeal too. They said the requirement in those sections to consider remedies in a certain order did not make seeking compensation more difficult for an employee in relation to unintentional discrimination. The provisions don’t prioritise one remedy over another and doesn’t dissuade tribunals making awards. In any event, tribunals will usually make a declaration before awarding compensation anyway. In this case, the tribunal might have misdirected itself when it said no compensation was due because the discrimination had been unintentional. However that did not make the decision not to award compensation wrong in this case on the facts. It was the driving ban which was found to be indirectly discriminatory, and the employee’s evidence was that his feelings were injured by the firearms work ban, not the driving. On that basis, injury to feelings was not appropriate.

This case doesn’t really explain why the Equality Act 2010 retained some different remedy provisions for unintentional indirect discrimination when the bans on compensation were removed by the time the Equality Act was introduced. It makes little difference in practice as a tribunal is highly unlikely to award compensation in a discrimination claim without first making a declaration. This case also shows that injury to feelings are based on the employee’s evidence about the impact the discrimination has had on them. In this case, the employee’s evidence showed that his feeling were not hurt by the discriminatory ban on advanced driving duties, and therefore it was right that no compensation was awarded.


Changing terms and conditions – Covid-19

Many employers have changed terms and conditions during the pandemic, whether to access the furlough scheme or to enable the survival of the business through economically unprecedented times. Some employees have been willing to agree to those changes, keen to avoid a redundancy situation. If an employee refuses to change their contractual terms, an employer cannot unilaterally make the change without breaching the contract. The safer method is to dismiss the employee lawfully from the old contract – by giving contractual notice – and offer to immediately reengage them on new terms. Provided the employer has a sound business reason for making the change, the dismissal may be fair based on ‘some other substantial reason’ (SOSR), one of the five potentially fair reasons to dismiss. The dismissal must be reasonable overall, which includes following a fair procedure.

In Khatun v Winn Solicitors, the employer experienced a downturn in work due to the pandemic. It decided to furlough half its staff, with the other half retained to service the remaining work. All employees were required to sign new contracts or face dismissal. The new terms gave the firm the right to furlough staff or to unilaterally reduce their hours and pay on short notice. The employee refused to sign the new contract, saying she would consider furlough or a reduction in hours in future if the situation arose. The employee was urged to reconsider but she refused. She was dismissed without notice or accrued holiday pay because the COO was ‘fuming’. Her remote computer access was removed before she was even told about her dismissal. The employer later accepted they owed her notice and holiday pay and paid it. The employee brought an unfair dismissal claim.

The employment tribunal agreed that she had been unfairly dismissed. They acknowledged that the business had sound, good business reasons for the contract change. Given the effect of the pandemic, it was reasonable to request these changes and it was not premature. Theoretically, the dismissal had met the SOSR test. However, the employer had not behaved reasonably overall. The tribunal conceded that only one employee out of 300 had refused to sign, which indicated that the business had acted reasonably. However, there had been no meaningful consultation at all, just a one-sided conversation. Although a subsequent phone call had looked more like consultation, the tribunal did not believe meaningful consultation had taken place. The employer did not explore alternatives and instead just reiterated the firm’s position. The firm said they did not have time to negotiate with 300 staff, but the facts showed that it was only this employee with whom consultation was required. The tribunal was surprised that a firm of solicitors had so little regard for a binding contract and an employee’s desire to protect her contractual terms. The employer’s own evidence was that they did not explore alternative options and the employee would be dismissed if she refused. They had offered no appeals process. The tribunal said a reasonable employer would have taken more time to engage meaningfully with the employee and explore alternatives to dismissal. The dismissal was unfair.

Fire and rehire is itself coming under fire (see below) but this case also shows the importance of following a fair procedure in any dismissal case, whatever the circumstances. The key issues in this case were the lack of consultation and any reasonable consideration of alternatives to dismissal (including her offer to stay on existing terms and consider changes in future if required). With a sound business reason for the change, and SOSR engaged, all the employer then needed to do was follow a fair process. For one employee, this would not have taken much longer than the 48 hours in which the employee was given to sign her new contract. The employer here let their panic at Covid, and ‘fury’ with the employee, override the importance of a fair process. A remedy hearing will decide just how much that mistake will cost.


Disability

In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an employee’s ability to do day to day activities. The long-term requirement is met if the impairment has lasted, or is likely to last, at least 12 months. A recent case in the Court of Appeal has looked at when that assessment should take place, at the time of the discrimination or with the benefit of hindsight when preparing for a tribunal hearing.

In All Answers v W and R, the employees said their depression and post traumatic stress disorder met the legal test for disability. They said they had been discriminated against on 21 and 22 August 2018. The employer challenged their disability status, saying that in August 2018 the impairments had not lasted, and were not likely to last, at least 12 months. The employment tribunal considered evidence about the effect of the disability after August 2018. Their conclusions about disability were described in the present tense, apparently at the date of the tribunal hearing, rather than assessing what the position had been in August 2018. The employer appealed to the EAT and lost, then appealed to the Court of Appeal. The issue to be decided was whether the impairments met the long-term test.

The Court of Appeal looked at what ‘long-term’ meant. The impairments arose in April 2018, so had not lasted for 12 months by August 2018. The question then was whether the substantial adverse effects of those impairments were ‘likely to last for 12 months’ at the time of the alleged discrimination. That question must be answered using the facts and circumstances which existed at that time, not with the benefit of hindsight or evidence from after that date. The Court concluded that the tribunal had not asked that question. They said the employees ‘are disabled’, not ‘were disabled’ at the relevant time. The use of the present tense, asking ‘is [the employee] disabled?’ clearly showed this error. The employer’s appeal succeeded, and the case was sent back to the employment tribunal to decide the issue properly.

This case demonstrates the complexity of the law on disability, with the Court of Appeal saying even learned judges in the EAT had got it wrong. Employers should always tread carefully with employees who say they are disabled. Early legal advice is essential to ensure cases are defended robustly and in accordance with the complex legal test.       


Worker status

Most of the cases on worker status so far have dealt with relatively low paid gig economy workers, such as cab drivers and couriers. In Somerville v Nursing and Midwifery Council, the EAT has looked at the worker status test in relation to a barrister who had a contract with the Nursing and Midwifery Council as a panel member in professional conduct hearings. A ‘worker’ is defined by section 230(3) Employment Rights Act 1996. The definition includes employees and anyone else who works under ‘any other contract…whereby the individual undertakes to do…personally any work…for another party’ provided the other party isn’t a client or customer of the individual (which would make them genuinely self-employed).

Mr Somerville was contracted to sit on panels in fitness to practice hearings, which he did alongside his other legal work as a barrister. His contract with the NMC said he was a self-employed contractor and gave no requirement for him to be offered any work. Nor was there any requirement on him to accept work when it was offered. He brought an employment tribunal claim for holiday pay, saying he was either an employee or a worker. The employment tribunal said there wasn’t sufficient mutuality of obligation to be an employee – he wasn’t required to do a certain number of days and was free to withdraw from dates he accepted. However, he had to do the work personally. The work was central to the NMC’s main function of maintaining high standards for nurses and midwives. He had to do mandatory training. His pay was fixed and non-negotiable. As such, the tribunal said there was a degree of subordination to which someone truly self employed would be unlikely to agree. He was a worker. The NMC appealed. They said that an ‘irreducible minimum of obligation’ – to offer and accept work – was an essential part of worker status.

The EAT did not agree. The tribunal had established that there was an individual contract every time Mr Somerville sat on a panel. There was also an overarching contract for providing his services. Once that overarching contract was established, there was no additional duty to demonstrate any more mutuality of obligation. The important question for worker status wasn’t the requirement to offer and accept work but the degree of control exercised once that work was accepted. The EAT said Mr Somerville was under a high degree of control in his work as panel chair. Once he said he was available, he was required to accept the work offered, perform it personally (he could not subcontract it out to another person) and work to the particular standards and requirements of the NMC. The EAT said the fact he paid his own tax was not relevant.

This is yet another case that demonstrates that the labels which businesses put on contracts can sometimes mask the true nature of the legal relationship. Employment tribunals will dig behind those labels and look to the reality of the position. If an individual is integrated into the business in the way Mr Somerville was, worker status is likely. This also shows that worker status cases are not limited to the gig economy. Self-employed status should be used with extreme caution by employers and only when it truly represents the relationship between the parties. Employers should beware that individuals on zero hours contracts, where the facts imply an overarching contract, may well be workers.


Health and safety dismissal

Section 100(1)(a) Employment Rights Act 1996 says that an employee is unfairly dismissed if they were dismissed for carrying out activities assigned by the employer which are designed to reduce or prevent health and safety risks. A dismissal under this section will be automatically unfair and employees do not need the usual two years’ continuous service to bring these claims.

In Sinclair v Trackwork, the employee was a Track Maintenance Supervisor who was asked to implement a new safety procedure. His colleagues did not know he had been given this task and complained about his approach which they said was ‘over cautious and somewhat zealous’. This created ill feeling and friction among his colleagues, for which the employee was later dismissed. He brought a claim for automatic unfair dismissal. The employment tribunal said he had not been unfairly dismissed. He was dismissed because of the way he had carried out his health and safety activities and demoralised the workforce, not because of the health and safety activities themselves.

The EAT disagreed. Carrying out health and safety activities will often be met with resistance from colleagues. That is why the protection of section 100(1)(a) exists. It would undermine the purpose of the law if any upset or ill feeling caused by legitimate health and safety activity could be hived off and treated separately from the activities themselves. The EAT said there may be cases where an individual’s conduct can be separated from the activities – if that conduct is unreasonable, malicious or irrelevant to the task – but that was not the case here. The employee had simply done as instructed and relationships with colleagues had soured as a direct result of those activities. The EAT said he had been automatically unfairly dismissed and sent the case back to the tribunal to decide on remedy.

This case is important during a pandemic, where health and safety activities will often be delegated to members of staff and may be met with some resistance, especially as society opens up. Unless an employee is behaving in a malicious or unreasonable way in relation to those duties, they will be protected from any dismissal relating to the way they have carried out those duties. The messaging in your business in important here. It is important to demonstrate from the top that health and safety duties are both vital and respected. That will guard against a culture of resistance to activities which are designed to keep everyone safe.


Workplace conflict

ACAS has produced a new report called ‘Estimating the cost of workplace conflict’. It presents a snapshot of how conflict can affect businesses and the potential costs that may be involved. The report says that in 2018 to 2019, 9.7 million UK employees experienced conflict at work. Only 5% of those resigned, leaving a lot of unhappy people at work. Of those who remained at work, 40% said they felt less motivated as a result. The recruitment and training of new staff to replace those who have left due to conflict costs businesses around £14.9 billion per year. Conflict related sickness absence cost £2.2 billion.

The report estimates that the cost of management time in dealing with a formal grievance is £951, the average cost of a disciplinary process is £1141. The cost of management time in dealing with tribunal complaints is about £282 million a year, with £264 million spent on legal fees. The report estimates that the overall cost of conflict to employers in the UK each year is £28.5 billion.  That figure shows that conflict can be eye wateringly expensive. At a time where businesses are already struggling, this report offers ideas about how to reduce conflict and its associated costs.

The report gives three strong messages:

  • Good management – managers must be ‘conflict competent’.
  • Timing – line managers should spot and intervene in conflict situations well before formal processes have started.
  • Creativity - there is a natural opportunity for improvement and change where the status quo is challenged, which is a common cause of conflict at work.

Businesses should focus on effective and early resolution of workplace disputes to nip potential problems in the bud, especially when dealing with poor performance and sickness absence. The report suggests disciplinary matters should focus on learning rather than blame. The ultimate aim – for many reasons, not just cost - is to move towards resolving disputes in the workplace rather than in the employment tribunal.

Find the report at https://www.acas.org.uk/estimating-the-costs-of-workplace-conflict-reportF


Fire and Rehire – a review

Should employers be allowed to fire and rehire? In economically hard times, or when a business is restructuring, the ability to change employment terms can be an essential tool. The law does not allow an employer to change employment terms unilaterally, so giving lawful notice and offering a new contract in return is a safer option. It does create a dismissal though, which may be unfair. Unfair dismissals are often defended on the basis of SOSR – some other substantial reason – but the business need only have a ‘sound business reason’ for the contract change, as well as behaving reasonably overall. Is banning a perfectly legitimate process – lawfully ending one contract and offering another – really the answer?

Fire and rehire has been brought into the spotlight recently by the widely reported British Gas case, where employees were given notice to end their existing contracts and asked to agree new terms for lower pay and longer hours. Hundreds refused and so their employment terminated. An Observer poll found that 9/13 companies firing and rehiring this year maintained healthy profit margins. That headline might be misleading, it seems to disregard the fiscal responsibilities businesses have to shareholders and underplays the impact of declining profits. British Gas’s profits have halved over ten years and this year reported its weakest earnings on record. Shouldn’t they be allowed to address that downward trend?

The government asked Acas to investigate fire and rehire and received the report in February this year, but its content has not been published. MPs have debated the issue recently too. Government representatives indicated that they need to tread carefully when considering government intervention in commercial contractual matters between employers and employees. Whilst denouncing ‘bully-boy tactics’, representatives said the government needed to look at the Acas evidence on the flexibility that fire and rehire tactics offer, where the ultimate aim is to save jobs. The government has said they will look at the issue, and the Employment Bill more generally, ‘when parliamentary time allows’, so the can has been kicked down the road for now.

Fire and rehire should always be a last resort. The pandemic has shown that employees faced with the threat of redundancy are often willing to accept new, less favourable terms, in order to protect their long-term employment. Communication is the key here, as is considering what cost-free sweeteners can be offered alongside pay or benefit cuts. The last year has shown us that benefits such as flexible and home working are considered priceless by some employees. Fire and rehire shouldn’t be banned, but it should be used sparingly, when all other methods have been exhausted and there really is no other option.


Shared parental leave

Maternity Action has published a report on how they believe the shared parental leave provisions should be reformed. The charity suggests that the current scheme just doesn’t work. Government data shows that only 3.6 per cent of eligible fathers took shared parental leave in 2019-2020, compared to a government target of 25 per cent. Only two per cent of new fathers took shared parental leave in 2019. The pandemic has increased the gender childcare gap, so the charity is keen to find new ways of supporting working parents.

The suggestion is that the system of sharing or transferring leave between parents has not worked. The report proposes a new system of individual non-transferable rights for each parent. The radical model proposed would replace both statutory maternity leave and shared parental leave, creating a ‘6-6-6’ model. The first six months of leave would be reserved for the mother, followed by six months of non-transferable leave for each parent. The leave could be taken at the same time by parents or one after the other, all in one go or broken down into smaller blocks of weeks or months up to 18 months after the birth.

The report also recommends maternity, paternity and parental leave and pay should be day one rights regardless of employment status. The right to return to the same job after any period of leave should be strengthened, and the statutory leave pay should be increased to national minimum wage levels and potentially beyond. Read the report here:

https://maternityaction.org.uk/wp-content/uploads/Shared-Parental-Leave-briefing-May-2021.pdf


Health and safety – New Laws

New laws came into force on 31 May 2021 which extend the rights under section 44(1)(d) and (e) of the Employment Rights Act 1996 to workers as well as employees. The provisions currently provide protection from detriment to employees who reasonably believe that being at work or doing certain tasks puts them in serious and imminent danger. The change has been introduced because the High Court said in Independent Workers’ Union of Great Britain v Secretary of State for Work and Pensions that the UK had not implemented EU law correctly by excluding workers from this protection.

From 31 May, workers will have the same protection. These new rights will be enshrined in a new section 44(1A) in the ERA. The law will not be retrospective. The alleged detriment – or the last act in a series of detriments, will need to occur after 31 May 2021 for the new law to apply. Businesses must ensure that staff, especially managers, know about this change and understand the legal ramifications, including the potential cost of getting things wrong.

Whistleblowing Guide for Employer

Whistleblowing, which is effectively reporting wrongdoing at work, is increasingly encouraged by employers. It’s important for employers to be able to handle complaints properly and provide an open environment where employees are not afraid to speak out. It is quite possible that, as lockdown measures ease, the incidents of whistleblowing will increase as businesses start to welcome employees back into the workplace.

Employment law update – Feb 2020

Business people in the office

Interim relief is a powerful employee remedy. Section 128 of the Employment Rights Act 1996 sets out the limited circumstances in which it can be sought: for dismissals relating to trade union or health and safety representative activities, and whistleblowing cases. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue. Essentially, interim relief reverses the dismissal pending the final hearing. In what may turn out to be a landmark case, the Employment Appeal Tribunal has looked at whether this remedy should also be available in discrimination cases.

In Steer v Stormsure, the employee had been employed for only a few months when she raised allegations of sexual harassment against a colleague. She lodged a grievance. She also asked to work from home to safeguard herself from harassment. The employer reluctantly agreed but asked her to install monitoring software onto her computer, which the employee found oppressive. She alleged that her working hours were then reduced to 60 per cent. She claimed that the reduction in hours was an express or constructive dismissal that amounted to sex discrimination or victimisation. She brought a claim for discrimination under the Equality Act 2010 and requested interim relief in relation to her discriminatory dismissal.

The employment tribunal said it did not have the jurisdiction to grant interim relief in discrimination cases. The employee appealed to the EAT. The EAT said the difference in protection for discrimination cases breached the European Convention on Human Rights (ECHR) - article 14 on the prohibition of discrimination and article 6 on the right to a fair trial. The difference in remedy between whistleblowing and discrimination claims was not justifiable. However, they did not have the power to make a ‘declaration of incompatibility’ with section 3 of the Human Rights Act 1998 (which says that UK legislation must be read in a way which is compatible with the ECHR). Nor were they prepared to interpret the Equality Act 2010 in such a way as to extend interim relief to discrimination cases. As a result, they dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal which does have the power to rule on the incompatibility point.

This is an important decision for employers. If the employee wins her appeal, a brand-new remedy will be available to employees in discrimination cases. Brexit will not affect the outcome because the UK will continue to sign up to the ECHR. Currently, interim relief is rarely sought and even more rarely won due to its very limited application. If the remedy extends to discrimination claims, there could be a deluge, especially at a time where there are significant delays in the employment tribunal process due to Covid-19. Employers should not panic though. For interim relief to be granted, an employee needs to have a ‘pretty good chance’ of winning their claim. This is no small hurdle, and many will fail to get over it.

Victimisation

An employee is victimised when an employer treats them badly for raising allegations of discrimination. The discrimination complaints are called ‘protected acts’, because the employee is protected if they raise them. In Chalmers v Airpoint, the EAT has looked at whether an employee saying something ‘may be’ discrimination is enough to qualify as a protected act.

The employee emailed her employer saying that their actions – in arranging a Christmas event for a date when she could not attend - ‘may amount to discrimination’. In the same email, she also complained that her manager was unapproachable, aggressive and unhelpful. The tribunal found that the party arrangements were not an act of discrimination. In addition, the employee’s email was not a protected act because it didn’t contain an allegation that someone had contravened the Equality Act 2010. They considered the employee to be articulate and well-educated. They also noted the specific lack of reference to ‘sex discrimination’. As a business support manager, the employee carried out some HR functions for the company so had insight into discrimination issues. The tribunal therefore felt it was surprising that she was equivocal about discrimination complaints when she had been so clear about other issues – if she had wanted to raise discrimination complaints, she would have done.

The EAT said the tribunal had been entitled to come to this conclusion. They noted the tribunal’s reasoning and confirmed they had been entitled to conclude that this email was not a discrimination complaint which qualified as a protected act. The EAT said that the tribunal had considered whether the lack of the word ‘sex’ (in relation to discrimination) and use of the word ‘may’ were due to the employee’s ‘lack of facility’ with words or ignorance about the concept of sex discrimination. They found that if she had wanted to raise a sex discrimination complaint, she would have done. The EAT said those findings were not perverse on the facts.

This case does not mean that equivocal language will never be enough to turn a complaint into a protected act. The facts in this case were very specific - a well-educated employee, familiar with HR processes, and someone who had complained in very clear terms about other matters. On that basis, the tribunal concluded that she would have complained in clear terms had she intended to. Other employees may be understandably less informed or be less direct and have a lower hurdle to clear when raising discrimination complaints. Care must always be taken in relation to any correspondence which cites discrimination. It’s probably safer to assume it does qualify as a protected act and proceed cautiously.

Furlough – updated guidance

The government has updated its advice in relation to the Coronavirus Job Retention Scheme to confirm that employees can be furloughed if they are unable to work some or all of their hours due to caring responsibilities resulting from Covid-19. The guidance says that ‘caring responsibilities’ includes caring for children who are at home because schools/childcare facilities have shut or caring for a vulnerable person in the household.

The change in advice follows requests from the TUC and opposition MPs for the government to provide more support for working parents during the third lockdown. The government rejected calls for parents to be given the right to demand furlough, though the new guidance creates more flexibility for both parents and employers. It is almost impossible to do a decent day’s work alongside home-schooling children. The option to furlough might be attractive to some employers who are able to cover the work in another way. This will not always be possible though and sensitive discussions will be necessary with employees who can’t be furloughed to see what other support or assistance may help them to juggle their responsibilities. Redistributing some work, changing working hours or being more flexible on deadlines can all help parents who are trying to juggle during the normal working day. Stressed, overstretched employees are not efficient or productive workers. In these strange times, what works best for employees will often be the best thing for the business too.

See the new guidance at https://www.gov.uk/guidance/check-which-employee-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme

Indirect discrimination

Indirect discrimination arises when an employer applies a policy to everyone which puts people who share a protected characteristic (such as race or sex) at a ‘particular disadvantage’. The policy must also put the employee in question at that disadvantage. It involves a comparative exercise: showing that one group is disadvantaged when compared to another. These groups are often referred to as the ‘pools for comparison’. The pools need to include all the workers affected by the policy but exclude those who are not. In Cummings v British Airways, the EAT examined who should go into these pools in an indirect sex discrimination claim involving childcare.  

British Airways had a policy that crew members who took parental leave would have one rest day removed for every three days’ parental leave taken in a monthly roster. The policy was applied to the employee who brought an employment tribunal claim. The employment tribunal found that the policy did not put women at a particular disadvantage when compared to men.  The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within the workforce. Since 100 per cent of both groups suffered the same disadvantage when they took parental leave, the tribunal said there was no particular disadvantage to women.

The EAT said there was a problem with this reasoning. Not all employees with childcare responsibilities would apply for and take parental leave. This means that not all people with childcare responsibilities in either group – male or female – would be disadvantaged. It had been acknowledged in the Supreme Court case of Essop that women still bear the bulk of childcare responsibilities in society. Of 2500 cabin crew, 69 per cent were women and 31 per cent were men. Of those who took parental leave, 417 were women compared to 92 men. A far greater proportion of female employees (24.2 per cent) took parental leave compared to male employees (11.9 per cent). But what was missing from the evidence was the comparison between the specific number of male and female staff with children of the relevant age, who therefore had ‘childcare responsibilities’. This was an error of law and the matter was sent back to a fresh employment tribunal to consider the following questions:

  1. Did the policy put staff with childcare responsibilities at a disadvantage;
  2. Did it put women in that group at a particular disadvantage when compared with men; and
  3. Was it justified?

This case is a helpful explanation of how the pools for comparison are made up in an indirect discrimination claim. It is a complex analytical exercise with this case showing how eminent lawyers and even judges can get it wrong. It’s worth employers getting early legal advice in relation to allegations of indirect discrimination so that any problematic policies can be weeded out and changed before cases get to court.

Pregnancy discrimination

Section 18 of the Equality Act 2010 deals with pregnancy and maternity discrimination. An employer discriminates against an employee if they treat her less favourably while she is pregnant or on maternity leave, either because of the pregnancy (or any related illness) or because she has taken maternity leave. This kind of discrimination cannot be justified. The period of protection starts when the employee becomes pregnant and finishes at the end of maternity leave. The Employment Appeal Tribunal has recently looked at whether changing a pregnant employee’s job to remove workplace risks can be considered less favourable treatment.

In Devon and Cornwall Police v Town, the employee was a frontline police officer who worked in the Response Team. When she became pregnant, a risk assessment confirmed that she could safely remain in the Response Team with some adjustments. Instead, the employer applied their generic policy that employees on restricted duties would be transferred to the Crime Management Hub, a back office role. They essentially ignored the risk assessment. The employee did not want to transfer and the transfer affected her mental health and made her ill. She brought claims for pregnancy discrimination and indirect discrimination.

The employment tribunal said the employee had been discriminated against on grounds of pregnancy. The employer had also indirectly discriminated against her by applying the policy on restricted duties because women were more likely to be forcibly transferred due to pregnancy or associated ill health. The employer appealed, saying that a policy designed to protect someone from risk could not be ‘unfavourable’ treatment. They also argued that the policy only disadvantaged pregnant women, not women in general. The EAT disagreed. The ‘unfavourable’ treatment was being moved to a job the employee didn’t want and which made her ill, not being ‘removed from danger’. The tribunal had found on the facts that this was unfavourable treatment and that it was because the employee was pregnant. These findings of facts were not perverse so there was no basis for appeal against pregnancy discrimination. For the purposes of an indirect discrimination, the EAT said that it was enough that the policy was more likely to affect women - as a group they were more likely to be subject to the policy due to pregnancy and only women can get pregnant. It wasn’t necessary that all women actually suffered from the disadvantage.

This case shows how important it is for employers to engage with pregnant women about steps that are taken to protect them from work-related risks. In this case, the risk assessment clearly showed that the employee could safely remain in her substantive role. The tribunal noted that any ambitious frontline police officer would consider the move to a non-operational role as a retrograde step. In circumstances where the employee actively wanted to stay in her job, steps to ignore both a risk assessment and her own desires were foolhardy. Protecting women from clear dangers is vital, but this case demonstrates the risks associated with going too far.

Constructive dismissal

A constructive dismissal arises when an employer fundamentally breaches the employee’s contract, entitling them to resign and say they were effectively dismissed. The breach must be fundamental, which means it is really serious and goes to the root of the contract. If there is a fundamental breach of contract, the employee has a choice: to accept the breach and act on it by resigning or to waive the breach and affirm the contract by continuing to work.

In Gordon v J&D Pierce (Contracts) Limited, the employee’s relationship with his manager had deteriorated. He resigned and claimed constructive dismissal, saying that the trust and confidence had been destroyed. The employment tribunal dismissed his claim, saying that both sides had contributed to the relationship breakdown. Trust and confidence had not been breached and the employee had not been entitled to resign and claim he was pushed. The tribunal also said that in raising a grievance, the employee had affirmed the contract. The employee appealed.

The EAT dismissed the employee’s appeal because they agreed that there had been no breach of contract. On that basis, they didn’t strictly need to deal with the affirmation point, but chose to do so. The EAT said that engaging in a grievance process after a breach of contract did not necessarily mean a contract had been affirmed. The same principle would apply to other internal processes such as a disciplinary appeal. Exercising a contractual right such as appealing against a disciplinary sanction or raising a grievance should not be regarded as affirmation of the contract as a whole. These processes are severable from the remainder of the contract and can survive it, even when the rest of the contract is considered to have been terminated by a breach. If the employee wins the appeal or grievance, it is then open to them to affirm the rest of the contract too and continue in employment.

This decision makes sense. It would be odd if the very processes designed to resolve differences – disciplinary appeals process and grievances – could not be used by an employee in circumstances where their contract has been breached. It would completely undermine the industrial purposes of these processes. The employee lost his appeal anyway in this case, but the clarity provided by the EAT will be welcomed by all parties.

Employment tribunals – compensation

If an employment tribunal finds that an employee has been unfairly dismissed, they will then need to decide whether, and how much, compensation should be paid. The tribunal can order the amount it thinks is ‘just and equitable’ bearing in mind the employee’s losses. Compensation can be reduced by an amount a tribunal thinks is just and equitable if the employee caused or contributed to their dismissal. In Hakim v The Scottish trade Unions Congress, the EAT has looked at how employment tribunals should approach the issue of calculating losses.

The employment tribunal found that the employee had been unfairly dismissed. The tribunal reduced his compensation for several reasons. Firstly, they said that 35 job applications in 4 years was not a good enough search for alternative employment. They felt his job hunt had been too narrow, confined as it was to the equalities/trade union/third sector jobs. They also noted he hadn’t attempted to retrain or look for volunteering work. They decided it was just and equitable to reduce his compensation by 30%.

The EAT didn’t like that. In order for percentage reductions to be just and equitable, a tribunal must be able to justify the use of such a ‘crude’ approach. This approach might be reasonable if there is a lack of evidence about alternative employment prospects and/or what wages that alternative employment would attract. But this case was different. The employee had secured alternative employment at a specific wage. The tribunal said he would have secured employment earlier had he tried harder. Rather than apply a percentage reduction, the tribunal should have decided when the employee should have secured employment and deduct from his compensation the earnings he would have received had he mitigated his loss properly. Percentage deductions are fine as long as a tribunal can justify why they are made, which the tribunal here did not. The judge sent the case back to the tribunal to do the sums again properly.

This case doesn’t rule out percentage deductions on compensation which are widely used in other ways in employment law (i.e. for Polkey deductions) and other legal claims. But what a tribunal must do is justify that deduction. This is useful for employers to know both in relation to tribunal claims but will also be relevant at an earlier stage in relation to settlement. Gathering evidence about the employee’s mitigation, or lack of it, is always important.

What will the vaccination programme mean for your business?

With the coronavirus vaccination programme well underway in the UK, many employers are considering what vaccination might mean for their business. Some companies are announcing that they will dismiss or refuse to recruit employees who aren’t vaccinated. With 23 per cent of employers telling an HRLocker survey that they plan to make vaccination compulsory, everyone wants to know whether a ‘no jab, no job’ policy is legal.

It’s easy to see why employers want their workforces vaccinated. A fully vaccinated workforce will (hopefully) mean a substantial reduction in both the incidence of the virus in the workplace and the risk that the virus poses to both staff and customers/clients. But a blanket rule might get you into trouble. If a vaccine contains animal-derived products, then a vegan or a Muslim employee might refuse the jab and bring an indirect discrimination claim if they are dismissed as a result. The policy is applied to everyone but can put people with ethical or religious views at a disadvantage. Although such a policy could theoretically be justified – as a proportionate means of achieving a legitimate aim – it would be tricky here. Employers might need to make an exception for such employees.

Aside from discrimination, a ‘no jab, no job’ policy will be difficult for most employers to justify. There are many reasons for this. The vaccine is not compulsory, so an employment tribunal is unlikely to welcome an employer trying to make it obligatory via the back door. The risk of adverse effects from the jab, however small, cannot be completely removed or ruled out – it might be tricky to justify a dismissal for refusing a vaccine which might pose a health threat. Many people are nervous about a new jab which has been developed and approved so quickly, keen to wait and see whether anyone grows fur or a fifth limb in the next few months. Forcing someone to take a vaccine might also infringe on their human rights. Whilst for most employers, this policy won’t be justifiable, there are some workplaces where vaccination is more mission critical. The pandemic has caused devastation in our care homes and there is a shortage of NHS staff due to infection and isolation requirements. Vaccinations will protect vulnerable patients and staff from the virus, potentially reducing or removing its devastating effects.  In these workplaces, the chances of defending such a dismissal are much greater. As always, a fair procedure must be followed, including exploring redeployment from the frontline for those who refuse the jab.

For most employers though, there is plenty of time to mull things over before making any dismissal decisions. Most people of working age are many months away from being offered a vaccine. For those who are currently vaccine hesitant, let winter give way to spring, allowing more time for people to see that vaccination does not damage health. When jab time comes, many employee concerns may have gone away, hopefully taking Covid with them.

ACAS early conciliation and extending time limits

ACAS early conciliation (EC) is designed to avoid employment tribunal proceedings. The EC process operates to ‘stop the clock’ on the limitation period in employment tribunal claims to allow the parties to negotiate a settlement. Once the process is complete, ACAS send an EC certificate confirming the dates of conciliation, which starts the clock ticking again. The rules seem simple but in reality the calculations can be complex. What happens if an employee submits a claim late because they get their maths wrong?

In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the employee was a consultant surgeon. After a long capability and conduct procedure, he resigned and claimed constructive dismissal and race discrimination. He lodged his tribunal claims late, despite being warned twice by his legal advisor to lodge any claim within the normal 3-month limitation period. The employee mistakenly thought that he would get an extension of time by contacting ACAS afresh despite having received an EC certificate. The employment tribunal refused to grant him any extensions of time.  The employee appealed. The EAT dismissed his appeal so the employee appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT’s decision. The EC certificate was valid which meant the employee’s claims were out of time. The employment tribunal’s job then was to decide whether there was a reasonable excuse for that. The employee was a highly educated and intelligent person with access to legal advice. The tribunal had considered those facts to be highly relevant when making its decision not to extend time, and that was not unreasonable.

This case is good news for employers, but it doesn’t mean that all claims submitted late will be rejected. As in this case, the facts will be highly relevant. Here, the employment tribunal felt that it was unreasonable for a consultant surgeon with access to lawyers to claim ignorance of the law and its time limits. For a less educated employee, or one without access to legal advice, the situation might be different. In those circumstances, an employment tribunal might be more forgiving for someone’s misunderstanding of a fairly complicated legal procedure.

Trade union activities

Section 146 of the Trade Union and Labour Relations Act 1992 says that workers are protected against poor treatment by their employer because of their trade union activities. In UCL v Brown, the EAT had to decide whether the sole or main purpose of an employer’s verbal warning was the employee’s trade union activities.

Mr Brown is an IT Systems Administrator at UCL and a local trade union representative for the University and College Union (UCU). The IT department had a department-wide mailing list of around 500 staff. It had been used for over 14 years by staff for work related issues, random matters such as lost keys and by trade union reps for union related communication. The heavy email traffic irritated some people. Management decided to limit department wide emails: messages would go into a ‘moderation’ queue for management to decide whether the communication was appropriate. A separate group was created, with no moderation, but which required staff to actively ‘opt in’ to receive messages. Only 120 out of 500 staff opted in. This significantly changed the reach which the trade union had in relation to staff. Mr Brown set up a new mailing list and added all staff to it, making it clear to management that he was acting in his trade union capacity. He was asked to delete it and was given a verbal warning when he refused. He brought an employment tribunal claim for trade union detriment.

The employment tribunal decided that setting up the new mailing list and refusing to take it down were trade union activities. It followed then that a verbal warning for doing those activities was a detriment.  The EAT agreed. The manager’s main motive in dismissing Mr Brown was for refusing to delete the mailing list. If this was a trade union activity then this alone was enough for Mr Brown to win, a verbal warning clearly comprising ‘detrimental’ treatment for Mr Brown.

This case acts as a sage warning to employers who take action against trade union representatives, even in circumstances where they may be disobeying management instructions. In this case, the tribunal noted that modern email communication had overtaken and replaced older methods such as the notice boards and pamphlets of yesteryear. The employee had made it plain he was acting in his trade union capacity. Engagement with Mr Brown at that stage would have been better than discipline, together with reassurance that the moderation system wouldn’t hold up the distribution of any trade union related material.

Employment Considerations in the Hospitality Sector

To say that 2020 was an annus horribilis for the hospitality sector is an understatement.  The impact of Covid-19 saw restaurants, bars and hotels massively restricted and in many cases mothballed altogether.  Those that remained open had to show incredible agility to change their offering; those who did or could not have operated on close to zero revenue for many months.  With a fifth of hospitality jobs lost in 2020, without the furlough scheme, Government grants and changes to tax rules there would have been many more, alongside the significant number of businesses in this sector that have gone to the wall.

Although Covid-19 has wreaked havoc on the vast majority of businesses, hospitality's reliance on venues for gatherings of people has seen it subject to the harshest of restrictions.  Given the need for workers and customers to return to these venues, it is clear that the industry's recovery is massively reliant on a successful and efficient vaccination programme.  While there is light at the end of the tunnel, it is unlikely that we will reach that point until the summer at the earliest.  How can the sector use the next few months to prepare for this?

Unfurloughing and getting up to speed:

It is improbable that hospitality operations will increase from virtually zero to full capacity immediately following the lifting of restrictions.  We are likely to return to a tiered system so hospitality will reopen gradually.  Employers need to plan now to bring back their workforce in a measured manner to respond to increasing demand. 

  • Which roles will be needed straight away, how many of these and where? 
  • Will employees be brought off furlough and return full-time? 
  • Will furlough be rotated among employees? 
  • Will you increase hours gradually and use part-time furlough for hours not worked?

Taking time to think about this in detail will benefit rational business decision making and reduce the risk that any decisions are perceived are discriminatory or based on poorly evidenced assumptions.  From an employee relations perspective, employers need to make sure that they are acting as fairly as possible – this helps avoid complaints from employees who feel overlooked or harshly treated.  Consider the continuing impact of Covid-19 on staff – some may have unavoidable caring responsibilities and may be eligible to be furloughed for a little longer.  Above all, make sure that you communicate clearly and openly with staff.

Covid Security:

It is of paramount importance that working and hygiene systems are in place, refreshed, and ready to go.   The hospitality industry poured a tremendous amount of time, effort and expense into this before summer 2020; it is worth revisiting these arrangements to make sure that the provisions put in place then are still relevant and useful now.  Increased footfall will increase risks.  It is crucial to maintain the confidence and trust of employees and patrons alike.

Testing:

The Government has now launched a service to allow employers to order Covid-19' rapid lateral flow' testing kits for their employees.  Employers registered in England and who have 50 or more employees who, critically, cannot work from home, can apply online to receive testing kits for asymptomatic workers.  Those who display symptoms of Covid-19 are encouraged to stay at home and order an individual PCR test themselves through the Government website here.

Give some consideration to whether testing of asymptomatic employees is worthwhile in your business.  On its face, this gives added confidence, allowing those with Covid-19 to be identified before they can spread the virus to their colleagues and customers. 

While the availability of testing does not equate to an obligation to test asymptomatic workers, it does make it easier for employers to do so.  Although we know some individuals and communities may object to vaccination for various reasons, there is less of a clear objection to testing.  Employers who decide to make testing compulsory will be less likely to see push back from their workers and take advantage of the increased confidence that testing gives.

Consider how testing will be your operation and if you think it will, which employees (and in which roles) should be tested.  Well thought-out decisions made in advance and based on a robust assessment of the facts are, without exception, the best way for employers to approach this kind of decision.

Recruitment post-Brexit:

Many employers in the hospitality sector will, unfortunately, have had to make some redundancies over the past year.  To get back up to full capacity, to what extent do you have to undertake recruitment now?  Can the existing, trimmed back workforce work in a more efficient way that avoids the need for further recruitment? Do you have a talent gap and if so how are you going to fill it? Will you have to look at becoming a sponsor to recruit the people you need?

If not, employers should be mindful of the changes to the recruitment of EU nationals post-2020.  The EU Settlement Scheme permits individuals to apply for settled or pre-settled status by the end of June 2021.  To qualify, the individual must have started living in the UK before the end of 2020 (although there are some exceptions to this).  Any non-UK recruits not living in the UK by 31 December 2020 must go through the new 'points-based' process, both costly and quite time-consuming. 

Of course, there remains a large number of migrant workers in the UK who have applied for settled or pre-settled status available to be recruited as usual.  Home Office guidance on right to work checks has changed recently, and employers should make sure that they lawfully conduct themselves.   Remember that employers cannot compel a candidate to show evidence of settled or pre-settled status before the end of June 2021.  However, they can still use their passport or National Identity Card until 30 June 2021, so the risks here should be relatively straightforward to avoid.

LexLeyton’s free Right to Work guidance for employers provides some useful information and an easy to follow process map to help your business navigate the recruitment challenge. We are passionate about the hospitality sector and proud to work for many inspirational companies in this space.

If a free consultation with one of our team to soundboard any challenges you anticipate having in the weeks and months ahead would help you to prepare to get your business back on track, please don’t hesitate to reach out to us at legal@lexleyton.co.uk

Employment law update – January 2020

What will Brexit mean for the future of employment law?

One consequence of the ending of the UK’s transition period following its exit from the EU is that the Government is now free to make changes to employment law that would not have been possible before. There are some limits, however. The trade agreement that the UK has reached with the EU states that in the field of employment law, neither side will ‘weaken or reduce’ levels of protection ‘in a manner affecting trade or investment between the parties’.

It is worth noting that this obligation is not limited to those areas of employment law governed by the EU – it refers to employment law as a whole. Unfair dismissal is not an area covered by EU law, but if the government were to repeal it altogether that would clearly be a breach of the trade agreement. It is also clear that the wholesale repeal of the Working Time Regulations or TUPE is out of the question.

Nevertheless, there are many changes that could be made that would not be regarded as sufficient to affect trade, but which could be of importance to those interested in employment law. The rules on holiday pay for example have been causing difficulty for many years and there is a serious disparity between the annual leave provisions of the Working Time Regulations and the requirements of the Working Time Directive as it has been interpreted by the European Court. There is now nothing to stop the UK Government from providing clarity on such issues as the inclusion of overtime in the calculation or the effect of long-term sickness absence on an employee’s entitlement. If the Regulations were to be amended, the UK courts would have to apply the new rules without considering the requirements of the Directive.

Other changes that might be suggested include: making it easier to agree a change in terms and conditions following a TUPE transfer, capping compensation in discrimination cases and perhaps simplifying some of the rules on agency workers. How much appetite or capacity the government has for making such changes remains to be seen. But given the outstanding commitments from the 2019 Conservative Party manifesto on redundancy protection for new parents and additional leave for carers, a significant Employment Bill in 2021 is very much on the cards.

Employment tribunal procedure – ACAS uplifts

Employers and employees must follow the ACAS Code of Practice in relation to disciplinaries and dismissals. If either party fails to follow the Code, the tribunal can increase or decrease tribunal compensation by up to 25%. In Wardle v Credit Agricole Corporate and Investment Bank, the Court of Appeal said that a tribunal should only fix the rate of uplift once it has considered how much the uplift would equate to financially, to ensure it isn’t disproportionate. An Employment Tribunal can ‘reconsider’ any judgment where it is necessary in the interests of justice. A tribunal can do this of its own initiative, at the request of the Employment Appeal Tribunal or if one of the parties makes an application for a reconsideration within 14 days of a judgment. The Employment Appeal Tribunal has recently looked at a case where an employer asked a judge to reconsider a case ‘of its own initiative’ in circumstances where they were out of time to make the application themselves.

In Banerjee v Royal Bank of Canada, the employee won his claim for whistleblowing unfair dismissal. The Employment Tribunal found that the employer had failed to follow the ACAS Code and ordered a 25% - the maximum – uplift. This was contrary to the Wardle approach because the percentage uplift was fixed before the remedy hearing which would calculate the employee’s compensation. This was especially important in this case because the employee was a highly paid City trader and the 25% uplift equated to £261,000. The employer wanted this decision to be reconsidered but by the time of the remedy hearing the time limit for making an application had expired. The employer argued that the tribunal could reconsider the decision of its own initiative, telling the tribunal ‘that’s what you should do’. The tribunal agreed. It decided that the parties should calculate how much compensation was owed to the employee and then address the ACAS uplift afterwards. The employee appealed, saying that the employer had essentially got around the expired time limit by planting the reconsideration idea, which meant any reconsideration would not be on the tribunal’s ‘own initiative’.

The EAT disagreed. Although the issue of reconsideration was discussed at the remedy hearing, the employer did not actually make an application. The tribunal could still decide itself whether to reconsider a judgment. The fact that the employer had reminded the judge about his ability to reconsider the judgment, and suggest that they should do this, did not undermine the tribunal’s ability to act on its own initiative. A (failed) application by one party to reconsider a judgment might stop an employment tribunal being able to take that step ‘on its own initiative’, but that had not happened here because no application had been made. An advocate can remind a tribunal about its own powers without undermining their ability to act independently.

This is a win for the employer in both form and context. The power to reconsider judgments is rarely used by tribunals. It is comforting to know that parties are not prevented from reminding a judge of the rules and their overriding duty to deal with matters fairly and justly. There is a sage reminder for employers though about the importance of making any relevant tribunal applications within the appropriate time limits. This judgment is also a helpful aide-memoire about ACAS uplifts, which should be considered at the remedy rather than liability stage.

Indirect discrimination

One of the key differences between direct and indirect discrimination is that a claim for indirect discrimination can be defeated if the employer can show that the provision criterion or practice under challenge is a ‘proportionate means of achieving a legitimate aim’. The circumstances in which this defence of justification will succeed have been the subject of many years of case law. One principle that has emerged is that an employer cannot simply rely on cost savings as a legitimate aim – although it has generally been accepted that cost can be counted as one among several factors – a so called ‘costs plus’ approach.

The issue came up for review by the Court of Appeal in Heskett v Secretary of State for Justice in which an employee complained of indirect age discrimination. The case concerned the pay of probation officers which was based on a pay scale with 25 incremental points. A probation officer would previously have progressed three points up the scale each year, with the result that they could reach the top of their pay scale within about 8 years. In 2010, however, the Government introduced a pay freeze – limiting the increase in any public sector employer’s pay bill to just 1%. The Probation Service responded to this by limiting pay progression to just one point on the scale per year. Since those at the bottom of the scale were likely to be younger than those at the top it was clear that this change would amount to indirect age discrimination unless it could be shown to be a proportionate means of achieving a legitimate aim.

The employer argued that its policy was legitimate given the limitations imposed on it by central Government. The employee argued that this amounted to no more than relying on a desire to avoid the cost of allowing pay progression to continue as it had in the past. The Employment Tribunal and the Employment Appeal Tribunal (EAT) sided with the employer and the employee appealed to the Court of Appeal.  

The Court conducted a detailed review of the case law and concluded that the term ‘cost plus’ was unhelpful. What had to be decided was whether, looked at fairly, the employer’s primary objective had been to save money. If that was all the employer was doing, then that would not amount to a legitimate aim. However, an employer was entitled to take proportionate steps to ensure that it ‘lived within its means’.  It followed that the Tribunal was entitled to find that the employer in this case was pursuing a legitimate aim in seeking to operate within the financial constraints imposed on it by the Government.

As for proportionality the Tribunal had taken into account the fact that the employer had accepted that its current pay system was unsatisfactory and that it intended to change it so that it was less dependent on length of service. The Court of Appeal rejected the argument that this was an irrelevant consideration. The Tribunal had held that the reduction in pay progression was justified as a temporary measure while the employer carried out a more fundamental reform of its pay structure. That was a finding that it was entitled to reach, although it raised the possibility of future claims succeeding if the reform was not carried out. The appeal was dismissed.

Dismissals for Redundancy

A redundancy is a dismissal as a result of a workplace closing down or the employer needing fewer employees to do work of a particular kind. In Berkeley Catering Ltd v Jackson the question was whether the reason that an employer needed fewer employees made a difference to whether or not there was a redundancy situation.

Mrs Jackson was the Managing Director of a company owned by Mr Patel. Over the course of 2017 Mr Patel began – as he himself admitted - to undermine Mrs Jackson and disparage her in front of colleagues. He also began to take a more active role in the business. In 2018 he decided that he would step in as a full time CEO, making the role of Managing Director redundant. After a series of consultation meetings, Mrs Jackson was dismissed.

She claimed unfair dismissal, arguing that her redundancy was bogus. The Tribunal upheld her claim. There was no diminishing need for an MD role. Mr Patel had simply decided to increase the amount of time that he put into the company. There was no financial difficulty and the employer had taken on an Events Director after Mrs Jackson was made redundant, indicating that there was no diminishing need for senior management staff as a whole.

On appeal, the EAT held that this was the wrong approach. The Tribunal had distracted itself by asking whether there was a ‘genuine’ redundancy situation. A redundancy situation either existed or it did not and an employer was free to organise its affairs in such a way as to reduce its requirement for employees. If it did so, then the motive behind that decision was irrelevant to the question of whether or not there was a redundancy. Motive was of course relevant to the issue of reasonableness, both in terms of whether the employer had acted in good faith and whether Mrs Jackson should have been offered the role of Events Director. But the Tribunal had fallen into error by bringing motive into play when considering whether there was a redundancy situation. The case was sent back to a different employment tribunal to decide whether the redundancy situation was genuinely the reason for dismissal and whether the dismissal was fair.

Whistleblowing

An employee who is dismissed for making a public interest disclosure – whistleblowing – can claim unfair dismissal even without the two years’ continuous service that is normally required. What is more, there is no cap placed on the amount of compensation that can be awarded, so successful claims can be very expensive for employers.

In the case of Simpson v Cantor Fitzgerald however, the employee’s claim was unsuccessful. Mr Simpson had been employed for less than a year as a trader for an investment bank when he was dismissed. He claimed that his dismissal was the result of numerous allegations that he had made over the course of his employment about the behaviour of his fellow traders. In all the Tribunal identified 37 specific allegations.

The Tribunal held that none of these were protected disclosures. Broadly, a protected disclosure is a disclosure of information that tends to show that some legal wrongdoing has occurred and which the employee reasonably believes is in the public interest. The Tribunal found that many of Mr Simpson’s disclosures were really just complaints that he had lost out on commission because of the way in which trades were carried out. The real reason he had been dismissed was that ‘distrustful and obstructive’ behaviour had made it ‘utterly impossible for the team to work with him’.

Nevertheless, the case reached the Court of Appeal which upheld the Tribunal’s findings.  The Tribunal had been entitled to find that the allegations that he relied on were not protected disclosures – whether because they were insufficiently specific or because Mr Simpson did not genuinely believe that they tended to show wrongdoing on the part of the employer or its employees. In any event, the complaints themselves were not the reason for dismissal. The Tribunal had found that the manager who made the decision to dismiss was not influenced by those allegations, but by the hostile and corrosive attitude that Mr Simpson displayed towards colleagues, as well as his poor timekeeping. He was dismissed because his employer considered him to be a poor team player, not because he had made protected disclosures.

Unfair dismissal and redundancy

An employer making an employee redundant will not normally be acting reasonably unless it considers whether there is any alternative work that may be offered. In Aramark (UK) Ltd v Fernandes however, the employee argued that the employer should also have considered placing him in a bank of casual workers after his redundancy had taken effect.

The employer maintained a list of workers who they would call upon to perform ad hoc assignments from time to time. They did so frequently with the result that those on the list, while not having the security of employment, had a reasonable expectation of future earnings. When Mr Fernandes was placed at risk of redundancy he asked to be placed on the list as that would help him offset his lost income. The employer refused and a Tribunal subsequently held that this rendered the dismissal unfair.

The EAT overturned this decision. In an unfair dismissal case, the question is whether the employer has acted reasonably in treating the reason for dismissal – redundancy in this case – as a sufficient reason for dismissing the employee. Placing Mr Fernandes in the bank of casual workers would not have altered the fact that he had been dismissed – it was not a way of avoiding dismissal as an offer of alternative work would have been. It was therefore not a relevant consideration in deciding whether or not redundancy was a sufficient reason for dismissal. Whether the employer had granted the employee’s request or not, he would have been dismissed all the same. Since this was the only ground on which the Tribunal upheld his claim, the EAT ruled that the dismissal was fair.

National minimum wage

The government has accepted the recommendations of the Low Pay Commission and announced the National Minimum Wage and National Living Wage rates which will come into force from April 2021. Recognising the formidable task of recommending minimum wage rates in the middle of a global pandemic, the Low Pay Commission has sought to balance the needs of low paid workers – many of whom are doing critically important work – and the real solvency risks which small businesses are currently exposed to.

The different terms can be confusing. The National Minimum Wage is the minimum hourly pay that almost all workers are entitled to. The National Living Wage is higher and is currently paid to workers who are over 25. From April 2021, the government is extending the NLW to 23 and 24 year olds too. The new rates from April will be:

  • NLW (age 23 and over) - £8.91
  • Age 21 and 22 - £8.36
  • Age 18 to 20 - £6.56
  • Age 16 and 17 - £4.62
  • Apprentice rate - £4.30

Find full details at https://www.gov.uk/government/news/national-living-wage-increase-to-protect-workers-living-standards.

Constructive dismissal and maternity leave

A constructive dismissal involves the employee resigning in response to fundamental breach of contract on the part of the employer. Normally the employee will need to make it clear both that they are resigning and that the reason for their resignation is the employer’s conduct. In Chemcem Scotland Ltd v Ure however the EAT held that these requirements were met by implication when an employee simply failed to return from maternity leave.

The case involves a family business in which the employee in question was the daughter of the owner. While she was on maternity leave, he was in the process of divorcing her mother, having formed a relationship with someone else – who was also an employee of his business. If his daughter returned from maternity leave, she would be his new partner’s manager. It seems that this led to some tension and conflict.

The Tribunal identified a number of matters in the handling of her maternity leave that amounted to a breach of mutual trust and confidence. These included failing to pay her SMP on time and refusing to answer queries about what she was entitled to. The whole circumstances, the Tribunal found, showed that her father was hostile to the idea of her continued employment by the company. In the event she did indeed decide not to return but did not expressly resign. The Tribunal found that her resignation could be implied from the circumstances and took effect on the day when she had been due to return to work.

The EAT upheld this finding. It rejected the argument that the employee had not clearly communicated the fact that she was resigning or her reason for leaving. As the Tribunal had pointed out the employer had not, when she failed to return, taken any steps to clarify matters or ask her about her intentions. In the circumstances of the case her failure to return was ‘eloquent of the true position’ and this was understood by the employer.  

Breach of contract

Repudiatory – or very serious – breaches of contract entitle the other party to the contract to consider that the contractual terms have been metaphorically ripped up. What happens in a case where one party contemplates breaching a contract, but the other party beats them to it? In Palmeri v Charles Stanley, Mr Palmeri was a self-employed stockbroker who had worked for Charles Stanley for more than 20 years. He had a three-month notice period, but his contract did not contain a payment in lieu of notice (PILON) clause. The business decided to change its operating model to take a bigger chunk of Mr Palmeri’s earnings. He was not pleased. The company gave him an ultimatum – sign a new contract on the new terms or leave immediately with a PILON. Mr Palmeri reacted furiously and was verbally abusive to the managers present and the firm more generally. He then agreed to take the new terms under protest for the duration of his notice period. Unfortunately, the abusive behaviour continued and escalated so the company withdrew the offer of new terms and summarily (without notice) terminated his contract.

Mr Palmeri brought two claims in the High Court – one for breach of contract for the summary termination and a second claim for breach of the implied term of mutual trust and confidence for failing to allow him an orderly exit for his clients. The company said Mr Palmeri’s abusive behaviour was a repudiatory breach of contract which entitled them to ignore contractual terms and terminate without notice. They also relied on several serious regulatory breaches which they only discovered after his termination. They said he was already in repudiatory breach of contract due to those regulatory breaches.

The High Court agreed that the company had no contractual right to make the original offer to Mr Palmeri - accept the new terms or receive a PILON - because they had no contractual right to pay him in lieu of notice. However, they said Mr Palmeri’s behaviour, including the abuse and the regulatory breaches, amounted to serious misconduct and a breach of the implied duty of trust and confidence. That repudiatory breach by Mr Palmeri justified the employer’s summary termination. The fact that the firm was preparing to breach his contract in future (by paying him in lieu of notice) if he didn’t agree to new terms was irrelevant. They were still entitled to rely on the abuse and regulatory issues as serious breaches of contract enabling them to avoid its terms on notice.

This case shows that repudiatory conduct by one party releases the other from the terms of the contract. In this case, the company had been planning to pay in lieu when it hadn’t got the contractual right to do so. Fortunately, Mr Palmeri’s bad behaviour got there first and prevented the employer from effecting that proposed breach of contract. Always check contractual terms before paying in lieu of notice. These clauses should be standard in contracts to give businesses flexibility when it comes to termination.

And Finally…

Employers across the country are being encouraged to accommodate the need for employees to self-isolate when required to do so because of Covid. According to widespread reports over Christmas, however, this message did not reach a newsagent in Lincolnshire who sacked a 15 year old paperboy for missing work after being told to self-isolate by his school. The boy’s father is reported to be considering legal action, but may face some difficulty. It does seem that the boy in question has been doing the job for around two years – so it is possible that he has sufficient length of service to claim unfair dismissal. But it is not entirely clear that a 15-year-old, still legally regarded as a child, has the capacity to enter into a contract of employment in the usual sense.

The law is unclear. In 2003 a 15-year-old paperboy was held not to be a worker for the purposes of the Working Time Regulations in the EAT case of Addison v Ashby. But that case turned on the fact that the working time of children was dealt with by the Children and Young Persons Act 1933 and there was no appeal from the Tribunal’s finding that the boy in question had been unfairly dismissed. The issue remains open – possibly because the rather modest pay of children delivering newspapers makes a lengthy legal battle uneconomic. Still, the boy’s father in this case does seem very annoyed. On balance, the newsagent might be better off reconsidering their decision.

LexLeyton in the news

Real Business: Experts explain: An SME guide to unfair dismissal

Yorkshire Times: Business Responds To Treasury Business Support Announcement

HR Review: Chancellor offers new grants to businesses in wake of lockdown restrictions

Business Advice: Unfair dismissal – a concise guide for employers

Gender reassignment need not be a medical process

The Canadian actor Elliot Page, who rose to fame in the movie Juno as Ellen Page, recently announced that he is transgender. In the past, he would not have been protected from gender reassignment discrimination unless he had undergone or was intending to undergo medical treatment to reassign his gender.  However, that has now changed with the case of Taylor v Jaguar Land Rover.

In a landmark case, the Employment Tribunal decided that the protected characteristic of gender reassignment includes persons who identify as non-binary and gender fluid. It is likely that with time other complex gender identities will be deemed to fall within this protected characteristic.

The case concerned an employee of Jaguar Land Rover who described herself as “gender-fluid” and “transitioning”, but who had no intention of undergoing surgery to reassign her gender. She retained her male birth name but chose to dress in a male style on some days and a female style on other days.  The employee was subjected to gender reassignment harassment over a long period. Although she complained to Jaguar Land Rover about her treatment, her employer did not take any action to prevent the harassment from occurring.

The claimant brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation and gender reassignment, and victimisation.  The key question for the Tribunal to decide – whether a non-binary, gender fluid person has the protected characteristic of gender reassignment – was a novel point of law.

The definition of gender reassignment in the Equality Act describes a person who is undergoing or has undergone a process (or part of a process) to reassign their sex by changing “the physiological or other attributes of sex”. The Employment Tribunal confirmed that a person need not have (or intend to have) surgery in order to identify as a different gender to their birth sex. Starting to dress or behave like someone who is changing their gender or is living in the identity of the opposite sex would be sufficient to qualify for protection from gender reassignment discrimination.  The claimant accordingly succeeded in her various claims. 

The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which the claimant was treated and the “insensitive stance” taken by Jaguar Land Rover during the legal proceedings. This was in addition to a 20% uplift on damages due to Jaguar Land Rover’s “complete failure” to comply with the Acas Code of Practice when handling the claimant’s grievance. The claimant’s agreed compensation amounted to the substantial sum of £180,000.

The Tribunal was particularly scathing of Jaguar Land Rover’s handling of the claimant’s complaints, stating: “We had not seen a wholesale failure in an organisation of this size in our collective experience as a jury.” It noted that “there was nothing in the way of proper support, training and enforcement on diversity and equality”.

Rather surprisingly for an employer of 50,000 staff, the company had no Equal Opportunities Policy. Its Dignity at Work Policy covered bullying and harassment, but staff had not been provided with any training on it. No-one had been designated to deal with diversity and equality issues.

Sustainable business growth demands forward thinking strategies around equality and diversity. Clear policies and related manger and employee training around diversity and inclusion are vital to ensure employers can reduce the type of risk that materialised at Jaguar Landrover which had such damaging a commercial and reputational impact.

If a chat to one of our expert team for advice on how to transform your diversity and inclusion practices, and for help with preparing appropriate policies don’t hesitate to reach out to us for a free consultation or contact us at legal@lexleyton.co.uk.

Furlough – Compliance and Claiming

The Government has extended the Coronavirus Job Retention Scheme (CJRS) until 31 March 2021. 

This guidance applies for CJRS / furlough claims for the period starting on or after 1 November 2020 and is intended to assist you in ensuring that you can compliantly ensure that you can secure HMRC support for furloughed staff.

  • It is possible to furlough employees with effect from 1 November 2020, even if a business was not able to get a written agreement in place by that date.
  • An agreement may be reached with an employee to backdate furlough to 1 November 2020 provided that a retrospective agreement is put in place by the end of Friday 13 November 2020. This backdated agreement will be dependent on the employee genuinely having been furloughed during this time. If the employee has actually been working all of their usual hours, furlough cannot be backdated.
  • Flexible furlough continues to be an option, meaning employees can work part-time and receive a furlough grant for their unworked hours. Employers will pay the employee’s wages for the hours they work as normal and claim for the furloughed hours, with reference to the employee’s normal working hours.
  • Employers seeking to use CJRS either to extend furlough for employees already on the scheme or put new employees on furlough will need to get the employees’ agreement. A new agreement would also be required for employers looking to amend the existing furlough terms with their workers.

For Lexleyton clients, your existing flexible furlough agreement is fine to continue using for any employees who remained on furlough since 31 October 2020, as it is compliant with the requirements set out in the HMRC Policy Paper, Factsheet and updated online guidance (updated as at 11 November 2020), subject to the employee meeting the eligibility criteria under the extended CJRS.

The existing Lexleyton template flexible furlough agreement would not come to an end until the CJRS ended, an employer removed the employee from furlough altogether, or the employment relationship ended (e.g. by reason of redundancy). For those individuals, they simply remain furloughed on the same terms. It is important to remain in regular communication with these staff as well, to ensure they have good visibility around business plans, to support their wellbeing and minimise any anxiety or complaints.

We consider that there are three routine scenarios where a new furlough agreement will require to be put in place with a worker and given retrospective effect to 1 November 2020.

The worker has been previously furloughed
using a letter/agreement which was not provided by Lexleyton.
For employees already on the scheme, now would be a good time to pause and consider whether their agreement meets the eligibility criteria and legal requirements for retrospective effect. Employers can also consider whether it is best to extend furlough on existing terms or revisit and potentially tighten up arrangements.  If choosing to tighten up or amend the existing furlough arrangements, please contact your Lexleyton solicitor for an up to date agreement.
The worker was advised, either verbally or in
writing, that their furlough agreement was
coming to an end.
Consistent with the terms of the previous wording, the previous furlough agreement will end if an employer advises the worker it is coming to an end. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020.
The worker is being furloughed for the first time on or after 1 November 2020. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020. We recommend you contact us for an updated furlough agreement.

If one of these scenarios applies to your workers, or you are unsure, please contact your Lexleyton solicitor to discuss, without delay or reach out to our team at legal@lexleyton.co.uk

Employment law update – November 2020

Covid-19

Last month saw a huge amount of activity with the planned end to the furlough scheme and the introduction of the new Job Support Scheme to follow from November. Originally aimed at businesses with reduced demand over the winter due to Covid, plans were made to extend the JSS to cover businesses who were required to close due to the 3 tier restrictions.

All this planning was for nothing in the end. It was overridden on Halloween when the Prime Minister announced a new month-long national lockdown where non-essential shops, restaurants and pubs must close. The furlough scheme is now being extended into November whilst the lockdown is in place. Michael Gove indicated on the Andrew Marr show that the lockdown could extend beyond November. Everyone will be watching this space to see what effect the lockdown has on the spread of the virus.

Before the announcement, and following leaks about the government’s plans, business leaders said another national lockdown would be devastating. Mike Cherry, Chair of the Federation of Small Businesses, said another lockdown would be ‘incredibly frustrating’ after small businesses had spent thousands in making their sites Covid-secure. It is an incredibly tough time for all employers and the situation is fast moving. Keep up to date with both the rules and support at www.gov.uk, or contact us for immediate and targeted help. More detail on the points for employers to consider in the light of the furlough scheme extension can be found here https://lexleyton.co.uk/coronavirus-job-retention-scheme-and-back-to-furlough-what-does-it-all-mean-for-your-business/

Data Protection

Anyone can make a subject access request (SAR) from an organisation to ask whether and how the business is processing their personal information. In the employment sphere, SARs can also be used as a missile by an otherwise dissatisfied employee, often in preparation for bringing a grievance or an employment tribunal claim. SARs can be time consuming to deal with and, with fines of up to 20 million euro or 4 per cent of annual turnover for getting it wrong, expensive to mess up.

Last month, the Information Commissioner’s Office published detailed new guidance to help businesses deal with SARs effectively and efficiently. The guidance deals with three key points:

  • stopping the clock when clarification is needed – this is possible if clarification of the request is genuinely required and the organisation processes a lot of information about that employee.
  • what is a ‘manifestly excessive’ request – one you may not have to comply with.
  • charging fees (i.e. for the cost of staff time, printing, postage etc) for excessive or unfounded (which can include repeat) requests.

All this is good news to businesses who are already juggling many more important balls due to the Covid-19 pandemic. The ICO is also creating a simplified SAR guide for small businesses which picks out the most important points from the detailed guidance. Find the Rights of Access guidance and other helpful materials at www.ico.org.uk.

Indirect discrimination

Indirect discrimination occurs when a policy or practice is applied to all employees but negatively impacts on a group sharing a protected characteristic such as age, race or sex etc. To prove indirect discrimination, the employee must show that the policy or practice puts a particular group at a disadvantage and puts them personally at that disadvantage. The employer must then justify the policy as a proportionate way of achieving a legitimate business aim. The Employment Appeal Tribunal (EAT) has looked recently at what an employee must do to show disadvantage in Ryan v South West Ambulance Services.

The employee was a manager and was 66 or 67 years old. The employer operated a Talent Pool to identify future leaders and maintain existing leaders. The pool was used to fill some vacancies quickly without wider advertising. Employees could go in the Talent Pool if they exceeded expectations in appraisals, via an appeal if their grading was lower, or by self-nomination. The employee’s appraisal said she met expectations and she did not appeal or self-nominate for entry to the pool. The employee applied for a managerial role which was advertised in the Talent Pool but was told she couldn’t apply for it. She brought an indirect discrimination claim, saying employees aged 55 and over were underrepresented in the pool (the group disadvantage) and she was unable to apply for the roles because she wasn’t in the pool (the individual disadvantage). The employment tribunal found that a policy of promotion only via the Talent Pool did have a negative impact on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in the pool rather than a 1 in 34 chance for employees under 55. But the employee’s personal disadvantage – her inability to apply for the roles - wasn’t because of the policy but because she had failed to take any steps to enter the Talent Pool. As a result, there was no causal link between the policy and her individual disadvantage.

The EAT disagreed. The group and individual disadvantages need to match up and they didn’t in this case. This meant the tribunal had got it wrong. The employer applied a policy – recruiting from the Talent Pool – which limited recruitment to senior roles. Although there were legitimate reasons for this, it disadvantaged a group of older employees – those over 55. It disadvantaged the employee. She was affected by the policy because she couldn’t apply for the promotional roles. The employer did not adduce any evidence to show why the discriminatory effect of the rule wasn’t relevant in her case. Ironically, to succeed in this argument, the employer would need to show that it was likely she would have been put in the Talent Pool had she appealed her appraisal or self-nominated. They did not do this. Indirect discrimination was made out (subject to justification). The EAT also said the tribunal was wrong to say the policy was justified because they had not looked properly at its discriminatory effect and any lesser measures which could have been taken instead.

The lesson for employers in this case is to analyse and monitor the discriminatory effect of any policies. If one or more groups are negatively impacted, consider what steps you can take to remove or lessen the disadvantage. In this case, a less impacting policy might have been to allow Talent Pool members to go head to head with other employees for promotional jobs. Another important point for employers is about the group and personal disadvantage corresponding in indirect discrimination cases. Without getting the technicalities right at the outset, any tribunal reasoning was bound to be flawed.

Vicarious liability

Employers must make sure that the workplace is safe for employees. Businesses can be held responsible for the acts or omissions of their employees which take place ‘during the course of employment’. In Chell v Tarmac Cement and Lime, the High Court has looked at whether an employer should be vicariously liable for an employee’s practical joke which seriously injured a contractor.

Both employees and contractors worked as fitters at one of Tarmac’s sites. There were tensions between the two groups because the Tarmac fitters felt their jobs were threatened by the contractors. The claimant contractor had raised these rising tensions with his own employer and Tarmac. A few weeks later, a Tarmac fitter deliberately exploded two ‘pellet targets’ close to the claimant’s ear as a practical joke. It left him with a perforated eardrum, hearing loss and tinnitus. Tarmac dismissed the practical joker, but the contractor brought a claim for negligence against Tarmac. He also claimed that Tarmac was vicariously liable for the practical joker’s actions. The County Court said there was insufficient connection between the practical joke and the duties of the employee as a fitter. Although there were known tensions between contractors and employees, the connection between the employment relationship and the prank was not sufficiently close. The tension had made the contractor feel uncomfortable but not threatened. The judge said it might have been different had the tension been so serious that it suggested physical violence or confrontation – it would have created a risk for the employer to address. The Court also found that the employer was not responsible directly – the risk of injury from a deliberate act was not foreseeable so there was no duty to take any steps to avoid the risk. The employer’s health and safety policies were extensive and warned against reckless misuse of equipment. That was enough. The contractor appealed.

The High Court agreed with the County Court and applied Morrisons v Various Claimants ( a case where the Supreme Court overturned previous courts’ decisions and said that Morrisons was not responsible for an employee’s deliberate act of stealing and publishing employee data). The High Court agreed that Tarmac had extensive health and safety policies in place to create a safe system of work in a potentially dangerous field. Including terms on horseplay or practical jokes would be too much to expect of an employer. The terms of the policy about the misuse of equipment was sufficient.

In this case, the court didn’t believe the contractor’s evidence that he asked to be removed from site due to the tension. This meant that he had overegged the true level of his concerns about workplace tension. This in turn meant that the level of concern he communicated to Tarmac was similarly lower. The situation might be different where an employer is aware of workplace tensions and the risk of violence becomes foreseeable. As always, employers must ensure that any employee safety concerns are dealt with appropriately.

Religion and belief

An individual is protected from discrimination based on their religion or belief. A philosophical belief can be protected if: it is genuinely held; it is a belief not just an opinion; it involves a weighty aspect of human life and behaviour; it attains a certain level of cogency/importance and it is worthy of respect in a democratic society. In Mackareth v DWP and Forstater v Centre for Global Development, two employment tribunals found that individuals who believe that people cannot be transgender (because god only creates men and women) are not protected by the Equality Act 2010. The employees’ beliefs, which included a refusal to refer to trans people by their chosen pronouns, were incompatible with human dignity, conflicted with the rights of others and were not worthy of respect in a democratic society. But employment tribunal decisions are not binding and another employment tribunal in Bristol has recently refused to follow suit in Higgs v Farmor’s School.

The employee was employed as a pastoral administrator and work experience manager. Someone outside the school complained about comments posted on her Facebook page which they said were transphobic and prejudiced against the LGBT community. The employee’s Facebook page was private but included parents at the school. One post invited people to sign a petition to stop schools teaching about same sex relationships and gender being a matter of choice. The employee had also reposted articles by other people on these issues which might have been relevant for several children in the school.

The employee was dismissed for gross misconduct for behaviour which contravened the school’s conduct policy including discrimination and serious inappropriate use of social media. She claimed she had been directly discriminated against and harassed on the grounds of her beliefs. Those beliefs included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex or gender (as well as others, including ones relating to same sex marriage). The employment tribunal found that her beliefs were protected under the Equality Act 2010. She had rights under the ECHR to respect for private and family life, freedom of religion and freedom of expression. If those rights only applied to beliefs that upset no one then they would be worthless. However, they said she had not been discriminated against because of those beliefs. Her Facebook posts could not have had any expectation of privacy when her ‘friends’ included parents and screenshots could easily be taken and disseminated. In relation to direct discrimination, the school had reasonably considered that people reading her posts might think she was both homophobic and transphobic. This could negatively impact on parents, pupils and the community. The tribunal found that she was dismissed because her Facebook posts might indicate that she held unacceptable views about gay and trans people – beliefs which could not qualify for protection under the EA – rather than her actual beliefs about teaching gender fluidity in schools. She had not been harassed either. The disciplinary process was unwanted conduct, but it was related to the realistic perception that she was homophobic and transphobic rather than the expression of her beliefs. It did not have the purpose or effect of violating her dignity and didn’t create an intimidating or hostile environment.

The tribunal in this case tried to distinguish the facts of this case from Mackareth and Forstater. In Mackereth the employee was a doctor, in Forstater the employee was a visiting fellow at the Centre for Global Development. The tribunal said the employees’ beliefs in the two other cases might have resulted in discrimination against members of the trans community. But in Higgs there were LGBT pupils at the school and the employee had direct contact with children so it’s difficult to see how the situation is different. We understand that all these cases are being appealed, which will hopefully result in future appellate guidance. This will be welcomed by employers who try to find the tricky balance between the rights of the LGBT and trans communities and the rights of those with conflicting beliefs.

Unfair dismissal

A constructive dismissal can arise where an employer breaches the implied term of trust and confidence between employer and employee. The employee can then accept the breach and resign, saying they were pushed. The EAT has looked recently at what constitutes acceptance of a breach and whether a simple failure to return to work following maternity leave is enough to communicate acceptance of a repudiatory breach of contract.

The facts of Chemcem v Ure are a little unusual. The employee was the daughter of the majority shareholder of the business. The employee’s father had left the employee’s mother and had formed a relationship with a colleague. Family relationships became strained and the employer made things difficult for the employee by varying her pay arrangements without warning, switching her employment to the payroll of another company which was about to become insolvent, failing to pay her maternity pay on time and not only failing to answer her queries but deliberately misleading her. The employee didn’t return to work after maternity leave and brought a constructive dismissal claim. The employer said that her failure to return to work was not enough to communicate her acceptance of any breach of contract, so her claim should fail.

The employment tribunal found that there had been a course of conduct whilst the employee was on maternity leave. The employment tribunal said that her employer (via her father) was hostile towards her and her continued employment which had  breached the implied term of mutual trust and confidence. Her failure to return to work was sufficient to accept the breach and bring her employment to an end.  The EAT agreed. In this case, on its unusual facts, the employee’s failure to return to work was enough to communicate acceptance of the breach.  The tribunal had found that the employee’s father did not want her to return to work because she would be managing his new partner. When she didn’t return to work, no one even asked where she was. The employee did not need to say any more – the employer was clearly hoping and perhaps even expecting her not to return.

This case is unusual. It involves a family run business with its dirty laundry being hung out on the shop floor. A failure to show up for work won’t often be enough to communicate acceptance of a breach of contract. There are learning points to take away though, especially for family run businesses. It is within these close-knit environments that the letter of the law and the finer detail of company policy often goes awry. It is exactly because of these close relationships that particular care must be taken to formalise the employment relationship, and any issues that arise within it, however close or  informal the relationships outside the office.

Whistleblowing

Like many employment claims, a claim for whistleblowing detriment under section 47B of the Employment Rights Act 1996 must be brought within three months of the act or failure to act which the employee is complaining about. Where an act extends over a period, the date of the act is treated as the last day of that period. It’s all about the act and when that happened, rather than the consequences of the act. A continuing detriment is not the same thing as a continuing act.

In Ikejiaku v British Institute of Technology, the employee was a senior lecturer. He brought two detriment claims based on protected disclosures he had made during his employment. He made the first disclosure a year before he was dismissed, when he blew the whistle to HMRC about suspected tax evasion by his employer. After that, the employer made detrimental changes to his employment contract. The day before he was dismissed, the employee had blown the whistle on his manager who had told him to pass students who had been copying. An employment tribunal found that he had been automatically unfairly dismissed because of the protected disclosure made the day before his dismissal. However, the contract imposition the year before was a one-off act, albeit with continuing consequences, and so the time limit for bringing that claim had started ticking a year earlier and was now out of time. It was not an act which extended over a period just because the new contract continued to be in place. The tribunal also found that there should be no ACAS uplift for the employer’s failure to follow the ACAS code because it didn’t apply to protected disclosure dismissals. The employee appealed.

The EAT agreed with the tribunal that the contract change detriment claim was out of time. Time starts to run from the act, not the continuing detriment that an employee may suffer because of the act. A continuing act might typically be a policy or rule, but that was not the case here. It wasn’t an act extending over a period either. The contract change was a simple one-off act. However, the EAT allowed the appeal on the ACAS code uplift. The ACAS code also applies to grievances raised by employees. The employer accepted that the protected disclosure the day before the employee’s dismissal was a grievance and so the matter was sent back to decide whether an uplift applied on that basis.

One point for employers to take away here is the applicability of the ACAS code even when the employee had not mentioned the grievance part of it in his claim form. The EAT found that this should have been considered by the tribunal regardless. It is also a comfort to know that a one-off act such as a contract change will not open an employer up to liability outside of the normal time limit for bringing a claim. As always though, employers must take care when employees raise complaints that might be protected disclosures. A knee jerk reaction can come back to bite you.  

Vardags

Cardigans have been banned at City law firm Vardags. In a leaked email from last year, the firm’s female president emailed all staff to confirm that cardigans and other woollens were not part of the Savile Row (for men) or Chanel/Dior/Armani (for women) look she was keen for her staff to adopt. The cardigan ban caught the headlines, but there are more problems with the email than a ban on comfy clothing.

The email has a single paragraph dedicated to male employees, also banning woollens along with brown shoes and super tight trousers. A decent suit and double cuffs are recommended. Nothing unusual for a London law firm. Then follows eight paragraphs on female grooming. Tailored jackets and formal dresses/suits are in, and women are invited to look ‘discretely sexy and colourful and flamboyant at the same time according to your preference’. The email goes on to stipulate natural looking hair (which she insists must be brushed and squeaky clean), classic nail colour, silk only scarves and sheer tights. In a paragraph aimed at men and women, she suggests employees work out, not just for health but so they ‘look great’. She tells them to eat well, move a lot, watch what they drink, get outside and ‘glow’. This all aimed at professional adults.

There are problems here. The excessive instructions to female staff feel oppressive. Suggestions to wear sheer tights – or any see through clothing – are likely to be discriminatory. It feels wrong that men can just look Savile Row smart while women are asked to find the sweet spot between ‘tacky or tarty’ and being ‘drab’. Why the difference? And indicating that employees should lose weight is just plain insulting – it infantilises grown adults and has no bearing on how these individuals can do their jobs. It can also tip into discrimination if weight or fitness is linked to a medical condition which satisfies the disability test.

There’s nothing wrong with having a clear corporate image. Branding is good for marketing your service or product and creating a feeling of unity in the workplace. But employers must be careful not to stray into murky waters. Employers must guard against making anyone’s appearance trump their workplace skills. Being smart should be more about business brain than business attire.

Flexible working

A poll by Working Families has collected data which shows that two thirds of employers have noticed an increase in flexible working requests by their male employees. The poll included a small sample of 26 UK employers who were asked how they managed the numerous challenges posed by the global pandemic. Experts say the results show that the increase in homeworking due to the pandemic may have reduced the stigma sometimes associated with men requesting flexible work arrangements.

The poll also suggested that there might be long term changes to working patterns which survive the end of the pandemic. More employees are expected to work flexibly or remotely for at least part of their working week. It was noted by employers that flexible working can attract a wider range of employees to their business. Some employers said office working would be a thing of the past now that remote and flexible working patterns had been proven to work so well without any negative effect on productivity or client service. 25 out of 26 employers said productivity had been the same or better during lockdown. Some felt that the pandemic had simply fast forwarded a move towards this kind of flexibility in the workplace.

Many employers are keen to hold onto the silver linings that lockdown has produced long after the pandemic is over. The pandemic continues to cause huge disruption and anxiety for employers and employees alike. If the long-term consequence of the pandemic is a cultural shift to a position where flexible working is normalised, without any impact on results, that will be positive both for working parents and for business.

Read the briefing at www.workingfamilies.org.uk.

Discrimination – Compensation

An employment tribunal has awarded an employee £180,000 following its landmark judgment in September that gender fluid and non-binary people are covered by the Equality Act 2010. The judge said that gender is a spectrum, and it was beyond doubt that the employee was protected under the protected characteristic of gender reassignment. The employment tribunal decisions for the full hearing and the subsequent remedy hearing in Taylor v Jaguar Land Rover are scant and detailed written reasons will follow. However, the basic facts have appeared in the news and make for difficult reading.

The employee was employed for almost 20 years. She presented originally as male but in 2017 began identifying as gender fluid/non-binary and started dressing predominantly in women’s clothing. She was subject to abuse and ridicule by colleagues and had difficulty accessing facilities. Management did not deal with her complaints properly. The employment tribunal found that she had been harassed, directly discriminated against and victimised and she was awarded £180,000 in compensation. This included aggravated damages for both her treatment at work and also the way she was cross examined in tribunal by the employer’s legal team. The tribunal also made a statutory recommendation that the board of directors read and absorb the written reasons for the tribunal judgment. The employer also agreed to a range of other measures including the introduction of a Diversity and Inclusion Champion. They also agreed to commission a report on diversity and inclusion within the business by a recognised diversity body such as Stonewall. A costs hearing will take place at a later date.

The written reasons explaining the decision will not be published for at least another month. There will be lessons for employers to take from it in terms of how they deal with gender fluid employees and diversity more generally. As ever, it’s about having solid policies, properly trained managers and a culture which celebrates diversity rather than shies away from it. This case shows just how costly those failures can be.

Getting back to work – returning to work changes from 1 August

The Prime Minister faces an incredibly challenging transition in the coming weeks.  Our economy continues to suffer repeated body blows from Covid-19.  With one eye on avoiding a knockout blow and amid ever-increasing pressure from high-profile business owners, it is expected that a number of changes will be announced on 1st August 2020.

Whilst the official guidance currently remains that employees should work from home if they can as of 1 August the Government has indicated that employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided they have taken steps to ensure the workplace is Covid-secure and social distancing measures are in place. The Prime Minister emphasised that employers will have the discretion to make decisions about how their staff can work safely, which could mean continuing to work from home. 

This position applies only to England. The devolved nations continue to manage their own transitions, based on health, economic and social factors.

This is the moment many businesses will have been preparing for – a chance to really inject momentum into stalling revenue streams. Beyond that, whilst much of the commentary has been around progressive flexible working practices and the opportunity to look at what the last few months have taught us all about the benefits and challenges of remote working and how those learnings can influence workplace strategy, there are also many employers and employees who liked to work as they did pre-covid and are anxious to get back to the way things were.  

With the changes on the immediate horizon, we take a look at the likely announcements and what that means for employers based in England from 1 August 2020:

Guidance on working from home to change. 

Each business must decide whether to continue home working (either completely or partially, re-open with optional attendance or re-open with mandatory returns).

No matter which option a company selects (or a hybrid of more than one), challenges will arise.

We anticipate resistance in returning to work from certain camps. These can include the following:

  • Living with vulnerable relatives

 An employer’s duty of care extends only to their employees and not to the people they live with, but that’s not to say an employee who lives with a vulnerable person could not raise a grievance or bring a claim over a blanket requirement to return. The issue is more nuanced in cases where the employee has been able to successfully work from home. The Covid-secure guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable

  • Lack of care for dependents

Those without childcare (particularly throughout the summer holidays where usual childcare arrangements may not be possible) are entitled to unpaid parental or dependants leave. However, requiring employees who have been able to work from home with children successfully to return to the office when unable to do so would risk indirect discrimination claims.

  • Those concerned about how Covid-secure the workplace is

 Some employees won’t fall into any vulnerable category but will still be concerned about a return to the office. An employee has the right not to be subjected to any detriment on the grounds that they refused to return to their place of work in dangerous circumstances provided the employee reasonably believed the danger to be serious and imminent. Employers can reduce the risk of successful claims in various ways, including by providing detailed explanations about steps taken to control and reduce risks. Clear and authentic communication matters.  

  • Public transport users

Whilst isolated means of transport are still encouraged, there are now only minimal restrictions on using public transport in England.

For employees who are reliant on using public transport, employers will have to consider what allowances can be made for those people to avoid use at peak times yet still allow employees to fulfil any personal commitments such as childcare.

Requiring public transport-reliant staff to return also runs the risk of grievances.

An end to Shielding?

The guidance currently recognises two categories of vulnerable employees, those who are clinically extremely vulnerable and have been asked to ‘shield’ and those who are clinically vulnerable but are not required to shield.

As of 1 August in England, the extremely clinically vulnerable are no longer advised to shield. We anticipate that the official Covid-19 secure workplace guidance will then advise employers to treat those two groups in the same way, i.e. to give them the safest available onsite roles and, where no such roles are available, to consider if this is an acceptable level of risk.

However, many clinically vulnerable employees will qualify as disabled for the purposes of the Equality Act. This makes it particularly risky to require their return, since it may be a reasonable adjustment to allow continued homeworking.

Three key steps an employer should be ready for:

1. Pushback & grievances

Trying to balance the views of some employees desperate to return to the office versus those who want to continue home-working is likely to be a difficult issue for employers for the rest of the year. The fact that the government guidance makes clear that the decision to return is solely at their employer’s discretion means employers can expect challenges.

Ensure you have a robust procedure for resolving grievances or complaints. 

2. Anticipate more flexible working requests

 Employers can also expect an increased number of flexible working requests for home-working which will need to be dealt with in the context that many businesses have successfully implemented home working over the past few months.

Ensure your managers know how to deal with a flexible working request – a single error in dealing with a flexible working request can attract an award of up to 8-weeks pay at an Employment Tribunal, as well as an order to start the process again (correctly this time).

3. Planning ahead for a second wave

With reports of a second wave and further local lockdowns possible, employers will need to ensure they can continue to accommodate homeworking with little to no notice. Contingency planning has changed, maybe forever.

What should you do? Many employers will look to mitigate risk either by not asking employees to return to office-based roles or by giving them a free choice on whether to do so.  There are reputational as well as legal risks for those that take a different approach. For now, keep taking advice, listen to your staff, communicate honestly and clearly with them.

If a free consultation with one of our specialist team would help your business prepare for these changes or on any other employment law issue, don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/

#MeToo in the Workplace – Where are we now?

Valentine’s day is a day for sharing the love but should you share it in the workplace?

It’s been more than two years since the investigation into the sexual misdeeds of Harvey Weinstein unleashed the #MeToo movement against sexual harassment and sexual assault.

Employer’s obligations

Employers have a duty of care to protect their workers and will be liable for harassment in the workplace if they have not taken reasonable steps to prevent it.

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Legal privilege

Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose. The Court of Appeal has looked at how this principle works in Curless v Shell.

The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing 'an individual' as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.

The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.

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Working time

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was threatened with the sack, and then sacked, for refusing to go. He brought a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal said that the requirement to return to Lexington was a requirement to work in a way which breached the WTR (because of the refusal to allow a rest break). However, the tribunal said that the employee had not provided enough evidence to show that his refusal related to the WTR issue, rather than just a general dislike of the chef at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to the refusal to work without rest breaks.

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Whistleblowing

An employee is unfairly dismissed if they were dismissed because they made a protected disclosure. In order to be a qualifying disclosure, section 43B Employment Rights Act 1996 says the disclosure must be made in the public interest 'in the reasonable belief of the worker making the disclosure'. Is a tribunal wrong to consider whether the disclosure really is in the public interest?

In Okwu v Rise Community Action, the employer was a small charity which provided support to people affected by domestic violence, female genital mutilation or HIV. They employed the employee as a specialist worker. In the first few months, the employer raised numerous performance issues with the employee and extended her probationary period. The employee then wrote to the employer saying that they were in breach of the Data Protection Act for not providing an individual mobile phone and secure storage when she was dealing with such sensitive matters. She was dismissed and the letter of dismissal referred to performance issues and her 'antagonism' towards the charity. The employee brought an unfair dismissal claim saying she had been dismissed for making protected disclosures. She said nothing else had happened between her probationary period being extended and her dismissal other than her sending the letter.

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Office banter: where to draw the line?

Introduction

In August 2016, the Trades Union Congress (TUC) published a report on sexual harassment entitled ‘Still just a bit of banter?’. The report found that 30% of the women polled had been subjected to unwelcome jokes of a sexual nature, and 35% of the women polled had heard comments of a sexual nature being made about other women in the workplace.

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Whistleblowing

A protected disclosure is when a worker discloses information which they reasonably believe shows some sort of wrongdoing, such as a crime or breach of a legal obligation. The disclosure must be in the public interest, not for personal gain. A person making a protected disclosure is protected from any detriment or dismissal that stems from making those disclosures. In Simpson v Cantor Fitzgerald Europe, the employee was employed as a bond salesman for less than a year. Colleagues found him confrontational and difficult to work with. He made various complaints, including allegations of malpractice but also niggles about work allocation and colleagues. His colleagues got fed up with his constant complaints, poor attitude and bad timekeeping. HR got involved and he was dismissed.

The employee brought an employment tribunal claim, saying he was dismissed because he had blown the whistle on malpractice. He also claimed unpaid commission. The employment tribunal dismissed his claims. The judge described the alleged whistleblowing as cryptic, speculative, over-general and 'a figment of his imagination'. The tribunal felt the employee was motivated by his commission payments rather than any public interest.

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Non-disclosure agreements (NDAs) in discrimination cases





Settlement agreements are often used to resolve disputes between employer and employee. They usually contain confidentiality or non-disclosure provisions which stop the employee talking about the dispute in future. The Women and Equalities Committee has published a report on NDAs. The Committee is concerned about the widespread use of confidentiality clauses in settling discrimination cases. They note the imbalance of power between employer and employee. They worry that employers use NDAs instead of tackling discrimination head on.

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