Employment law update – October 2021

Part-time worker discrimination

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 do exactly what it says on the tin. They prevent an employer treating a part-time worker less favourably than their full-time colleagues on the grounds of their part time status.. Less favourable treatment of a part-time worker can be justified if the treatment is a proportionate and necessary way to achieve a legitimate business aim. The Employment Appeal Tribunal has looked recently at a case where a part-time worker said he was being treated less favourably because he wasn’t given a paid 15-minute break when he worked a shorter shift than his full-time colleagues.

In Forth Valley Health Board v Campbell, the employee worked an average of 16 hours a week over a 6-week rota. He did a mixture of shorter and longer shifts. The employer paid employees for a 15-minute break if they worked a shift of 6 hours or more. The employee got a paid 15-minute break when he worked a 6-hour shift at the weekends but not when he worked a 4 hour shift mid-week. He said that this was less favourable treatment because his full-time colleagues got a paid break on every shift. The employment tribunal agreed, saying it was less favourable treatment for part time workers who worked fewer hours.

The EAT disagreed. The tribunal’s ‘but for’ (the employee’s part-time status) test was wrong. The correct approach was to consider why the employee was treated less favourably in relation to paid breaks. On the facts, it wasn’t because of his part time status, but because of the length of shift he was working during the week. That was evident because he got a paid break when he worked a longer shift at the weekends. If part time workers worked longer shifts, they would receive the paid break.

Whistleblowing

This is a common-sense decision based on sound legal principles. Different treatment on its own is not enough. The important question in a part-time worker discrimination case is the reason for the treatment. Here, the reason for the lack of a paid break was the length of shift the employee was working, not the fact that he worked part-time. His part-time status was incidental and irrelevant.

Employers must not treat an employee badly because they have made a protected disclosure. If the main reason for dismissing an employee is that they made a protected disclosure, the dismissal will be automatically unfair. Usually, it is the facts known to the person making the decision to dismiss that are relevant to an unfair dismissal claim, rather than any other facts which might be known to other employees. In Royal Mail v Jhuti, however, the Supreme Court confirmed a narrow qualification to this rule: if a manager decides that an employee should be dismissed for one reason (for example, whistleblowing) but hides that behind another false reason (such as performance or conduct) which the dismissing officer adopts, then the reason for the dismissal is the hidden reason.

In Kong v Gulf International Bank, the employee made protected disclosures about a legal agreement for a financial product. The person who had drafted the agreement, the Bank’s Head of Legal, confronted the employee, who queried the Head of Legal’s knowledge of the relevant issues. The Head of Legal then complained to HR  and the CEO, saying the employee had questioned her professional integrity rather than her legal knowledge. She gave the impression that she couldn’t work with the employee anymore and minimised their contact. There had been previous issues about the employee’s interactions with colleagues. As a result, HR and the CEO decided that the employee should be dismissed. They drew up a report about the issues, including the current and past colleague incidents, and persuaded her manager that dismissal was appropriate. They told the employee that she was being dismissed because of her manner and approach with colleagues, not the protected disclosures. The employee brought claims for whistleblowing detriment, unfair dismissal and automatic unfair dismissal.

The employment tribunal upheld the ordinary unfair dismissal claim. It also said the detriment claim – for her treatment by the Head of Legal - would have won but for being lodged out of time. However it dismissed the automatic unfair dismissal claim. The decision makers – HR, the CEO and the employee’s manager – had decided to dismiss based on the employee’s conduct, not the protected disclosures. Even though there was an element of invention by the Head of Legal, by saying the employee questioned her integrity rather than her knowledge, it wasn’t right to attribute her motivation to the employer. The EAT agreed. The Jhuti exception only applies in extreme circumstances. Whether the Head of Legal had perceived the criticisms as relating to her integrity or her knowledge was nowhere near the kind of invention or manipulation necessary to meet the Jhuti principles. In this case, the dismissing managers had full knowledge of the facts, including the whistleblowing, and had not been misled by the Head of Legal’s ‘invention’ about the reason for her being upset. The Head of Legal was not involved in the employee’s dismissal and, when asked, said she was unsure whether it was merited. It was also relevant that the Head of Legal, though more senior than the employee, was not in the employee’s chain of managerial reporting. The EAT said the employee’s concerns about the Head of Legal’s knowledge was separable from the whistleblowing about the legal agreement and the tribunal had carefully deliberated about the principal reason for the dismissal. The issue here was not the employee’s views on the legal agreement – the whistleblowing – but the way she had conveyed them, in circumstances where she had form for ruffling colleagues’ feathers.

This case confirms that the Jhuti exception will be extremely rare. There is a big difference between entirely invented allegations about an employee’s performance (Jhuti) and the kind of ‘manipulation’ potentially relevant in this case, with the Head of Legal, either intentionally or otherwise, side-stepping direct allegations about her competence and alleging her integrity had been brought into question. It’s worth noting that the claim of whistleblowing detriment relating to the employee’s treatment at the hands of the Head of Legal was a good claim, but for timing. But that didn’t mean that the necessary causation was there to connect the employee’s dismissal to the whistleblowing as well.

Working time

The CJEU has considered another case involving rest breaks that can be interrupted at short notice and whether they meet the requirements of the Working Time Directive. Article 2 says that working time is any period of time where the worker is working, at the employer’s disposal and carrying out their duties. A rest break is any period which is not working time. There is no halfway house here – time is either working time or a rest break. A series of European cases have looked at rest breaks which can be interrupted at short notice and whether that undermines the whole point of the WTD  which is to promote health and safety.

In XR v Dopravni podnik hl m Prahy, the employee was a firefighter. In a 12 hour shift he had two unpaid thirty-minute rest breaks which he could take at the canteen 200m away from his workstation. During that break, he could be interrupted at any time if there was an emergency call. He would then have to be outside the canteen within 2 minutes of that call. The break was only included in working time if it was interrupted by an emergency call out. The employee said all breaks should be paid.

The CJEU confirmed that the purpose of the WTD is health and safety, not pay. It was relevant here that the firefighter was required to remain at work and away from his family and social environment at all times during his breaks. He had little freedom to manage his own time during rest breaks. The same would be true even if an employee doesn’t have to be at work during a break but the constraints placed on them have a significant impact on their ability to pursue personal and social interests. A rest break where an employee can be called back at short notice should be regarded as working time because the worker cannot plan any kind of recreational activity even for a short period because they don’t know if or when they will be called out. This is likely to the put the employee on ‘permanent alert’. The CJEU said a rest break where an employee can be called back on 2 minutes notice should be classified as working time if it is clear that the limitations imposed on the employee objectively and significantly affect their ability to manage their own time and devote it to their own interests.

This case follows the existing line of authorities on this issue but is a more extreme example because the response time is so short. CJEU cases are no longer binding on UK courts post-Brexit but can be taken into account when construing EU derived law. However it is worth noting that the entitlement to rest breaks under the WTR 1998 do not apply in relation to the police and emergency services where working requirements conflict. This case is relevant to other employers though, especially those in sectors such as hospitality and the care sector where breaks may be interrupted at short notice due to business requirements. An unpaid break must be a genuine break.

Employment tribunals

Some changes to the employment tribunal process will come into force on 6 October 2021 and are designed to remove some unnecessary red tape.

Rule 54 will be changed to show that a preliminary hearing can be requested by either party or fixed at the employment tribunal’s own initiative on reasonable notice. If the hearing involves preliminary issues then the parties must be given at least 14 days’ notice and the order must specify the relevant preliminary issues that will be addressed.

Another change which will potentially reduce red tape for employees is the change to the early conciliation requirements. Currently, an employee must start an Acas early conciliation process – and get an Acas EC reference number - separately for each respondent. This might be relevant in a discrimination case, where a claim is brought against both the employer and individual alleged discriminators. The new rules will allow an employee to name one or more respondents on the Acas form or in a telephone call, short cutting the process which was previously cumbersome and time consuming for employees. This is good news for employees, and makes common sense, but anything that makes the process easier for employees is something that employers must beware.

Contract law – employment contracts

Benefits such as permanent health insurance are often referred to only briefly in a contract of employment, with the details set out separately in an insurance policy or employment handbook. Employers usually aim to limit their liability to the terms of the relevant insurance policy. To do that, the contract must clearly specify that the entitlement is limited to the insurance policy terms – thus incorporating that term into the contract of employment - or an employer might end up paying more than it expected.

In  Amdocs Systems Group v Langton, the employee was originally employed by a company called Cramer. He was given an offer letter, summary of benefits and an employment contract. The offer letter and benefits summary set out his entitlement to Income Protection Payments (IPP) of a certain percentage of pay, plus a 5 per cent escalator each year after the first year, if he went on long term sick leave. The benefits summary said that the entitlement was governed by the terms of the group policies. At this time, the relevant benefits were covered by an insurance policy taken out by Cramer. ASG bought Cramer and the employee TUPE transferred to ASG. After the transfer, HR gave a talk saying IPP would not be affected, which was later confirmed in writing. Some time later, the employee went on long term sick leave and began to receive IPP. He was told that the escalator had not been and would not be paid because the Cramer scheme no long applied. The employee brought a claim for unlawful deduction from wages for failing to apply the escalator.

The employment tribunal upheld his claim saying he was contractually entitled to the escalator. The EAT agreed. They noted that a reference to insurance underwriting a benefit was not of itself enough to limit the employer’s liability to the terms of the policy. Any such limitation must be set out in clear terms in the contractual paperwork. The EAT said the employee’s contract, offer letter and summary of benefits were ‘plainly’ contractually binding. The offer letter, although giving only headline terms, set out clearly when the IPP benefit would kick in, how much it would be and how long it would last. The summary of benefits repeated this entitlement unambiguously. A clause in the contract purporting to incorporate the terms of a handbook as varied from time to time only had the effect of incorporating provisions on which the other contractual documents were silent. Here, the contractual documents were clear so that clause did not affect IPP and change its terms or the employee’s contractual entitlement. Nor was the entitlement limited to the relevant insurance policy. If an employer wants to rely on an insurance policy, to limit or qualify what the contractual documents have expressly set out, they must take steps to bring the terms of the policy to the employee’s attention. Here, the employee had not known about or been given the insurance policy terms. In any event, the relevant policy here was the one in place when the contract was made with Cramer, and that was the one conferring entitlement to an escalator. If the employer wanted to rely on less favourable terms of any future policy that would need to be expressly set out. ASG was bound by the agreement made between the employee and his previous employer, even though ASG did not have insurance backing to those terms.

This case doesn’t change the law but is a sage reminder to employers who are involved in TUPE transfers. Transferee employers must check contractual PHI policies for any transferring employee and check whether the terms will be covered by their existing insurance policy.  Employers must also set out expressly in contractual documents that PHI payments will be limited to the sums covered by the scheme insurer. Just saying they are governed by a policy is not enough.

Unfair dismissal

The opportunity to appeal against dismissal is usually considered to be an essential element of a fair dismissal. In the recent case of Gwynedd County Council v Barrett, the Court of Appeal said that this is not necessarily the case in a redundancy dismissal.

The employees were teachers who worked at a community school. School provision was reorganised, and the local authority decided to close that school and replace it with a new community school at the same location. The authority told staff that all employment contracts would be terminated and that the new staffing structure for the new school would be decided by application and interview. Unsuccessful candidates would be made redundant unless they could be found suitable alternative employment. The employees applied for jobs but did not get them. They were not given an opportunity to make representations to the school or appeal the position prior to their dismissal. The employees brought unfair dismissal claims. The tribunal said the dismissals were unfair because of the lack of consultation, the way they had to reapply for their jobs and because they were denied the right to appeal. On the failure to provide the right to appeal, the tribunal noted that an employer required ‘truly exceptional circumstances’ to refuse the right to appeal, which did not exist in this case. The EAT agreed. The local authority appealed to the Court of Appeal, in part on the basis that applying the ‘truly exceptional circumstances’ test had been wrong in law.

The Court of Appeal confirmed that failing to allow an appeal in a redundancy case did not necessarily make the dismissal unfair. If the employer had followed a fair procedure in terms of the selection process then the lack of any appeal was not necessarily fatal. However it was one of many factors to be considered when deciding whether a dismissal was fair. The Court of Appeal said the tribunal’s approach had been sound. They had not applied a blanket rule that the dismissals must be unfair because there had been no appeal. They had looked at the procedure in the round, including the absence of any opportunity for the employees to raise a grievance about the process or be consulted about the dismissals. The tribunal had applied a test of fairness and considered whether the employer’s approach in this case fell within the band of reasonable responses. They found it did not based on the procedure as a whole.

This case confirms that denying an employee an appeal against a redundancy dismissal will not necessarily result in a finding of unfair dismissal. However, it is clearly best practice to do so. In this case, the redundancy process as a whole had been generally unfair. Had there been an appeal, there would have been another opportunity for the employer to put matters right. Rather than an extra annoying hurdle, employers should consider appeals processes as an opportunity to ensure that their own house is in order. Much better to do that internally than in the public environment of an employment tribunal hearing.

Flexible working

The government has published a consultation document – Making flexible working the default – which proposes various changes to the existing rights for employees to request flexible working. This consultation document comes hot on the heels of the widespread flexible working that business and workers have had to adopt in the wake of the Covid-19 pandemic. Homeworking has increased exponentially and been shown to work in many fields where it was previously rare. The pandemic has also created more awareness of the importance of work-life balance and caring responsibilities for children and family members who are unwell. Although some of this flexible working may not be sustainable in the long term, our eyes have been opened to what is possible and the government is seeking to capitalise on this opportunity.

The proposals do not set out an automatic right to flexible working. However they do propose to remove the 26 weeks’ qualifying service to make the right a ‘day 1’ right. The proposals retain the important basic system of a conversation between employer and employee about what will work in their individual situation in terms of balancing the employee’s aims and desires with the needs of the business. The other proposals include:

  • Potentially making changes to the eight business reasons for refusing a flexible working request if they are no longer reasonable in 2021.
  • Requiring an employer to suggest alternatives to the arrangements requested by the employer if the flexible working request is rejected, in order to promote compromise.
  • Changing some of the administrative process, for example exploring whether to allow employees the right to make a statutory request more than once in a 12-month period.
  • Raising awareness of the existing right to request a temporary flexible working arrangement which the government believes is under-utilised at the moment.

The consultation is open until 1 December 2021. Make your contribution to the debate here:

https://beisgovuk.citizenspace.com/lm/flexible-working/

Diversity…what about class?

Most employers have long been alive to issues of diversity in business in terms of protected characteristics such as  race, sex and disability. But what about class? Socio-economic grouping is not a protected characteristic, so is seeking to ensure a certain percentage of ‘working class’ employees a hurdle too far?

Not for KPMG, who have announced a new target that 29 per cent of partners and directors should come from a ‘working class’ background by 2030. Employees with parents in manual jobs, such as plumbers, electricians, butchers and van drivers, will meet the definition of ‘working class’ for this target. The firm told Personnel Today that 23 per cent of its partners and 20 per cent of its directors currently meet this definition. The firm said that those from lower socio-economic backgrounds were paid on average 8.6 per cent less than those whose parents worked in management or professional jobs. The firm also plans to train all its staff on the invisible barriers that exist to those from less affluent backgrounds. The Chair of KPMG comes from a working class background herself and says she is a passionate believer that greater diversity improves business performance, brings fresh thinking and a wider perspective on decision making, all of which deliver better outcomes for clients.

KPMG is not alone in recognising that talent lies in every demographic but that people from lower socio-economic groups often have less opportunity to seek out those professional roles. This is unfair for job seekers but also denies business the widest pool from which to seek the very best talent. Creating targets means that the impetus for providing that opportunity lies with the business, levelling the playing field and creating more opportunity for those who need it. Seeking out new pools of talent from potentially untapped sources good for diversity and diversity is good for business. Our differences are often our strengths.

Indirect associative discrimination

Direct discrimination can occur when the reason for the less favourable treatment is the protected characteristic of someone with whom the employee associates, for example a parent’s association with their disabled child. Indirect discrimination is different. In order to establish indirect discrimination, section 19 of the Equality Act 2010 says that an employee must suffer the disadvantage and have the protected characteristic in question.  In a case called Chez Razpredelenie Bulgaria, the ECJ said that the concept of associative discrimination could extend to indirect race discrimination. As the definition of indirect discrimination is almost identical in the Equal Treatment Directive as the Race Directive, the question has arisen about whether indirect associative discrimination applies in relation to other protected characteristics. An employment tribunal has now looked at this issue in a case involving the treatment of an employee with caring responsibilities for her disabled mother.

In Follows v Nationwide Building Society, the employee was a Senior Lending Manager (SLM) who had a homeworking contract. She worked from home because she was the main carer for her disabled mother, something management were aware. Despite being on a homeworking contract, she attended the office 2 or 3 days a week. She had always scored highly in her appraisals and had a history of excellent supervision of team members. The Bank decided to reduce the number of SLMs from 12 to 8, who would all be office based. The Bank cited a greater need for staff supervision and feedback from junior staff that they were dissatisfied with supervision. The Bank asked for volunteers and received more than enough. Despite this, it asked some of those volunteers to stay and instead dismissed the employee, who didn’t want to leave. Another homeworking employee, Mr Gregory, who was not disabled and not a carer, was also dismissed. The employee brought many claims, including ones for direct and indirect associative discrimination.

The employment tribunal said that the direct associative discrimination claim failed. The right comparator was a homeworking employee who was either not disabled or not associated with a disabled person. Mr Gregory fitted that description but was treated the same as the employee. The reason for the treatment was not the employee’s caring responsibilities, but her homeworking status. However, her claim of indirect associative discrimination succeeded. The tribunal said that the provisions of indirect discrimination should be construed with the Chez case in mind. The relevant policy which was applied to everyone was the requirement that SLMs could no longer work at home on a full-time basis. Carers of disabled people are less likely to be able to meet the requirement to be office based. The requirement put the employee at a substantial disadvantage because of her association with her mother’s disability as her main carer. The Bank knew about her mother’s disability and her caring responsibilities. The Bank hadn’t discussed alternatives with the employee and ignored her protestations that the role could continue on her usual terms. As such they had not taken reasonable steps to avoid the disadvantage. The legitimate aim relied on by the Bank was a need to provide effective onsite supervision and support for junior staff following a reduction in headcount. The tribunal said the need to provide on-site supervision contained a discriminatory element and so could not be a legitimate aim. Even if it were a legitimate aim, the means of achieving it were not proportionate bearing in mind the employee’s excellent history of supervision and her view that it could be done on her own terms. There were other ways to achieve that aim, including maintaining the employee’s existing split site working arrangements.

This case is not binding on other tribunals but shows that the concept of associative discrimination now applies to indirect discrimination. Employers must ensure that employees who care for disabled people are not disadvantaged unless it can be justified. Although ECJ cases are no longer binding following Brexit, Chez was relevant here because tribunals must continue to interpret cases in line with EU law. That said, the Supreme Court and Court of Appeal may choose to depart from EU case law ‘when it appears right to do so’. The current wording of section 19 on indirect discrimination does not include associative discrimination. Watch this space to see if domestic courts close this avenue of claim down or embrace it fully by amending the Equality Act 2010.

Age discrimination

Unlike most forms of direct discrimination, direct age discrimination can be justified as a proportionate way of achieving a legitimate business aim. Employers must now justify any retirement policy which requires employees to retire at a certain  age, by showing it is a proportionate way of achieving a legitimate business aim. The EAT has recently looked at two cases brought against the University of Oxford, challenging its ‘justified retirement age’ of 67, where the employment tribunals came up with different answers based on the same policy.

Professor Pitcher was an associate professor of English Literature. The University refused to allow him to work beyond 67 and his employment terminated when he reached 67. He brought unfair dismissal and age discrimination claims. The employment tribunal said his retirement was less favourable treatment based on age, but said the policy was justified. The University was pursuing the legitimate aims of promoting inter-generational fairness (including opportunities for younger academics to progress), facilitating succession planning and promoting equality and diversity (the employer said providing opportunities for younger academics was likely to increase diversity). The tribunal said these aims were legitimate and the retirement age was a proportionate way of achieving them. Professor Ewart was an associate professor in Atomic and Laser Physics. He had been granted a two-year extension beyond 67 but was refused a further extension. He brought similar claims. The employer relied on very similar legitimate aims. However, in this case there was evidence that the retirement policy did not create a significant number of vacancies, something that had not been before the tribunal in Pitcher.  A different employment tribunal said in Ewart that the retirement policy was not a proportionate way of achieving legitimate aims. The losing party in each case appealed and it was left to the EAT to work out whether there was a single answer to the same question about whether the retirement policy was discriminatory.

The EAT refused to interfere with either judgment. The only reason an appeal court can change a judgment is if the employment tribunal has made an error of law which creates a perverse outcome. The EAT noted that it wasn’t desirable to have two different outcomes on the same policy. However, in these cases, different evidence was before each of the tribunal panels. If each of the tribunals reached a conclusion that was open to it based on the evidence, the fact that another tribunal reached a different decision does not give the EAT the right to interfere.

This case shows that employment tribunal claims are all about the evidence. In the Ewart case, statistical evidence was available which undermined the employer’s aims and the proportionality of its ways of achieving them. The tribunal in Pitcher did not have the benefit of seeing this evidence. That may explain the different outcomes. But as the EAT noted, different tribunals may come to different decisions provided that the decisions they make are not perverse. Employers must be careful in relation to compulsory retirement ages and ensure that the legitimate aims they are pursuing are properly met and pursued in a proportionate way. If the policy doesn’t actually bring about the aim you are seeking, the means of achieving it are unlikely to be considered proportionate when balanced against the very clear detriment to an employee of losing their job.

Benefitting from Kickstart and Apprenticeship Schemes – Employment Law Foundations

At the Conservative Party Conference yesterday the Chancellor Rishi Sunak spoke of his plan to  extend cash incentives for hiring new apprentices as well as his flagship Kickstart scheme as part of a £500 million jobs support package. 

The package aims to target skills deficits which is leaving many employers struggling to find suitable candidates to hire.  Mr Sunak described the Government’s measures as a response to the ‘awesome power of opportunity’ in rebuilding a UK economy still bearing the scars of the pandemic.

Bonuses of £3,000 for every apprentice a business hires ended in September, but Sunak will prolong the scheme by four months until the end of January 2022.

Kickstart – which subsidises job placements for young people on universal credit – was due to end in December but will be extended by three months to March 2022.

In his speech for the Conservative Party Conference, Sunak said he is “ready to double-down” on his promise to “do whatever it takes” to recover from the Covid-19 pandemic.

“The job is not done yet and I want to make sure our economy is fit for the future and that means providing the support and skills people need to get into work and get on in life.”

The extensions to his Plan for Jobs schemes, first announced in July 2020, comes shortly after figures revealed how they have struggled to reach the numbers first hoped.

A progress report for the Plan for Jobs was published last month and revealed that “more than 85,000 apprentices have been newly hired as a result of new incentive payments”.  Funding for around 100,000 new starts was set aside in the Plan for Jobs.

The cash incentives were first introduced by Sunak in August 2020 and offered firms £2,000 to take on apprentices aged 16 to 24, while those that employ new apprentices aged 25 and over are paid £1,500. They were increased to £3,000 for all apprentices in February of this year.

Only 76,900 young people have actually started Kickstart jobs, according to latest figures, with 196,300 roles in total made available to date.

The scheme launched in September last year with £2 billion set aside to create 250,000 jobs by the end of 2021.

It has been reported in some quarters that businesses had found the scheme overly “complex, bureaucratic and slow” to use.

The government said as part of its Kickstart extension, it will continue to accept applications from employers and gateway providers until 17 December 2021.

Specific funding for each measure extended by the chancellor will be confirmed at the Spending Review on 27 October.  It is hoped that the specific funding confirmation will be coupled with clearer, simpler guidance to allow employers and candidates to maximise the opportunities created.

Mr Sunak also announced a further investment to support 2000 elite A.I. scholarships for disadvantaged young people and double the number of Turing A.I. world-leading research fellows, to tackle social mobility challenges in entering the UK’s progressive technology industry.

A significant takeaway from this speech from an employment law perspective for businesses recruiting apprentices and young workers, alongside investing in those employees is to ensure they have the proper legal foundations to recruit, engage, train and retain new staff. 

This will enable businesses and their people to obtain the greatest benefit from this latent tranche of Government funding.

For a free consultation on any employment law issue or a review of your employment law foundations that could help your business take full advantage of the Kickstart scheme contact our specialist legal team on legal@lexleyton.co.uk

Travel & Tourism – Tricky Troubles for Employers

Many employers in the travel and tourism sector will no doubt have breathed a sigh of relief at the announcement from the Government last week that international travel rules were to be simplified, and a surge in holiday bookings abroad was expected to follow.

It’s been an incredibly tough 18 months for employers in this sector; the various lockdowns brought the industry to its knees, but then the boom in the domestic tourism market this year has brought its own challenges, with employers having to navigate staff shortages.

The huge increase in the UK tourism industry has been well documented in the press; people reluctant to risk the expense and uncertainty of going abroad, but desperate to holiday after months of lockdown, have been frantically booking up what’s left of the country’s holiday accommodation. However the industry was already facing staff shortages in the wake of Brexit, as new rules and lengthy paperwork came into force, deterring European workers from coming to the UK. This was then compounded by impact of the pandemic.

Some workers in the industry faced many months stuck on furlough, before finally opting to leave the industry altogether to seek a more reliable position. Then came the ‘ping-demic’ with huge numbers of workers forced to self-isolate as a result of the NHS Track and Trace. Now, even after the rules around self-isolating have changed, there is an increased risk of workers calling in sick, not only for COVID-related reasons, but also the huge increase in volume of trade is putting increased pressure on owners and workers alike, affecting them both mentally and physically.

So whilst the industry booms, it looks like employers in this sector are still likely to be facing a number of tricky challenges. Here’s a reminder of some key things to think about:

  • With staff shortages, employers might be tempted to stretch their existing resources and lean on existing staff members. The Working Time Regulations 1998 set out clear parameters on rest breaks, daily and weekly rest and the maximum working week.
  • With business booming, it can be tempting to just get staff in and working, rather than prioritising ticking all the administrative boxes when employing staff. Often employment contracts can fall by the wayside, with promises that they will be issued as soon as time allows. However having an written statement of terms is now a ‘day one’ right of both employees and workers (and this includes temporary or seasonal workers). Apart from giving you a fighting chance of protecting your business and setting out what is expected of your staff, there are direct financial consequences of not providing a contract should a worker or employee seek to bring a complaint in the Tribunal. 
  • Similarly right to work checks are in danger of being overlooked. Travel and tourism has traditionally attracted workers from across the EU, but as a result of Brexit EU workers without settled or pre-settled status will need an appropriate work visa. Employers have faced civil penalties for failing to conduct right to work checks, and criminal charges for knowingly employing an illegal immigrant. Penalties vary on a case by case basis, with the maximum civil penalty currently standing at £20,000 for each individual who does not have the right to work in the UK. Where an employer can demonstrate compliance with the right to work checks regime, they will have a “statutory excuse” and be excused from paying a civil penalty where they are found to have employed an illegal worker. However, the checks must be conducted prior to employment commencing otherwise the statutory excuse cannot be established. With the stakes so high, it is really important that right to work checks don’t fall by the wayside.
  • The travel and tourism has had to make its own adjustments to take into account COVID secure measures. Together with the increase in demand, this has inevitably had an impact on things like service times and availability. It’s been reported in the press that this has led to angry outbursts from unsatisfied customers. Workers will already be toiling long hours, and this added stress could well take a toll on their wellbeing. So it’s really important for employers to plan how they might support employee wellbeing; a healthy and productive workforce is absolutely key to business sustainability and growth and never more important than now.

The employment picture in the travel and tourism industry is a unique one that spans a huge variety of roles across its workforce. It is an industry that can provide flexibility and accessibility into employment for a wide range of people, but one that currently faces a number of challenges. If you are an employer in the sector and need help navigating those challenges please contact our team for a free consultation at legal@lexleyton.co.uk to see how we can help.

Problems with Petrol??

We have all heard various excuses from employees for not being able to get into work.  For me the best I’ve ever heard was from an employee who couldn’t attend because they “didn’t have a clean pair of jeans”.  Until a few days ago, the excuse that “I’ve no petrol and there is nowhere to buy it” would have ranked up there as an implausible excuse - but, the world is changing pretty quickly these days.

With the current fuel crisis employers should be mindful of the genuine constraints being faced by their employees. Being open minded and considering options to ease the pressure on employee whist the situation continues will be important, after all the crisis is not the fault of the employee base.  There are many options employers could consider to ease pressure on employees over the coming days, for example carpooling, working from home, attending meetings via video call, core hour changes around public transport timetables, to name a few.  Lesson from the pandemic have shown us we can adapt quickly and hence it is important for employers to keep dialogue open with employees to alleviate some of the genuine concerns people are facing.

For employers who need people to drive for their business, limited access to fuel will be of a greater concern.  In these scenarios, where work is not available employers could consider utilising contractual lay off clauses to get them through the coming days at a reduced labour cost to the business.  For employers without the luxury of theses clauses, other short term options include enforced holiday (on double the notice to days taken), agreeing unpaid leave, voluntary holiday or discussing a reallocation of reasonable duties in the short term.

If your business is impacted by employment issues stemming from the fuel crisis, please don’t hesitate to contact our expert employment law team for a free consultation on your options legal@lexleyton.co.uk

World Suicide Prevention Day

10 September 2021 is World Suicide Prevention Day. With one in a hundred deaths worldwide as the result of suicide, global activities will be directed at raising awareness on this most difficult of issues. The day aims to spread the word, reduce the stigma and encourage well-informed action around suicide. 

The latest  statistics show that in 2018 there was a 10.9% increase in deaths by suicide in the UK and in 2019, there were 5,691 suicides in England and Wales and 833 suicides in Scotland.  

Mental health in the workplace has gained greater significance due to the impact of the Covid-19 pandemic on our working lives: homeworking, furlough and lockdown forced profound changes on all of us.   

The training and appointment of Mental Health First Aiders is becoming increasingly common in both the public and private sectors. It’s origins lie in Australia at the start of the 21st century. It seems a timely point to consider research on the impact of Mental Health First Aiders (MHFA) in the UK workplace.  

In a report from 2018, the HSE wanted to study the effectiveness of MHFA in the workplace. The subsequent report acknowledged a number of gaps in the knowledge due to the lack of published occupationally-based studies. On a positive note, it confidently asserted that there was consistent evidence that MHFA training raises employees’ awareness of mental ill-health conditions. However, there is no evidence that the introduction of MHFA training  in workplaces has resulted in sustained actions in those trained, or that it has  improved the wider management of mental ill-health in UK workplaces.   

I was also surprised to discover that workplace suicides  are excluded from HSE death statistics. Hazards, the UK campaign group, is urging the HSE to implement  measures to record, inspect and prevent work-related suicides. Their wish is to bring the UK in line with other countries  where work- related suicides are monitored, reported and inspected - such as in the USA. They are calling on the Government to rectify ‘a grievous blind spot’ that excludes suicide from the list of work-related  accidents  and cite international studies that have established causal connections between work, working conditions, work -related stress and suicide ideation. In the UK, the 2017 national survey of suicides by occupation found that suicides in England were disproportionately high for men in the construction sector, and for women working in the health professions. 

The Hazards friendly campaign magazine references what happens in France; when a suicide attempt takes place in the workplace; it is immediately investigated by safety inspectors as a work-related accident and the burden of proof is on the employer to prove that it is not work-related.  

This presumption of causality is meant to protect the employee (when the attempt did not lead to death) or his or her family. It circumvents the need for them to engage in legal action in order to prove the employer is liable. Sadly, one in every five employee suicides reported to the social security authorities (Sécurité Sociale) is officially recognised as being work-related. In addition, incidents of work-related suicide are generally followed by an in-depth investigation of working conditions at a company (by independent occupational health experts) to ensure that other employees are not at risk. 

Given that any other death connected to the workplace would have to be inspected under RIDDOR it does seem strange that a workplace suicide is not subject to any external investigation process in the UK.  

The TUC also wants employers to ensure that they have processes to help identify individuals at risk, support those people and raise awareness around the complex issues surrounding suicide and highlighted that the risk of suicide is often highest after a person is under threat of disciplinary action.  

Really thinking about World Suicide Prevention Day has caused me to reconsider the impact that work related issues can have on an employee’s mental health. As an experienced HR practitioner and employment lawyer I am constantly reviewing my practice and this is day is an important reminder to us all, that employers have an ongoing duty of care, and of the risks involved for example, of suspending an employee whilst an investigation is taking place which can often happen.  In that event, at the earliest stage, the employer should explain that the suspension is not a presumption of guilt and make plans to ensure the employees well-being. In some cases, it may even be appropriate to ask the employees permission to contact a person to ensure that they have some support while at home.  

Finally, Public Health England (PHE) in collaboration with the Samaritans and Business in the community has produced a Suicide Prevention Toolkit which is a very good starting point if you are inspired to take further action within your business in regard to suicide prevention. There is always more we can do. 

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.

Amdocs Systems Group Ltd vs Langton – an example of why TUPE due diligence is so important

At the end of August 2021, the Employment Appeal Tribunal decided a case which serves as a cautionary tale on the importance of drafting and TUPE due diligence in respect of permanent health insurance benefits (PHI) provided by employers.  

In Amdocs Systems Group Ltd v Langton,  the EAT held that the contractual entitlement to benefits under an Income Protection Scheme (IPP) scheme were those of the insurance policy which was in force in 2003 and which were expressly referenced in an offer of employment letter, a summary of benefits  and a contract of employment.  

The employee fell ill and began receiving a benefit under an income protection payment scheme (IPP) in November 2009. In 2015 his employment transferred via TUPE to Amdocs Systems Group. The employee subsequently realised that his IPP payment did not include the  5% uplift payment and proceeded to make a claim to the employment tribunal for unlawful deduction from wages.   

The employer admitted that the 5% uplift had ceased in 2008 when this element was removed from the company’s insurance cover. The EAT held that the employee’s contractual terms in relation to the IPP was that of the policy in place in 2003 and in doing so it naturally fell that the benefits continued up to the point of the TUPE transfer and were on-going.  

The decision also made it clear that if an employer wanted to rely upon a term which allowed them to cut back on substantial elements set out in a benefit offering, then substantive steps must be made to bring this to the attention of the employee.  

On the facts, the offer letter and summary of benefits had clearly stated an entitlement to a 5% escalator payment and ‘objectively intended it to be incorporated’: they did not contain a clause which sought to reserve a right to vary or reduce the level of cover. Hence, Amdocs Systems Limited was “bound by the commitment’ it had inherited”. 

This decision serves as a useful reminder to ensure that any  Income Protection Payment offering, is carefully  drafted so as not to given a unintentional open ended commitment to a level of cover which must be matched whenever the policy is up for renewal.   

On a practical level, employers  are naturally  keen to ensure they obtain competitive insurance cover quotes at renewal time but must be informed about the level of cover that they have contractually committed to provide to their employers. Secondly, any TUPE due diligence process should be alert to the need for the transferor to include details of any IPP scheme and of any individual currently accessing the scheme or seeking access to it and the precise nature of any such entitlement. Finally, it’s also worth going back to basics in terms of the content of your offer of employment letters, benefits package summary and contracts of employment to ensure the right to amend, reduce, or  withdraw benefits is expressly retained and communicated to your employees. 

For any advice and support or a free consultation around any issue raised by this article or any aspect of employment law please don’t hesitate to reach out to our expert team of employment law solicitors on legal@lexleyton.co.uk  

Spotlight Series- Isobel Washington

What does a typical day as an employment law solicitor and business partner to a wide range of employer clients at LexLeyton look like for you?

I have always been a remote worker based in Staffordshire.  The workday I hope to have is like this: Wake up around 6.00am cup of tea, feed the hens­, eat breakfast, go for a 20 minute walk, hit the shower, get to my office to start the day at 8.30am. Once the laptop is running, I check my email and calendar to plan my day. We always have a morning group call at 9:00am, when we discuss any legal developments, checks if anyone needs a hand and generally check in with one another.

During the day I have some video meetings with clients to help understand their people issues and offer advice and an agree a plan on how to deal with things : it’s a great opportunity to understand their business and the unique issues they face on an operational day to day level and more wider in terms of strategy. I am also in regular contact with my colleagues who are always there if I need to run something past them as a sounding board or ‘sense check’: we are very much a team and we always support one another.

Then around 5:30 in the afternoon, I will let the hens out for their evening roam and walk around the village to ‘walk the day off.

What is your favourite part about working at LexLeyton?

Its maybe cliché, but I really like my colleagues. Rosie McArdle and I worked together previously so that was a bonus. However, the rest of the team even though we are spread across the UK are great: they are great lawyers and really good people as well. The past 18 months have been challenging both as employment lawyers and as human beings but we have all got through it together and have come out the other side stronger and more resilient: we can deal with anything now!

What are the biggest challenges you face in your job?

The past 18 months were challenging due to the amount of information and law we had to get our heads around in relation to Covid 19 and furlough: the government often announced things but only followed up with detailed guidance at a later date, meaning we were trying to figure things out in a vacuum

What is your proudest moment at LexLeyton?

I am proud of helping my clients when they have a difficult judgment call to make: I like helping them make the right decision for their business.


What do you like to do in your free time?

I love watching my rescue hens enjoy their day. I live in the beautiful Staffordshire Moorlands, so my daily walks are rather fantastic with views over the Peak District. I also attend a local painting class - I’m not very good but it’s the perfect way to wind down from a busy week as it engages a totally different part of my brain.

What is your guilty pleasure?

The Archers: the series drives me nuts at times but it’s a fixture in my early evening routine.

What or who inspires you?

Baroness Lawrence of Clarendon: grace and grit.

What is one thing you can’t live without?

Sherry: it’s for life not just for Christmas!.

What is your favourite quote?

Fight for the things that you care about but do it in a way that will lead others to join you.” Ruth Bader Ginsburg

What is your biggest fear?

The threat of the loss of the rule of law in the UK.

What is something that not many people know about you?

Before I qualified as a solicitor, I worked as a Regional Officer for a trade union and I have worked in senior HR roles, so I have quite a unique set of skills and experience.

Compulsory Vaccinations for Care Home Workers

On 16th June 2021 the Department of Health and Social Care gave a press release which stated that: ‘Everyone working in care homes to be fully vaccinated under new law to protect residents.’

This did not seem like anything particularly surprising; some of those most at risk of being seriously unwell from Covid-19 live in care homes after all, with the likelihood of needing hospital care increasing exponentially depending on the patient’s age

The vaccine has been seen by many as an overwhelmingly positive thing.  While it is not a guarantee that a person will not become infected with Covid-19 there is anecdotal evidence everywhere you look that those who become infected with Covid-19 after being vaccinated tend to suffer much less serious symptoms.  Indeed, it is reported that both the AstraZeneca and Pfizer vaccinations reduce hospitalization rates by up to 96%.

That notwithstanding, some choose not to be vaccinated.  The reasons for this are varied and multiple.   While some decisions not to take the vaccine are marred by conspiracy theorists on social media regarding microchips and magnetism, there are reasons which are more grounded in their logic.  Some people may have a genuine moral/ philosophical belief against vaccination, some may choose not to be vaccinated due to religious reasons and some may not be vaccinated due to another medical condition. 

While it is no surprise that the legislation details that all care home staff ought to be vaccinated; what is surprising is that there appear to be very few exemptions to being vaccinated.  It seems that the only permissible justification for not being vaccinated for those working in a CQC registered care home is those who are exempt on medical grounds.  The legislation does not take into consideration those who may not wish to be vaccinated for religious grounds or due to some other moral/ philosophical belief.

As a result of this it seems highly likely that this new legislation may well be subject to challenge.  There is a notable difficulty here in that while refusal to comply with the obligation to be vaccinated may well give grounds to fairly dismiss an employee i.e. due to their continued employment contravening a duty or restriction imposed by statute, the legislations itself seems incompatible with the Equality Act 2010 and the European Charter of Human Rights (as enshrined in the Human Rights Act 1998), Article 9 (freedom of thought, belief and religion).

When making considerations regarding potential discrimination issues on an employment law context, we will normally consider if placing one group at a disadvantage is a ‘proportionate means of achieving a legitimate aim.’  In this instance, that may be not allowing people with a certain religious, moral or philosophical belief from working in care in order to protect those who are highly vulnerable.  However, given that vaccinations do not absolutely prevent transmission and appear (at least in the case of Covid-19) to instead be more effective in terms of preventing hospitalisation, there may be some questions over whether or not this can be truly regarded as a ‘proportionate means.’

For employers in the care sector, having clear vaccination policies in place is a good start.  However, if you do have employees who are unvaccinated, rather than moving straight to dismissal, it would be sensible to consider if they could work from home or to conduct a risk assessment and look at any other alternatives to dismissal particularly for those with long-service or those whose vaccine status pertains to a protected characteristic such as religion or belief.  That being said, with this new legislation due to come into force from November this year, it is likely that those in the care sector with employees who refuse to be vaccinated will be best placed to defend any unfair dismissal/ discrimination claim on these grounds.

Those in other sectors could also consider introducing mandatory vaccinations – however, in the absence of specific legislation saying employees must be vaccinated, as we appear to have with the care sector, a discrimination claim may prove more difficult to defend.

It will be interesting to see if the Government seek to amend this legislation given its apparent incompatibility with ECHR and the Equality Act.  If the Government fail to do so it could be viewed as setting something of a worrying precedent.  While protecting those most vulnerable from Covid-19 is certainly a noble cause, we must question the idea of mandatory vaccination with exemptions for only those who absolutely cannot be vaccinated due to allergies etc.  Undoubtedly we may well see this issue addressed in the Courts and the Employment Tribunal once the legislation comes into force on 11th November this year.

If your business would be assisted by a free consultation with one of our expert employment law team around the issues discussed here, don’t hesitate to contact us at legal@lexleyton.co.uk

Encouraging Breastfeeding at Work – some thoughts for employers

To celebrate this year’s World Breast Feeding Week, let’s reflect on what employers can do to better support new mothers in their workplace.

As the pandemic’s restrictions slowly subside, there are growing tensions at organisations where employees who have been working from home are now expected to come back to fully reopened offices. That is particularly true when it comes to working mothers who, since the start of covid-19, are, according to a McKinsey report, 1.5 times more likely than men to think about downshifting their careers, asking to work flexibly or leaving the workforce altogether. The amount of women asking for a change, or - even worse - simply resigning, is unequivocal: the status quo is inadequate.

What issues are working mothers facing? Well, it goes without saying that there are numerous and that we won’t be able to go into all of them in this article. However, as you might have guessed from the title of this article, one of these issues is many new mothers’ inability to breastfeed (breastfeeding covers both feeding the baby directly and expressing milk) in the office. The NHS and the World Health Organisation recommends to the vast majority of new mothers to breastfeed for the first 12 months of their baby’s lives. In a society where the pressure of perfection is overwhelming and where women must be not only perfect wives but also perfect mothers and employees, for many – or at least for those that want to/can – not being able to breastfeed makes their return to the office less than agreeable.

Whilst there is yet to be a statutory right to breastfeed at work in the UK there is significant guidance intended to support and encourage employers to positively support breastfeeding such as The Equality & Human Rights Commission Code and the Health and Safety Executive Guidance. They point out that allowing women to express milk in the workplace can be a very straightforward affair. Indeed it mostly consists of providing them with a private and clean environment (such as a small meeting room with a lock for a few hours a day), in addition to giving them access to a secure and clean fridge for storing purposes.

Making sure that new mothers have the opportunity to come back to the workplace is in itself a priority, but there are also many commercial benefits in making sure to support and retain women. As we know, in any industry, it makes little sense to draw from a smaller source of potentially suitable candidates. Not to mention that a diverse workforces generally achieve higher levels of performance in many of the most common metrics used to measure commercial success.

In the past year and a half, businesses have demonstrated more flexibility and bravery than ever before. Overnight, many have managed to revolutionise their processes and the way they trade. Whilst organisations have momentum, why not also take this opportunity to determine what new mothers’ concerns are in order to make the necessary adjustments? As the battle for talent currently rages on, now is the time to put in place policies to attract and retain staff. As detailed above, not much goes into creating adequate lactation facilities and a supportive breastfeeding environment in the workplace, so why not take the plunge?

If not in place already, there is little doubt that your organisation would benefit from having breastfeeding policies.  To do more to support your breastfeeding employees take a look at the ACAS guidance on breastfeeding and if a free consultation with one of our expert employment lawyers around how your business could do more to support diversity and inclusion in the workplace is of interest, don’t hesitate to reach out to us at legal@lexleyton.co.uk  

Why modern slavery could be on the rise and what employers can do to combat it

For so many the pandemic has turned our lives upside down, affecting so many areas of our life – from the way we work, the way we travel, the ability to see our friends and family and the mental and emotional affects it continues to have on us. Perhaps one outcome of the pandemic that may not be so apparent to us is the opportunity it has created for modern forms of slavery to thrive.

Slavery seems like something that should be confined to the history books, however it is estimated that 40 million people are trapped by forms of modern slavery, which sees the illegal exploitation of people for personal or commercial gain. Because of its hidden nature, there is currently no conclusive source of data on how many of those people entrapped by slavery are in the UK, however the Office for National Statistics has reported:

  • the Modern Slavery Helpline received a 68% increase in calls and submissions in the year ending December 2018, compared with the previous year;
  • there were 5,144 modern slavery offences recorded by the police in England and Wales in the year ending March 2019, an increase of 51% from the previous year;
  • the number of potential victims referred through the UK National Referral Mechanism (NRM) increased by 36% to 6,985 in the year ending December 2018.

Modern slavery covers a wide range of abuse and exploitation including sexual exploitation, domestic servitude, forced labour, criminal exploitation and human trafficking. Victims of modern slavery can be any age, gender, nationality and ethnicity. People end up trapped in modern slavery because they are vulnerable to being tricked, trapped and exploited, often as a result of poverty and exclusion. They may feel unable to leave or report the crime through fear or intimidation. They may not even recognise themselves as a victim.

The COVID-19 pandemic undoubtedly caused major economic and social disruption. A study carried out by Dow Jones found that this disruption has created the perfect breeding ground for modern slavery to thrive in the corporate supply chain. The pandemic has seen supply chains disrupted – with many facing cancelled orders and factory shut downs - meaning a large number of workers have lost their jobs and been forced to look for opportunities in informal economies, which are typically rife with exploitation. Rapid changes in labour supply and demand might have also tempted some businesses to use it as an excuse to exploit vulnerable workers or force them to work through the pandemic.

Responses to Covid-19 may have also served to divert resources away from social issues such as modern slavery. This could be in a variety of ways, with NHS staff and mental health-care workers stretched to capacity, less resources being allocated to charitable organisations operating in this area, business leaders having had to focus all of their attention on surviving the pandemic, law enforcement and local government having their resources diverted, and the media’s attention firmly trained on the pandemic, meaning that the issue of modern slavery was simply not in the spotlight.

The Dow Jones study concluded that the effects of the pandemic on modern slavery has left companies more exposed to the risk of modern slavery. The Modern Slavery Act 2015, which aims to prevent labour exploitation and to increase the transparency of labour practises and supply chains within organisations, has now been in place for over six years now. It was described as ground breaking legislation and it consolidated existing slavery and trafficking offences, as well as introducing new measures to tackle their existence in the UK’s workplace. Not only should those companies falling within its ambit ensure that they are complying with their obligations, employers have a pivotal role to play in the fight against modern slavery. Here is a reminder of what steps any business should consider taking to ensure that they are committed to tackling slavery:

  • Boost awareness – as we have seen, modern forms of slavery don’t necessarily reflect traditional views of who might be affected by this issue. In fact, the ONS reports that almost a quarter (23%) of the 6,985 potential victims referred through the NRM in the year ending December 2018 were UK nationals;
  • Know your supply chain - although you might be certain that your business is clear of exploitative practices, it’s harder to say the same about every link in your supply chain or through your involvement with business partners. It’s key to have an honest and transparent view of your supply chains, and know where the vulnerabilities may lie;
  • Ensure you have robust recruitment practices – in a fast paced environment it’s easy to let recruitment checks fall by the way side, with the importance placed on getting workers started in work rather than taking the time to carry out proper checks. However, these checks are vital in tackling hidden labour exploitation;
  • Ensure your compliance with your Modern Slavery Act 2015 obligations – larger organisations will be required to produce an annual slavery and human trafficking statement, but smaller organisations can also choose to produce a statement too if they wish.
  • Review your policies – perhaps you put certain policies, covering perhaps ethical trading, in place when the Modern Slavery Act came into force in 2015. Perhaps those policies could now be revisited and refreshed to ensure that they remain up to date and meaningful.

Modern slavery is a complex landscape, but one in which all employers can play a vital role in the fight to eradicate exploitation. If you need help navigating your compliance obligations, or simply want to know what your business can do to play its part, please don’t hesitate to contact us for a free consultation or send us an email at legal@lexleyton.co.uk

Spotlight Series- Calum Maclean

What does a typical day as an employment law solicitor and business partner to a wide range of employer clients at LexLeyton look like for you?

On a typical day I get ready for work, grab a coffee and I am usually at my desk for about 0830.  The first thing I do is plan my day and set out the things I need to do.  We then usually have a team call from 9am and after a catch up about any pressing business.  After that, I get started on working through my to-do list for the day – putting together documents and advising clients.

What is your favourite part about working at LexLeyton?

Having come from a mainly advisory background it is great to get an exposure to lots of different aspects of employment law, in turn, this allows me to further develop my skills.  This, of course, could not be done without the support from my colleagues who are great to work alongside.  In addition, the fact that we can bring dogs into the office also deserves an honourable mention.

What are the biggest challenges you face in your job?

Over the last year, given the coronavirus pandemic, employment law has been in a constant state of change.  Keeping up with what is happening has been challenging at times – however, hopefully things are starting to level out a bit now.

What is your proudest moment at LexLeyton?

During my short time here so far I made my first appearance in the employment tribunal at a preliminary hearing – I hope there are more to come!

What do you like to do in your free time?

I enjoy walking my dogs, they take up quite a lot of my time!  I also really like cooking – there is something very pleasing about making something edible out of whatever random assortment of ingredients are in my cupboards.

What is your guilty pleasure?

Spotify have a feature which lists the genres of music you listen to most.  This has made me realise that one part of me which has not changed since high school is my taste in music (which is probably for the worse).

What is one thing you can’t live without?

My family.

What is your favourite quote?

One of my favourite authors is Hunter S Thompson and he wrote this in a collection of letters:

“A man who procrastinates in his choosing will inevitably have his choice made for him by circumstance.”

What is your biggest fear?

Moths, I honestly do not know why, there’s just something about them that I find unsettling.

What is something that not many people know about you?

When I was at university I worked in the hospitality industry and came second in a national Edinburgh Gin cocktail competition.  To this day it still hurts that my G and Tea wasn’t the winner!

EU Settlement Scheme – Employers Guide To Dealing with Employee Failure to Apply

EU Settlement Scheme – Employers Guide To Dealing with Employee Failure to Apply

The Home Office has published guidance on right to work checks for EU, EEA and Swiss citizens starting work in the UK between 1 January and 30 June 2021 (the right to work grace period) and for those starting to work on or after 1 July 2021. Employers do not have to immediately dismiss an employee who has not applied for settled or pre- settled status by the deadline date of 30 June 2021 or doesn’t have another valid visa in place.

However, this is still subject to the following very strict rules:

  • If the individual started working for their employer on or before 30 June 2020, an employer can advise the individual to make an application under the  settlement scheme within 28 days and can continue to employ them. You don’t have to do this but many employers will.
  • NB. This flexibility only lasts until the end of 2021.The guidance sets out the process that employers may follow until 31 December 2021 where they have identified that an EEA citizen in their workforce has not applied to the EU settlement scheme by 30 June 2021. So if you discover that a member of your staff does not have the right to work here on, for example 1 January 2022, you will have to take immediate steps to dismiss them.

If you decide to advise the individual time to apply for settled status or pre- settled status  there are a number of steps that both  the individual and employer must take :

  • Your employee must provide you with confirmation that they have made their application within  the 28 day deadline.
  • They will receive a Certificate of Application (COA) or an email ( or letter if they submitted a paper application ), confirming receipt of their application and they must show this to you.
  • Once you have been shown confirmation of their application, you must request a right to work check from the Home Office Employer Checking Service (ECS); this will give you a Positive Verification Notice (PVN).
  • You must retain the PVN  and a copy of the individual’s application or evidence of their application, along with the initial right to work check you carried out before 30 June 2021. In doing this, this will provide you with a statutory excuse against a civil penalty for employing an illegal worker for a six month period and most importantly, and you can continue to employ them during this time.

Follow-up Checks:

Before the PVN expires you MUST do a follow-up check in order to maintain your ‘statutory excuse’  against a civil penalty:

  • If the individual has been granted status before the PVN expiry date, they can prove their right to work using the Home Office right to work online checking service. If your follow-up checks confirm that the application is pending, you will be given a further PVN for six months.
  • If the follow- up checks confirm that the application has been finally determined and REFUSED, then you will not be issued with a PVN and must take steps to terminate the individual’s employment. If you find yourself in this scenario, please immediately contact us and we will discuss the steps you need to take.

Making a late application for settled status or pre settlement status after 30 June 2021

  • Any individual who missed the deadline of 30 June 2021 by which to make their claim for settled or pre- settled status will have to persuade the Home Office that they had a ‘reasonable excuse’.
  • Many will rely on  ‘compelling and compassionate reasons’ as this is a broad category and covers anyone who was unaware of the need to apply, perhaps because they did not have internet access or had limited computer literacy or limited English language skills,  lacked the relevant evidence or were unaware they could rely on expired documents etc.

If you have discovered that one of your employees has failed to apply for settled or pre- settled status, and need help to work through what actions you need to take, don’t hesitate to reach out to us at legal@lexleyton.co.uk.

Social media: top tips for employers

Many see social media as an outlet for self-expression. An employee might exhibit a professional demeanor in the workplace, but let loose on Twitter. However, the Forstater case highlights some of the difficulties that can arise from unchecked employee use of social media.

Forstater v CGD Europe and others concerned a researcher with gender critical views which she expressed via Twitter. Her employer, CGD Europe, found the tweets to be offensive and declined to offer her further work. The Employment Appeal Tribunal found the gender-critical views were capable of being a protected belief under equality legislation. The case was remitted back to the Employment Tribunal to determine if her employer discriminated against her because of that belief.

The Forstater case shows the risk of reputational damage from a post that’s deemed offensive. To avoid ending up in hot water, here are top tips for employers to consider regarding social media:

  1. Utilise a social media policy. A policy on social media use will set the company’s expectations for appropriate use of social media.
  2. Warn about lack of privacy. A social media policy can be used to remind employees social media activity is rarely private.
  3. Alert to potential for disciplinary action. Employers should warn employees they may face disciplinary action for online conduct that the company deems to be misconduct.
  4. Protect confidential information. Educate employees about the adverse consequences should they reveal company confidential information online.
  5. Prevent harassment and bullying via social media. Policies on anti-bullying and harassment should include social media posts as examples of potential sources of bullying and harassment.

LexLeyton can assist employers with advice on any particular issues arising from employees’ use of social media. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

Employment law update – July 2021


Right to Work – Changes from 1 July 2021

As an employer, you have a statutory duty to prevent illegal working by ensuring that your employees have the lawful right to work in the UK. If a business is found to be employing a migrant worker illegally in the UK, the responsible Director may be liable to civil and criminal penalties.  A business can safeguard against these risks by demonstrating that it has undertaken suitable right to work checks, in the prescribed manner.

On 1st July 2021, the way a business must check an individual’s right to work has changed. The Home Office has published a useful checklist to help employers carry out right to work checks.  In addition, there is also a new guide explaining why and how a business conducts legally compliant right to work checks on all staff.

This new guidance should only be followed for individuals starting work from 1st July 2021 onwards. There is no requirement for a retrospective check to be undertaken on EEA citizens who entered into employment up to and including 30th June 2021. A business will maintain a continuous statutory excuse against liability for a civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was undertaken.  

There is one exception to this rule:  employers who have acquired staff through TUPE transfers. Employers should undertake a fresh right to work check on those incoming staff, as part of its employee liability information exchange and due diligence processes.


Indirect discrimination

Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to all employees which disadvantages a group of people who share a protected characteristic (such as race or sex). Indirect discrimination can be justified if it is a proportionate way of achieving a legitimate business aim. In making their decisions, employment tribunals must take ‘judicial notice’ of facts that are so well known to the court system that they can be accepted without further enquiry. One of those universally accepted truths relates to what the Employment Appeal Tribunal has recently described as the ‘childcare disparity’, where women are less likely than men to be able to accommodate certain working patterns because of childcare responsibilities.

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the employee was a community nurse who worked two fixed days per week. The Trust introduced a requirement  that community nurses work flexibly including at weekends. The employee was unable to comply because of childcare responsibilities. She was dismissed and brought claims for indirect discrimination and unfair dismissal. The employment tribunal dismissed her claims, saying that the other 7 women and 1 man in her team could comply with the policy. They said there was no evidence to show that women as a group were disadvantaged by the policy.

The EAT disagreed. The tribunal had got the pool for comparison wrong. The policy was applicable to all community nurses, not just the employee’s team. That meant the pool for comparison should have been all community nurses. The tribunal had also failed to take judicial notice of the indisputable fact that women are less likely to be able to accommodate certain working patterns because of their childcare responsibilities. This fact had been noted in many binding judgments and there was no evidence to show that the position was out of date. The case was sent back to the tribunal to decide whether there had been group disadvantage and whether any indirect discrimination was justified.

This case is a reminder to everyone that the childcare disparity will be taken into account by employment tribunals without the need for statistical evidence. The EAT also made it clear that it doesn’t have to be impossible for an employee to comply with the working pattern for her to be disadvantaged. In this case the employee’s husband was available to help at weekends but that didn’t matter. Nor did the employer giving lots of notice of weekend work. An employee can still be disadvantaged if they can comply with a requirement but only with difficulty, or by making additional arrangements or by shifting the childcare on to someone else. Employers should bear this in mind when dealing with objections from working mothers who struggle to accommodate certain work patterns. Better to work things out around the table than in the appeal courts.


Discrimination – interim relief

Interim relief is a powerful weapon in the employment tribunal’s toolbox. An employee can only ask for interim relief in dismissal claims relating to trade union, health and safety activities and whistleblowing. 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, with pay but without working, until the full hearing. It is a powerful tool because it essentially reverses the dismissal pending the final hearing.

In Steer v Stormsure, the employee had been employed for only a few months before she was dismissed. She claimed her dismissal was sex discrimination and an act of victimisation. She brought discrimination claims 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 that the lack of interim relief in discrimination cases appeared to breach article 14 of the European Convention on Human Rights (the prohibition of discrimination) and article 6 on the right to a fair trial. They said the difference in remedy between whistleblowing and discrimination claims was not justifiable. However, the EAT did not have the power to change the law so they dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal.

The Court of Appeal did not agree. The right to a fair trial under article 6 related to procedural fairness and the integrity of a country’s judicial system, not the content of its national laws. The fact that the majority of sex discrimination claims were brought by women did not mean that the lack of interim relief in sex discrimination claims constituted different treatment based on sex. If that were the case,  a comparison could be drawn between all kinds of litigation brought by equal numbers of men and women and sex discrimination claims. The Court also said that there were many advantages to the procedures and remedies available in discrimination cases when compared with whistleblowing dismissals, such as the discretion to extend time on a just and equitable basis, the more favourable shifting of the burden of proof and the injury to feelings award in discrimination cases. As a package, it was no less favourable than for whistleblowers. The Court went further and said that if less favourable treatment had been established, limiting interim relief would be justified anyway for a variety of reasons including protecting and encouraging whistleblowers and to avoid placing additional burdens on employers.

This decision will be music to the ears of employers. There are currently only around 150 applications for interim relief each year, and most don’t reach a hearing. If the remedy were extended to discrimination claims, there would be a deluge of applications which would test the resources of both employers and the tribunal system. The Court of Appeal showed that there are plenty of advantageous aspects to a discrimination claim. Discrimination claimants can’t have their cake and eat it.


Philosophical belief discrimination

Religion or belief is a protected characteristic under the Equality Act 2010 and can include any religious or philosophical belief. Article 9 of the European Convention on Human Rights provides for freedom of thought, conscience and belief. In a case called Grainger v Nicholson, the Employment Appeal Tribunal drew on the ECHR and gave guidance on what kinds of belief should be protected. The belief must be genuinely held; it must be a belief not a viewpoint or opinion; it must involve a weighty aspect of human life and behavior; it must achieve a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with other people’s fundamental rights. The EAT has looked recently at whether a belief that humans cannot change sex is a protected belief under the Equality Act 2010.

In Forstater v CGD Europe, the employee believed that a person’s sex is different to their gender or gender identity. Her belief was that it was impossible to change sex and trans women are not really women, even though it is possible to identify as another sex and change sex legally under the Gender Recognition Act 2004. The employee debated the issue on social media and made comments that some trans people found offensive. Her colleagues complained and her contract was not renewed. She brought a claim saying that the failure to renew her contract was discrimination based on her gender-critical beliefs which were protected under the Equality Act 2010. The employment tribunal said the employee’s belief was not protected. Although it met all other elements of the Grainger test, her belief was not worthy of respect in a democratic society.  She appealed to the EAT.

The EAT disagreed. They said her belief was protected. States should remain neutral between conflicting beliefs and ensure opposing groups tolerate each other. The EAT said the threshold is ‘very modest’ for a belief to be protected. Only beliefs that are an affront to ECHR principles, in a manner similar to pursuing totalitarianism, or advocating Nazism, or supporting violence or hatred in the gravest forms, would not be worthy of respect. Beliefs which are shocking or offensive can still be protected. The EAT said the employee’s gender-critical beliefs were widely shared in society and did not seek to destroy the rights of trans people. Her belief that sex cannot be changed also accorded with the common law, which would make a declaration that it wasn’t worthy of respect even more ‘jarring’. The tribunal had not remained neutral and had made a value judgement based on its own views when it should have stuck to the principle that everyone is entitled to believe what they want, subject to a few minimum requirements.

The EAT made it clear in this case that they were not expressing any views on the merits of either side of the transgender debate. The judgment doesn’t mean that people with gender-critical beliefs can call trans people by pronouns other than their chosen ones with impunity. It simply means that views on both sides of the debate must be respected and tolerated. This case shows that the vast majority of beliefs now deserve respect, if not enthusiastic acceptance.


Disability- Long Covid

The TUC has called for long Covid to be recognised as a disability and an occupational disease so that workers can access legal protection and compensation. Their survey of more than 3500 workers, all of whom said they had contracted Covid-19, found that nearly a third have experienced symptoms for more than a year and 95 per cent have been left with ongoing symptoms. More than three quarters of those surveyed were key workers in either education, health or social care. They reported a range of responses when disclosing symptoms to employers, including questions about the impact of Covid symptoms, queries about whether they had long Covid at all and 5% said they had been forced out of their jobs. The report asks the government to change the Equality Act 2010 to show that long Covid is deemed to be a disability (in the same way as cancer, for example).

This survey is unlikely to be representative of long Covid statistics in the wider population and so should be treated with caution. The TUC acknowledge that long Covid sufferers can already be protected if they are able to meet the normal test for disability - by showing that they 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. To be long-term, a condition must have lasted, or be likely to last,  at least 12 months. Some long Covid sufferers may well be able to meet this test, but others will not. There doesn’t need to be a change in the law in order for genuine long Covid sufferers to be protected.

In relation to occupational disease, while Covid remains endemic in society at large, it will be almost impossible to establish that someone has contracted Covid from a workplace rather than the pub, a football match or a friend’s house. This will be the case even for key workers at the coal face in health settings. Covid isn’t an industrial disease like asbestosis or industrial deafness where physical conditions can be linked directly to workplace-specific triggers. Covid is everywhere, endemic, in a way other causes of industrial disease are not.

That doesn’t mean employers can be flippant about Covid. Cases are increasing despite vaccinations and even though the links to hospitalisation and death are weakened, it is in everyone’s interests to limit transmission as much as possible. Employers should continue to undertake Covid-19 risk assessments and ensure their workplaces comply with the relevant government rules and guidance. Employers should treat long-Covid in the same way as they treat anyone else who is ill or absent. Always look out for conditions which have lasted or are likely to last for more than 12 months, Covid or otherwise, as those cases will require particularly careful handling. Read the TUC report here:

https://www.tuc.org.uk/sites/default/files/2021-06/Formatted%20version%20of%20Long%20Covid%20report%20-%20v1.3.pdf


Unfair dismissal – illegality

Parties to an employment contract where illegal activity has occurred may be prevented from bringing employment related claims. Where an employment contract has been entered into lawfully, but then illegally performed, the enforceability of the contract will depend on the parties’ knowledge of, and active participation in, the illegal conduct. The Court of Appeal has previously found that an employee who unknowingly worked in breach of immigration rules was not stopped from enforcing her contract (Akedina v Chilake). The Court of Appeal has looked at this issue again recently in Robinson v His Highness Sheikh Al Qasimi.

The employee was hired in 2007 to look after Al Qasimi’s UK properties in his absence and the family when they visited. She was paid £34,000 a year and told she was responsible for her own tax and national insurance contributions. She paid no tax at all between 2007 and 2014. A dispute arose in 2014, with the employee saying her pay was net and that Al Qasimi should pay her tax. From 2014, the employer deducted amounts equivalent to the self-employment rates from her pay. The tax dispute continued, and the employee was dismissed in 2017. She brought an unfair dismissal claim.

The employment tribunal said there was a potentially fair reason to dismiss – the tax dispute – but the dismissal was unfair because there was no final meeting before dismissal and no right to appeal. The contract had been performed illegally because the employee had not declared or paid tax so she could not bring an unfair dismissal claim. The EAT said the tribunal’s approach to illegality was wrong. They reasoned that the employee had knowingly performed the contract illegally between 2007 and 2014. However, she had then worked for three more years after that where tax was paid. That meant that she could bring her claim when she was dismissed at the end of that three-year period. The Court of Appeal agreed and clarified the illegality test in relation to employment contracts. The focus should be on whether the claim arises out of, or is so bound up in, the illegal conduct that the court couldn’t allow the employee to recover compensation without appearing to condone that conduct. Illegality will prevent an employee’s claim only if the employee knows about and actively participates in the illegal performance of the employment contract. A causal link between the illegal conduct and the claim will also be relevant, as will the seriousness of the illegality and its proximity to the legal claim. Bearing all that in mind, they agreed with the EAT that illegal conduct between 2007 and 2014 did not stop the employee from pursuing her rights in 2017.

We understand that the employer in this case has appealed to the Supreme Court so this case may not be over. However, the judgment shows that illegal conduct of an employment contract can affect an employee’s rights to bring a claim in relation to it. In this case, the illegal conduct had finished three years before the unfair dismissal claim, which meant the causal link between that conduct and the claim had been broken. There is an important lesson here for employers too. Even in cases where illegal conduct is clear, employers should always follow a fair procedure to minimise any litigation risk.


Holiday Pay

In June, the Supreme Court was due to give the final word on holiday pay and overtime in East of England Ambulance Trust v Flowers. Back in 2019, the Court of Appeal decided that voluntary overtime should be included in holiday pay. Although the Flowers employees had a contractual right to overtime, the Court said the situation was the same under the Working Time Directive. Voluntary overtime should be included in holiday pay calculations where the overtime is regular enough to be considered part of normal pay. The fact that the overtime is voluntary is irrelevant. If this weren’t the case, workers might be discouraged from taking annual leave which would undermine the purpose of the legislation. Other policy reasons were at play here too. If voluntary overtime were excluded, unscrupulous employers might set low basic hours, to be topped up with ‘voluntary’ overtime, in order to reduce holiday pay entitlements. The employer appealed.

The Supreme Court hearing was due to take place on 22 June 2021 but was vacated after communication from the parties involved. It is believed that the case may have settled on the basis of an NHS wide arrangement in England for holiday pay to include regularly worked overtime and additional standard hours. Existing claims will apparently be settled locally.

This outcome doesn’t necessarily mean that the Court of Appeal’s judgment is the final word on holiday pay and voluntary overtime. The Court of Appeal decision included discussions about a case from the Court of Justice of the European Union (Hein) which seems to contradict this position. There may yet be more litigation on this issue. However, in the meantime, employers should ensure that regular voluntary overtime is included in holiday pay calculations unless and until the next instalment in the holiday pay saga.


Covid-19 - Unfair dismissal

The employment tribunals have handed down more judgments this month in relation to Covid-19 related dismissals. In Accattatis v Fortuna Group, the employee worked for a company which sold PPE. In March and April 2020, he told his employer he was uncomfortable travelling on public transport and working in the office. He repeatedly asked to either work from home or be furloughed. The employer said the business was too busy for furlough and the job couldn’t be done at home. However, they said he could take holiday or unpaid leave. The employee refused, and when he continued making the same requests, he was dismissed.

The employee did not have enough continuous service to bring an ordinary unfair dismissal claim. He brought a claim for automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996, saying he was dismissed for taking appropriate steps to protect himself from serious and imminent danger. The tribunal said that the serious and imminent threat posed by the virus had been confirmed by the government in February 2020. Together with the employee’s emails expressing his fears about commuting and office work, he had demonstrated a reasonable belief that he was in serious or imminent danger. However, the employer had reasonably concluded that his job could not be done at home. He did not qualify for furlough because the business was so busy. The employer had offered alternative ways for him to stay at home. His refusal to take unpaid leave or holiday, and his demands for home working on full pay or furlough on 80 per cent pay, were not appropriate steps to protect himself from danger. His claim failed.

This judgment isn’t binding on other courts but it does emphasise that the pandemic and its associated dangers will not necessarily justify a refusal to work. However, employers must behave reasonably in all aspects of a dismissal. This means taking reasonable steps to accommodate and manage employees’ concerns and reduce the risk of transmission in the workplace. Taking such steps, as the employer did in this case, significantly reduces the risk of a successful unfair dismissal claim.

Another employment tribunal case this month has highlighted the importance of taking appropriate steps to make the workplace safe during the pandemic. In Gibson v Lothian Leisure, the employee worked as a pub chef. He had no prior issues at work. When the Covid-19 pandemic struck, and pubs closed, he was furloughed. His father was shielding due to various medical conditions. Towards the end of the first lockdown, the employer asked the employee to come in and help out ‘a bit’. The employee had already started raising concerns about catching Covid at work and bringing it home to his father. The employee said the employer was ‘very robustly negative’ in response, provided no PPE for staff and had no intention of creating a Covid  secure workplace. The employee said he was told to shut up and get on with it. The employee was dismissed summarily by text without notice, with the employer saying it was going to run the business with a smaller team.

The employee did not have two years’ continuous employment so brought claims for automatic unfair dismissal under section 43B of the Employment Rights Act 1996 (whistleblowing) and s100(1)(e) – that he was dismissed for taking appropriate steps to protect himself or others from serious and imminent danger. The whistleblowing claims were dismissed. His only concerns had been for his father and so he failed the ‘public interest’ requirement of the whistleblowing test. However, he won his claim under s100(1)(e). The tribunal found that the employee reasonably believed the Covid risk to his father was serious and imminent. Raising the issue of PPE was an appropriate step. The employee had previously been well-regarded and valued. The tribunal said he had been dismissed because he had taken steps to protect his father from serious and imminent danger. He had been automatically unfairly dismissed.

There are two big lessons from this case. Dismissing Covid-security is dangerous. So is not defending a tribunal claim – in this case the employer did not enter a response and did not attend the hearing. That resulted in the employee’s evidence being uncontested and therefore accepted by the tribunal. The employer must now pay 6 months’ loss of earnings together with unpaid holiday pay and pension contributions. What almost certainly started as a knee jerk reaction at a time of high stress turned into an expensive mistake. 


Employee Burn Out?

Are your employees reaching burn out point? Although some employees have loved working from home and the work-life balance that may come with it, the pandemic has taken its toll on others. Many employees are reeling with the pressure caused by home schooling, job insecurity and worries about health and the future. With almost 400,000 children off school isolating at the time of writing, the 18-month long juggle between work and home persists for many employees. Some are reaching breaking point.

Some businesses are recognising this and taking steps to address it. Bumble, the dating app business which has been busy during the pandemic, gave its 700 worldwide employees a paid week off in June having ‘correctly intuited’ collective burnout. The business told staff to take the week off to focus on themselves. Not all employers have the financial means to take such a bold step, but smaller businesses are showing that it’s the little things that count. The BBC has reported that a small UK IT business called the Emerald Group, which has 20 employees, is encouraging employees to talk about struggles and challenges. They concede they can’t make big gestures like Bumble but are open and honest with staff and try to ensure everyone is cared for. Sometimes that is all employees need.

Employers can take other small steps to protect their staff from burnout. Make sure managers check in with staff at home to spot stress issues early. Don’t cultivate a long-hours culture – working smart doesn’t mean not working hard, but productivity wanes if people are stressed or exhausted. Encourage lunchbreaks away from desks. Look out for individual triggers – such as a sick relative or an isolating child at home – and provide support and temporary work solutions to employees. Most importantly, take time to say thank you. Genuine appreciation for hard work and commitment is priceless.


Strike action

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) provides protection to employees taking part in trade union activities including industrial action. TULCRA provides an absolute ban on dismissing an employee for taking part in industrial action, but there is no ban on subjecting employees to a detriment short of dismissal on the same grounds. Section 146 TULCRA protects employees against detriment for taking part in ‘trade union activities’ but not industrial action. Article 11 of the European Convention on Human Rights (ECHR) guarantees the right of workers to join a trade union. UK law must be interpreted in a way which gives effect to the ECHR.

In Mercer v Alternative Future Group, the employee was a support worker and Unison trade union representative. She was involved in organising strike action in which she intended to take part. She was suspended and subsequently disciplined for abandoning her shift. She brought  a claim saying that the industrial action was a ‘trade union activity’ and she had suffered a detriment – the discipline – as a result. The employer said the discipline was unconnected to trade union activities and said taking part in strike action was not a protected activity under section 146.

The employment tribunal said that although strike action clearly was a trade union activity in ordinary language, section 146 did not cover strike action. Although they had to construe the law in line with article 11, the tribunal said that interpreting section 146 to include strike action would go against the grain of the legislation. The EAT disagreed. The lack of protection against detriment for taking part in industrial action was a breach of article 11. That interference with article 11 served no objective and was not justified. The fact that employees were protected against dismissal for striking but not detriment was a legislative anomaly. It didn’t matter that it was a private rather than public sector employer. Trade union activities under section 146 should now be read as including participation in industrial action, including during working hours.

The EAT has made it clear in this case that employees are protected against retaliatory detriment as well as dismissal if they take part in industrial action. Employers must take extra care when dealing with striking employees and ensure they do not fall foul of the redefined law.

Spotlight Series- Tim Durance

What does a typical day as a Commercial Manager at LexLeyton look like for you?

My work day usually kicks off with a short team meeting. It’s become a highlight for me to have a laugh and get the brain into gear first thing. My other highlight is Lunch, particularly when I get my hands on a Garbanzo’s falafel bowl. My work is pretty varied, I manage a very small commercial team at LexLeyton but do a lot of work engaging sales teams and other stakeholders across the wider group too. I plan and manage our sales strategy and I’m heavily involved in the sales process, meeting new businesses and in many cases, on-boarding them to their new legal team.

What is your favourite part about working at LexLeyton?

I think everyone must say this but it’s the team. There’s always a great atmosphere and I feel lucky to work with such amazing people who have so much knowledge and experience. I was attracted to how much potential LexLeyton has too, I genuinely have real pride in the work we do and I’m excited to see where we can take it.

What are the biggest challenges you face in your job?

One challenge is we’re a young, boutique firm in an industry where name, size and reputation counts for so much. Another is that HR and Employment Law are so often seen as insurance policy; something you use when a problem arises. We need to change the perception and demonstrate the impact our services can have on growth, sustainability and profitability.   

What is your proudest moment at LexLeyton?

I started at LexLeyton in March 2020. Almost immediately, some of our biggest markets shut down completely and many of our prospects implemented spending freezes. Despite that, we’ve managed 21% revenue growth this year which I’m really proud of and we found out today we’ve increased our LinkedIn reach by 600% which was an important KPI for us this year.  


What do you like to do in your free time?

4 weeks ago I’d tell you how much I like cycling Europe’s best mountains,  running on coastal trails, getting in the van with my wife and looking for adventure. Now I’m a Dad so my thrills come from watching my daughter sleeping peacefully, a record breaking nappy change or getting through a film on the third or fourth attempt!     

What is your guilty pleasure?

Sweets, I can’t see myself ever growing out of eating sweets.

What or who inspires you?

Probably a cop out but whatever they’re doing, could be an athlete, a business leader, a doctor, or a tradesperson I’m always really inspired by people who are just good at what they do. People who take pride in what they do, are passionate, work hard and make it look fun.

What is one thing you can’t live without?

My family will probably never read this so I can safely say it’s my bike.  

What is your favourite quote?

I’m not big on quotes. I’m definitely inspired more by what people do than what they say. I guess that would make my favourite quote ‘actions speak louder than words’.

What is your biggest fear?

Public speaking or too much attention. I’ve done a fair bit of public speaking but it never gets any easier.

What is something that not many people know about you?

I can’t keep secrets and I ruin surprises. Don’t tell me anything!!!   

Mind the gap – reporting on ethnicity and disability pay gaps

Since 2017, all employers with 250 employees or more have been required to carry out gender pay gap reporting. The gender pay gap is the difference between the average earnings of men and women across a workforce. Private sector employers have to report annually on 4 April, while public sector employers report annually on 30 March.

Gender pay gap reporting has the aim of promoting more transparent and gender-balanced pay practices. As gender pay gap reports are public, it’s possible to browse them and compare data between employers.

Greater transparency can lead to greater accountability. Publishing pay gap data does not automatically eradicate pay disparity, but it can stimulate internal discussion about the makeup of an organisation’s workforce. This can help employers devise an action plan to reduce the gap. Gender pay gap reporting appears to have raised the level of women being recruited and promoted into senior roles.

Given the benefits realised from gender pay reporting, it’s been recommended that pay gap reporting should be extended to other under-represented groups in the workplace. In particular, reporting on ethnicity and disability pay gaps have long been suggested.

In January 2019 the Government completed its consultation on ethnicity pay gap reporting. However, to date the Government has not yet moved forward with plans to make ethnicity pay gap reporting mandatory. Despite this, some organisations voluntarily produce their own ethnicity pay gap reports.

One issue that has long dogged ethnicity pay gap reporting is how ethnicity is to be defined. The commonly used term “BAME” (Black, Asian and Minority Ethnic) is the term most often used in ethnicity pay gap reports. However, census reporting uses a wider selection of ethnic categories. There are also issues of confidentiality and data protection.  For some employers too much detail could lead to identification of the employees involved.

Despite the challenges, ethnicity pay gap reporting can bring real benefits to an organisation. As Sandra Kerr of Business in the Community notes: “Ethnicity pay gap reporting is an important tool that employers can use to ensure they are being fair in pay, reward and recognition. It can also help an organisation identify where there may be structural issues on how talent from diverse ethnic backgrounds is distributed within the organisation. De-aggregating the data gives an additional layer of transparency on where there may be pay disparities within ethnic groups and by location. Most importantly, it ensures the issues of race, ethnicity and inclusion remain pertinent issues for discussion at the top table within organisations.”*

Similar benefits can be realised where organisations carry out disability pay gap reporting. More than 11 million people in the UK have a disability, and 16% to 19% of those are of working age. According to research by the TUC, disabled women face the most significant pay gaps of all. This highlights the importance of employers taking an intersectional approach when tacking pay gap reports and action plans.

Instead of waiting for mandatory ethnicity and disability pay gap reporting to be introduced, employers can take steps to identify and address any gaps they have now. Recommended steps for employers to follow are:

  1. Collect and publish ethnicity and disability pay gap data in a similar manner to gender pay gap reporting.
  2. Use this information to create action plans that address the underlying causes of pay gaps.
  3. Set targets for reducing pay gaps.
  4. Measure and report progress against those targets annually.

LexLeyton can assist employers with advice and training on diversity and inclusion in the workplace. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

*A Guide for General Counsels - Ethnicity Pay Gap Reporting; Business in the Community (BITC); published 14 April 2021. Available at: <https://www.bitc.org.uk/report/a-guide-for-general-counsels-ethnicity-pay-gap-reporting/>.

Summer Season 2021 – tips to reduce employer headaches

As I write this , the government has announced that Portugal is being removed from the ‘green’ list of countries where there is no requirement to quarantine upon return. Knowing  your employees holiday intentions and the destinations they have chosen used to be a by –product of ‘water-cooler’ moments with your people. Quarantine was a word used solely in respect of far flung relocations like Australia and the heartache of placing a beloved dog in kennels for the mandatory period : now its front and centre in the minds of HR teams and employment lawyers as we all grapple with what the summer holiday season 2021 means for us all.

Even with the most cursory of glances, it is clear that summer 2021 has the capacity to cause potential strife and chaos across UK workplaces. The government’s traffic light system of ‘red’ ‘amber and ‘green’ applicable to foreign destinations sets out the guidance, testing and quarantine regime for each country. Currently, only those returning from the limited list of ‘green’ countries are not required to quarantine upon their return to the UK.

Having just spent a much needed week in Northumberland on holiday, I can testify to the benefits of having a break from the workplace. And whilst I have no desire for foreign travel during a global pandemic (my passport is remaining tucked away in a safe place for the foreseeable future) I do know that for some people, a foreign holiday with guaranteed sun is at the top of their wish list as we move out of Covid-19 restrictions. 

Holiday Planning and Policies

The pandemic has changed many things and its tentacles are reaching into employers holiday policies. You can’t tell your employees where they can go on holiday to, but it is really important that you get a handle on how you are going to deal with holiday request this summer and for once, knowing where your people are planning to holiday is going to be fundamental.

This summer you need to find out your employees holiday intentions to understand what this means for you as a business and to ensure you have a policy to help you remain ahead of events and avoid strife and miscommunication in your workplace.

There are many things to think about : from how will you deal with mandatory quarantine upon an employee’s return to the UK after holidaying abroad, to ensuring that you treat those who can work from home and those who can’t work from home fairly when it comes to quarantine periods.

If your average employee takes a two week break abroad, if that holiday will now require a mandatory period of home or government hotel-based quarantine, that means they will potentially be away from the workplace for an additional period of up ten days.

Can you deal with the risk of extended absences in terms of cover and resourcing – especially over the summer school holidays? What if the individual can’t work remotely? Will you insist they take this period as additional leave or as unpaid absence? What other impacts may your business face?

During spring 2020 at the start of the Covid -19 pandemic, employees could be forgiven for finding themselves stuck abroad as government advice was in a state of flux and changed whilst they were away. Summer 2021 in my opinion is a different kettle of fish entirely, with all parties being fully aware of what they have to do upon their return.  We all know that there is a risk that a ‘green’ destination country could change whilst people are away, so knowing how you will deal with an unexpected quarantine period impacting an employee will be crucial – for your business and for your employee.

Remote Working

We know that some employers have had to deal with the consequences of their people being stuck abroad after travel corridors closed unexpectedly, or that their employees are actively thinking about working remotely from abroad: these scenarios call for a policy on ‘Remote Working Abroad’. It’s also worth considering that some employees are desperate to travel abroad to see much missed family or as a result of a family bereavement : 2020 saw too many families separated from one another. How an employer deals with their people at times of personal crisis is so important, and your business should be prepared to flex your policy in such circumstance.

Annual Leave Entitlements

With the relaxing of the rules on the carryover of annual leave, many employees have built up considerable balances of leave. Some employees feel they don’t want to take leave if they can’t travel abroad. Some will assume their leave is automatically cancelled if they can no longer holiday abroad. It is worth remembering that the right to statutory annual leave is derived from  the Working Time Directive with the emphasis being on rest and relaxation away from the workplace. Making it clear that you expect employees to take a proportion of annual leave by a certain date is good practice in the circumstances and will go towards preventing burn out. We have all been affected to some degree by the pandemic and a recharge of our batteries and time with family and friends is crucial to our wellbeing. 

Many companies generated enormous amounts of goodwill over the pandemic as everyone pulled together and went to different ways of working almost overnight. Summer 2021 has many pitfalls and traps awaiting those employers who fail to plan and consider how they will deal with holidays this summer- getting it wrong will squander goodwill and foster unrest.

And Let’s Not Forget!

Finally, don’t forget the ‘normal’ events which can impact summer plans, resourcing and goodwill  : the European Football Championship starts on 11 June 2021 and end on 11 July with England, Wales and Scotland taking part and the Tokyo Olympics are set to go ahead from 23 July to 8 August. With an 8 hour time difference between the UK and Tokyo, sports fans will have to be awake during the middle of the night and the early morning to watch live action!

Lexleyton can help you to work through how to manage employees holiday plans for summer 2021 and ensure you have the right policies in place for your business to ensure you are prepared for, and can proactively address the impacts. For a free consultation with one of our expert employment law team reach out to us at legal@lexleyton.co.uk

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.

Drinking and substance abuse – is your business on top of this risk?

As we move out of lockdown and return to a sense of normality, many employers are now looking to introduce hybrid working in response to both employee demand and their experience around what jobs are able to be carried out as successfully at home as they can be in the office. 

Some employers are also  faced with a dilemma around balancing their need or desire for their people to return to the workplace and the impacts that  –  an insistence on full-time office hours could have on employees who could become disenchanted through a reluctance to embrace a more flexible working strategy and end up looking further afield for a greater sense of autonomy and better work-life balance.

But whatever your business strategy ends up being, aside from impacts on productivity, culture and the wide range of internal and customer facing issues to be considered, there are some very important employee wellbeing aspect that are important to really think through.

‘90% of people who were working from home in the last year admitted to drinking while working’. This shocking statistic published by Personnel Today following Protecting’s survey of 1,300 homeworkers will undoubtedly make for some grim reading for employers who, given the events of the last year or so, have been forced into allowing a more agile form of working with the Government’s guidance for many months having been to ‘work from home where possible.’

Whilst it is certainly not always possible to identify someone who has been drinking because the signs are not necessarily obvious, spotting someone who is under the influence of drugs or alcohol in the workplace is likely to be easier than when they are working remotely.   Obvious indicators may include erratic behavior, careless mistakes or, particularly in the case of alcohol or cannabis use, smell of the substance in question.  While not all people who behave in an erratic way or make careless mistakes are under the influence (we, of course, need to be mindful of other reasons that these things may occur) this can be a fairly good indicator.

While we cannot necessarily sense when someone is acting erratically over Microsoft Teams or over the phone there are a few tell-tale signs which we can look out for such as persistent lateness to scheduled meetings (particularly first thing if these are penciled in for first thing in the morning);

  • Careless mistakes (especially if the employee was not prone to errors before);
  • Unexplained reductions in the volume of work an employee is producing;
  • Absenteeism (including any peculiar absence patterns); and
  • Changes in usual behaviour.

So the question  becomes how do we balance giving our people flexibility and autonomy where it seems at least from the recent research, that many are at risk of abusing the fact that they have been working from home without being under the watchful eye of management?  It cannot be understated how difficult this balance can be because equally, employers have to be able to demonstrate a level of trust in their employees (bearing in mind that a breach of mutual trust and confidence can lead to constructive dismissal claims for those with over two years’ service).

As a first practical step, it is important to have in place a clear policy when it comes to home working that should  make clear the potential consequences of consuming alcohol during working hours.  In certain circumstances it might also be important to consider  considering introducing a policy around testing for alcohol/ drug use at home although this is a particularly tricky area. 

While testing can be built into an alcohol and drugs policy, often, an employee’s consent is required to undertake such a test.  While employers can, to some extent, rely on the concept that if an employee refuses a test then this in itself constitutes a form of misconduct, this will not always give rise to a safe dismissal. 

In Chivas Brothers Limited v Christiansen, a Tribunal found that an employee who was dismissed after refusing to take a drugs test had been discriminated against on the grounds of his mental impairment.  Similarly, in Ball v First Essex Buses Limited, the employer had a random drugs testing policy and Mr Ball’s test returned a positive result for cocaine.  Mr Ball protested his innocence stating that there were a number of ways the cocaine could have presented itself (he often handled cash, which could have been contaminated and often licked his fingers after checking his blood sugar, as he was diabetic).  Mr Ball took two drug tests on his own which were negative and provided these results to the employer – despite these, the employer relied on their own test and dismissed him.  The Tribunal held that Mr Ball had been unfairly dismissed.

The second case in particular brings us on to an important and difficult point.  Where drug tests are being carried out by employees at home (particularly if these are targeted at people  suspected of abusing substances) there may be a level of scepticism (for example, have they asked someone to take the test for them).  Even where this is suspected, making such an accusation may give rise to a claim that the relationship of trust and confidence between employer and employee has been broken and give the employee cause to raise a constructive dismissal claim.

Unfortunately, given the intrusive nature of drug and alcohol testing it is generally only advisable to conduct such testing when it is absolutely necessary, for example, if there are health and safety obligations tied to the role an employee is performing.

Looking at all of the above, one thing that is clear is that this can be a very difficult area to manage.  Where an employee’s performance or behaviour is affected by alcohol or drugs an employer will need to ensure that it has robust policies in place for dealing with these types of situations.  Where the employee is not based in the office, this is where it becomes much more difficult.  Of course, performance and behavioral issues themselves can be dealt with under a clear  disciplinary/ performance management procedure – however, these are very limited circumstances where conducting drug/ alcohol tests will be appropriate.  In light of these difficulties, many employers take a supportive approach – particularly in cases where there may be drug or alcohol addiction. 

Taking all of the above into account there are a few key points to take away. 

  1. Employers should ensure that they have a clear and robust alcohol and drugs policy in place;
  2. where testing is appropriate employers should ensure that they act with a degree of caution in terms of refusals (and in some cases, even positive results);
  3.  when it comes to home-working employers need to be able to spot the signs of substance misuse and where they occur, know the best way to approach this. For example, building in testing to days when hybrid workers will be in the office can be  far more effective that home testing.

Ultimately, the last year or so has been a difficult one for most of us and given the pandemic’s toll on the mental health of the nation, escapism through substance misuse may be what we are seeing, as opposed to employees abusing their ability to work from home.  Therefore, while we can deal with conduct and performance issues, if there is suspected substance abuse approaching the challenge from a place of support will likely yield greater results in most cases.

For a free consultation around any of the issues raised by this article, or for support any aspect of employment law don’t hesitate to reach out to our team at legal@lexleyton.co.uk