Employment Law Update March 2023
Below is a detailed list of everything covered on the seminar video above.
Fire and Rehire — Code of Practice on Dismissal and Re-engagement
Currently employers are not allowed to change their employees’ contractual hours, pay or other benefits without the employee consenting to the change in the contract. It is highly unlikely that an employee will voluntarily agree to reductions or to terms that do not benefit the employees.
However, employers may have business needs that require a restructure and/or costs savings. Employers can follow a fair redundancy procedure in respect of jobs which will result in the dismissal of some employees.
Another alternative is for employers to consider reducing the benefits/hours/salaries of all employees, thus making the necessary savings and allowing the business to be viable but without making redundancies.
The tactic used by employers is to dismiss the employees but then offer them immediate reengagement on the reduced hours/benefits/salaries but with their continuous service intact. This is known as ‘fire and rehire’. The employees have a claim for unfair dismissal but a failure to accept the re engagement may well be a failure to mitigate their loss, making an unfair dismissal claim too low value to action.
This is not illegal but since the P&O dismissals the government has confirmed that they intend to issue a Statutory Code of Practice governing how this should be done. This Code is currently being consulted upon and the consultation closes in April 2023. There is no timescale yet for its implementation.
This proposal requires the employer to:
- a) Explore all alternatives before dismissal;
- b) Engage in meaningful consultation with the union, employee representatives or the
affected employees directly;
- c) Not use dismissal as a negotiating tactic;
- d) Reconsider their business strategy and plans before imposing such a change with these negative effects on the employees. (They do not go so far as to say the employer must have no other financial choice but there should be some pressing need for the changes);
- e) Only contemplate dismissal and engagement as a last resort and, where unavoidable,
as much notice of the dismissal as possible should be given.
If the employer fails to follow this guidance, then the employee is entitled to a 25% uplift in their damages.
This proposal sets out what is already recommended to employers to do, before considering ‘fire and rehire’ so as to avoid relying on the limited value of the claim but try to ensure the dismissal is fair in any case for ‘some other substantial reason’.
If a Code is implemented then the above is not just recommended but essential in order to ensure avoiding the need for the dismissal or making the dismissal fair if required as well as mitigating the damages that could be claimed and ensuring the damages cannot be enhanced by the 25%.
Menopause in the Workplace- Government Response
The Governments response to the Women and Equalities Committees Report comes only 7 months after the report was published, which in Westminster terms is swift!
The Committee’s report proposed twelve recommendations and the Governments response confirms whether it accepts or rejects those recommendations. Amongst the recommendations relevant to the workplace were calls for the Government to:
- Appoint a menopause ambassador to champion good practices.
- Produce model menopause policies.
- Trial specific menopause leave with a large public sector employer.
- Bring forward legislation to make flexible working a day one right and issue employers
with guidance encouraging them to grant reasonable requests.
- Implement legislation introducing sex and age as a dual protected characteristic to
protect women going through menopause.
- Consult on making menopause a protected characteristic, including a duty to provide
reasonable adjustments for menopausal employees.
The Government has rejected a number of these recommendations; the trial of menopause leave, consultation on making menopause a protected characteristic; the implementation of legislation introducing age and sex as a dual protected characteristic and model menopause policies.
However, the Government is to, and recently has, appointed a Menopause Employment Champion, whose role will be to drive forward work with employers on menopause workplace related issues and the Government has accepted the recommendation to make the right to make a flexible working request a day one right.
What does this mean for you
The impact of the report on employers (and menopausal women in the workplace) will be limited. However, whilst at present calls for the menopause to become a protected characteristic have been rejected it is still worth remembering that should a women suffer severely with menopause symptoms, she could satisfy the definition of being a disabled employee which is a protected characteristic. Issues arising from menopause related issues could also potentially be dealt with in the scope of sex or age discrimination.
Additionally, many employers are already well ahead of the Government by introducing menopause policies and by having menopause committees/ champions of their own.
Statistics show that there has been an increase in menopause related grievances and claims and therefore a pro active approach will enable employers to know what to look out for and deal with issues informally prior to getting to the grievance or even claim stage.
Increased awareness of menopause and conversations regarding the same are important and are breaking the taboo that once saw menopause be an ‘unmentionable’ topic of conversation. Being menopause aware in the workplace is likely to mean that complaints and requests are dealt with swiftly and sensitively resulting in less claims and a content workforce.
Flexible Working — Legal changes
Currently an employee with at least 26 week’s continuous service with their employer can make a request for flexible working for any reason or purpose. An employee is limited to making one request per year. An employer has a number of valid reasons to be able to reject the request but must go through a proper consultation procedure and reasonably consider the change providing a response within 3 months.
The Government have been consulting on the right to flexible working and published their consultation outcome in December 2022. They are proposing the following legislative changes (yet to be enacted)
- a) That the right to request flexible working is from day 1 of employment. There is no
need to wait 26 weeks.
- b) Permit the employee to make two requests a year instead of limited to one.
- c) Require the time for a response from an employer to be limited to 2 months.
The government has confirmed that the reasons for rejecting the request will not change. For reference these reasons are:
- a) Burden of additional costs
- b) Detrimental effect on ability to meet customer demand
- c) Inability to reorganise work among existing staff
- d) Inability to recruit additional staff
- e) Detrimental impact on quality
- f) Detrimental impact on performance
- g) Insufficiency of work during the proposed periods of working
- h) Planned structural changes
The proposed legislation has had its third reading in the House of Commons so it is expected to become legislation later this year. The legislation itself does not contain the day 1 right — this is expected to be introduced in secondary legislation so it is not clear yet exactly when each right will take effect.
Four day weeks
We are also keeping an eye on the recent six month trial introducing a four day week with no loss of pay that took place between June and December 2022. Whilst any company is free to introduce this, consideration is still being given to whether legislation is required to give effect to this as a right rather than an option, similar to France, Portugal, Japan and Korea.
We will keep you posted on developments.
CASE REPORT- Reopening a Disciplinary Process and dismissing
Lyfar-Cisse v Brighton and Sussex University Hospitals NHS Trust
Dr Lyfar-Cisse was employed by Brighton and Sussex University Hospitals NHS Trust as Associate Director of Transformation, with her employment commencing in 1985 in a junior role.
The main purpose of Dr Lyfar-Cisse’s role was to further racial equality across the Trust, which appears somewhat ironic in light of her conduct towards her colleagues.
Dr Lyfar-Cisse was seen to tell one of her managers that he was ‘everything she despised in a white manager’. She had also bullied and victimised another colleague because of her sexuality and began to interfere in the investigation of her sexual orientation discrimination complaint. Dr Lyfar-Cisse was given a final written warning and continued in her role.
Meanwhile, the Care Quality Commission (CQC) inspected the Respondent and found that bullying was ‘rife’. It was put into special measures, and another NHS Trust was instructed to take over the management. It was questioned, applying guidelines under a Statutory Instrument, whether Dr Lyfar- Cisse was a fit and proper person to provide leadership on issues of equality. By this time, the Respondent had appointed a new CEO, who held a new disciplinary hearing. Dr Lyfar-Cisse continually denied wrong-doing, but was dismissed on grounds that her conduct had ‘fatally undermined’ her ability to perform her leadership role.
The first level Employment Tribunal supported the Trust, and rejected the claim of unfair dismissal.
Dr Lyfar-Cisse then took her claim to the Employment Appeal Tribunal, partly on the argument that previous disciplinary proceedings against her should not have been re-opened. The EAT held that an earlier disciplinary outcome is just one of several circumstances to be considered when determining whether a dismissal was fair. The EAT noted it would be unusual to reopen disciplinary proceedings, but there had been no legal error. The EAT went on to say the Tribunal had given clear reasons as too why the dismissal had been fair, including the evidence
from the CQC, Dr Lyfar-Cisse continually denying her wrongdoing and the new CEO concluding
that it was not credible for Dr Lyfar-Cisse to lead on the issue of race given her conduct.
What this means for you
This is an unusual set of circumstances, and it will be highly unlikely that an employer will ever have cause to reopen a disciplinary. It can happen, and this case has echoes of cases that we have previously looked at in the past, such as the social workers in the famous case of Baby
- It is a useful reminder that previous disciplinaries, like expired disciplinary warnings perhaps, are just factors to be considered when addressing the general question of reasonableness.
Retained EU Law (Revocation and Reform) Bill 2022/2023
Just as we were doing our Seminars last September, in fact after we had done the first but before we had got to the second, the Government introduced a Bill which gave effect to what had been a longstanding threat to have a “bonfire of EU red tape”. This was introduced by the then new business secretary Jacob Rees-Mogg.
To understand what is going on here it is helpful to remind ourselves how our membership of the EU had in technical terms changed United Kingdom domestic law. It was not simply that Europe has laws and when we were a member, we were bound by them. Each aspect of EU law was separately implemented by the UK passing its own (broadly) identical legislation.
For example, the original EU Working Time Directive from Europe was introduced as the Working Time Regulations. Once we left the EU, we ceased to be under an obligation to implement any further Directives, but previous legislation did not simply fall away after Brexit because the Working Time Regulations was our own domestic legislation passed by Parliament. There are thousands of examples of legislation of this type but from an employment law perspective we inevitably look at issues such as working time (including as it does pay, leave, working hours, limits etc), TUPE, the agency workers rules etc. It should of course be mentioned that employment legislation is only a small part of this, and many other areas will be affected such as in respect of environmental protection, consumer protection, pensions, intellectual property and others. The Government has been trying to get an understanding of how many pieces of legislation this effects but it possibly runs to 5000. No one is entirely sure. The Government introduced a dashboard of retained EU law at the time but by early November the Financial Times was reporting that the National Archives had found 1400 pieces of legislation which were not mentioned.
This Bill suggests that they all ‘sunset’ on New Year’s Eve unless they are reinstated or replaced with something similar. Otherwise, they just cease to be law. The Government has the option to postpone the 31st December 2023 date until 23rd June 2026 which they may do (the next General Election is 24th January 2025 at the latest). As matters stand the effect of this move is that all of this legislation will simply drop of the statute books New Year’s Eve 2023.
Sexual Harassment — The duty to prevent
Currently the law prohibits sexual harassment which is defined as
- A engages in unwanted conduct of a sexual nature
- The conduct has the purpose or effect of either violating B’s dignity or creating an
intimidating, hostile, degrading, humiliating or offensive environment for B.
(In employment law A and B are both employees or engaged by the employer)
Claims for sexual harassment can be made against the employer and the perpetrator A, simultaneously.
Employers are liable for acts done by their employees during the course of employment so can be directly liable for the acts of A, provided A is an employee and the acts are connected to employment. Employers are not liable for criminal offences committed by A.
Employers can defend claims in their own names by showing that they have taken all reasonable steps to prevent A from behaving in the way A did. Employers are therefore expected to, as a minimum
- a) Have an anti harassment policy which is effectively implemented and communicated.
- b) Have an appropriate reporting procedure
- c) Ensuring regular training
- d) Ensure complaints are dealt with promptly and effectively
- e) Take disciplinary action where appropriate
The proposed reform will do the following:
- a) Set out that prevention of sexual harassment is a mandatory duty rather than just a
reasonable defence. All employers must take all reasonable steps to prevent sexual harassment.
- b) Increase any compensation awarded to B by up to 25% where the employer has not
complied with the mandatory duty.
- c) Extend the employers’ liability where A is a third party (such as a supplier or customer) and the harassment is in the course of employment. The employer can still have a reasonable steps defence.
This bill is currently in the House of Lords and is at the 2nd reading stage.
CASE REPORT — Tweets of an Offensive Nature
Paul Weller v First MTR Southwestern Trains Limited
Mr Weller commenced his employment with Southwestern Trains (SWT) in June 2008. Between 2018 and 2020 he posted “offensive, insulting, discriminatory and derogatory” comments publicly on his personal Twitter account and he was dismissed after disciplinary proceedings. Following a claim the tribunal held that he was unfairly dismissed.
The tweets focused on Brexit and immigration, Mr Weller’s Twitter account was public to all other Twitter users but he did not specify who he worked for on his profile. The vast majority of the offensive comments were what he had re-tweeted from third party posts. Examples of the tweets/ re-tweets were as follows (we have used asterisks — Weller didn’t):
- November 2019 “I want my country back, I don’t want anymore immigrants, I don’t want any
more diversity or multiculturalism I’ve had enough of it! don’t want the ideology of Islam I don’t want halal slaughter, I don’t want Burgas everywhere I want to hear the English language.”
- December 2019 he re-tweeted an anti-Islamic cartoon with the statement “keep them out.”
- In April 2020 he tweeted “China whoops, sorry those ch**ki c”** released this virus to kill the
western world yes no?”
In June 2020 SWT received an anonymous letter purporting to be from a SWT user that contained screenshots that highlighted ‘disturbing’ views from their front-line staff. The letter contained threats to contact the media, police, MPs and the transport secretary.
Mr Weller was held to have been unfairly dismissed because it came to light that it could not be proven that Mr Weller had seen, read and understood the social media policy. In 2018 Mr Weller was provided with a company tablet which contained various HR related policies. He had signed to confirm that he had read several policies but not the bullying, harassment or social media policies. It was these policies that specified that abusive or derogatory comments were prohibited.
The Judge concluded that Mr Weller was unfairly dismissed because SWT did not have reasonable grounds to conclude that he had been given notice or had been briefed on these relevant policies. However, the Judge reduced both his basic and compensatory awards by
100% on the basis that his behaviour was ‘blameworthy’ and likely to damage working relationships in a multicultural organisation.
What this means for you
This case serves as a reminder that there is no substitute for evidencing the fact that employees have received and have been trained on appropriate policies. Given that a disciplinary procedure did take place, the social media policy should have formed part of the evidence and this could have been addressed at an earlier stage.
CASE REPORT— Holiday Pay
Harpur Trust v Braze! — BEIS Consultation
In our last seminar we updated you about the Supreme Court case of Harpur Trust v Brazel which resulted in an unusual decision giving 5.6 weeks’ holiday to all employees/workers including those who did not or do not work the full year but remain an employee/worker during the rest of the time.
We set out below a recap of that case with some examples, but as a result of the decision, the government have launched a consultation to make holiday entitlement proportionate to hours worked.
Holiday entitlement is the amount of days/weeks holiday that a worker is entitled to per year. Holiday pay is the rate that the employee is entitled to be paid when they take holiday which is based on an average of the last 52 weeks worked, discounting weeks where no remuneration was received. The case below is about holiday entitlement.
The consultation ended on 9thMarch 2023 and we are awaiting publication of that consultation.
Recap of case
The minimum holiday entitlement that a worker must have is 5.6 weeks.
The Supreme Court stated that the method of working out holiday entitlement for those on irregular hours on the basis that for every hour worked, 12.07% of an hour has been accrued as holiday entitlement, is unlawful and should not be used.
The Supreme Court said that a worker on irregular hours (in this case it was a term time contract but can also apply to a zero hour contract) must also get 5.6 weeks holiday entitlement regardless of how many weeks a year they actually worked. So the worker will potentially get a much larger entitlement under this method than they would under the
In addition for the purpose of what the worker is paid for that holiday, it is based on the weeks
where they have income. All the weeks where they don’t have income are disregarded. This is the case for all employees but for the purposes of Brazel it can also mean that that the holiday pay received is high in proportion to their actual income.
So an extreme example of how that case could be applied is as follows:
In 2022, A is employed as an exam invigilator. A works 6 weeks in a holiday year invigilating exams at a rate of £10.00 per hour and works 35 hours a week for those 6 weeks. The rest of the year A does no work but remains under contract in readiness for when they are next required. A therefore in a full holiday year works 6 x 35 hours = 210 hours. A is paid £2,100 in wages during the full holiday year.
Before Braze!, A would receive 6 x 35 x 12.07% hours holiday entitlement i.e. 25.35 hours leave in that holiday year. At £10.00 per hour, A would receive £253.50 in total for holiday pay.
Under Braze!, A is entitled to 5.6 weeks’ annual leave in that holiday year. It doesn’t matter that A has only worked 6 weeks in that year. A must receive 5.6 weeks’ annual leave. A must be paid those 5.6 weeks’ based on the average of A’s last 52 weeks, weekly pay. However, for the purpose of calculating those 52 weeks, all weeks where no remuneration is received must be discounted. So in A’s case, only the 6 weeks he worked counts towards the calculation of holiday pay and A was paid £350 per week as his average. £350 x 5.6 weeks means A should now receive £1,960 for holiday pay and be able to take 5.6 weeks’ holiday.
It is because of this example having such extreme consequences for holiday entitlement that this is being consulted upon.
What this means for you
This affects you if you have or are a worker that does not work every week in the full holiday year, regardless of whether you are part time or full time. Regardless of how many weeks, your worker does not work, they will always be entitled to 5.6 weeks leave until new legislation is passed.
Two ways of mitigating this are as follows:
- a) Do not keep workers under contract for long periods of time where there is no work. Ensure you terminate the contract and then rehire when there is work to be done. This is because accrued leave crystalises on termination and does not continue to accrue. In the case of A above, had A been terminated after the 6 weeks, rather than kept under contract, A would have only been under contract for 6 weeks in the holiday year and so would only have accrued 0.65 of a week’s annual leave. 0.65 x £350 would have meant that on termination, immediately at the end of the 6 weeks, A would have only received £227.50 for accrued but untaken holiday pay, not dissimilar to what they would have received under the 12.07% rule.
- b) If you need the worker more regularly and do not want to dismiss and rehire between
each periods of work, then you can keep the worker under contract but you should try and ensure that they do some work every week to enable that week to be taken into account in respect of working out holiday pay. So again, in the case of A above, had A worked the same 35 hours in the 6 weeks (receiving £350 per week) but in the other 46 weeks had worked 2 hours each week (receiving £20 per week, £920 in total), all of those 46 weeks would be taken into account in calculating the average rate of pay along with the initial 6 weeks. So A would have their 5.6 weeks leave but their average pay would be £58 per week and their holiday pay across 5.6 weeks would have been £58 x 5.6 = £324.80. You can see from the example that it is actually cheaper to pay A to work 2 hours a week for 46 weeks at £920 and holiday pay of £324.80 than it is to only have them work 6 weeks and pay them £1,960 for holiday pay!
We do appreciate this is a complicated area and are happy to discuss further if needed.
CASE REPORT — Employment Status
Richards v Waterfield Homes
This is a case which relates to what we call status. In employment law terms an individual can either be employed, a worker or self-employed. Someone who is self-employed has no employment protection rights at all. Someone who is employed has all of them. Someone who falls into that intermediate category of worker has some, but not all, of the rights that an employee has most importantly the right to paid leave, right to the National Minimum Wage and protection under discrimination and whistleblowing legislation. For lots of reasons therefore Tribunals have to often have to decide what status someone has. Many status cases have a background of the employer, if not the employee, wishing to maintain the impression that the individual was self-employed when perhaps they were not. They do so because it means that staff do not then get paid leave, SSP etc. This is the background to high profile cases such as involving Uber.
Sometimes, as in this case, both parties were happy at the outset to say it was a self-employment based relationship. It was agreed that Richard would work under the Construction Industry CIS Scheme which is for self-employed contractors. However, ultimately that did not matter.
It is a common complaint from clients faced with claims from individuals that the person in question was perfectly happy to work on a self-employed basis at the outset. They are disappointed to find that it probably does not matter because, as you will have heard us say when dealing with status cases in these seminars over many years, what Tribunals look at is the nature of the actual working relationship and factors such as control and the requirement for personal service.
Richards was initially declared self-employed by the first level Tribunal based upon the intention of the parties at the outset. The Employment Appeal Tribunal however disagreed and said that the intention of the parties was not a determining factor.
What this means for you
If your company engages with people who are supposedly self-employed then it is worth occasionally thinking about whether they genuinely are. Always remember that it is the actual working relationship that matters, and you might compare and contrast with other similar colleagues who are actually on your books as employees.
In this case the involvement with the CIS Scheme was thought by the company to be definitive, but it was not. Nor is the fact that somebody has been paying tax on a self-employed basis — as employers often think. A contract for self-employment will not be decisive. The working relationship is key.
The significance relates to holiday pay claims and the possibility that you treat an employee unlawfully as you wrongly assumed they were self-employed,
CASE REPORT— Disability Discrimination — Adjustments, knowledge of disability and long
Preston v EoN Energy Services Limited
Knowledge of disability and Reasonable Adjustments
Mr Preston was employed as a Complaints Manager. He had primary reading epilepsy (PRE) which EoN accepted amounted to a disability, this condition gave rise to a significant disadvantage as he was at an increased risk of suffering from seizures when reading.
Absences for stress which were unrelated to his disability caused the Company’s Attendance Management Policy to be invoked. As a result of his absences a stress risk assessment was undertaken however no mention was initially made of PRE and there was no reference for some time until a second occupational health report was obtained which referred to him having this condition.
After becoming aware of Mr Preston’s PRE, a plan was put in place for a series of adjustments to be made which were designed to address the workplace issues which were causing him stress and to assist in his return to work.
Despite several attempts to contact Mr Preston, he failed to engage in any process, and he remained on sickness absence. The Company sought to bring disciplinary proceedings against Mr. Preston.
Mr Preston brought various disability discrimination related claims. The Tribunal were required to consider the question of whether EoN had reasonable knowledge of his disability and if so when from.
The EAT confirmed that Eon was not aware however of Mr Preston’s condition until he was on sickness absence because of stress, which was wholly unrelated to his epilepsy and therefore the requirement to make reasonable adjustments did not arise until after this time and therefore that in the circumstances the Company made reasonable adjustments at the appropriate time.
The EAT also upheld the Tribunal’s findings that Mr Preston was not discriminated against and that the reason for his dismissal was due to his conduct at being unwilling to respond to reasonable management requests when occupational health had suggested that he would be fit to return to work and all reasonable adjustments had been made to enable him to do so.
What this means for you
This case highlights that reasonable adjustments only need to be made from the point that you are made aware (or the point that an employer ought to be aware) of an employee’s disability and also that this dismissal was deemed reasonable and fair owing to the fact the employee failed to engage with the company who were seeking to assist his return to work, the dismissal was justified for efficient absence management.
McAllister v Revenue and Customs Commissioners
Long Term Sickness Absence
Mr McAllister was an employee of HMRC, he had a considerable amount of service having being employed in 2011. He suffered from anxiety and depression and as a result he had had a number of often lengthy periods of absence. He also had periods of absence which were not related to his mental health condition.
Following reasonable adjustments being made and a capability procedure his employment was terminated in 2018 as HMRC viewed that his absences were impacting on productivity and staff morale. Therefore, his termination was due to ‘something arising in consequence of his disability.’
He later made a claim for discrimination arising from a disability in relation to his dismissal. The Tribunal rejected his claim and found that his dismissal had been a proportionate means of achieving a legitimate aim.
What this means for you
This is an encouraging outcome given that the EAT confirmed that requiring satisfactory levels of attendance and considering the impact on colleagues and their morale were legitimate aims.
However, all employers need to remember that prior to dismissing an employee based on
their capability they will need to show that all the relevant evidence (including medical evidence) has been obtained and that a fair and proper process has been concluded.
Also note that when dismissing an employee on capability grounds, and the employee’s condition is contributing to their poor performance, dismissal is still possible but the proportionate means test will apply. Medical evidence is not required in most poor performance dismissals, but it will be when poor performance is linked to a disability.
McQueen v General Optical Council
Something Arising from a Disability
Mr McQueen was employed as a Registration Officer in 2014, the Optical Council was aware upon employing him that he had dyslexia, symptoms of Asperger’s Syndrome, neurodiversity and left sided hearing loss. Such conditions can cause difficulties with interactions in the workplace. Medical evidence obtained indicated that, in situations of stress, anxiety or conflict, Mr McQueen would raise his voice and adopt mannerisms suggestive of aggression, with inappropriate speech and tone.
He was subject to disciplinary action after instances of aggressive behaviour, during which he was described by the Tribunal as having a ‘meltdown’. He was referred to occupational health which resulted in a change to the way in which he worked.
Following a further incident of aggressive behaviour after which he was challenged about his habit of standing up at his desk and speaking loudly to colleagues, which his managers asked him to stop doing because it was disruptive, he raised a Tribunal claim of ‘discrimination arising from a disability’ in which he claimed that his disabilities had been a factor in his conduct and therefore the disciplinary action was due to something arising because of a disability and thus discriminatory.
During the hearing the Council accepted that Mr McQueen needed written instructions to be provided to back up verbal communications, and that he required some physical adjustments to the workplace. However, it did not accept that Mr McQueen needing “not to be approached in a seemingly confrontational manner” or “to stand up and speak” arose from his disabilities.
The Tribunal held that Mr McQueen’s insistence on standing up arose out of habit, not as a consequence of his disabilities and that the effects of his disabilities did not play a part in his aggressive behaviour which was from simply resenting being told what to do.
Mr McQueen appealed to the EAT in which he argued that in claims for ‘something arising from a disability’ that the disability does not need to be the sole or even main reason for the “something” that arises in consequence of it, only a significant or more than trivial influence, and that this test was met.
The EAT did not uphold his appeal and suggested that when considering such a situation that the following questions should be considered:
(i) what are the disabilities;
(ii) what are their effects;
(iii) what unfavourable treatment is alleged in time and proved and;
(iv) was that unfavourable treatment “because of” an effect or effects of the disabilities.
What this means for you
Case law has established that there is a loose causation test in claims for discrimination arising from disability brought. However, there must be a connection between the “something” leading to the unfavourable treatment and the disability. This decision shows how the existence of a sufficient connection will often be highly fact-specific and reliant on medical evidence.
PRACTICE POINT — Restrictive Covenants
We have had a few issues recently involving restrictive covenants and thought it would be helpful to have a whistlestop tour.
- Restrictive covenants are prima facie unenforceable in law which means that unlike
any other area of law whilst you may have a document which was agreed and signed by all the parties at the time it is still the employer, who wants to rely upon restrictive covenants, who must satisfy a Court that they are enforceable.
- Restrictive covenants will be void if they are excessive and do not satisfy the test in
law which is that they should be no more than is reasonably necessary to protect the
legitimate business interest of the employer. They need to be fine-tuned.
- There are different types of restrictive covenant; –
- Non-competition (where you cannot work in the same industry)
- Non-dealing (where you can work in the industry but not have any dealings with
former customers or clients regardless of who approached who)
- Non-solicitation (where you can work in the industry and can have dealings with
former customers or clients but only if they approached you).
- There are also then non-poaching restrictions relating to staff.
- Many employers wrongly think that the tougher restrictive covenants are the better
but that fundamentally misses the point. If they are excessive they will be void because they do not pass the test above if they are not “no more than is reasonably necessary”. They have to be finally balanced which means giving them some thought.
- Restrictive covenants do also have some deterrent value because if they are breached
then the old employer can not only sue the employee (for breach of contract) but the new employer (for inducing that breach of contract).
- If you have restrictive covenants, then you need to make sure the contract is signed and also that it is stored safely somewhere. It is not unknown for departing employees to remove their contracts from the HR cabinet before handing their notice in!
- Sometimes, such as where they are not entered into at the outset, there should have
been “consideration” for the covenants which is to say something received in return.
- Along with restrictive covenants you should also have contractual provisions that
specifically deal with Confidential Information.
If you are an employer that wants to have some or all of your staff subject to restrictive covenants, then it is a good idea to periodically audit them.
Are the restrictive covenants proportionate and therefore enforceable?
Has the employee’s role changed over time necessitating a change in their covenants?
Are all the contracts signed and securely stored away?
Redundancy of those on maternity leave — an extension of protection
Pregnant women and new mothers have a protection during both pregnancy and to the end of maternity leave, to not be discriminated against on the grounds of pregnancy and/or maternity. That right starts on the date of pregnancy and ends when the woman returns to work after maternity leave.
As well as having protection from being discriminated against, there is also a positive obligation during the period of maternity leave in that if a redundancy situation arises, the employee on maternity leave must be given priority over the other employees at risk of redundancy and retained. Failure to comply with this creates an automatic unfair dismissal. This is a rare example in UK employment law of what is known as ‘positive discrimination’
The government has proposed that this positive obligation, regarding redundancy protection, will start from pregnancy, not just maternity leave and will continue until 6 months after maternity leave has ended. This will apply to other family leave such as adoption leave or shared parental leave.
The proposed legislation has had its second reading in the House of Lords and therefore is expected to become legislation later this year although no dates are yet given.
CASE REPORT — Sex Discrimination
Earl Shilton Town Council v Miller
In this case the Employer was found to have directly discriminated against women. For reasons related to a children’s group that sometime used the building the female employees often had to use the men’s toilets. This was a typically basic facility with one cubicle and one trough urinal. At times the cubicle did not even have a lock and there was no sanitary bin. There was a sign to put on the door when it was being used by a female – but sometimes it fell off. There was the possibility of men entering the toilets. There was also the possibility of women entering the toilets to be faced with a man using the urinal. It clearly was in all ways unsatisfactory .
The employer did not seek to suggest that these arrangements were ideal of course. However, they argued that the safeguarding considerations that caused the female toilets to be sometimes unavailable, causing all of these problems in the first place, meant that the unfair treatment was not really related to sex. Secondly, they argued that there was not any less favourable treatment on grounds of sex because equally the system, unsatisfactory as it was, meant a man risked being observed at the urinal.
These arguments did not succeed, and it was found to be direct discrimination against women and therefore the individual employee in question. Interestingly it was observed in this case that a man could successfully have argued direct sex discrimination and that would not have been fatal to this claim.
What this means for you
Facilities for women should be appropriate, satisfactory, safe and dignified. It does not really help if everyone is in the same boat or if there are genuine reasons for the issue relating to facilities.
PRACTICE POINT — New starters who do not start
This has been an issue for more than few clients in the last year. Recruitment has been difficult in most industry sectors so what a relief it is to finally find the right person, to whom you offer the job and they accept. They hand their notice in with their existing employer and start on what can be as much as three or even six months’ notice.
You carry on holding the fort, but at least there is light at the end of the tunnel. After all the new recruit is going to be with you in a few months, and then just a few weeks.
And then you hear they have decided to stay where they are. They are usually very apologetic, and it may be that they have understandable personal or family reasons for staying put. It is however extremely frustrating, and many clients find themselves having to restart a recruitment process that can take weeks and even when successful second time around they are waiting for another notice period to be worked. Clients have spoken to us to ask what can be done about that particular employee and what can be done to stop it happening again (or a third or fourth time for some clients).
Generally speaking, there is not a lot that can be done. It may well be a breach of contract because a contract of employment has probably come into existence once the offer is accepted, but the law is only really interested in breaches of contract when there is some loss arising, and there very rarely is. Frustration and annoyance certainly, but no actual monetary, financial loss.
Some employers, for very senior recruitment, incorporate a ‘no show’ clause in the contract. Other clients have offered a Golden Hello payment upon recruitment, repayable if they do not subsequently join and stay for a particular period of time.
For the vast majority of recruitment however it a similar situation to employees who do not give their full contractual notice. A breach — but with no quantifiable financial loss arising.
April 2023 National Minimum Wage Rises
- £9.50 to £10.42 for workers aged 23 and over (the national living wage);
- £9.18 to £10.18 for workers aged 21 or 22;
- £6.83 to £7.49 for workers aged 18 to 20;
- £4.81 to £5.28 for apprentices under 19, or over 19 and in the final year of their apprenticeship; and
- £4.81 to £5.28 for workers aged under 18 who are no longer of compulsory school age.
It is important that employers check pay rates against these new figures, and ensure that any necessary changes are in place by 1 April 2023.
Annual Tribunal Limit Increase
The recently published Employment Rights (Increase of Limits) Order 2023 has been published, with the regular annual increase in tribunal limits having been confirmed. There are two key increases, that take effective from 6 April 2023 — that is for dismissals taking place on, or after, that date with certain small caveats.
- The maximum Compensatory Award will be increased to £105,707, rising from the
current maximum of £93,878.
- A maximum week’s pay, used to calculate basic awards and redundancy payments will
rise to £643 from the current figure of £571.
Spring Budget 2023: 30 Hours free childcare over 9 months — Impact on the Workplace
The UK has one of the most expensive childcare systems in the world, the average cost of childcare is currently more than the National Minimum Wage, the result is that parents (mainly women) either do not return to work after maternity leave and/ or they reduce their working days/ hours to offset some of the cost.
On Wednesday last week the budget was announced which contained surprise and
potentially life changing 30 hours FREE childcare for all under 5s from the moment maternity leave ends for families where all adults in the household are working at least 16 hours a week.
The Chancellor’s reasoning was simple, to encourage more parents to return to work and to assist with labour shortages. This has the potential to enable women to return to work quicker, work more and possibly go some way to addressing gender inequality in the workplace.
This is a huge extension of the existing 30 hours funding which is available to working parents of children aged 3 and 4. There is to be a staggered start between September 2024 and September 2025 to allow nurseries and child minders to prepare.
Currently in the UK the average full time nursery cost for a child under two is £269 a week or £14,000 annually (or £31,500 for 27 months which will be the new offering.)