EmpLaw Newsletter February 2024

EmpLaw Newsletter February 2024

The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.

Court of Session rules that future unknown claims can be settled using a settlement agreement

The Court of Session has recently handed down its judgment in the case of Bathgate v Technip Singapore PTE Ltd which concerned whether a settlement agreement could be used to settle future unknown claims. 

The Claimant was made redundant and left employment under a settlement agreement. After the settlement agreement had been signed, the Respondent decided that it did not need to make an additional payment to the Claimant under a collective agreement, as he was over the age of 60. The Claimant claimed age discrimination in relation to this decision.

Section 147 Equality Act 2010 allows claims for discrimination to be settled using a settlement agreement provided that the settlement agreement relates to the ‘particular complaint’. The tribunal concluded that the age discrimination claim had been settled by the settlement agreement, even though the act complained of only occurred after the settlement agreement had been signed. The Employment Appeal Tribunal disagreed and held that future unknown complaints could not easily be considered ‘particular complaints’, as they would not have occurred at the point that the agreement was signed. The point was appealed to the Scottish Court of Session.

The Court held that the Claimant’s age discrimination claim had been validly settled by the settlement agreement. The agreement stated that it constituted full and final settlement of the claims that the Claimant ‘intimates and asserts’ and listed various types of claim, including age discrimination. The agreement also included a general waiver of ‘all claims… of whatever nature (whether past, present or future)’.

The Court stated that “a future claim of which an employee does not and could not have knowledge may be covered by a waiver where it is plain and unequivocal that this was intended”. In this case, the Court held “it was clear that the agreement was intended to cover claims of which the parties were unaware and which had not accrued”.

Extension to protection from redundancy for pregnant women and those who have taken family leave

Currently, parents on maternity leave, adoption leave or shared parental leave, who are at risk of redundancy, get first refusal of any suitable alternative job. A new law will extend the period of special protection.

The Protection from Redundancy (Pregnancy and Family Leave) Act 2023 (as brought into effect by the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024), extends the protection as follows:

  1. For maternity – the protected period will cover pregnancy and 18 months from the first day of the estimated week of childbirth (with the period altered to cover 18 months from the date of birth if the employee gives the employer notice of the date of birth before the end of maternity leave).
  2. For adoption – the protected period will cover 18 months from placement for adoption.
  3. For shared parental leave – the protected period will cover 18 months from birth, as long as the parent has taken a period of at least 6 consecutive weeks of shared parental leave. This protection will not apply if the employee is otherwise protected under 1. or 2. above.

The extension to the protected period to cover pregnancy applies where the employer is informed of the pregnancy on or after 6th April 2024.

The extension of the protected period will apply to any maternity and adoption leave ending on, or after, 6 April 2024 and any shared parental leave starting on or after 6 April 2024.

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All employees to have the right to one week of unpaid carer’s leave per year from April 2024

Many employees have to balance their work and family responsibilities. They can already take time off at short notice if they need to take care of a family member (time off for dependants). But until now, they didn't have the right to request time off for other, non-urgent, reasons.

From April 2024, this will change. The Carer's Leave Regulations 2024 will allow employees to apply for one week of unpaid carer's leave within a 12 month period. Key features include:

  • The right is a day one employment right.
  • The right applies to employees who have a dependant with a long-term care need and want to be absent from work to provide or arrange care for that dependant. A dependant is defined as a spouse, partner, child, grandchild, parent, or someone who depends on the employee for care.
  • Requests can be in consecutive or non-consecutive half-days or full days.
  • Employees must give notice in writing of their intention to take carer’s leave – confirming their entitlement to take it and giving at least twice the amount of notice than the period of leave requested or, if longer, three days’ notice.
  • Employers can postpone a request if it would disrupt the operation of the business. In these circumstances the employer must give notice of the postponement before the leave was due to begin, explaining why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested. Rescheduling the leave should happen in consultation with the employee.
  • Employees are protected from detriment and dismissal because they take or seek to take carer’s leave, or the employer believes they are likely to do so.

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A reminder of the legal test of harassment where the protected characteristic relied upon is sex

In the recent Employment Appeal Tribunal case of Thu Lieu Ha v Blanc de Provence Ltd the Claimant alleged harassment on the grounds of sex. The Claimant was a tailor. She was asked to attend a disciplinary hearing with a male manager but refused. She received a warning. On the same day, the Respondent concluded that her position was redundant. Two managers attended at her workplace, instructed her two female colleagues to leave the premises, locked the doors and held a meeting with her at which they confirmed her redundancy.

The Claimant claimed that the Respondent’s actions amounted to harassment related to sex. Her claim was successful before the employment tribunal.

An appeal has been allowed because of problems in the way in which the tribunal applied the law on harassment to the facts. In particular, the tribunal found that the purpose of the employer's conduct was to harass but never actually asked the employer if that was the case!

In reviewing the tribunal’s decision, the EAT set out some helpful points of guidance when looking at sexual harassment claims:

  • Sexual harassment can be claimed under two sections of the Equality Act 2010. The first section, 26(1), covers harassment related to a protected characteristic. The second section, 26(2), covers specific sexual harassment provisions, which include 'unwanted conduct of a sexual nature'. The EAT observed that sexual harassment has a narrower definition than general harassment. Behaviour can be considered harassment related to sex without being unwanted conduct of a sexual nature.
  • It is not enough for a Claimant to show unwanted conduct on its own. There must be some feature which could lead to the conclusion that the conduct in question relates to sex.
  • Harassment happens where conduct has either the purpose or effect of, in this case, creating an intimidating environment for the employee.
  • If it is claimed that this was the purpose of the conduct, then it is important that the employer is asked if this was the case.
  • If it is claimed that the effect of the conduct was harassment, then you must consider the perception of the employee; the other circumstances of the case; and whether it was reasonable for the conduct to have that effect. It brings wider considerations into the test for harassment which do not need to be considered if the claim is based on purpose.

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Employment Appeal Tribunal reviews the test for direct sex and maternity discrimination

In the recent case of Blackdown Hill Mgt v Tuchkova the Employment Appeal Tribunal allowed an appeal against an Employment tribunal’s finding that the Claimant had been directly discriminated against for reasons related to sex and/or maternity.

Claims for direct discrimination will only succeed if the alleged discriminatory treatment is “because” of the claimed protected characteristic. It is not enough that the characteristic forms the context for the treatment at issue.

In this case the Claimant had been off work on maternity leave. When she went on maternity leave, her duties were divided up between existing employees. On her return she was made redundant. She claimed unfair dismissal and discrimination on grounds of maternity and sex – arguing that her selection was because of her earlier absence on maternity leave.

The EAT held that was not enough that maternity leave provided the background to the Claimant's redundancy. The conduct must be “because” she exercised the right to go on maternity leave, in the sense that this must have influenced the decision, by operating on the mind of the decision-maker.

The EAT held that the tribunal failed to explain why it found that the fact that the Claimant had been on maternity leave was more than the context, or background, to the conduct in question, and was actually a material contributing cause of her dismissal.

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Police officer is awarded over £800,000 in sexual harassment case

A female Detective Inspector, in the case of Kalam v The Chief Constable of West Midlands Police, accused her employer of sexual harassment. She claimed that her clothes were cut off during a training session, she was given male body armour to wear, was denied an "easy trigger" handgun, and was told that having breasts didn't mean she couldn't do a push-up.

Her employer accepted responsibility for both direct and indirect sex discrimination and sexual harassment.

The Claimant has been awarded compensation of over £800,000. The tribunal concluded that the treatment left her unable to work until retirement.

This case is a reminder that in discrimination cases, awards for loss of earnings have no limit and can often be much higher than the compensation for injury to feelings (which was £30,000 in this case). If evidence is presented to the tribunal showing that the employer's actions have permanently impacted the employee's career, the employer can be held responsible for significant long-term loss of earnings.

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Dismissal was not tainted by whistleblowing where decision-maker was unaware of the protected disclosure at the point of dismissal

The Employment Appeal Tribunal upheld a tribunal's decision in the recent case of Fry v Kingswood Learning & Leisure Group. The tribunal found that the Claimant's redundancy was not unfair because of whistleblowing having found, on the evidence, that the person who dismissed the Claimant was not aware of her protected disclosure at the point of dismissal.

The Claimant was made redundant by her line manager at the start of the Coronavirus pandemic in 2020. She did not have 2 years of service with the Respondent, so she did not have ordinary unfair dismissal rights. She claimed that her dismissal was motivated by whistleblowing complaints against her line manager. During the tribunal, the line manager gave inconsistent dates when he claimed to have become aware of the claimant's protected disclosure. One of those dates was before the dismissal, and four were after.

The tribunal concluded that the line manager only became aware of the protected disclosure after the Claimant's dismissal, when she submitted a grievance. Using this date, her dismissal could not have been affected by whistleblowing. Her claim for automatic unfair dismissal was rejected. The Claimant appealed, arguing that the tribunal did not provide enough explanation for why it didn't consider the other four dates of knowledge. The EAT confirmed that the tribunal's decision was valid. Whilst the tribunal needed to give reasons for the date of knowledge, they had found they were not required to give reasons for the dates they did not find.

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Legal changes confirm that the ability to participate fully in working life is relevant to whether a person should be regarded as disabled under Equality Act 2010

To claim discrimination based on disability, a person must meet the definition of disability under the Equality Act 2010. According to the Act, a person is considered disabled if they have a physical or mental impairment that has a substantial, long-term adverse effect on their ability to do everyday activities.

Guidance on this definition is provided in Schedule 1 of the Equality Act 2010. Originally, the Schedule did not mention adverse effects on working life as being a relevant consideration. However, the European Court of Justice ruled in the case of HK Danmark v Dansk Almennyttigt Boligselskab that disability should include limitations that hinder equal participation in professional life. This went beyond what was stated in Schedule 1.

The Equality Act 2010 (Amendment) Regulation 2023 has updated the guidance to align with the court's ruling. A new paragraph has been added to Schedule 1, stating that a person's ability to participate fully and effectively in working life on an equal basis with other workers is relevant to the concept of normal day-to-day activities.

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Job applicants do not have whistleblowing protection

The Employment Appeal Tribunal recently looked at whether job applicants should have protection against whistleblowing detriment as “workers” under whistleblowing legislation. In Sullivan v Isle of Wight Council, the Claimant applied unsuccessfully for a job with the Respondent. She had raised matters which could have amounted to protected disclosures under whistleblowing legislation. She sought to claim detriment on grounds of whistleblowing. Whistleblowing protection only applies to employees, former employees, workers and former workers. The Claimant was an external candidate.

The EAT agreed with the employment tribunal’s assessment that it did not have jurisdiction to hear her claim.

Article 14 ECHR protects individuals from discrimination on listed grounds, and also, if they belong to an ‘other group’. Judges had successfully argued in Gilham v Ministry of Justice that they were an ‘other group’ who had been discriminated against by not falling within whistleblowing protection, and that the legislation should be interpreted to include them.

The EAT held that the status of ‘external job applicant’ was not enough to trigger discrimination protection as an ‘other group’ under Article 14 ECHR, such that the Claimant could pursue the same argument for her position.

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And finally…

The Guardian has reported that two concert-goers in the USA are suing the pop star Madonna after she started her concert two hours after the advertised start-time. The mid-week concert eventually finished after 1am, leaving the two men stranded with limited transport options. One of the issues cited in the lawsuit was the impact on the next day, when they ‘had to get up early’, presumably to go to work. Whilst Madonna has already successfully batted away previous legal challenges associated with her lateness (famously stating that ‘the queen is never late’), the litigation does raise interesting employment issues. How would you respond if one of your employees turned up late for work claiming to have been delayed due to a late-running concert they attended the previous evening? What sanctions might flow? Is it reasonable for the employees to place the blame at Madonna’s door, or should they just have left early to make sure the late-finish did not impact on their work?

Employees have a duty to be ready to work in accordance with their contract of employment. Whether these two individuals are successful in shunting the blame in this case onto the ‘Queen of Pop’ remains to be seen.

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