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          EmpLaw Newsletter July 2021

          July 2021

          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.

          Introduction - 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.

           

          Content

          1. Discrimination – interim relief
          2. Philosophical belief discrimination
          3. Disability - Long Covid
          4. Unfair dismissal – illegality
          5. Holiday pay
          6. Covid-19 - Unfair dismissal 1
          7. Covid-19 – unfair dismissal 2
          8. Strike action
          9. And finally…

           

          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 avoiding 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 that 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. [back to top]

          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 beliefs 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 behaviour; 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 that 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. [back to top]

          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 that 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. [back to top]

          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 the 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. [back to top]

          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. [back to top]

          Covid-19 - Unfair dismissal 1

          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 that 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. [back to top]

          Covid-19 – unfair dismissal 2

          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. [back to top]

          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 that 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. [back to top]

          And finally…

          Are your employees reaching burnout 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 from the pressure caused by homeschooling, job insecurity and worries about health and the future. According to the Department for Education attendance survey, over 640,000 pupils were off school for Covid-related reasons in England at the time of writing, showing that 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 lunch breaks 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 the time to say thank you. Genuine appreciation for hard work and commitment is priceless. [back to top]