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          EmpLaw Newsletter October 2021

          October 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.

          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 from 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.

          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.

           

          Content

          1. Part-time worker discrimination
          2. Working time
          3. Employment tribunals
          4. Contract law – insured benefits and employment contracts
          5. Unfair dismissal
          6. Flexible working
          7. New protected characteristic?
          8. Indirect associative discrimination
          9. Age discrimination
          10. Whistleblowing

           

          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 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 does 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. [back to top]

          Employment tribunals

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

          Rule 54 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 that 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, shortcutting 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. [back to top]

          Contract law – insured benefits and 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  AMG v Mr L, the employee was originally employed by a company called CS. 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 CS. ASG bought CS 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 CS scheme no longer 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 CS, 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 IPP 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 IPP payments will be limited to the sums covered by the scheme insurer. Just saying they are governed by a policy is not enough. [back to top]

          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. [back to top]

          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 businesses and workers have had to adopt in the wake of the Covid-19 pandemic. Homeworking has increased exponentially and has 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. [back to top

          New protected characteristic?

          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 is good for diversity and diversity is good for business. Our differences are often our strengths. [back to top

          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 was aware of. 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. [back to top]

          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 was 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. [back to top]

          Whistleblowing

          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. [back to top]