EmpLaw Newsletter September 2023

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.

Legislation allowing agency workers to cover for striking workers is quashed by the High Court following Judicial Review

Back in Spring 2022 the Secretary of State, through the passing of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (the Regulations), revoked the historic prohibition on employers using agency workers to replace striking workers. The legality of the Regulations were challenged by a number of trade unions in the case of R (on the application of ASLEF and others) v Secretary of State for Business and Trade on two grounds:

  1. That the Secretary of State had failed to comply with their statutory duty to consult before making the Regulations (Ground 1); and
  2. That the Secretary of State breached their duty, under Article 11 of the European Convention on Human Rights, to prevent unlawful interference with the rights of trade unions and their members (Ground 2).

The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).

The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2. This means that, unless and until further legislation is brought forward, businesses are no longer able to use agency workers to cover for striking workers.

Recent Employment Appeal Tribunal case centres around rarely seen concept of a Hogg v Dover College dismissal highlighting potential dangers when imposing unilateral changes to terms and conditions on employees.

The Employment Appeal Tribunal have recently looked-again at the concept of a Hogg v Dover College dismissal. A Hogg v Dover College dismissal will occur where a variation of a contract, done without agreement, is such as to amount, in reality, to a termination of one contract and its replacement by another.

In the case of Jackson v University Hospital of North Midlands NHS Trust the claimant was originally employed as a band 6 specialist nurse. The respondent proposed to restructure its nursing provision, removing the specialist nurse function and creating a smaller number of band 6 senior nursing posts with the remainder of posts being at band 5. The claimant was unsuccessful following assessment for a band 6 post and was informed on 13 November 2018 that she would be moved to a band 5 post with effect from 3 December 2018. There followed several months of dispute between the claimant and the respondent, including grievances, a resignation, a retraction of that resignation and a further resignation!

The claimant was successful in claims for unfair dismissal and a statutory redundancy payment before the tribunal. She was not successful in her claim for a contractual redundancy payment. She was potentially eligible for an enhanced contractual redundancy payment under the respondent’s Agenda for Change scheme. However, in order to be eligible, she had to be employed during her notice period. On the facts this would only have been the case if she could show that the unilateral change from the band 6 role to the band 5 role on 3 December 2018 was an actual dismissal in the Hogg v Dover College sense.

The tribunal initially found that this wasn’t a Hogg v Dover College dismissal, giving several reasons, all of which were challenged by the EAT

  1. That the change in contract of employment was not radical enough for the claimant to consider that she had been constructively dismissed. The EAT held that reason could not be relied upon – the claimant was claiming actual dismissal not constructive dismissal. The question which the tribunal should have asked was whether her old contract had been terminated and replaced by another.
  2. That the claimant had the skills to do the band 5 role. Again, the EAT held that this was not the correct test. In Hogg itself, Mr Hogg was able to do the new role given to him. The point was not relevant.
  3. That the claimant raised a grievance which was inconsistent with her employment having ended. The EAT found that this point was irrelevant. The question was not whether employment in the broader sense had ended, but whether the old contract had been brought to an end. If the old contract had been terminated and a new contract imposed, there was no mechanism by which an employee could affirm the old contract
  4. That the respondent did not intend to dismiss the claimant. The EAT held that this will never be the case in a Hogg v Dover College dismissal. Intention is irrelevant.

The EAT held that, in a Hogg v Dover College case, what the tribunal needed to do was a proper before-and-after comparison of the band 6 post and the band 5 post to ascertain whether the new terms were of sufficient difference to amount to a withdrawal of one contract and its replacement by another. The EAT also held it doesn’t have to be a particularly severe breach of contract by the employer for it to amount to a Hogg v Dover College dismissal. The normal position on repudiatory breach applies.

  • The EAT remitted the question of whether the imposition of the band 5 role on 3 December 2018 amounted to a Hogg v Dover College dismissal (and therefore whether the claimant was entitled to enhanced contractual redundancy pay under Agenda for Change) to the tribunal. Hogg v Dover College dismissals are rare but they serve as a reminder to employers of the perils of unilaterally imposing changes to terms and conditions on employees.

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A reminder of the different steps involved in establishing a protected disclosure in whistleblowing claims

In the recent case of Kealy v Westfield Community Development Association the Employment Appeal Tribunal overturned the tribunal’s finding that the claimant had not been subjected to detriments on grounds of whistleblowing. In reaching its judgment the EAT was critical of the tribunal’s approach to establishing whether there had been a protected disclosure and provided a useful reminder of the steps involved in establishing detriment on grounds of whistleblowing. The EAT provided the following roadmap:

  • A qualifying disclosure must be found to have taken place. This is a disclosure of information which the worker must reasonably believe is made in the public interest. The worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f) of Section 43B Employment Rights Act 1996 and that belief must be reasonably held.
  • Having established that the disclosure is a qualifying disclosure it must also be shown to be a protected disclosure. If the disclosure is made to the worker’s employer then this will be sufficient for it to be protected. If it is made more widely to responsible persons, Government Ministers or prescribed persons then it will also be protected provided that the worker reasonably believes that the wrongdoing falls within the remit of the person in question and, in relation to disclosure to prescribed persons, that the information disclosed and any allegation contained in it are substantially true.
  • If a qualifying disclosure is made externally to some other person or persons then establishing that the disclosure is not only qualifying but also protected involves jumping through additional hoops. Section 43G Employment Rights Act 1996 adds a number of requirements in respect of these disclosures including that: the worker believes that the information disclosed and any allegation are substantially true, that disclosure is not made for purposes of personal gain; that the worker has previously disclosed the same information to their employer or a prescribed person or reasonably believes either that they will be subjected to a detriment if they make a disclosure in this way or that material evidence will be concealed or destroyed if it is. In all the circumstances of the case, it must also be reasonable for the worker to make the disclosure in this way.

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Dual employment: Can a person be an employee or worker of two different employers at the same time in respect of the same work?

The concept of dual employment has been debated for many years. There is nothing in employment law which states that an employee cannot have two employers in respect of the same work but judges have always grappled with the practicalities of how such a relationship would work, especially where an employee may be under the control of two different ‘masters’.

In the recent case of Comolly v (1) United Taxis Ltd and (2) Mr Tidman the Employment Appeal Tribunal found that Mr Comolly could not be an employee of one business and a worker of another in respect of the same work. Mr Comolly was a taxi driver who carried-out work driving United Taxi’s passengers through an agreement with one of its shareholders: Mr Tidman and using Mr Tidman’s licensed taxi. The Employment tribunal held that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman in respect of the same work: driving United Taxi passengers. The EAT disagreed, holding that it was not possible for Mr Comolly to be employed or engaged by two different employers in respect of the same work. The EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome” in this case.

The EAT went on to substitute a finding that there was no relationship between Mr Comolly and United Taxis and that Mr Comolly was a worker of Mr Tidman. It held that the tribunal, in concluding that Mr Comolly was an employee of Mr Tidman, had failed to consider the nature, extent and source of the control exerted by Mr Tidman over Mr Comolly. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him.

Although the law does not prohibit dual employment it will only generally be considered where it is the clear intention of the parties, where it is necessary to do justice or where it is justified on the facts. These cases will be rare.

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Ofsted inspector who touched a pupil was unfairly dismissed

The Employment Appeal Tribunal has held, in the recent case of Hewston v Ofsted, that an experienced Ofsted inspector who was summarily dismissed after touching a pupil’s forehead and shoulder to remove rainwater, was unfairly dismissed. The conduct itself was admitted by the claimant and an Employment tribunal initially decided that his dismissal was fair. This decision has now been overturned by the EAT for the following reasons:

  • The claimant had not been provided with copies of key documents, including a statement by the child which had been seen by the dismissing officer, before the decision to dismiss him was taken.
  • The respondent had no clear policy on the subject of touch, did not have a no-touch policy and, against that background “it was not fair to dismiss [the claimant] when he was not on fair notice that [his] conduct might attract [the] sanction [of dismissal]”.
  • The tribunal had been wrong not to look at whether the respondent had considered the claimant’s representations regarding his long and unblemished record of service.

​​​​​​​The claimant’s claim for wrongful dismissal was remitted to a fresh tribunal as the tribunal’s original decision had failed to “distinctly and sufficiently address” this claim in its own right (separately from unfair dismissal). HHJ Auerbach in the EAT gave a reminder that the tribunal “must decide whether, in its view, taking account of any findings as to the employee’s intent, the effect of the conduct and/or other relevant circumstances, the employer was objectively entitled to treat the substantive conduct as having so damaged the ongoing relationship as to justify bringing it to an end.”

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Maya Forstater awarded over £100,000 following remedy hearing in gender critical belief discrimination case

The landmark case of Forstater v CGD Europe Limited was notable as the first case in which the UK courts confirmed that gender critical views (the belief that sex is biological and immutable) can form a protected philosophical belief under Equality Act 2010. Ms Forstater had succeeded in claiming that she had been directly discriminated against when she was offered no further CGD consultancy work and a visiting fellowship was not renewed after she had made her gender critical views public.

Following a recent remedy hearing she has now been awarded over £100,000 in damages, including loss of earnings, injury to feelings and aggravated damages. The injury to feelings award was £25,000. She was also awarded £2,000 in aggravated damages.

This remedy judgment is useful for employers as it provides a clear guide as to where tribunals are likely to pitch injury to feelings awards in similar cases. A reminder, if one was needed, that failing to treat employees with respect or treating them differently because of their beliefs can be very costly for employers.

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Arts Council England found guilty of harassment of employee related to protected ‘gender critical’ belief

The difficulties of balancing the protected philosophical beliefs in gender criticality (that someone’s sex is biological and immutable) and gender fluidity (that sex and gender are in effect the same, and that people are the gender they say they are, regardless of biology) in the workplace has been highlighted in the recent employment tribunal decision of Fahmy v Arts Council England.

The claimant was employed by the respondent as its Relationship Manager. Controversy arose within the respondent’s organisation after funding was awarded to a charity (LGB Alliance) which held gender critical views. Funding was suspended. A drop-in session was held at which employees were able to discuss the decision. The claimant raised gender critical views in this session.

Following the session a petition was circulated on behalf of the respondent’s LGBTQIA+ working group requesting support for a grievance relating to how the LGB Alliance funding issue had been handled in the drop-in session. The accompanying email specifically mentioned management with ‘homophobic/anti trans’ views. It was accepted by the tribunal that this referred to the claimant (although not by name). Other employees publicly commented on the petition and referred to, amongst other things, ‘discriminatory transphobic staff’ and referred to gender critical views as being a ‘cancer [which] needs to be removed from our organisation’.

The tribunal held that the creation of the petition and the comments which accompanied it amounted to unwanted conduct related to the claimant’s protected philosophical belief in gender criticality and which had the purpose and effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. The claimant’s claim for harassment succeeded. A remedy hearing is awaited.

This case is a reminder of the delicate balance which employers must reach when dealing with both sides in this controversial debate. Each belief has equal protection in the eyes of the law and employers should work to prevent clashes arising by providing clear training on appropriate behaviour.

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RAF guilty of positive discrimination in drive to increase number of female and ethnic minority recruits

The RAF has revealed that an internal investigation found that a recruitment strategy aimed at increasing the number of female and ethnic minority applicants resulted in unlawful positive discrimination. In the quest for equality they had unintentionally gone beyond current legal boundaries which allow for positive action and had, by setting high diversity targets for recruiters, committed unlawful positive discrimination.

Employers need to understand the difference between positive action (which is permitted under current equality laws) and positive discrimination (which, with a few specific exceptions, is not). Here is our quick guide to the law in this area:

  • Positive action involves taking lawful steps to improve equality for a group of people who share a protected characteristic. There are two types of positive action: general positive action, and positive action in recruitment and promotion.
  • General positive action allows an employer to take proportionate action to enable or encourage a protected group to overcome or minimise a disadvantage, meet different needs of a protected group, and enable or encourage participation in an activity which the protected group has low participation in. The employer must reasonably believe that the disadvantage exists. An example might be offering management training to female staff in a business with a low number of women in management.
  • Positive action in recruitment allows an employer to treat people with a protected characteristic more favourably than another candidate (provided that both candidates are as qualified as each other) where an employer reasonably thinks that people with a protected characteristic are disadvantaged or have disproportionately low participation in a role. The action taken must be a proportionate means of achieving the aim of minimising the disadvantage of the protected group or encouraging their participation in the activity.
  • Employers cannot have a blanket policy of automatic preference for people who have a protected characteristic over people who do not. This would be positive discrimination and is generally unlawful.
  • Positive action in employment is voluntary.
  • The only examples of lawful positive discrimination in UK law at the present time are Regulation 10 of the Maternity and Parental Leave Regulations 1999 which provides that employees on maternity leave should be offered alternative employment before any other employees and the duty to make reasonable adjustments for those adversely impacted in the workplace owing to disability.

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Employment status: where written agreement reflects the reality of a relationship of service then this cannot be cut-across

In Plastic Omnium Automotive Ltd v Horton the Employment Appeal Tribunal found that an employment tribunal had been wrong to conclude that the claimant was a worker of the end-user where it separately concluded that the written agreement between the claimant’s service companies and the end-user was an accurate reflection of the reality of the relationship.

The elements required to satisfy the statutory definition of a worker under section 230(3)(b) of ERA 1996 are:

  • There must be a contract between the worker and the putative employer, whether express or implied.
  • The contract must require personal service.
  • The other party to the contract is not the customer or client of any business undertaking or profession carried on by the individual.

There was a written contract between the claimant's service companies and the end-user specifically for the provision of the claimant's services to the end-user, with no provision for a substitute.

The tribunal found that the written agreement reflected the true agreement between the parties, and held that the claimant was not an employee. However, the tribunal held that he was a worker, having identified that he was "clearly subordinate and dependent” on the end-user.

The EAT disagreed with this finding. The definition of worker required there to be a contract between the worker and the putative employer. Here there was a contract between the claimant’s service companies and the end-user which was not a sham and which the tribunal had concluded reflected the reality of the arrangement. There was no contract between the claimant and the end-user and, given the presence of a contract which reflected the reality, there was no need to imply one. The EAT concluded that there was only one legally correct outcome and that the claimant was not a worker.

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And finally

In the recent case of Ahmed v Nat West an employee who was sacked after running several business websites, including sex work websites, some of which he registered to the office where he worked for the respondent was found to have been unfairly dismissed. In a startling example of the importance of following due process even where very serious allegations are involved, the respondent dismissed the claimant after discovering he had set up sex work websites offering sexually explicit content which were linked to his LinkedIn page which clearly identified him as an employee of the respondent. He had also set up a business development company which boasted an “airy Brighton office with free car parking” – that office was the respondent’s office! The respondent was found to have unfairly dismissed the claimant as they did not follow a fair procedure – there was no final disciplinary hearing, the claimant did not have the opportunity to respond to the allegations and he was not warned of his possible dismissal in advance. The tribunal did, however, reduce his compensation by 100% for contributory fault. This will have been some consolation to the respondent but will not have spared them the costly process of defending the claim through to a full hearing in the tribunal.

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