February 2021 Newsletter

Interim relief is a powerful remedy for employees bringing tribunal claims against their employers. Essentially, it reverses a dismissal pending the outcome of a final hearing.

Interim relief can be sought in certain circumstances only: for dismissals relating to trade union or health and safety representative activities, and whistleblowing cases. 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 (into their old job), reengagement (into an equivalent role) or simply for their contract to continue including terms relating to salary.

In a potentially landmark case, Steer v Stormsure, the Employment Appeal Tribunal has looked at whether this remedy should also be available in discrimination cases.

Facts: The employee had been employed for only a few months when she raised allegations of sexual harassment against a colleague. She lodged a grievance and also asked to work from home to safeguard herself from harassment. The employer reluctantly agreed but asked her to install monitoring software onto her computer, which the employee found oppressive. She alleged that her working hours were then reduced to 60 per cent. She claimed that the reduction in hours was an express or constructive dismissal that amounted to sex discrimination or victimisation. She brought a claim for discrimination under the Equality Act 2010 and requested interim relief in relation to her discriminatory dismissal.

Held: The Employment Tribunal said that it did not have the jurisdiction to grant interim relief in discrimination cases. The employee appealed to the EAT. The EAT held that the difference in protection for discrimination cases breached the European Convention on Human Rights (ECHR) - Article 14 on the prohibition of discrimination, and Article 6 on the right to a fair trial. The EAT held that such a difference in the remedies available between whistleblowing and discrimination claims was not justifiable. However, the EAT said that it did not have the power to make a ‘declaration of incompatibility’ with section 3 of the Human Rights Act 1998 (which says that UK legislation must be read in a way which is compatible with the ECHR). Nor was it prepared to interpret the Equality Act 2010 in such a way as to extend interim relief to discrimination cases. As a result, the EAT dismissed the appeal. However, it granted permission for the employee to appeal to the Court of Appeal which does have the power to rule on the incompatibility point.

Take-away: This is an important decision for employers. If the employee wins her appeal, a brand-new remedy will be available to employees in discrimination cases. As part of the agreed Brexit deal, the UK remains a signatory to the ECHR and its provisions during the transition period and potentially beyond. Currently, interim relief is rarely sought and even more rarely won due to its very limited application. If the remedy is extended to discrimination claims, there could be a deluge of such claims, especially at a time where there are significant delays in the employment tribunal process due to the pandemic and historic backlog. Employers should not panic though. For interim relief to be granted, an employee needs to have a “pretty good chance” of winning their claim. This is no small hurdle, and many will fail to get over it.

  1. Victimisation – is “possible discrimination” capable of being a Protected Act?

Overview: Victimisation is when an employer treats an employee badly as a result of the employee having raised allegations of discrimination. Such discrimination complaints are known as ‘protected acts’, because the employee is protected by law from any detriment by their employer once they raise such complaints. The rationale behind this is to encourage employees to raise discrimination complaints when they arise without fearing any negative consequences from their employer, such as being labelled a “trouble-maker”.  In the case of Chalmers v Airpoint, the EAT has looked at whether an employee saying something ‘may be’ discrimination is enough to qualify as a protected act.

Facts and first instance decision: The employee emailed her employer saying that its actions, in arranging a Christmas event for a date when she could not attend, ‘may amount to discrimination’. In the same email, she also complained that her manager was unapproachable, aggressive and unhelpful. The tribunal found that the Christmas party arrangements were not an act of discrimination. In addition, the employee’s email was not a protected act because it did not contain an allegation that someone had contravened the Equality Act 2010. The tribunal concluded that the employee was articulate and well-educated. It noted the specific lack of reference to ‘sex discrimination’ in her email complaint. As a business support manager, the employee carried out some HR functions for the company so had some insight into discrimination issues. The tribunal said it was therefore surprising that she was so equivocal about her discrimination complaint when she had been so clear about other issues. The Tribunal found against the employee holding that if she had wanted to raise discrimination complaints, she would have done so.

On Appeal: The EAT found that the tribunal had been entitled to reach the conclusion it did that the email was not a discrimination complaint which qualified as a protected act. It found that the tribunal had considered whether the lack of the word ‘sex’ (in relation to discrimination) and use of the word ‘may’ were due to the employee’s ‘lack of facility’ with words or ignorance about the concept of sex discrimination. They were not. Therefore, the tribunal were entitled to conclude that, if the employee had wanted to raise a sex discrimination complaint, she would have done so.

Take-away: This case does not mean that vague language will never be enough to turn a complaint into a protected act. It will depend on the facts of the case and particular knowledge of the employee in question. –In this case, the employee was well-educated familiar with HR processes, and had been able to complain in very clear terms about other matters. On that basis, if she had wanted to bring a discrimination complaint she could have done so in clear terms. By contrast, in cases where an employee is less well informed, there may be a lower hurdle to clear in terms of the specific language required when raising discrimination complaints capable of being considered protected act. Despite this appellate authority, if an employer receives correspondence citing vague allegations of discrimination, it is usually safer to assume it does qualify as a protected act for the purposes of resolving matters internally, to prevent cases from escalating to tribunal proceedings in the first place. Proceed with caution and take legal advice if necessary.

  1. Furlough – updated guidance for parents and carers

The government has updated its advice in relation to the Coronavirus Job Retention Scheme (commonly known as the “furlough scheme”). Employees can now be furloughed if they are unable to work some or all of their hours due to additional caring responsibilities as a result of COVID-19 restrictions. According to the guidance, ‘caring responsibilities’ includes caring for children who are at home because schools and/or childcare facilities have temporarily shut. It also includes caring for a vulnerable person in the household.

The change in advice follows requests from the Trade Union Congress and opposition MPs for the government to provide more support for working parents during the third lockdown. The government rejected calls for parents to be given the right to demand furlough, though the new guidance creates more flexibility for both parents and employers.

Comment: It can be extremely challenging to complete a comprehensive day’s work alongside home-schooling children or other caring responsibilities. Accordingly, the new option to furlough employees with such responsibilities might be attractive to some employers who are able to cover the work in other ways. However, sensitive discussions will be necessary with employees who cannot be furloughed regarding any reallocation of any additional work their way. Being flexible with working hours and deadlines can also help parents with such responsibilities. In these unusual times, what works best for employees will often be the best thing for the business too when considering efficiency and productivity.

See the new guidance at: https://www.gov.uk/guidance/check-which-employee-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme

  1. Indirect discrimination – the appropriate pool for comparison

Overview: Indirect discrimination arises when an employer applies a policy to everyone which puts people who share a specific protected characteristic (such as race or sex) at a ‘particular disadvantage’. For example, is there a provision, criteria or practice which unwittingly discriminates against BAME employees as compared to white employees? Getting to the bottom of this involves a comparative exercise showing that one group is disadvantaged when compared to another. These groups are often referred to as the ‘pools for comparison’. The pools need to include all the workers affected by the policy but exclude those who are not. In Cummings v British Airways, the EAT examined who should go into these pools in an indirect sex discrimination claim involving childcare.  

Facts: British Airways had a policy that crew members who took parental leave would have one rest day removed for every three days’ parental leave taken in a monthly roster. A female employee subject to this policy brought a tribunal claim on the grounds of alleged indirect sex discrimination.

First-instance decision: The employment tribunal concluded that the policy did not put women at a particular disadvantage when compared to men.  The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within the workforce. Since both groups suffered the same disadvantage when they took parental leave, the tribunal said there was no particular disadvantage to women and it could not be sex discrimination.

On appeal: The EAT said there was a problem with this reasoning and the position was in fact more nuanced. Not all employees with childcare responsibilities would apply for and take parental leave. This means that not all people with childcare responsibilities in either group, male or female, would be disadvantaged. It had been acknowledged in the Supreme Court case of Essop that women still bear the bulk of childcare responsibilities in society. Of 2,500 cabin crew, 69 per cent were women and 31 per cent were men. Of those who took parental leave, 417 were women compared to 92 men. A far greater proportion of female employees (24.2 per cent) took parental leave compared to male employees (11.9 per cent). But what was missing from the evidence was the comparison between the specific number of male and female staff with children of the relevant age, who therefore had ‘childcare responsibilities’. This was an error of law and the matter was sent back to a fresh employment tribunal to consider the following questions:

  1. Did the policy put staff with childcare responsibilities at a disadvantage?
  2. Did it put women in that group at a particular disadvantage when compared with men? and
  3. Was it justified?

Take-away: This case is a helpful explanation of how the pools for comparison are made up in an indirect discrimination claim. Creating the pools is a complex analytical exercise and this case demonstrates that even experienced lawyers and judges can disagree with how to approach this exercise. Employers should seek legal advice in relation to indirect discrimination allegations early so that any problematic policies can be updated before cases are litigated.

  1. Pregnancy discrimination – when can you transfer pregnant employees to other roles?

Overview: Section 18 of the Equality Act 2010 deals with pregnancy and maternity discrimination. An employer discriminates against an employee if they treat her less favourably whilst she is pregnant or on maternity leave. It is unlawful to discriminate against an employee either because of the pregnancy (or any related illness) or because of the mere fact she has taken maternity leave. An employee is protected against such discrimination from the time when she first becomes pregnant until the end of her maternity leave.

Recently, the Employment Appeal Tribunal looked at whether an employer changing a pregnant employee’s job to remove alleged workplace risks could be considered less favourable treatment.

Facts: In Devon and Cornwall Police v Town, the employee was a frontline police officer who worked in the Response Team. When she became pregnant, a risk assessment confirmed that she could safely remain in the Response Team with some adjustments. Instead, the employer applied a generic policy that transferred employees on restricted duties to the Crime Management Hub, an office-based role. They essentially ignored the risk assessment. The employee did not want to transfer roles and argued that the transfer affected her mental health and made her ill. She brought claims for pregnancy and maternity discrimination and also for indirect sex discrimination.

First-instance decision: The employment tribunal found that the employee had been discriminated against on the grounds of her pregnancy. The employer had also indirectly discriminated against her on the basis of her sex because women were more likely to be forcibly transferred to restricted duty roles due to pregnancy and associated ill health.

On appeal: The employer appealed, saying that a policy designed to protect someone from risk could not be ‘unfavourable’ treatment. It further argued that the policy only disadvantaged pregnant women, not women in general. The EAT disagreed with the employer. It said that it was ‘unfavourable’ treatment to move the employee to a job that she didn’t want, which made her ill and which was not removing her from any danger. For the purposes of the indirect discrimination claim, the EAT said that it was enough that the policy was more likely to affect women who were more likely to be subject to the policy due to pregnancy because only women can get pregnant. It wasn’t necessary to demonstrate that all women actually suffered from the disadvantage.

Take-away: This case shows how important it is for employers to engage with pregnant women about steps taken to protect them from work-related risks. In this case, the risk assessment clearly showed that the employee could safely remain in her substantive role. The tribunal noted that any ambitious frontline police officer would consider the move to a non-operational role a retrograde step. In circumstances where an employee actively wants to stay in her job, any steps ignoring risk assessments and the employee’s own desires should be taken with extreme caution. Protecting women from clear dangers is vital, and failure to do so carries its own risks, but there must be an actual risk to health and safety to justify a change of role or other actions at work which could be perceived as less favourable treatment.

  1. Constructive dismissal – can raising a grievance affirm a Contract?

Overview: A constructive dismissal arises when an employer fundamentally breaches the employee’s contract, entitling the employee to resign and say they were effectively dismissed by their employer. The breach must be fundamental, which means it is really serious and goes to the root of the contract. If there is a fundamental breach of contract, the employee has a choice: to either accept the breach and act on it by resigning, or to waive the breach and affirm the contract by continuing to work. If they do the latter, they will not be entitled to a remedy for constructive unfair dismissal at tribunal.

Facts: In Gordon v J&D Pierce (Contracts) Limited, the employee’s relationship with his manager had deteriorated. He resigned and claimed constructive dismissal, saying that the trust and confidence between employee and employer had been destroyed.

Held: At first instance, the employment tribunal dismissed his claim, saying that both sides had contributed to the relationship breakdown. Trust and confidence had not been breached and the employee had not been entitled to resign and claim he was pushed out of work. The tribunal also held that, in raising a grievance, the employee had affirmed the contract. The employee appealed to the EAT.

On appeal: The EAT agreed that there had been no breach of contract and dismissed the employee’s appeal. However, the EAT provided some interesting commentary on affirmation, saying that engaging in a grievance process after a breach of contract did not necessarily mean that a contract had been affirmed. Exercising a contractual right (such as appealing against a disciplinary sanction or raising a grievance) should not be regarded as affirming the contract as a whole. The EAT held that these processes are severable from the remainder of the contract and can survive it, even when the rest of the contract is considered to have been terminated by a breach. If the employee wins the appeal or grievance, it is then open to them to affirm the rest of the contract too and continue in employment.

Take-away: This decision makes sense as it would be odd if the very processes designed to resolve differences (disciplinary and grievance procedures) could not be used by an employee in circumstances where their contract has been breached. It would completely undermine the purposes of these processes; namely to resolve disputes and foster good employee relations. In this case, the employee lost his appeal in any event, but the clarity provided by the EAT should be welcomed by all parties.

  1. Employment tribunals – compensation and calculating mitigation

Overview: If an employment tribunal finds that an employee has been unfairly dismissed, they then need to decide whether, and how much, compensation should be paid. The tribunal can order the amount that it considers is ‘just and equitable’ bearing in mind the employee’s losses. Such compensation, however, can be reduced by a fair amount as determined by a tribunal if the employee caused or contributed to their dismissal. This is known as contributory fault.

In Hakim v The Scottish trade Unions Congress, the EAT has looked at how employment tribunals should approach the issue of calculating losses.

First-instance decision: The employment tribunal found that the employee had been unfairly dismissed. However, the tribunal reduced his compensation for several reasons. Firstly, they said that 35 job applications in 4 years was not a good enough search for alternative employment. They felt that his job hunt had been too narrow as it was confined to the equalities/trade union/third sector jobs. The tribunal also noted that the employee had not attempted to retrain or look for volunteering work. Accordingly, they decided that it was just and equitable to reduce his compensation by 30%.

Appeal: On Appeal, the EAT disagreed with the tribunal. They held that, in order for percentage reductions to be just and equitable, a tribunal must be able to justify the use of such a ‘crude’ approach. This approach might be reasonable if there is a lack of evidence about alternative employment prospects and/or what wages that alternative employment would attract. But in this case the employee had secured alternative employment at a specific wage. The tribunal had held that he would have secured employment earlier had he tried harder. The EAT’s view was that, rather than apply a percentage reduction, the tribunal should have decided when the employee should have secured employment and deduct from his compensation the earnings he would have received had he mitigated his loss properly. Percentage deductions are fine as long as a tribunal can justify why they are made, which the tribunal here did not. The judge sent the case back to the tribunal to do the sums again properly.

Take-away: This case does not rule out percentage deductions on compensation which are widely used in other ways in employment law (e.g. for Polkey deductions) and other legal claims. However, in order to reduce compensation by a percentage, a tribunal must be able to justify that deduction. This is useful for employers to know, both in relation to tribunal awards and also in relation to settlement at an earlier stage.

  1. ACAS early conciliation and extending time limits

Overview: Employment Tribunals have strict time limits for employees to bring claims against employers (usually 3 months from the date of dismissal or other harm complained of).

Before bringing a tribunal claim, employees must first go through an ACAS early conciliation process (known as “EC”). EC is designed to encourage settlement of disputes and avoid the need for tribunal proceedings. The EC process ‘stops the clock’ on the limitation period for the tribunal claim to allow the parties time to negotiate a settlement. Once the process is complete, if the case has not been settled through EC, ACAS send an EC certificate confirming the dates of conciliation, which starts the clock on the tribunal claim limitation period again. Calculating time limits might seem simple but, in reality, can be very complex. What happens if an employee submits a claim late because they get their maths wrong?

Facts: In Adedeji v University Hospitals Birmingham NHS Foundation Trust, the employee was a consultant surgeon. After a long capability and conduct procedure, he resigned and claimed constructive dismissal and race discrimination. He lodged his tribunal claims late, despite being warned twice by his legal advisor to lodge any claim within the normal 3-month limitation period. The employee mistakenly thought that he would get an extension of time by contacting ACAS afresh despite having received an EC certificate. The employment tribunal refused to grant him any extensions of time.  The employee appealed but the EAT also dismissed his appeal and the employee appealed again to the Court of Appeal.

Court of Appeal: The Court of Appeal agreed with the EAT’s decision. The EC certificate was valid which meant that the employee’s claims had been out of time. The employment tribunal’s job was then to decide whether there was a reasonable excuse for that. As the employee was a highly educated and intelligent person with access to legal advice, it was held that it was not unreasonable not to extend time to allow the claim to proceed.  

Take-away: Whilst this case represents good news for employers, it does not mean that all claims submitted late will be rejected. The facts of each claim will be highly relevant. Here, the employment tribunal felt that it was unreasonable for a consultant surgeon with access to lawyers to claim ignorance of the law and its time limits. For a less educated employee, or one without access to legal advice, the situation might be different, for example in the case of John Lewis v Charman. In those circumstances, an employment tribunal might be more forgiving for employees without any advisers or with only rudimentary knowledge of employment law.

  1. Trade union activities – be careful when considering disciplinary action in relation to these

Overview: Section 146 of the Trade Union and Labour Relations Act 1992 protects workers against poor treatment by their employer because of trade union activities. Like victimisation, this is designed to allow employees to participate in trade union activities without fear of any adverse consequence from their employer.

In UCL v Brown, the EAT looked at whether the sole or main purpose of an employer’s verbal warning was the employee’s trade union activities. Facts: Mr Brown was an IT Systems Administrator at UCL and a local trade union representative for the University and College Union (“UCU”). The IT department had a department-wide mailing list of around 500 staff. The mailing list had been used for over 14 years by staff for work-related issues, random matters such as lost keys and by trade union reps for union-related communication. The heavy email traffic irritated some people. Management decided to limit department-wide emails: messages would go into a ‘moderation’ queue for management to decide whether the communication was appropriate. A separate group was created, with no moderation, but which required staff to actively “opt in” to receive messages. Only 120 out of 500 staff opted in. This significantly changed the reach which the trade union had in relation to staff. Mr Brown consequently set up a new mailing list and added all staff to it, making it clear to management that he was acting in his trade union capacity. He was asked to delete it and was given a verbal warning when he refused. He brought an employment tribunal claim for trade union detriment.

Held: The employment tribunal held that setting up the new mailing list and refusing to take it down were trade union activities. It followed then that a verbal warning by the employer for the employee doing those activities was a detriment.  The employer appealed the first instance decision but the EAT agreed. They held that the manager’s main motive in dismissing Mr Brown was his refusal to delete the mailing list.  This alone was enough for Mr Brown to win the claim as a verbal warning was clearly ‘detrimental’ treatment to Mr Brown.

Take-away: This case acts as a sage warning to employers who take disciplinary action against trade union representatives. In this case, modern email communication had overtaken and replaced older methods such as the notice boards and pamphlets. The employee had made it plain that he was acting in his trade union capacity regarding the mailing list. Engagement by the employer with Mr Brown at that stage would have been better than disciplining him. His employer should have allowed the distribution, of trade union-related material.

  1. And finally… vaccination policies at work

Overview: With the coronavirus vaccination programme well underway in the UK, many employers are considering what vaccination might mean for their business. Some companies are announcing that they will dismiss or refuse to recruit employees who aren’t vaccinated. 23 per cent of employers recently told an HRLocker survey that they plan to make vaccination compulsory at work. It’s easy to see why employers may want their workforces vaccinated. A fully-vaccinated workforce will (hopefully) mean a substantial reduction in both the incidence of the virus in the workplace and the risk that the virus poses to both staff and customers/clients. However, a blanket rule is risky, for the reasons explored below.

Risks: Firstly, a compulsory vaccination policy applied to everyone could put employers at risk of a tribunal claim from employees with particular ethical or religious views. For example, some vaccines contain pork related products such as gelatine, which a vegan, Jewish or Muslim employee might refuse on the grounds of religion or belief and bringing an indirect discrimination claim. Employers pushing compulsory vaccination policies would have to rely on the defence that the policy was a proportionate means of achieving a legitimate aim which may be tricky. An employee might also be able to bring a harassment claim under the Equality Act. Aside from potential discrimination claims, a ‘no jab, no job’ policy will be difficult for most employers to justify. The vaccine is not legally compulsory, so an employment tribunal is unlikely to welcome an employer trying to make it obligatory via the back door.

In addition, the risk of adverse effects from the jab, however small, cannot be completely ruled out; – it would be tricky to justify a dismissal for refusing a vaccine which might pose a health threat. Many people are nervous about the new jabs which have been developed and approved so quickly, and are keen to wait to see how any side effects play out over time before deciding whether to take the vaccine themselves.

In addition, forcing an employee to take a vaccine might also infringe on their human rights.

Are there any workplaces where compulsory vaccination might be justified?

Whilst for most employers, such a policy will be difficult to justify, there are some workplaces where the position is less clear. For example, in care homes and the NHS where there have been staff shortages due to infection and isolation requirements, vaccinations could protect vulnerable patients and staff from the virus, potentially reducing or removing its devastating effects.  For these employers, the prospects of successfully defending a subsequent claim for unfair dismissal may be improved. However, as always, a fair procedure must still be followed. It is strongly preferable to explore other options for those who refuse the jab rather than taking any disciplinary action against them. This could include redeployment from the front line or changes to working hours.

Take-away: In summary, employers are likely to be able to encourage or request that their employees take a vaccine. With employee consent from a GDPR-perspective, employers should be able to create a confidential list of employees who have received the vaccine and organise their workforces accordingly. However, subjecting employees to any dismissal or other detriment for refusal to vaccinate could present considerable legal risk. Check that there is not a potential discrimination claim by exploring the employee’s reasons for refusal. Similarly, avoid disciplinary action for employees and consider alternative options such as: working from home or redeployment or changes to working hours with the employee’s consent.