November 2020 Newsletter

Last month saw a huge amount of activity with the planned end to the furlough scheme and the introduction of the new Job Support Scheme to follow from November. Originally aimed at businesses with reduced demand over the winter due to Covid, plans were made to extend the JSS to cover businesses who were required to close due to the 3-tier restrictions.

All this planning was overridden on 31 October when the Prime Minister announced a new month-long national lockdown where non-essential shops, restaurants and pubs must close. The furlough scheme is now being extended to March 2021 whilst the month-long lockdown is in place and beyond. Michael Gove indicated on the Andrew Marr show on 1 November that the lockdown could extend beyond 2 December. Everyone will be watching this space to see what effect the lockdown has on the spread of the virus.

Before the announcement, and following leaks about the government’s plans, business leaders said that another national lockdown would be devastating. Mike Cherry, Chair of the Federation of Small Businesses, said another lockdown would be ‘incredibly frustrating’ after small businesses had spent thousands in making their sites Covid-secure. It is an incredibly tough time for all employers and the situation is fast moving. Keep up to date with both the rules and support at www.gov.uk, or contact us for immediate and targeted help.

1. Subject Access Requests – some good news for employers

Anyone can make a subject access request (SAR) from an organisation to ask whether and how a business is processing their personal information.

In the employment sphere, SARs are sometimes used tactically by dissatisfied employees, often in preparation for bringing a grievance or an employment tribunal claim.

SARs can be time-consuming for businesses to deal with. However, with current penalties for non-compliance of up to 20 million euros or 4 per cent of annual turnover, organisations are compelled to take any subject access requests they receive seriously.

Last month, the Information Commissioner’s Office (ICO) published detailed new guidance to help businesses deal with SARs effectively and efficiently. The guidance contains three key points:

1.            stopping the clock for complying with requests when clarification is needed (this is possible if clarification of the request is genuinely required and the organisation processes a lot of information about that employee).

2.            defining what is a ‘manifestly excessive’ request i.e. one an employer may not have to comply with.

3.            charging fees (i.e. for the cost of staff time, printing, postage etc) for excessive or unfounded (which can include repeat) requests.

This is good news for businesses who may be facing increased pressures due to the Covid-19 pandemic.

The ICO is also creating a simplified SAR guide for small businesses (who may have fewer means and resources to cope with complying with requests) which picks out the most important points from the detailed guidance. Find the Rights of Access guidance and other helpful materials at www.ico.org.uk.

2. Can company policies be indirectly discriminatory?

Overview: Indirect discrimination occurs when a policy or practice is applied to all employees but negatively impacts on a group sharing a protected characteristic (e.g. age, race or sex etc).

To prove indirect discrimination, an employee must show that the policy or practice puts a particular group at a disadvantage and puts them personally at that disadvantage. The employer must then justify the policy as a proportionate way of achieving a legitimate business aim.

In Ryan v South West Ambulance Services the Employment Appeal Tribunal (EAT) has looked recently at what an employee must do to show disadvantage.

Facts: The employee was a manager and was 66 or 67 years old. The employer operated a Talent Pool to identify future leaders and maintain existing leaders. The pool was used to fill some vacancies quickly without wider advertising. Employees could go into the Talent Pool if they exceeded expectations in appraisals; via an appeal if their grading was lower; or by self-nomination. Here the employee’s appraisal found that she had met expectations and she did not appeal or self-nominate for entry to the pool. The employee applied for a managerial role which was advertised in the Talent Pool but was told she could not apply for it. She brought an indirect discrimination claim, saying employees aged 55 and over were underrepresented in the pool (the group disadvantage) and that she was unable to apply for the roles because she was not in the pool (the individual disadvantage).

Initial finding: The employment tribunal found that a policy of promotion only via the Talent Pool did have a negative impact on employees aged 55 and over. The over 55s had a 1 in 73 chance of being in the pool rather than a 1 in 34 chance for employees under 55. However, it found that the employee’s personal disadvantage – her inability to apply for the roles – was not because of the policy but because she had failed to take any steps to enter the Talent Pool. As a result, there was no causal link between the policy and her individual disadvantage.

EAT finding: The EAT disagreed. They found that the group and individual disadvantages need to match up and they did not in this case. The employer had applied a policy – recruiting from the Talent Pool – which limited recruitment to senior roles. Although there were legitimate reasons for this, it disadvantaged a group of older employees – those over 55. The EAT held that this policy did disadvantage the employee. She was affected by the policy because she could not apply for the promotional roles. The employer did not adduce any evidence to show why the discriminatory effect of the rule was not relevant in her case. Ironically, to succeed in this argument, the employer would have needed to show that it was likely she would have been put in the Talent Pool had she appealed her appraisal or self-nominated. They did not do this. Indirect discrimination was therefore made out (subject to justification). The EAT also held the tribunal was wrong to say the policy was justified because they had not looked properly at its discriminatory effect and any lesser measures which could have been taken instead.

Takeaway: The lesson for employers in this case is to analyse and monitor the discriminatory effect of any policies. If one or more groups are negatively impacted, consider what steps you can take to remove or lessen the disadvantage. In this case, a less impacting policy might have been to allow Talent Pool members to go head to head with other employees for promotional jobs. Another important point for employers is about the group and personal disadvantage corresponding in indirect discrimination cases. Without getting the technicalities right at the outset, any tribunal reasoning was bound to be flawed.

3. Vicarious liability – when are employers on the hook for practical jokes gone wrong?

Overview: Employers must make sure that the workplace is safe for employees. Businesses can be held responsible for the acts or omissions of their employees which take place ‘during the course of employment’. In Chell v Tarmac Cement and Lime, the High Court has looked at whether an employer should be vicariously liable for an employee’s practical joke which seriously injured a contractor.

Facts: Both employees and contractors worked as fitters at one of Tarmac’s sites. There were tensions between the two groups because the Tarmac fitters felt their jobs were threatened by the contractors. The claimant contractor had raised these rising tensions with his own employer and Tarmac. A few weeks later, a Tarmac fitter deliberately exploded two ‘pellet targets’ close to the claimant’s ear as a practical joke. It left him with a perforated eardrum, hearing loss and tinnitus. Tarmac dismissed the practical joker, but the contractor brought a claim for negligence against Tarmac. He also claimed that Tarmac was vicariously liable for the practical joker’s actions.

First instance: The County Court said there was insufficient connection between the practical joke and the duties of the employee as a fitter. Although there were known tensions between contractors and employees, the connection between the employment relationship and the prank was not sufficiently close. The tension had made the contractor feel uncomfortable but not threatened. The judge said it might have been different had the tension been so serious that it suggested physical violence or confrontation – it would have created a risk for the employer to address. The Court also found that the employer was not responsible directly – the risk of injury from a deliberate act was not foreseeable so there was no duty to take any steps to avoid the risk. The employer’s health and safety policies were extensive and warned against reckless misuse of equipment. That was enough. The contractor appealed.

On appeal: The High Court agreed with the County Court and applied Morrisons v Various Claimants (a case where the Supreme Court overturned previous courts’ decisions and said that Morrisons was not responsible for an employee’s deliberate act of stealing and publishing employee data). The High Court agreed that Tarmac had extensive health and safety policies in place to create a safe system of work in a potentially dangerous field. Including terms on horseplay or practical jokes would be too much to expect of an employer. The terms of the policy about the misuse of equipment was sufficient.

Takeaway: In this case, the court did not believe the contractor’s evidence that he asked to be removed from site due to the tension. This meant that he had overegged the true level of his concerns about workplace tension. This, in turn, meant that the level of concern he communicated to Tarmac was similarly lower.

The situation might be different where an employer is aware of workplace tensions and the risk of violence becomes foreseeable. As always, employers must ensure that any employee safety concerns are dealt with appropriately.

4. Religion and belief – what views may be protected? A balancing act…

Overview: An individual is protected from discrimination based on their religion or belief. A philosophical belief can be protected if: it is genuinely held; it is a belief not just an opinion; it involves a weighty aspect of human life and behaviour; it attains a certain level of cogency/importance and it is worthy of respect in a democratic society. In Mackareth v DWP and Forstater v Centre for Global Development, two employment tribunals found that individuals who believe that people cannot be transgender (because god only creates men and women) are not protected by the Equality Act 2010. The employees’ beliefs, which included a refusal to refer to trans people by their chosen pronouns, were incompatible with human dignity, conflicted with the rights of others and were not worthy of respect in a democratic society.

But employment tribunal decisions are not binding and another employment tribunal in Bristol has recently refused to follow suit in Higgs v Farmor’s School.

Facts: The employee was employed as a pastoral administrator and work experience manager. Someone outside the school complained about comments posted on her Facebook page which they said were transphobic and prejudiced against the LGBT community. The employee’s Facebook page was private but included parents at the school. One post invited people to sign a petition to stop schools teaching about same sex relationships and gender being a matter of choice. The employee had also reposted articles by other people on these issues which might have been relevant for several children in the school.

The employee was dismissed for gross misconduct for behaviour which contravened the school’s conduct policy including discrimination and serious inappropriate use of social media. She claimed she had been directly discriminated against and harassed on the grounds of her beliefs. Those beliefs included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex or gender (as well as others, including ones relating to same sex marriage).

Decision: The employment tribunal found that her beliefs were protected under the Equality Act 2010. She had rights under the ECHR to respect for private and family life, freedom of religion and freedom of expression. If those rights only applied to beliefs that upset no one then they would be worthless. However, they said she had not been discriminated against because of those beliefs. Her Facebook posts could not have had any expectation of privacy when her ‘friends’ included parents and screenshots could easily be taken and disseminated. In relation to direct discrimination, the school had reasonably considered that people reading her posts might think she was both homophobic and transphobic. This could negatively impact on parents, pupils and the community. The tribunal found that she was dismissed because her Facebook posts might indicate that she held unacceptable views about gay and trans people – beliefs which could not qualify for protection under the EA – rather than her actual beliefs about teaching gender fluidity in schools. She had not been harassed either. The disciplinary process was unwanted conduct, but it was related to the realistic perception that she was homophobic and transphobic rather than the expression of her beliefs. It did not have the purpose or effect of violating her dignity and didn’t create an intimidating or hostile environment.

The tribunal in this case tried to distinguish the facts of this case from Mackareth and Forstater. In Mackereth the employee was a doctor, in Forstater the employee was a visiting fellow at the Centre for Global Development. The tribunal said the employees’ beliefs in the two other cases might have resulted in discrimination against members of the trans community. But in Higgs there were LGBT pupils at the school and the employee had direct contact with children so it’s difficult to see how the situation is different.

Takeaway: We understand that all these cases are being appealed, which will hopefully result in future appellate guidance. This will be welcomed by employers who try to find the tricky balance between the rights of the LGBT and trans communities and the rights of those with conflicting beliefs.

5. Constructive dismissal – failure to return to work after Maternity Leave

Overview: A constructive dismissal can arise where an employer breaches the implied term of trust and confidence between employer and employee. The employee can then accept the breach and resign, saying they were pushed.

The EAT has looked recently at what constitutes acceptance of a breach and whether a simple failure to return to work following maternity leave is enough to communicate acceptance of a repudiatory breach of contract.

Facts: The facts of Chemcem v Ure are a little unusual. The employee was the daughter of the majority shareholder of the business. The employee’s father had left the employee’s mother and had formed a relationship with a colleague. Family relationships became strained and the employer made things difficult for the employee by: varying her pay arrangements without warning; switching her employment to the payroll of another company which was about to become insolvent; failing to pay her maternity pay on time; and not only failing to answer her queries but deliberately misleading her. The employee did not return to work after maternity leave and brought a constructive dismissal claim. The employer argued that her failure to return to work was not enough to communicate her acceptance of any breach of contract, so her claim should fail.

Initial decision: The employment tribunal found that there had been a course of conduct whilst the employee was on maternity leave. The employment tribunal found that her employer (via her father) was hostile towards her and had breached the implied term of mutual trust and confidence. Her failure to return to work was sufficient to accept the breach and bring her employment to an end.

On appeal: The EAT agreed. In this case, on its unusual facts, the employee’s failure to return to work was enough to communicate acceptance of the breach. The tribunal had found that the employee’s father did not want her to return to work because she would be managing his new partner. When she did not return to work, no one even asked where she was. The employee did not need to say anymore; clearly mutual trust and confidence had broken down. The employer was evidently hoping and perhaps even expecting her not to return.

Takeaway: This case is unusual. It involves a family run business with its dirty laundry being hung out on the shop floor. A failure to show up for work will not often be enough to communicate acceptance of a breach of contract. There are learning points to take away though, especially for family-run businesses. It is within these close-knit environments that the letter of the law and the finer detail of company policy often goes awry. It is exactly because of these close relationships that particular care must be taken to formalise the employment relationship and any issues that arise within it, however close or informal the relationships outside the office.

6. Whistleblowing – when are acts relied upon out of time?

Overview: Like many employment claims, a claim for whistleblowing detriment under section 47B of the Employment Rights Act 1996 must be brought within three months of the act or failure to act which the employee is complaining about. Where an act extends over a period, the date of the act is treated as the last day of that period. It’s all about the act and when that happened, rather than the consequences of the act. A continuing detriment is not the same thing as a continuing act.

Facts: In Ikejiaku v British Institute of Technology, the employee was a senior lecturer. He brought two detriment claims based on protected disclosures he had made during his employment. He made the first disclosure a year before he was dismissed, when he blew the whistle to HMRC about suspected tax evasion by his employer. After that, the employer made detrimental changes to his employment contract. The day before he was dismissed, the employee had blown the whistle on his manager who had told him to pass students who had been copying.

Initial decision: The tribunal found that he had been automatically unfairly dismissed because of the protected disclosure made the day before his dismissal. However, the contract imposition the year before was a one-off act, albeit with continuing consequences, and so the time limit for bringing that claim had started ticking a year earlier and was now out of time. It was not an act which extended over a period just because the new contract continued to be in place. The tribunal also found that there should be no ACAS uplift for the employer’s failure to follow the ACAS code because it didn’t apply to protected disclosure dismissals. The employee appealed.

On appeal: The EAT agreed with the tribunal that the contract change detriment claim was out of time. Time starts to run from the act, not the continuing detriment that an employee may suffer because of the act. A continuing act might typically be a policy or rule, but that was not the case here. It was not an act extending over a period either. The contract change was a simple one-off act. However, the EAT allowed the appeal on the ACAS code uplift. The ACAS code also applies to grievances raised by employees. The employer accepted that the protected disclosure the day before the employee’s dismissal was a grievance and so the matter was sent back to decide whether an uplift applied on that basis.

Takeaway: One point for employers to take away here is the applicability of the ACAS code even when the employee had not mentioned the grievance part of it in his claim form. The EAT found that this should have been considered by the tribunal regardless. It is also a comfort to know that a one-off act such as a contract change will not open an employer up to liability outside of the normal time limit for bringing a claim. As always though, employers must take care when employees raise complaints that might be protected disclosures. A knee-jerk reaction can come back to bite you.

7. Flexible working since the pandemic

A poll by Working Families indicates that two thirds of employers have noticed an increase in flexible working requests by male employees. The poll included a small sample of 26 UK employers. They were asked how they managed the numerous challenges posed by the global pandemic. One finding is that the pandemic may have reduced the stigma sometimes associated with men requesting flexible work arrangements.

The poll also suggested that there might be long term changes to working patterns which survive beyond the pandemic. Employers noted in the poll that flexible working can attract a wider range of employees to their business. More employees are expected to work flexibly or remotely for at least part of their working week. Some employers said office working would be a thing of the past now that remote and flexible working patterns had been proven to work so well without any negative effect on productivity or client service. 25 out of 26 employers said productivity had been the same or better during lockdown. Some felt that the pandemic had simply fast-forwarded a move towards this kind of flexibility in the workplace.

Many employers wish to retain some of the benefits of lockdown after the pandemic. The pandemic continues to cause huge disruption and anxiety for employers and employees alike. If the long-term consequence of the pandemic is a cultural shift to a position where flexible working is normalised, without any impact on results, that will be positive both for working parents and for business. Read the briefing at: www.workingfamilies.org.uk

8. Discrimination – Significant compensation awarded to a Gender Fluid Employee

An employment tribunal has awarded an employee £180,000 following its landmark judgment in September that gender fluid and non-binary people are covered by the Equality Act 2010.

In Taylor v Jaguar Land Rover, the judge held that gender is a spectrum, and it was beyond doubt that the employee was protected under the protected characteristic of gender reassignment.

However, the tribunal’s reasoning is brief and detailed written reasons will follow in a month or two Despite this, the basic facts have emerged in the press and there are several important takeaways.

Facts: The employee was employed for almost 20 years. She presented originally as male but, in 2017, began identifying as gender fluid/non-binary and started dressing predominantly in women’s clothing. She was subject to abuse and ridicule by colleagues and had difficulty accessing facilities. Management did not deal with her complaints properly.

Decision: The employment tribunal found that she had been harassed, directly discriminated against and victimised and she was awarded £180,000 in compensation. This included aggravated damages for both her treatment at work and also the way she was cross-examined in tribunal by the employer’s legal team. The tribunal also made a statutory recommendation that the board of directors read and absorb the written reasons for the tribunal judgment. The employer also agreed to a range of other measures including the introduction of a Diversity and Inclusion Champion and to commission a report on diversity and inclusion within the business by a recognised diversity body. A costs hearing will take place at a later date.

Take away: There will be lessons for employers to take from it in terms of how they deal with gender-fluid employees and diversity more generally. As ever, it is about having thorough and up-to-date policies, properly trained managers and a culture which celebrates diversity rather than shies away from it. This case shows just how costly those failures can be.