Employment law alert UK - May 2021

Race report suggests ethnicity pay reporting should be voluntary. The Government's Commission on Race and Ethnic Disparities published its report on race relations in the UK, triggered by the #BlackLivesMatter campaign. The report makes recommendations on how to advance racial fairness at work, suggesting that employers continue to report ethnicity pay gap data on a voluntary basis and that they move away from unconscious bias training in favour of other evidence-based interventions.

Employee who refused to return to workplace for fear of catching Covid-19 was not automatically unfairly dismissed. The Tribunal ruled that the statutory protection under s100 ERA where an employee reasonably believes there was a serious and imminent danger did not apply. In this fact-specific decision, which took into account the employer's safety precautions, the Tribunal found that the employee did not hold such a belief. (Rodgers v Leeds Laser Cutting Ltd).

Changes to right to work checks. The Home Office updated its guidance for employers carrying out right to work checks during the pandemic, confirming that the concession permitting employers to carry out checks remotely using video conferencing and copy documents is to end on 16 May 2021. [Amendment: please note this has now been extended to 20 June 2021.] Retrospective checks will not be required. Employers should also ready themselves for further changes to checks for EEA nationals after 30 June 2021.

Financial Stability Board calls on PRA and FCA to better align the remuneration regime and SMCR. The FSB published its peer review on the implementation of financial sector compensation reforms in the UK. Whilst the review concludes that the remuneration regime in combination with the SMCR has helped firms to make improvements, the framework could be strengthened by reviewing the interaction between the regimes.

Supreme Court considers burden of proof in discrimination claims. On 27 April 2021, the Supreme Court heard the appeal in Efobi v Royal Mail Group Ltd on the issue of which party bears the burden of proof in a claim for discrimination under the Equality Act 2010. Following the Court of Appeal decision that the Claimant does bear the initial burden of establishing a prima facie case, Mr Efobi appealed arguing that the issue should be approached in a neutral way. The Judgment is awaited.

EAT hears Forstater appeal on whether "gender critical" belief is protectable. On 27/28 April 2021, the EAT heard the appeal in Forstater v CGD Europe & ors against the Tribunal's finding that the claimant's belief that gender is immutable was not protected under the Equality Act 2010. The EHRC has intervened arguing that whilst it could be a protected philosophical belief, manifestation of that belief may or may not be protectable. Judgment is awaited.

Addison Lee denied permission to appeal finding that its drivers are workers in line with Uber decision. This Court of Appeal decision indicates that future cases involving drivers to whom work is allocated via an app are likely to be decided in line with the Uber decision. The cases confirm that the drivers are workers and entitled to certain rights such as national minimum wage, holiday pay and rest breaks. (Addison Lee v Lange & ors).  

When assessing disability, the definition of "substantial" adverse effect takes precedence over guidance. The correct approach to determining whether an impairment has a substantial adverse effect on the claimant's ability to carry out their day-to-day activities is first to consider whether the definition of "substantial" (meaning "more than minor or trivial") is met. (Elliott v Dorset County Council).

Court of Appeal confirms relevant factors in considering whether re-engagement is practicable. Where an employer does not believe that the employee has the ability to perform the required role if re-engaged, it will need to show that it is a genuine belief based on rational grounds and that genuine essential requirements for the role are not met. Lack of trust and confidence in an employee's capability (not just conduct) may be relevant. (Kelly v PGA European Tour).

EAT rules no sex discrimination where employer provides enhanced adoption pay but no enhanced shared parental pay. The EAT applied the decision in Ali v Capita that a woman on statutory maternity leave was not the correct comparator for a man on SPL because the underlying purpose of the leave was different. It further ruled that a woman on statutory adoption leave was not the correct comparator to a man on SPL because the underlying purpose goes far beyond the facilitation of childcare. (Price v Powys County Council).

EU Commission blocks UK's accession to the Lugano Convention. In a non-binding recommendation, the Commission has said that the EU should not consent to the accession of the UK to the Lugano Convention, which sets out a framework governing cross-border jurisdiction issues. Losing the Lugano framework will mean reverting to the national laws of each country to determine which court has jurisdiction and whether a judgment will be recognised.