Employment law alert UK - June 2021

Discriminatory acts that are out of time may contribute to last straw constructive dismissal. The EAT has confirmed that earlier acts of discrimination may be taken into account provided that they "sufficiently influenced the overall repudiatory breach in response to which the employee resigned", even where the last straw incident itself was not discriminatory. The case involved a trainee hairdresser who alleged that the salon had engaged in a course of discriminatory conduct following her maternity leave. (De Lacey v Wechseln t/a The Andrew Hill Salon).

Government responds to WEC report on unequal impact of Covid. The Government has published its response to the report "Unequal Impact? Coronavirus and the gendered economic impact" from the Women and Equalities Select Committee. Whilst it rejected many of the WEC's recommendations, such as disability pay reporting, the response confirms it will extend redundancy protection for six months for mothers returning to work after maternity leave, is considering removing the service threshold for flexible working requests, will bring forward an Employment Bill "when parliamentary time allows" and respond to the consultation on ethnicity pay reporting in due course.

FCA/PRA confirm outcome of consultation on Senior Managers taking long-term leave. On 1 June, the PRA published PS 11/21 following the FCA's publication of their Handbook Notice which broadly outlines that the PRA/FCA are implementing their proposals as consulted on where a Senior Manager takes long-term temporary leave (e.g. parental leave). The changes came into effect on 2 June 2021. For Directory Persons, the firm need not notify the FCA and the individual can continue to appear as active on the register.

The Covid adjusted right to work checks process will stay in place until 20 June 2021. Despite its previous announcement, the Government has extended the deadline allowing right to work checks to be carried out via video call and using scanned copy documents until 20 June in line with Step 4 of the roadmap. It remains to be seen whether this will be adjusted if Step 4 is delayed. Employers are also reminded of the deadline of 30 June 2021 for EU, EEA and Swiss nationals to apply under the UK Settlement Scheme, followed by the new immigration system from 1 July.

Campaigners push for reform of Shared Parental Leave. Since its introduction in 2015, the uptake of SPL - which allows parents to share statutory leave and pay following the birth of a child - has been very low. Often this is because it is not as financially beneficial as the mother taking maternity pay - and recent cases have confirmed that it is not discriminatory not to offer enhanced pay for SPL where enhanced maternity pay is offered. In light of this and the inequalities thrown up by the pandemic, campaigners such as Maternity Action are calling for the scheme to be overhauled.

FRC research finds workforce engagement central to good corporate governance. The Financial Reporting Council has published its report, finding that many FTSE 350 annual reports downplay the importance of workforce engagement. The report explores different approaches firms have taken to give employees a voice in the boardroom and how effective they have been.

Private Member's Bill for Office of the Whistleblower presented to Parliament. This Bill, originally introduced by Baroness Kramer during the previous parliamentary session, had its first reading on 20 May 2021. The Bill seeks to establish an independent Office of the Whistleblower, which would give direction to and monitor the activities of relevant bodies, act as a point of contact for whistleblowers, form and maintain a panel of legal firms to advise on whistleblowing and maintain a fund to support whistleblowers. Such an independent body would align with requirements under the EU Whistleblowing Directive. Read our Feature.

Court of Appeal considers availability of interim relief in discrimination cases. On 25-26 May 2021, the CoA heard the appeal in Steer v Stormsure, concerning the bar on those dismissed on discriminatory grounds from obtaining orders for interim relief. The Claimant argued that such a right should be read into the Equality Act 2010 because it was required by Article 14 of the ECHR. It would be a landmark development if interim relief were to become available as a remedy for discrimination claims. The reserved judgment is awaited.

Long term effect of disability must be considered at date of the alleged discrimination. In this case involving two claimants suffering from depression, the Court of Appeal has ruled that the key question for the Tribunal to consider is whether, at the time of the alleged discriminatory acts, the effect of the impairment has lasted or is likely to last at least 12 months. This must be assessed by reference to the facts existing at the date of the alleged discriminatory acts, and not events occurring afterwards. (All Answers Ltd v W and anor).

Non-payment of an allowance during maternity leave will not necessarily amount to sex discrimination. A female police officer based in London was entitled to a "London allowance" in addition to annual salary, but this was only paid for the duration of occupational maternity pay and not the full duration of her leave. The Court of Appeal held that whilst she was contractually entitled to receive the allowance throughout her maternity leave, its non-payment did not constitute direct sex discrimination. This is a cautionary tale where the costs of the litigation far outweigh the sums at stake. Employers should be mindful of their treatment of allowances in maternity policies (Commissioner of City of London Police v Geldart).

No requirement for "irreducible minimum of obligation" for worker status. In Nursing and Midwifery Council v Somerville), the EAT ruled that that "mutuality of obligation" is not a prerequisite for worker status to be established e.g. for the worker to have to accept and perform a minimum amount of work, or for the employer to offer work. In this case involving a panel member of the Nursing and Midwifery Council's Fitness to Practice Committee, the EAT said that the lack of such mutuality of obligation could be relevant, but was not fatal.

Solicitor who refused changes to terms and conditions during pandemic was unfairly dismissed. The firm required all staff to agree to a variation of contract, allowing it to unilaterally reduce her hours and pay to 80% or to place her on furlough. She refused, saying that she would consider such variation if and when it became necessary. Given the circumstances, the Tribunal took the view that the lack of consultation and reasonable alternatives, as well as any right of appeal, rendered her dismissal unfair. (Khatun v Winn Solicitors).

Remedy provisions under Equality Act for unintentional indirect discrimination not incompatible with EU law. The Court of Appeal has held that requiring a tribunal to first consider whether to make a declaration or recommendation before compensation could be awarded did not make it more difficult for a claimant to enforce their domestic or EU law rights. The consideration requirement is not an obstacle to an award of compensation where it is due. (Wisbey v Commissioner of the City of London Police (CoA)).