Employment law alert UK - August 2021

Government publishes response to consultation on sexual harassment. Following its consultation back in 2019, triggered by the #metoo campaign, the Government has finally published its response. It will introduce a new mandatory duty on employers to take "all reasonable steps" to prevent harassment at work, which would be enforceable without the need for an incident to take place. It will also introduce protection against third party harassment, but will not extend protection to interns or volunteers. The Government will "look closely" at extending the time limit to bring all Equality Act claims from three to six months. However, there is no commitment to any timeframe: changes will be made "when parliamentary time allows".

PRA and FCA publish discussion paper on diversity and inclusion in the financial sector, and FCA consults on proposals to boost diversity on boards. On 7 July 2021, the regulators issued Discussion paper DP21/2, seeking views on how to accelerate change on D&I in the financial services sector. There are proposals on leadership, governance, individual accountability via the SMCR and remuneration, as well as suggested policies including setting targets, training, promoting progression and D&I audits. Comments are invited by 30 September 2021. For more detail, read our Insight here. Flowing from this, on 28 July 2021, the FCA launched a consultation on proposals to boost disclosure of diversity on listed company boards. It closes on 22 October 2021. For more detail, read our Insight here

ECJ rules that ban on religious dress not discrimination. The ECJ has held that a ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not amount to direct discrimination, as long as the rule is applied in a general and undifferentiated way. Such a rule can be justified by an employer's genuine business need to pursue a policy of neutrality for its customers or users. It could not be justified if it were limited to 'conspicuous, large signs' - it must extend to all visible forms of expression. (IX v WABE & MH Muller v MJ)

Employee who refused to return to work to protect father was unfairly dismissed. Gibson, a chef, was dismissed without process after refusing to return to work because he was worried it was unsafe and that he might pass Covid to his father who was clinically extremely vulnerable. His claim under s100 ERA (the "serious and imminent danger" provision) was successful: the Tribunal was satisfied that he had a reasonable belief that there was serious and imminent danger at the time, and that Gibson took appropriate steps by raising the issue of PPE. (Gibson v Lothian Leisure).

Male advertising executives win sex discrimination case. Two male advertising executives were made redundant after raising concerns about comments made at a conference by the creative director: she said she wanted to "obliterate" the reputation that the agency was full of white, privileged straight men. The Tribunal concluded that the dismissal was because of their sex, including to open senior positions for women and for the impact on its gender pay gap figures. The case is a cautionary tale of unlawful positive discrimination. (Bayfield v J Walter Thompson Group Limited).

Trader wins unfair dismissal claim over spoofing allegation. The Tribunal has ruled that a former trader for JPMorgan was wrongly dismissed for a 2016 trade that the bank claimed was 'spoofing' e.g. market manipulation. However, the Judge ruled that the dismissal was really in order to "appease" the regulators. The Judge also considered it unfair that the bank had waited four years to bring disciplinary proceedings without good reason. (B Jones v JP Morgan Securities)

Supreme Court rules on burden of proof in discrimination under Equality Act. This case reaffirms the existing position and is welcome news for employers. The Supreme Court confirms that the burden of proof provision set out in the Equality Act 2010 at s.136(2), does not involve a substantive change of the law. The EAT previously found that s.136(2) had changed the law and put no burden on a claimant to prove anything at this initial stage; it considered that the focus should be on the entirety of the evidence, from all sources, to determine whether there are facts from which the courts can decide discrimination has occurred. The Court of Appeal overturned the EAT decision. The Supreme Court (upholding the CA) confirms that the claimant bears the initial burden of establishing facts that support a case of discrimination but clarifies that, when assessing the case, the tribunals can adduce facts from the evidence of both the claimant and the respondent. In other words, although the test is framed as placing a burden on the claimant, in practice the courts will consider evidence from all relevant sources, when determining whether the facts establish a prima facie case of discrimination. If that hurdle is cleared, the burden then shifts to the employer to explain the reason for the treatment and the tribunal will go on to consider whether there is a non-discriminatory explanation. (Efobi v Royal Mail Group Limited)

No timeframe for extending redundancy protection for women and new parents. Paul Scully, MP, confirmed in the House of Commons this month that the Government is committed to extending redundancy protection (for six months once a new mother has returned to work). Similarly, there is no clear timeframe. The protection will be brought in "when parliamentary time allows".

HM Treasury publishes five-year review of the Women in Finance Charter. The review assesses the Charter's achievements and impact on gender diversity in financial services. It concludes: "The average proportion of women has increased from 14% to 22% on executive committees across the UK finance sector and from 23% to 32% on boards since 2016. There is clear evidence that the Charter has made a vital contribution to driving permanent, sustainable change over the past five years - but the work of the Charter is far from done." The report says that, if firms are serious about bringing more women into exco and executive board directorships, they need to be better at nurturing female talent in business leadership roles. So, welcome progress - but more to be done.

WEC launches inquiry into menopause in the workplace. This remains a hot topic following a recent survey, which found that three in five menopausal women were negatively affected at work and some 900,000 had left their jobs due to symptoms. The WEC has now launched an inquiry to examine the extent to which menopausal women face discrimination and how Government policy and workplace practices can better support them.

Tribunal has rejected ICR1 breach allegations. The Upper Tribunal (Tax and Chancery Chamber) has found a CEO (of an insurance mutual) not to have breached ICR1 or lacked integrity. The Tribunal rejected on the evidence allegations from the FCA and PRA that he had overpaid his wife for work she allegedly didn't do and forged minutes of the firm's RemCo to disguise this. This is the first Tribunal case to consider (and reject) allegations by the FCA and PRA of breaching ICR1 specifically. It underline how difficult assessments can be for clients undertaking FIT assessments and CR breach determinations as both the PRA and the FCA in this case went too far and got it wrong in finding integrity breaches. (Forsyth v FCA and PRA)