Employment law alert UK - October 2021

Upper Tribunal provides guidance on non-financial misconduct. In March 2021, the FCA banned Jon Frensham from working in financial services on the basis that he is not fit and proper following a conviction for sexual grooming of a child. Frensham referred the matter to the Upper Tribunal. The Tribunal ultimately upheld the FCA's decision. However, this was due to his failure to be transparent and co-operative during the process: interestingly, it said that if it had been asked to decide the case on the basis of the conviction alone then it may have asked the FCA to reconsider its finding (Frensham v FCA Upper Tribunal 31 August 2021).

Requiring role to be office-based was indirect disability discrimination by association. The Tribunal has ruled that the employer's requirement for a senior manager to no longer work from home amounted to indirect disability discrimination by association. The Claimant was the primary carer for her disabled mother. The Tribunal applied the ECJ's judgment in Chez Razpredelenie Bulgaria AD C-83/14 that the concept of associative discrimination could in principle be extended to indirect discrimination. It accepted that carers for disabled people are less likely to be able to satisfy a requirement to be office-based than non-carers. The requirement to be office-based put her at a substantial disadvantage because of her association with her mother's disability as her primary carer. (Follows v Nationwide Employment Tribunal Employment Tribunal 14 March 2021).

Subsequent personal injury claim after settlement was not abuse of process. The Claimant, who alleged workplace stress and harassment, agreed to settle his claims under a settlement agreement. Clause 7 of the agreement explicitly provided that he was not prevented from bringing his potential personal injury claim. The employer then argued that the subsequent civil personal injury claim was an abuse of process and duplicative litigation which should be struck out. The Court ruled that clause 7 was a contractual bar preventing the employer from succeeding in its application. Whilst the case does not establish any new law, it is an important reminder to carefully consider the drafting of a settlement agreement where personal injury claims are at play. (Farnham-Oliver v RM Educational Resources High Court 31 August 2021).

EAT confirms narrow scope of Jhuti principle in whistleblowing cases. The EAT has confirmed that the Jhuti principle (where the motivation of person other than decision-maker could be attributed to the employer) will only apply in limited cases. Three requirements must be met: (1) the person whose motivation is attributed to the employer must have tried to procure the employee's dismissal because of the protected disclosure(s), (2) the dismissing manager must be "peculiarly dependent" upon that person as the source for the underlying facts, and (3) the role of the person who 'procured' the dismissal is such that it would be appropriate to attribute their motivation to the employer. In this case, the EAT agreed with the Tribunal that the correct approach was not to impute the motivation of the Head of Legal, who had not participated in the decision to dismiss. (Kong v Gulf International Bank (UK)Employment Appeal Tribunal 10 September 2021).

EAT considers anonymity order for non-party named in proceedings. The Claimant was named in proceedings brought by two former colleagues against her former employer. Whilst those claims were rejected, allegations of misconduct against the Claimant were set out in the resulting judgment, which was published online and appeared in a Google search. The Claimant brought an application for her name to be removed from the judgment, arguing that it could damage her employment prospects. At first instance, the Tribunal rejected her application on the basis that her Article 8 rights were not engaged because her identity had been discussed in a public trial. However, the EAT disagreed, confirming that prior publicity did not preclude the engagement of Article 8 and that she had a reasonable expectation of privacy. (TYU v ILA Spa Employment Appeal Tribunal 16 September 2021).

BEIS consults over proposals for day one right to request flexible working. BEIS has published its consultation "Making flexible working the default", which explores extending the right to request flexible working to all employees from day 1, removing the current requirement for 26 weeks' service (note however that this remains a right to request, rather than an automatic right for employees to work flexibly). It also considers whether the eight business reasons for refusing a request remain valid, and where refusing a request, whether the employer should be required to suggest alternatives. The consultation closes on 1 December 2021.

Government responds to consultation on carer's leave. The government has published its response to its recent consultation on carer's leave, confirming its intention to introduce a new statutory right for unpaid carers to take up to one week (five working days) of unpaid leave per year. The leave will be available to employees in order to care for a spouse/partner, child, parent, person who lives in the same household or a person who reasonably relies on them for care, and that person must have a long-term care need. There is not yet a clear indication of timing: legislation will be brought forward "when Parliamentary time allows".

Lord Frost plans review of EU retained law post-Brexit. In a statement to the House of Lords on 16 September, Lord Frost (Minister of State at the Cabinet Office) announced that the Government is proposing a review of retained EU law. First, it intends to remove the special status of retained EU law and second, to review comprehensively the substantive content of retained EU law. He said that the Government's intention "is eventually to amend, to replace, or to repeal all that retained EU law that is not right for the UK". It is not clear what the implications of this are yet - and in particular, its impact on employment law (particularly in light of commitments under the EU-UK Trade and Co-operation Agreement not to weaken or reduce existing labour/social protection). Read our Insight.

ET changes to rules on preliminary hearings. Under new amendment regulations, changes are being made to the Employment Tribunal rules regarding early conciliation and preliminary hearings. From 6 October 2021, the rules will be amended to ensure that the parties provide reasonable notice of a preliminary hearing (and at least 14 days' notice where preliminary issues are being heard). From 1 December, the rules will be changed to allow a prospective claimant to provide the names of more than one prospective respondent on an early conciliation form. The changes are being introduced to reduce unnecessary bureaucracy in providing access to justice through the tribunal system.

FCA speech on culture and hybrid working, D&I and climate change. On 24 September 2021, the FCA published a speech by Sheldon Mills delivered at the Investment Association, in which he set out the FCA's expectations on culture and hybrid working, diversity and inclusion and climate change. He talked about hybrid working as the lasting cultural impact of the pandemic, which brings with it both opportunities and challenges. D&I remains a key priority where the investment management sector needs to make up ground and that firms are expected to look hard at how they can build greater diversity in leadership and foster a culture of inclusion. The FCA also expects climate change to form a central part of how firms do business.