Employment law alert UK - November 2021

Symptoms of menopause can constitute a disability. The EAT has ruled that the Tribunal was wrong to find that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010. The Tribunal's decision was surprising given the severity of her symptoms and the judgment failed to properly consider the evidence. (Rooney v Leicester City Council - EAT - 7 October 2021). The decision is timely as October marks "World Menopause Month" and the press have reported that over a quarter of women have left their jobs due to menopause symptoms. Acas has published guidance to help employers navigate menopause issues at work and we await the results of the WEC Inquiry into menopause in the workplace.

Collective bargaining must be exhausted before making direct offer to employees. The Supreme Court has ruled that an employer's direct pay offer to employees, which bypassed stalled collective bargaining with the recognised trade union, amounted to an unlawful inducement under s145B of TULRCA 1992.  Section 145B prohibits employers from making offers to workers who are recognised trade union members, if acceptance of the offer would have "the prohibited result" (namely that the worker's terms of employment will not be determined by collective agreement). Whilst unions have a right to be heard, the court confirmed that they do not have a right of veto and that section 145B does not prohibit direct offers to employees. However, collective bargaining must be exhausted before the offer is made. (Kostal UK Ltd v Dunkley and others - Supreme Court - 27 October 2021).

Evidence is key to demonstrating justification in discrimination claims. The EAT considered the combined appeals of two professors who were compulsorily retired under the Employer-Justified Retirement Age (EJRA) of the University of Oxford. Both brought claims on similar facts: in one it was held that the EJRA was a proportionate means of achieving a legitimate aim and in the other it did not. However, the EAT ruled that neither decision was wrong: it is possible to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims. However, the evidence is critical - and in this case, the evidence differed in material respects (Pitcher v University of Oxford; University of Oxford v Ewart - EAT - 27 September 2021).

Courier with limited right of substitution still deemed "worker". The Court of Appeal has confirmed the Tribunal's decision that a courier driver who could release a delivery slot that he had agreed to cover to another courier was still a 'limb b' worker. The system worked via an app, whereby the courier could circulate a notification to other couriers who could opt to fill an unwanted slot, otherwise the original courier would have to complete it. The Court held that the courier's right of substitution was limited enough to be consistent with personal performance. (Stuart Delivery v Augustine - Court of Appeal - 19 October 2021). Meanwhile, Amazon drivers are also joining forces in a potential group action claiming worker status.

Current practice on interim remedies in discrimination claims is proportionate. In a previous Tribunal case, Ms Anwar was awarded circa £74,000 from her former employer as compensation for harassment, but her employer took steps to dispose of the funds and it remains unpaid. Ms Anwar sought judicial review, arguing that there is no legislation which gives the Tribunal the power to effect an arrestment of funds, which is incompatible with her right to an effective remedy. The Supreme Court dismissed her appeal, concluding that current practice on interim remedies in tribunal claims is proportionate (in Scotland). (Anwar v the Advocate General (Representing the Secretary of State for Business and Energy and Industrial Strategy (Scotland) - Supreme Court - 13 October 2021).

FCA sets out its remote or hybrid working expectations for firms. The FCA has published a statement outlining its expectations for firms considering remote or hybrid working. As well as asking firms to consider whether the new way of working remotely or in a hybrid way may affect a firm's threshold conditions, the information on the register, and the impact on their planning, the FCA have also said that they have the ability to "visit any location where work is performed, business is carried out and employees are based (including residential addresses) for any regulatory purposes". 

Jaguar Land Rover signs agreement with EHRC to improve equality and diversity. The EHRC announced that Jaguar Land Rover has signed an agreement and action plan to improve its policies and practices on equality and diversity, and it will monitor JLR's progress within the agreed timeframe. This follows the 2020 case of Taylor v Jaguar Land Rover in which it was held that non-binary identity was protected from discrimination under the Equality Act 2010.

Fawcett Society report shows significant level of harassment at work. The Fawcett Society has published a new report, Tackling Sexual Harassment in the Workplace, which reports that more than 40% of women experience sexual harassment during their career and 68% of LGBT employees had experienced harassment at work. The recommendations in the report will form the basis of a new sexual harassment toolkit for employers - to be published next January.

The ICO's data sharing code of practice now in force. The ICO has confirmed that a new version of its data sharing code of practice came into force on 5 October 2021. The code provides practical guidance for organisations on how to share personal data in a way that complies with the UK GDPR and Data Protection Act 2018. Whilst the provisions of the code are not legal requirements, it can be used in evidence in court proceedings.

TUC survey reports half of UK working mothers' flexible working requests are denied. The TUC has conducted a survey which has found that half of almost 13,000 working mothers said their working request had been rejected or only partly accepted. Eighty-six per cent who were working flexibly said they faced discrimination and disadvantage at work as a result. The UK Government is currently consulting on making flexible working a day 1 right.

Law Society guidance on disability inclusion. The Law Society, together with Cardiff University, has published best practice guidance on disability inclusion and reasonable adjustments.