Employment Law Alert UK – June 2022

Diversity & Inclusion

• Harassment claim succeeded despite being 18 months out of time. The Claimant was dismissed for gross misconduct in May 2021 after submitting a witness statement on police headed paper during an investigation. The investigation concerned altercations between him and another colleague, during which his colleague called him a “bald cxxt”. He brought claims of unfair dismissal and detriment, harassment, victimisation and wrongful dismissal. The Tribunal upheld some, but not all, of the Claimant’s claims. Of particular note the Claimant’s claim of harassment on the ground of sex succeeded, despite being 18 months out of time. The Tribunal adopted a purposive approach noting that the object of the Equality Act 2010 is to proscribe harassment in the workplace. The Tribunal found that there was a connection between baldness and sex and that extending time in this case was just and equitable given the public interest in “hold[ing] wrongdoers to account”. This case serves as an important reminder of the breadth of harassment protection and the importance of regular training around appropriate workplace discourse. (Mr A Finn v The British Bung Manufacturing Company Ltd and Mr J King)

• Failure to provide a place to express breastmilk was sex harassment, but not direct or indirect sex discrimination. The Claimant, who worked in a school, requested a private room to express breastmilk on her return from maternity leave. Her request was not accommodated and as a result she had to resort to expressing milk on the floor of the toilets or in her car. She brought claims of direct and indirect sex discrimination and sex harassment. The Claimant’s harassment claim succeeded. The Tribunal concluded that being forced to express milk in the toilets or her car was unwanted conduct which did have the effect of creating a degrading or humiliating environment for the Claimant. The act of expressing milk is also inherently linked to the Claimant’s sex. Her claims for direct and indirect sex discrimination failed. Her direct sex discrimination claim failed because the Tribunal found that it was the school’s administrative incompetence, rather than the Claimant’s sex that was the reason she was not provided a suitable place to express milk. The Tribunal confined the protection in section 13(6)(a) and (7) to the act of physical breastfeeding, rather than more generally extending to breastfeeding mothers. The Claimant’s indirect discrimination claim failed because the Tribunal reasoned that biological men cannot express breastmilk, and as a result no comparative disadvantage between men and women can arise. (Ms T Mellor v The MFG Academies Trust)

• 10% of women leave the workforce due to the menopause. New research carried out by Health & Her has found that 10% of women leave the workforce due to the menopause. According to the research 15% of women have called in sick as a result of menopause-related symptoms and as many as 25% have at least considered leaving their employment. This latest research adds weight to the growing drive for employers to support women going through the menopause.

• The Fawcett Society has published a report on menopause in the workplace. The Fawcett report sets out findings from the largest survey of menopausal women conducted in the UK to date. Its recommendations include an amendment to the Equality Act to ensure that menopause does not fall between the cracks of disability, sex and age protections, and a suggestion that employers should be required to put in place gender pay gap action plans (which reflect the fact that supporting women with the menopause may be key to closing the gap).

• Government will not introduce mandatory ethnicity pay reporting. On 13 May 2022, the government published its response to the Women and Equalities Committee report in relation to ethnicity pay reporting specifically. The response lists ‘significant statistical and data issues’ as a key barrier to mandatory reporting and notes that pay reporting may not be the most appropriate tool for every employer. Instead, voluntary reporting is encouraged, and the government repeated their intention to publish guidance to enable employers to identify the causes of pay disparities and take relevant steps to mitigate them in the summer.

Employment Relations processes

• A failure to make reasonable adjustments will not necessarily mean that a dismissal is unfair. The Claimant was employed as a Lead Midwife for Mental Health for the Chelsea & Westminster Hospital NHS Foundation Trust. She was dismissed in January 2018 following periods of absence (both extended and ad hoc) dating back to 2012 which the Respondent said put strain on her junior colleagues and on the service being provided to the public. She suffered with stress, anxiety and reactive depression amounting to a disability under the Equality Act. When she was dismissed, she was given ten working days to appeal the decision. The Claimant requested a two-week extension which was not granted. The Tribunal held that her employer had failed to make a reasonable adjustment under section 20 of the Equality Act 2010 by failing to offer her the extension but dismissed her claims for unfair dismissal under the Employment Rights Act 1996 and discrimination arising out of disability under section 15 of the Equality Act 2010. The Claimant appealed on the basis that if her section 20 claim had succeeded then this should have resulted in her other claims succeeding. The EAT disagreed, noting that the case concerned three different statutory torts “each with different ingredients”. (Ms C Knightley v Chelsea and Westminster Hospital NHS Foundation Trust)

Business Protection

• High bar for interim enforcement of non-compete restrictions. The Court of Appeal (upholding the High Court) refused to enforce a 12 month non-compete restriction, finding that in effect that would prevent the individual from obtaining employment during the period of restraint. It held that (i) even where a covenant is reasonable, there is no presumption in favour of interim relief; (ii) damages may not be an adequate remedy where the effect of a non-compete is to deprive an individual of employment; and (iii) any delay may count against the employer at the balance of convenience stage. The employer is a software company specialising in facilities management software. The individual was employed, initially as an account manager, and later promoted to Sales Manager. The individual resigned with notice in August 2021 and joined one of the employer’s competitors. The employer applied for an interim injunction enforcing the post-termination restrictions. This case serves as a reminder of the importance of acting swiftly when seeking injunctive relief and also of the high threshold for upholding a restriction which may bring real hardship to an individual by depriving them of their income. (Planon Ltd v Gilligan)

Covid

• Dismissal was not automatically unfair when employee refused to attend work during COVID-19 lockdown. The EAT has upheld the decision of the Tribunal that an employee who refused to return to work at the start of the COVID-19 lockdown, and who was later dismissed, had not been automatically unfairly dismissed. The employee asserted that there was a “serious and imminent” danger to him at work and that he was worried about his vulnerable children. The Tribunal found that although COVID-19 was, in principle, capable of giving rise to a serious and imminent danger (thus engaging section 100(1)(d) and (e) of the Employment Rights Act 1996) the employee had not established a reasonable belief of this on the facts. The Tribunal noted that the employee had not engaged in any discussions with his manager to make workplace adjustments and that he had worked in a pub later in the pandemic. (Mr D Rodgers v Leeds Laser Cutting Ltd)

• EHRC publishes statement on long-Covid. On 09 May 2022 the EHRC published a statement on ‘long Covid’. The statement confirms that long Covid does not fall within the definition of disability under the Equality Act by default but that long Covid might amount to a disability for an individual if it has a substantial and long-term adverse impact on their ability to carry out normal day-to-day activities. The EHRC encourages employers to continue to follow guidance regarding reasonable adjustment and flexible working.

Privacy

• Privacy order can take into account the rights of individuals outside the scope of the ECHR. The First Respondent is a company which provides a range of digital services to emerging markets in Latin America and Africa. The Claimant was employed by the Respondent from 3 January 2017 until 30 November 2019 when his employment was terminated by reason of redundancy. Following his dismissal the Claimant brought claims of unfair dismissal, automatic unfair dismissal, whistleblowing detriment and disability discrimination. In connection with those proceedings the Respondents made an application under rule 50(1) Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to prohibit the disclosure of certain information. This information related to the Claimant’s alleged protected disclosure involving the supply and tracking of mobile data without lawful authority. The Respondent’s claimed that prohibiting disclosure was necessary to protect the safety and security of current and former employees, including non-participants in the proceedings located outside of the UK. The ET refused the application. The EAT allowed the appeal, in part, finding that the ET could take into account the rights of individuals outside of the scope of the ECHR, provided that doing so was necessary for the administration of justice. In this case the second Respondent had refused to give evidence in the absence of the order. Although likely a fact-specific decision, given the description of rights of physical violence and detention in the country in question should the information become known, the case is still a useful reminder of the factors which may be taken into account when considering the interests of justice. (Millicom Services UK Ltd v Clifford)

Litigation Process

• Privilege of without prejudice correspondence upheld; solicitors’ letter alleging Claimant’s conduct could result in criminal conviction was not unambiguous impropriety. The Claimant brought claims of unfair dismissal, race, sex and pregnancy/maternity discrimination, harassment, victimisation and equal pay. At a Preliminary Hearing in December 2021, it was ordered that a letter sent by the employer’s solicitors Clyde & Co to the Claimant headed “Without prejudice and subject to contract” was admissible in the Employment Tribunal proceedings (the ‘WP letter’) as it constituted “unambiguous impropriety”. The WP letter made a number of serious allegations against the Claimant, including that her conduct could have resulted in criminal convictions, fine and/or a breach of the FCA Conduct Rules. The Tribunal judge considered that the Respondent’s solicitors had “grossly exaggerated the severity of what she had done in order to put pressure on her to accept what they proposed”. She was offered a settlement of £37,000. The EAT overturned this decision. Although it accepted that the letter may have grossly exaggerated the allegations, it held that this is not enough for a finding of “unambiguous impropriety”. This case is helpful for employers as the judgment is underpinned by the important public policy of protecting the privilege of without prejudice correspondence. That being said, the Respondent and Clyde & Co were noted to have “sailed close to the wind” so the case also serves as a note of caution about the content and tone of without prejudice correspondence. (Swiss Re Corporate Solutions Ltd v Sommer)

• Employment Tribunal claims cannot proceed without early conciliation certificate. The EAT upheld an Employment Tribunal’s decision to reject a claim brought by a litigant in person because she mistakenly did not obtain an early conciliation certificate number when submitting her ET1 to the Tribunal. She remedied this a few days later by email. The Tribunal had rejected her claim for lack of jurisdiction; and her appeal was rejected by the EAT by virtue of the procedural requirements of section 18A(8) of the Employment Tribunals Act 1996. His Honour Judge Shanks noted that “this is the kind of case that gives law a bad name” and expressed his hope that if the Claimant issued a new claim that she would be granted an extension of time. (Miss J Pryce v Baxterstory Limited)

• New Central London Tribunal Centre. HM Courts & Tribunal Service has announced that it is acquiring new premises which are intended to become a new Central London Tribunal Centre. It is anticipated that this new centre will accommodate employment tribunal hearings, as well as pensions and armed forces compensation hearing and social security and child support hearings. The new centre is expected to open by the end of 2023.

Other

• The Employment Bill stalls again. The long-awaited Employment Bill was a notable omission from the Queen’s Speech delivered in Parliament on 10 May 2022. It is anticipated that the Employment Bill will contain additional rights for zero hours workers and pregnant women, neonatal and paid carers' leave and default flexible working, but there is no indication as to when the Bill will be forthcoming.

• Future of Work review to be carried out over spring/summer 2022. Two days after the Queen’s Speech the government announced that a Future of Work review will be carried out by Matt Warman, MP. The review will be carried out in two stages over the spring and summer of 2022. The first stage will be to produce a high-level assessment of key strategic issues, (building on the Taylor review). The second stage will provide a more detailed assessment of selected areas of focus. It is anticipated that the review will focus on (i) the importance of place and local labour markets in creating and facilitating access to good jobs; (ii) the role of automation; and (iii) how "good" flexibility in the labour market and the gig economy can encourage productivity and growth, while ensuring sufficient protections are in place to prevent exploitative practices.

• Deliveroo has signed a union recognition deal with GMB Union. Deliveroo and GMB Union have signed a Voluntary Partnership Agreement covering the company’s 90,000 self-employed riders. Although the deal has been criticised by IWGB union as a “hollow and cynical PR move”, GMB has heralded it as a “historic” deal giving riders a “stronger voice”. Under the terms of the Voluntary Partnership Agreement GMB will have rights to collective bargaining on pay and consultation rights on benefits and other issues, including riders’ health and safety and wellbeing.

• Audit and corporate governance reform. The government’s response to the White Paper on audit and corporate governance reform, Restoring trust in audit and corporate governance, was published on 31 May 2022. There are no clear timescales for introducing legislation to implement the various measures set out in its response. The government already announced in the Queen’s Speech on 10 May that it is preparing draft legislation to create a new statutory regulator, the Audit, Reporting and Governance Authority (ARGA).