Employment Law Alert UK – July 2022

Covid

• Employee with long-Covid disabled for purposes of Equality Act 2010. At a Preliminary Hearing, the Employment Tribunal concluded that the Claimant was disabled within the meaning of section 6 of the Equality Act 2010 for the purposes of his claims of unfair dismissal and disability discrimination. The Claimant was employed by Turning Point as a caretaker. He tested positive for COVID-19 in November 2020 and did not return to work from that point until he was dismissed due to ill-health in August 2021. Although his symptoms were initially mild, he soon started to suffer from extreme fatigue, headaches and sleep disruption. The Employment Tribunal reached the view that the Claimant was disabled despite the fact that, by the Claimant’s own omission, he had “good days and bad days” and Occupational Health assessments during the period concluded that he was well enough to return to work. The Employment Tribunal was persuaded that the Claimant’s impairment (post-viral fatigue syndrome caused by COVID-19) did have a substantial adverse effect on his day-to-day activities and was sufficiently long-term, noting that the Claimant’s sick pay from the Respondent ceased around June 2021 so he had no incentive to remain off work from that point. This case highlights the ongoing challenges for employers in managing long-term sickness absence due to COVID-19 and emphasises that an Occupational Health assessment may merely provide a snapshot, rather than an accurate long-term assessment of an individual’s condition. (Burke v Turning Point Scotland)

Employment Relations processes

• EAT upheld 25% uplift for discriminatory dismissal purportedly by reason of redundancy. The EAT has held that the ACAS Code of Practice on Disciplinary and Grievance Procedures could apply to a discriminatory redundancy dismissal, despite the ACAS Code explicitly excluding dismissals on grounds of redundancy. The Claimant was employed by the Respondent as part of its leadership team. When her role was put at risk of redundancy, she brought a grievance alleging that she had been marginalised since the appointment of the new CEO and that her role was not actually redundant. Her grievance was not upheld and she was given notice of dismissal. The Claimant brought claims of unfair dismissal and direct sex discrimination. The Employment Tribunal found that the Claimant’s dismissal was unfair. It found that the redundancy exercise was a sham, that the new CEO was the real decision maker in the Claimant’s grievance. The Claimant was awarded a 25% ACAS uplift for an “egregious” breach. The EAT upheld the decision finding that the redundancy was a sham and so the proper construction was that there was a “disciplinary situation” (the Claimant having been dismissed due to dissatisfaction with her personally and/or her performance) or failing that a “grievance situation”. The case serves as a useful reminder of the application of the ACAS Code beyond cases which clearly relate to disciplinary or grievance processes. (Rentplus UK Ltd v Coulson)

• Employment Tribunal can consider outcome and procedure when carrying out balancing exercise for claim of discrimination arising from disability. On its second referral to the EAT, the EAT upheld the judgment of the Employment Tribunal that the Claimant’s dismissal amounted to discrimination arising from disability. In reaching this conclusion, the EAT held that the procedure leading to an employee's dismissal is not irrelevant to the assessment of proportionality in a discrimination arising from disability claim. The Claimant suffered from chronic migraines, anxiety and depression. She alleged that she was bullied and harassed by another colleague and requested to work from a different office. The Claimant was offered a trial period at a different office but soon after this trial came to an end was dismissed. The EAT found that there were several aspects of the work trial which had not been carried out reasonably. The EAT concluded that without properly evaluating the work trial, the Respondent could not show that the Claimant’s dismissal was an appropriate and reasonable necessity to achieve its aims, when balanced against the impact on the Claimant. This case should serve as a reminder to employers not to act prematurely in dismissing a disabled employee and that where an alternative to dismissal is being explored, this should be done fairly and with proper evaluation before moving to consider dismissal. (Department for Work and Pensions v Boyers).

• Employer does not need an intention to bring the employment relationship to an end for constructive dismissal. The EAT held that for a breach of contract to be fundamental (for the purposes of a constructive dismissal claim) an employer must demonstrate an intention to no longer comply with the terms of the contract that is so serious it goes to the root of the contract, but it does not require an intention to end the employment relationship. The Claimant was signed off sick by his doctor after being invited to a disciplinary hearing. The Respondent did not consider that his sickness was genuine and as a result paid him statutory sick pay, instead of company sick pay. The Respondent sought to rely on a contract provision allowing this where an investigation established that the absence was not genuine, but they did not carry out any investigation. The Claimant brought a claim for constructive dismissal. Overturning the decision of the Employment Tribunal, the EAT held that the deliberate decision to significantly reduce the Claimant’s earnings was a fundamental breach of contract. This case demonstrates how important it is to check contracts carefully before withholding company sick pay and makes clear that the bar for a fundamental breach is not as high as might previously have been thought. The case will be remitted to the Employment Tribunal to determine whether the Claimant did, at least in part, resign in response to the fundamental breach. (Singh v Metroline West Ltd)

Litigation Process

• Tribunals must consider the substance of claims brought by litigants in person. The EAT held that the Employment Tribunal had fallen into the “constructive dismissal trap” by failing to appreciate that a litigant in person was asserting that they had been constructively dismissed, despite not having articulated her claim as such. The Claimant was employed by the Respondent from 28 January 2019 to 19 April 2019, when she resigned. On the Claimant’s resignation, the Respondent (relying on a clause in the Claimant’s employment contract) made a deduction from her final wages to take account of an agency recruitment fee. The Claimant asserted that she had been forced to resign due to constant criticism, bullying and nit-picking from her manager. She brought claims for notice pay, holiday pay and other payments. The EAT held that the issue of constructive dismissal had been sufficiently raised and should have been considered by the Employment Tribunal, given that in the event of a constructive dismissal the clause permitting recoupment of fees could no longer be relied upon. The case will be remitted. (Holmes v Tellemachus)

Business Protection

• Case not made for interim injunction given delay in seeking relief. The Queen’s Bench Division dismissed the company’s application for an interim “springboard” injunction finding that there had been extreme delay in bringing the proceedings. The employee was a key account manager for the company from 15 February 2021 until 30 April 2021 when he left to join a competitor. The company contended that on his departure the employee had uploaded “copious confidential information” onto his personal OneDrive. The High Court, applying the American Cyanamid principles refused to grant an interim injunction. The High Court took particular note of the fact that the company first became aware of the alleged wrongdoing on 7 July 2021 but the claim was only initiated on 10 December 2021 – a delay which the court described as “inordinate”. The court also noted that springboard relief is designed to prevent the unlawful obtaining of a head start but that the “head start effect” also has a limited timeframe and will not continue beyond the point where there is no advantage. Coming close on the heels of Planon Ltd v Gilligan this case serves as yet another reminder of the importance of acting swiftly when seeking injunctive relief. (AMOB Machinery Ltd v Smith-Hughes and others)

Diversity & Inclusion

• Appeal of Christian doctor who objected to transgenderism unsuccessful. Although the EAT found that the Claimant’s belief in transgenderism was protected under the Equality Act 2010, it nevertheless upheld the findings of the Employment Tribunal that the Claimant had not suffered direct discrimination, indirect discrimination or harassment as a result. The Claimant was a Christian doctor. He applied for a position as a health and disabilities assessor on behalf of the First Respondent. During his induction training he stated that he would not use the preferred pronouns of transgender service users, as required by the First Respondent’s policies. The First Respondent considered whether they could accommodate the Claimant’s beliefs but concluded that it was not possible to offer a non-customer-facing role or ensure that the Claimant only assessed non-transgender customers. The Claimant left his position and subsequently brought claims for direct discrimination, harassment and indirect discrimination. The EAT overturned the Tribunal’s finding that the Claimant’s belief was not capable of protection under the Equality Act. It found that the bar for protection of beliefs in a pluralist democratic society should be low, and should include minority beliefs, even where those beliefs might offend others. However, it still found that the alleged acts of less favourable treatment had not been established. In reaching this conclusion the EAT supported the Tribunal’s findings that: (i) the Claimant was not suspended, interrogated about his beliefs, or dismissed – the Claimant left his employment while the Respondents were still information-gathering; (ii) the respondent’s treatment of the Claimant was driven by ensuring that transgender customers were treated appropriately, rather than because of the Claimant’s beliefs; and (iii) the ET was entitled to find that there were particular sensitivities arising from face-to-face interactions with customers and that there were no practical options available to address this given the Claimant’s beliefs. (David Mackereth v The Department for Work and Pensions & Anor)

• A belief requiring positive unlawful action cannot be protected under the Equality Act 2010. An Employment Tribunal has held that a belief in ethical veganism with a moral obligation to take positive unlawful action to relieve animal suffering did not amount to a philosophical belief under section 10 of the Equality Act 2010. The Claimant, Ms Miles was employed by the Royal Veterinary College as a veterinary nurse. She was arrested on the Respondent’s premises, and later dismissed, in connection with burglaries and thefts at farms carried out by a splinter cell of the Animal Liberation Front. She brought claims of unfair dismissal, direct and indirect philosophical belief discrimination and breach of contract. The Claimant believes that animals’ lives have innate value, that humans should not eat, wear, use for sport, experiment or profit from animals and that humans have a moral obligation to take positive action to prevent or reduce the suffering of animals (which could include trespassing on private properly or removing suffering animals). Although ethical veganism is capable of protection as a philosophical belief under the Equality Act 2010 (Casamitjana v League Against Cruel Sports ET/3331129/2018) (see our Insight), a belief to take actions which are unlawful cannot be worthy of respect in a democratic society. The Tribunal held that the obligation to take positive unlawful action was not merely a manifestation of her beliefs around the treatment of animals by humans, and even if they were that this manifestation would be objectionable or inappropriate. The Claimant’s claims all failed. (Free Miles v The Royal Veterinary College)

• HM Treasury publishes its annual review of Women in Finance Charter. The review aims to track the progress of the 400 firms that have signed up to the Charter. 78% of firms have met, or are on track to meet, their targets for female representation in senior management. The level of gender disparity in senior finance roles has remained flat from 2020 to 2021 at 33%. Signatories remain focussed on recruitment practices as a key driver of change but there is also an increasing focus on developing internal female talent.

• Government confirm that menopause will not become protected characteristic. On 25 May 2022, Baroness Stedman-Scott Minister for Work and Pensions (Lords) and Minister for Women wrote to the Chair of the Women and Equalities Committee to confirm that the government has no plans to amend the Equality Act to introduce a new protected characteristic (menopause), or to implement the dual discrimination provision (which would allow an “age/sex” discrimination claim to be brought. The government did commit to assessing existing guidance on the menopause with a view to identifying whether improvements can be made to increase employer and employee understanding of the law.

• Menopause-related employment tribunal increase by 44% in 2021. Research carried out by the Menopause Experts Group has found that 23 employment tribunal decisions cited menopause in 2021, compared with 16 in 2021. The 23 cases included 16 claims for disability discrimination, 14 claims of unfair dismissal and 10 claims for sex discrimination. Mentions of the word “menopause” increased by 75% in tribunal documents.

Other

• Government publishes Bill of Rights Bill 2022-23. On 22 June 2022, a first reading of the government’s new Bill of Rights took place in the House of Commons. The Bill is designed to reform the law relating to Human Rights by repealing the Human Rights Act 1998 and creating a new domestic human rights framework. The Bill would allow UK courts to diverge from ECHR rulings and would require the courts to give the “greatest possible weight” to Parliament’s view of the balance to be struck between Convention rights and government policy aims. It would also require victims of alleged breaches of Convention rights to show that they have suffered a “significant disadvantage” in order for permission for their claim to proceed. The Bill has already come in for fierce criticism with the Law Society of England and Wales saying that it represents a “collision course with the rule of law” and Labour describing it as a “con”.

• More healthcare professionals able to sign “fit notes”. The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No 2) Regulations 2022 (SI 2022/630) have been laid before Parliament. The amended Regulations allow a broader range of healthcare professionals (registered nurses, occupational therapists, pharmacists and physiotherapists) to certify fit notes going forward. In practice, a new version of the fit note is being rolled out, where the requirement for a doctor to sign the form in ink has been removed and replaced by the issuer’s name and profession (which allows for a fit note to be issued digitally). Both the old and new fit notes will remain valid until “all GP IT practice systems are updated”. The Department of Work and Pensions intends to notify and update the guidance when this process has been completed and the old fit notes should no longer be accepted.

• Largest trial of four-day working week commences in UK. On 6 June 2022, 70 companies began a trial of a four-day working week. Around 3,330 workers are involved in the trial which is expected to last for 6 months. The trial will be monitored by academics from Oxford and Cambridge, the think tank Autonomy and Boston college in the US. The trial includes a diverse range of organisations – from chip shops to software companies – who have all agreed to pay workers 100% for 80% of their time, as long as workers commit to 100% productivity.

• Council of EU and European Parliament reach provisional agreement on minimum wages in the EU. On 7 June 2022, the Presidency of the Council and European Parliament negotiators reached provisional political agreement on a draft directive on adequate minimum wages in the EU. The directive establishes procedures for the adequacy of minimum wages, promotes collective bargaining on wage setting and improves access to minimum wage protection.