Employment Law Alert UK – November 2022

The premiership of Liz Truss has marked one of the most turbulent periods in British politics in recent history. With the appointment of two Prime Ministers in the space of just two months it is unclear exactly what lies ahead. The fate of a number of private members bills introducing new employment rights (see further below) is unclear, as too is the Conservative conference pledge to replace the GDPR. The re-appointment of Dominic Raab as Deputy Prime Minister and Justice Secretary leaves open the question of whether the recent scrapped Bill of Rights will be revived. The only thing that seems certain at this point is that nothing is off-the-table, and it would not be surprising to see a number of U-turns on current policies and proposals.

Data protection

• Government announces plans to replace the GDPR. On 3 October 2022, Michelle Donelan, Secretary of State for Digital, Culture, Media and Sport announced at the Conservative Party conference that the government plans to replace the GDPR with a bespoke British data protection system. The announcement is said to be driven by removing unnecessary bureaucracy associated with the GDPR, which can be particularly challenging for small businesses. The announcement has faced criticism from some UK businesses operating across Europe which fear that the plans could mean an additional layer of rules and requirements. Given recent political turbulence, it is unclear if or when any such plans will progress.

• ICO launches consultation on employee monitoring at work. On 12 October 2022, the ICO launched a consultation seeking feedback on its draft guidance on employee monitoring at work. The guidance has been published as part of an initiative to produce topic-specific guidance on employment practices and data protection and has been published alongside a draft impact assessment. The employee monitoring guidance aims to provide practical advice about monitoring workers in accordance with data protection legislation and to promote good practice. The consultation closes on 11 January 2023.

Employment Relations processes

• For a fair redundancy process consultation must take place at a stage where an employee can influence the outcome. The EAT has affirmed that meaningful consultation is a fundamental aspect of a fair redundancy procedure and for consultation to be “genuine and meaningful” it must take place where an employee could potentially influence the outcome. Specifically, it is not reasonable for an employee to adopt selection criteria which has the practical effect of determining which employee will be put at risk without consulting with relevant employees in advance of deciding on that selection criteria. In this case, the Claimant was employed by the Respondent as a Band 6 nurse on a series of fixed-term contracts. The Respondent made the decision to make the Claimant redundant on the basis that her fixed term contract was due to be renewed sooner than another Band 6 nurse also working on a fixed term contract. For the Claimant, the Respondent’s decision to put at risk the employee whose contract was up for renewal soonest automatically identified the Claimant as the person to be made redundant before any level of consultation took place with her. Whilst the Employment Tribunal initially found that the Claimant had been fairly dismissed, this decision was overturned by the EAT. The EAT found that it is not within the band of reasonable responses to adopt one criterion which determines a pool of one and therefore identifies the employee who will be dismissed without prior consultation. The implied duty of trust and confidence requires employers not to act arbitrarily between employees. This case serves as an important reminder that whilst a pool of one can be fair, it is important to be especially careful where criteria can have the practical effect of identifying the employee to be put at risk in advance of any consultation. (Mogane v Bradford Teaching Hospitals NHS Foundation Trust & Regan).

• Future claim unknown to employee cannot be settled by a settlement agreement. The EAT has held that section 147 of the Equality Act 2020 (which allows claims to be settled under a settlement agreement), does not allow for the settlement of a future claim which an employee does not know about at the time an agreement is entered into. The Claimant worked as Chief Officer on a number of vessels operated by the Respondent until he accepted voluntary redundancy in January 2017. As part of this process the Claimant entered into a settlement agreement which included a long list of settled claims and received enhanced redundancy and notice payments. The Claimant also understood that he would also receive an “Additional Payment”. However, this Additional Payment was calculated by reference to a collective agreement which only applied to officers under the age of 61. In June 2017, when the Claimant was told that no Additional Payment would be made to him due to his age he sought to bring claims of direct and indirect age discrimination. The Respondent asserted that these claims had already been settled by the settlement agreement. Section 147(1)(b) of the Equality Act 2010 requires that a qualifying settlement agreement must relate to the “particular complaint”. The EAT held that a long list of claims (i.e. referring to direct or indirect discrimination, age discrimination etc.) does not constitute reference to a particular complaint for the purposes of the Equality Act. To find otherwise would be contrary to Parliament’s intention to avoid a situation where parties do sign away rights to claims under the Equality Act in circumstances where they do not know whether or not they may have a claim. This case serves as a reminder that whilst broad waiver provisions in settlement agreements can have helpful deterrent effect, in practice, they are unlikely to prevent an employee from bringing a future claim which was not in contemplation at the time at which the settlement agreement was entered into. (Bathgate v Technip UK Ltd and ors).

Regulatory

• PRA issues final notice to underwriting firm with fine of £9.6 million. On 20 October 2022, the PRA published its final notice for MS Amlin Underwriting Ltd (MSAUL) in respect of breaches of PRA Rules 5 and 6, which require firms to have effective risk strategies and risk management systems and to organise and control its affairs responsibly and effectively. The original fine of £13,850,000 was reduced by 30% to £9,695,000 under the PRA’s settlement policy.

• The FCA commences criminal proceedings against five individuals. On 20 October 2022, the FCA announced that it has commenced criminal proceedings against five individuals involved with the Worthington Group plc. The individuals are accused of fraudulent trading, market abuse and market manipulation. They appeared at Westminster Magistrates Court on 20 October 2022 and will appear at the Crown Court on 17 November 2022.

Diversity and inclusion

• All-Party Parliamentary Group on Menopause publishes report on the menopause. On 12 October 2022, the All-Party Parliamentary Group on Menopause (APPG) published a report on the impact of the menopause which includes recommendations for the government to improve protection of women in the workplace. Specifically, the APPG recommends that the government support an employer-led campaign to raise awareness of menopause in the workplace and to help deal with the stigma associated with it. The APPG also calls on the government to update and promote guidance for employers’ suitable workplace policies and support for employees.

• Government backs new law to protect pregnant women and new parents from redundancy. On 21 October 2022, the Protection from Redundancy (Pregnancy and Family Leave) Bill had its second reading in Parliament and passed with government support. The Bill, if enacted, will amend the Employment Rights Act 1996 to enable the Secretary of State to make regulations to protect against redundancy “during or after” (our emphasis) an individual taking relevant leave, rather than just during that leave. The Bill will also introduce protection during or after a “protected period of pregnancy”, which may offer protection to a woman who has miscarried. The Bill has now been sent to a Public Bill Committee.

• New law giving carers unpaid leave backed by government. On 21 October 2022, the Carer’s Leave Bill, which will introduce one week’s unpaid leave per year for employees who are providing or arranging care had its second reading in Parliament. The Bill passed with government support and has now been sent to a Public Bill Committee. The Bill, if enacted will address the fact that unpaid carers currently do not have access to dedicated statutory leave, better enabling carers to balance their caring responsibilities and their working lives.

• Worker Protection (Amendment of Equality Act 2010) Bill reaches committee stage. On 21 October 2022, the Worker Protection (Amendment of Equality Act 2010) Bill was debated for a second time in the House of Commons and passed to the Public Bill Committee. This Bill introduces employers’ liability for harassment of their employees by third parties and introduces a duty on employers to take all reasonable steps to prevent sexual harassment of their employees.

Litigation Process

• Award for indemnity costs for non-compliance with witness statement rules. The High Court has ordered that the Claimant pay indemnity costs to the sum of £9,588 plus VAT to the Defendant to cover costs incurred in connection with one of the Claimant’s witness statements not complying with the requirements of Practice Direction 57AC (Trial Witness Statements in the Business and Property Courts). In making this “costs award”, the High Court took into account that the relevant statement: (i) included the witness’ views and commentary on evidence that was not available to them at the time of the relevant events in the dispute; (ii) contained extensive submissions; (iii) contained extensive criticisms of the Defendant’s witnesses and disclosure; and (iv) did not contain accurate document references. In addition, when the witness statement was first challenged by the Defendants, the Claimant’s asserted that the Defendants were “nit-picking” and there was a significant delay in any meaningful engagement on the concerns raised. The case highlights the importance of strict compliance with the relevant Practice Directions when carrying out High Court litigation as well as the need to engage meaningfully in a timely manner where any concerns in relation to compliance are raised. (McKinney Plant & Safety Ltd v Construction Industry Training Board).

Other interesting things

• Directive on adequate minimum wages published in Official Journal. On 25 October 2022, the Directive on adequate minimum wages was published in the Official Journal of the European Union. Directive (EU) 2022/2041 and will enter into force on 15 November 2022. Member states will have until 15 November 2024 to comply with the provision of the Directive.