Employment Law Alert UK – September 2023

Employee relations

ACAS publishes updated guidance on sickness absence. ACAS has published updated advice for employers and employees on managing holiday entitlement, sickness absence and other leave. The guidance covers: holiday entitlement; fit notes and proof of sickness; doctors' reports about employee health; supporting disabled people at work; returning to work after absence; keeping in touch during absence; and recording and reducing sickness absence.

AI and employment law. On 11 August 2023 the House of Commons Library published a Research Briefing "Artificial intelligence and employment law". This briefing considers the increasing use of AI in the employment sphere, namely in relation to recruitment, performance management and monitoring of the workforce. The briefing paper highlights that there are currently no specific laws governing the use of AI in the workplace but that elements on the common law, equalities law, privacy law and data protection law interplay to place some restrictions on the use of AI by employers. The government's White Paper: A pro-innovation approach to AI regulation advocates regulating AI on a non-statutory basis. As it becomes increasingly clear that AI is here to stay, employers are faced with the challenge of maximising the potential which AI offers whilst guarding against the risks, particularly with respect to maintaining the confidentiality of sensitive data and information.

SRA publishes thematic review on NDAs. On 14 August 2023 the SRA published a Thematic Review on the use of NDAs in workplace complaints. The review recognises that NDAs can protect legitimate interests for employers and employees, but that there continue to be issues with the use of NDAs in some cases, particularly where there have been complaints on inappropriate behaviour. The review found that the majority of NDAs comply with the requirements of the SRA Warning Notice but that there are still come areas of complacency. In particular the review highlighted that in some cases there was limited specific knowledge of the warning notice and advocated caution with over-reliance on unamended NDA templates which do not provide for consideration of the particular circumstances and appropriate drafting. Please let us know if you would like to discuss further.

Dismissal unfair in the absence of disciplinary guidance on what touch may be deemed gross misconduct. The EAT has upheld the Claimant's appeal against the dismissal of his claims of unfair and wrongful dismissal. The Claimant worked as an OFSTED inspector. During a school inspection he briefly touched a pupil's head to wipe away rain that was dripping down his face (the children having just come inside from the pouring rain). It was accepted that there was no intention to harm the child and that the conduct did not pose a safeguarding risk. Nevertheless following a complaint from the school, a disciplinary process was launched and the Claimant was dismissed for gross misconduct. The Claimant brought claims of unfair dismissal and wrongful dismissal which were dismissed by the ET at first instance. The EAT took a different view finding substantive and procedural issues with the Claimant's dismissal, in stating that: "it is not fair to dismiss an employee for conduct which he did not appreciate, and could not reasonably have been expected to appreciate, might attract the sanction of dismissal for a single occurrence". This case highlights the importance of establishing clear expectations around touch in the workplace (be that through policies, training and/or workplace culture), to seek to ensure that an incident of touching which the employer considers inappropriate is also obviously so to the employee. (Hewston v OFSTED)

Diversity, Equity & Inclusion / ESG

EAT finds that employer's online application form put job applicant with dyspraxia at a substantial disadvantage. The Claimant, who has dyspraxia, applied for a consultant role with the Respondent. The application process included completion of a short online form. The Claimant emailed his CV to the Respondent's HR department and asked to make his application orally because of his dyspraxia. There followed email communication between the Claimant and a member of the Respondent's HR team which made clear that the online form had to be filled out but offered assistance with it.  The Claimant was not successful in his application and alleged that the Respondent had failed to make reasonable adjustments. The Employment Tribunal agreed that the practice of requiring candidates to create and account in order access an online application form put the Claimant at a substantial disadvantage and that the Respondent had constructive knowledge of this disadvantage. The EAT agreed and found that a reasonable employer in that situation would have called the applicant to better understand their situation, and had it done so it would have had the requisite knowledge of the Claimant's disadvantage. In fact, the case has been remitted to the tribunal for reconsideration in light of a factual error in the ET's assessment of whether the Claimant was a genuine applicant for the role (the question was whether the role was in the same team or a different team to the one in which the Claimant had worked previously), but the commentary of the EAT nevertheless acts as an important reminder of the importance of showing flexibility in recruitment processes, particularly where the process is automated with technology - both to ensure the process is inclusive, and to manage legal risk of disability discrimination claims. (Mr C Mallon v Aecom Limited)  

Claimant with dyslexia was not given fair hearing. The EAT has ruled that the ET failed to carry out appropriate analysis of the impact of dyslexia on a vulnerable Claimant and had mistakenly relied on misunderstandings and inconsistencies in the Claimants testimony as indications that the Claimant was not telling the truth, without proper analysis. The Claimant brought various claims before the ET. During the course of the hearing, the Claimant claimed to experience various difficulties because of her dyslexia, after which certain adjustment were made. When reaching its decision the ET found that the Claimant's ability to follow proceedings and understand words seemed to be noticeably worse during cross-examination and determined that the Claimant may be exaggerating the difficulties she claimed to face. The EAT considered the relevant guidance and concluded that the ET had relied on potential symptoms of the Claimant's dyslexia as giving reasons to doubt her evidence without having due regard to the Equal Treatment Bench Book and Presidential Guidance. In particular, the ET was aware of a condition which may affect the Claimant's demeanour, and relied on the very matters which might arise from that condition to doubt the Claimant's evidence without appropriate analysis and explanation. The case was ordered to be re-heard by a new tribunal panel. (Habib v Dave Whelan Sports Ltd t/a DW Fitness First)

Litigation procedure

Updates from the Employment Tribunal. On 3 August 2023 HMCTS published new pdf versions of the ET1 and ET3 tribunal claim and response forms. The updated ET3 form includes a question: "what type of employer is the respondent?", requests the ability to attend video and phone hearings, and includes examples of reasonable adjustments which could be made in the event of a disability or health condition in the respondent party. Respondents will also be able to provide a Claimant's annual earnings figure, rather than a weekly or monthly figure. Alongside this HMCTS has also made a webinar available to guide users through the new MyHMCTS portal (which is currently in use in Leeds, Glasgow, Bristol and Nottingham), but will be rolled out nationally in due course. Form EX107 has also been updated to allow requests for the transcription of employment tribunal hearings (although the circumstances in which this will be paid for at public expense is limited to where there is a vulnerable party or witness or where it is required to make reasonable adjustments for a person with a disability). 

Government publishes list of countries where evidence can be given by video link. On 1 August 2023 the government published a list of countries where citizens may voluntarily give evidence by video link for UK tribunals. For countries which are not listed, a specific application will need to be made to the relevant tribunal.