Report: Employment Law Update – June 2021

Under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations, employers must so far as is reasonably practicable:

• Safeguard the health and safety
• Control the risk of harm
• In relation to people their work may foreseeably affect
• Including their employees and persons other than employees

The 1974 Act also requires all employees to:

• Take reasonable care for the health and safety of themselves and other persons who may be affected by their acts or omissions at work and
• Co-operate with their employers so far as is necessary to enable the employer to comply with their health and safety duties.

HSC guidance is that vaccination status has no impact on the Covid secure guidelines employers must follow (ie. Social distancing, masks, hygiene etc.) Workplaces need to be Covid secure, following a Covid secure assessment. It is also unknown how effective the vaccine is in reducing transmission and how effective it will be against new variants. Therefore, employers should remember that having a vaccination is not a substitute for having a Covid secure workplace.

• Yes; not having the vaccine may not lead to herd immunity and may result in death if the anti-vaxxer accidentally infects someone;
• No; it isn’t inherently possible to hurt someone by not having the jab

It is still a relatively grey area, but there is some scope to consider that anti-vaxxers have some seriousness about it (i.e. within the alternative medicine community), so it may be possible that it will be considered a philosophical belief. We are sure case law will emerge on this issue as time unfolds.

Long Covid

Acas has recently published guidance on long Covid for employers and employees.

Briefly, long Covid are symptoms of Covid that can last weeks or months after the infection. Symptoms of long Covid can include extreme tiredness, problems with memory and concentration, insomnia, dizziness, pins and needles, depression and anxiety. Long Covid can prevent some from being able to return to work, and some symptoms of long Covid can come and go.

Acas recommends that employers should:

• Agree how and when to make contact during any absence;
• Make sure their work is covered and shared out appropriately while they’re off;
• Talk about ways to support them as they return to work where and when possible.

Acas then recommends that the employer should then talk with the employee about any support they may need, and that they could discuss:

• Getting an occupational health assessment;
• Making changes to the workplace or to how the employee works (‘reasonable adjustments’), such as different working hours;
• A phased return to work;
• What they want to tell others at work about their illness.

The recommendations are nothing particularly new and what employers should already be doing in relation to employees with other health issues.

Acas has considered whether long Covid would constitute a disability under the Equality Act but unfortunately, doesn’t really reach a conclusion on this given that it is a relatively new illness and the longer term impact is unknown. The guidance recommends that employers ‘focus on reasonable adjustments rather than trying to work out if an employee’s condition is a disability.’

• Allegations of health and safety issues
• Discrimination claims if perhaps an employee has health issues which makes them vulnerable or is pregnant and therefore not able to have the vaccine;
• Constructive dismissal claims if people decide they are not willing to return to the office and resign.
• Multiple flexible working requests which could be time consuming to deal with​

Flexible Working Requests

Many people have become accustomed and enjoyed the flexibility of working from home. Therefore, organisations should be prepared to potentially see an increase in flexible working applications they receive from their staff who want to work from home permanently or seek a hybrid agreement.

Any employee with at least 26 weeks’ continuous employment can make a request for flexible working under the statutory scheme for any reason. An employer then has three months to consider that request and can only refuse the request for one (or more) of the eight reasons set out in legislation. Although Covid has not changed the law, the context is now considerably different. If you have staff that have been working from home, it will be much more difficult to refuse requests to make homeworking permanent unless there is tangible evidence that you can point to of things going wrong or a decline in their performance – which cannot be explained by short term pressures (eg. home schooling children). You can always agree to a trial period in the first instance if you are unsure as to whether the arrangement is going to work out in the long term, however the employee needs to fully understand how you will assess whether the arrangement is satisfactory and that you can ask them to return to work if things do not go well.

The good news is that only one request can be made by the employee in any 12-month period. However, you must be sure to deal with any requests including the appeals process. If you do not adhere to the flexible working timetable, a tribunal can order you to pay up to eight weeks’ pay compensation. Therefore, organisations should ensure that they have the correct measures in place to deal with a potentially high volume of requests when they return to the office.

Hybrid Working

Hybrid seems to be the new buzz word at the moment.

Many employers are considering introducing a hybrid arrangement where staff come in the office for some of the time but spend the rest working remotely. Although there is no obligation to offer hybrid working, a lot of individuals are likely to expect some level of flexibility having had such a long period working from home. Getting people back into the office full time is likely to be challenging and there is a risk that staff could leave to join organisations with more flexible working arrangements.

There are no rules around what hybrid needs to look like, but key factors to consider when thinking about the arrangements you want to implement and how to set this out in a policy are:

• How much time is needed in the office?
• Will this be fixed days or up to the employee?
• Will employees be able to make their own decisions about arrangements or do they need to agree with colleagues / a manager?
• Are there particular roles / duties / situations which would require time in the office?
• How do you ensure junior staff receive appropriate supervision? For example, do you want a requirement that they have to be in the same day as a senior member?
• If you are having a fixed number of days, how will you deal with this for part time staff?
• Do you want teams to be in on the same day?
• Is there a danger of differential treatment if for example some people choose to be in the office more than others and are therefore more visible.
• Are you introducing a permanent change or do you want to keep it under review?
• What are you doing about equipment? Will you want employees to bring in equipment they have been using at home?
• Data Protection – with staff coming in and out, there is a greater risk of data being lost or seen by others.

Although individuals are required to make an application for settled status in order to protect their right to live and work in the UK, there is no obligation on you as the employer to check that they have done this. Provided you carried out the appropriate checks when you recruited them, you will continue to be protected in relation to any civil penalty if it turns out they have not applied and therefore do not have the right to work.

If it somehow comes to your attention that an existing employee has not applied, the Home Office has recently produced guidance which confirms that you will not immediately need to dismiss. Instead you should take the following steps:

• Inform the employee that they need to make a late application for settled status and that they should do so within 28 days;
• Get a copy of the certification of application from the employee once they have applied;
• Verify the application using the employer checking service.

If you follow these steps and keep the evidence, you will have the statutory defence for 6 months. If the employee does not make the application within 28 days, you will need to take steps to dismiss as they will not have the right to work.

Although 30 June was meant to be an absolute end date for applications, the Home Office guidance suggests that a fair amount of late applications will be granted. There are examples of what would be reasonable grounds and they are fairly wide. The list is also said to not be exhaustive so there is always discretion to approve late applications for other reasons.

New EEA Staff

As with all new recruits you will need to carry out the right to work checks for EEA nationals.

From 1 July a passport will no longer be sufficient evidence and will not provide you with the statutory excuse. Instead you need to establish whether the individual has the right to work by using the online check through the government’s right to work service. https://www.gov.uk/view-right-to-work

The individual will need to access the system first (https://www.gov.uk/prove-right-to-work) and then provide you with a share code so you can review their status.

Workers who do not have settled status or some other right to work (such as a spouse visa, student visa or dependant visa) will need to be sponsored under the skilled worker system if you want to employ them.

The Skilled Worker Route

• This is the system that used to be known as Tier 2. This system requires employers wishing to take advantage of it to hold a sponsorship licence from the Home Office.
• The Sponsorship Licence application process is a reasonably logical, if quite weighty procedure. Ultimately it requires proof that the employer is a genuine business, it has roles which fulfil the points based requirements of the Skilled Worker Route and either there is a current need for recruitment in these areas, or there is likely to be in the near future.
• Once the employer has gone through the application procedure and successfully obtained a licence, they can then sponsor a migrant worker by issuing them with a Certificate of Sponsorship (a reference number) – this can be issued to a prospective employee who is abroad and wanting to come to the UK for the purpose of the particular role, or one who already resides in the UK under a different visa system and wishes to switch to the Skilled Worker Route.
• Once a Certificate of Sponsorship has been allocated, the employee will be able to apply for the Skilled Worker Visa by demonstrating that they qualify under the new points based system. The employee will need to demonstrate that they score the requisite number of points (70) to qualify for a visa based on their job offer, the qualification level of the job (A Level or above) their salary and their English Language ability.
• As a sponsor you will have a number of duties which you must comply with to maintain the right to have a licence. These duties include various record keeping and reporting obligations.
• An application for sponsorship may lead to a compliance visit from the Home Office. Before submitting the application it is therefore useful to check you are comfortable you will be able to demonstrate compliance with general obligations such as the right to work checks as well as having systems in place to be able to comply with the additional duties.

1. Adoption Leave is in part compulsory, whereas shared parental leave is entirely optional;
2. Adoption Leave can begin before placement, whereas shared parental leave cannot;
3. Adoption Leave is an immediate entitlement on placement, whereas shared parental leave is not;
4. Shared parental leave can only be taken with the partner’s agreement to give up adoption leave; and
5. Shared parental leave has to be taken within fifty-two weeks of placement and within the period and could be ‘dipped in and out’.

The Employment Appeal Tribunal dismissed the appeal, and held that Adoption Leave is materially different to Shared Parental Leave as its purpose goes beyond providing childcare. The requirement in s23 of the Equality Act 2010 - that there must be no material difference in the circumstances between the Claimant and his comparator - was not met, so the claim failed. The EAT applied the decision in another case, Capita Customer Management Ltd v Ali, where it was decided here that the position of a woman on maternity leave, who is paid a higher rate of pay, is materially different from a man receiving statutory pay on Shared Parental Leave.

Takeaways: The Court held that correct comparator for a man on Shared Parental Leave who is in receipt of statutory pay, is in fact a woman taking Shared Parental Leave. When the man is compared to a woman on Shared Parental Leave, who also would receive statutory pay, then the male claimant would suffer no detriment.

Therefore, when considering sex discrimination claims, Shared Parental Leave is viewed as a materially different entitlement to Maternity Leave and Adoption Leave.

Mr D Barrow v Kellog Brown & Root

Facts: Mr Barrow was a senior employee at Kellog Brown & Root ‘KBR’ for 36 years. In January 2017, Mr Barrow was promoted from level 70 to 75 in the company-wide structure without an increase in pay. He discovered sometime later, that on the company’s system, he was actually at level 80, yet had not been given notice of the change of level or received a pay rise. Management tried to explain that because they could not yet promote him to Vice President, level 80 (which was a “previously dormant and unused” level) provided an alternative promotion option.

In September 2017, Mr Barrow received steroid cream for an increasingly worrying skin condition. By November 2017, the condition had not settled and Mr Barrow was prescribed a more aggressive, oral steroid treatment, which subsequently built up in his system and started to make him hyperactive and energetic and cause him difficulty when trying to sit quietly and concentrate.

At the same time as he received the steroid treatment, Mr Barrow prompted discrepancies in his seniority level on the system, and said that he felt abused at being promoted, to look more “senior” than another colleague, without a pay increase. He sent his manager a three page email outlining his complaints, which in response his manager forwarded to other members of KBR and suggested Mr Barrow was “building a case for some sort of tribunal/constructive dismissal”. The next day, Mr Barrow informed his manager that he had been taking steroids and that these were having an adverse impact on his behaviour, and that he was going to take a day off. His manager agreed and encouraged a longer time away from the office as he too was concerned for his wellbeing.

Occupational health cleared him fit to return to work on 16 November. Mr Barrow attended a review meeting which was rushed and failed to sufficiently discuss his objectives, which he explained in a follow up email to his manager. He was then dismissed on 5 December 2017 and escorted from the building.

On 23 January 2018, Mr Barrow’s solicitors informed the company that he had been diagnosed with a form of lymphoma and as he was due to start chemotherapy, he was unable to attend meetings on certain days and the treatment could cause him to cancel meetings at short notice. Mr Barrow submitted a formal grievance on 20 April 2018 and he was eventually formally dismissed (again) by the senior vice president on 30 May 2018, because of a breakdown of trust and confidence.

Decision: The judge concluded that the investigation process was a “sham” and that other members of KBR were controlling matters “behind the scenes”, and that the investigation was “dressed up” as it was already decided that Mr Barrows should leave the company. The judge further held that the senior vice president did not believe that there was a breakdown in trust and confidence and agreed with witness testimony that the company created a “ruse” to dismiss Mr Barrow, who was a victim of unfair dismissal, disability- related harassment and unfavourable treatment for something arising in consequence of disability. Mr Barrows was awarded more than £2.5 million.

Takeaways: An award of this magnitude sends a clear signal of its contempt for the actions of the employer and should stand as a cautionary tale for all employers when it comes to dismissing a sick or disabled employee.

Dewhurst and Others v Revisecatch Limited t/a Ecourier and City Sprint (UK) Limited

Facts: The claimants were cycle couriers, who provided services to City Sprint in respect of City Sprint’s contract with HCA Healthcare – however City Sprint lost the contract to Ecourier. The Claimants here brought claims under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), for a failure to inform and consult about the transfer. TUPE provides that employees will move to the new employer, with many of their rights and liabilities intact, and with special protection against changes being made to their employment terms or from being dismissed, as a result of the transfer. As you may or may not know, TUPE seeks to protect the rights of employees in a business transfer or service provision change situation, however TUPE uses a wider definition of ‘employee’ compared to many other pieces of legislation. A preliminary hearing was listed to determine whether the definition of “employee” under TUPE is wide enough to apply “limb b” workers – which includes couriers. Section 230(3)(b) ERA sets out the definition for “limb b” workers: “whereby the individual undertakes to do or perform personally any work or services for another party to the contact whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

The claims also succeeded against three individually named harassers within the meaning of s26 of the Equality Act, meaning that they are personally liable as well as Exertis. A remedy hearing is due to take place later this year and Mr Sidhu is claiming over £6 million. He claims he will never be able to work again.

Takeaways: Mr Sidhu’s lawyer remarked how the situation was “’Lord of the Flies’ level of group condemnation”. Exertis tried to argue that they were not vicariously liable for the acts of their employees and that they had taken “all reasonable steps to prevent its employees from doing the acts alleged or anything of that description”. Any act of discrimination or harassment carried out in the course of employment will make the employer vicariously liable (unless the employer can show they took all reasonable steps to prevent the discrimination/harassment occurring). However, the tribunal was not shown records to indicate that any equality or diversity training had taken place prior to the allegations. Therefore, Exertis had not taken all reasonable steps to prevent the conduct.

“Banter” in the workplace is a constant headache for employers. It also is important to understand that simply because a victim may also have participated in banter previously, this does not preclude them bringing a claim. This case serves as a stark reminder that it is imperative for employers to provide appropriate harassment training regularly to its employees to discourage inappropriate behaviour in the workplace.

Forstater v CGD Europe

Background: Maya Forstater asserted her gender critical beliefs in debates on social media. Some trans people found her comments to be offensive and transphobic. Following complaints by colleagues, her employer investigated and subsequently her contract was not renewed. Ms Forstater complained that she had been discriminated against because of her gender-critical beliefs which she stated were a protected philosophical belief under section 10 of the Equality Act and that she had been dismissed as a result if her philosophical beliefs.

Decision: The test for philosophical belief are as follows:

• the belief must be genuinely held
• it must be a belief, not an opinion or viewpoint based on the present state of information available
• it must be a belief as to a weighty and substantial aspect of human life and behaviour
• it must attain a certain level of cogency, seriousness, cohesion and importance, and
• it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The ET found that Ms Forstater’s gender-critical beliefs satisfied the first four tests, however they did not pass the final element – that the belief “must be worthy of respect in a democratic society”. As a result, Ms Forstater’s claim failed.

The EAT however overturned the ET’s decision and clarified that the threshold for whether a belief is “worthy of respect in a democratic society” is very low. The test is meant to exclude only the most extreme beliefs such as Nazism or totalitarianism which supports “hatred and violence in the gravest forms”. They found that a belief can be worthy of respect even if it is profoundly offensive, shocking or even disturbing to others because “they are beliefs that are and must be tolerated in a pluralist society”.

In this case, it was held that Ms Forstater’s gender-critical beliefs were commonly held in society and did not seek to destroy the rights of trans persons. Whilst offensive to some and having the potential to lead to harassment of trans persons, such beliefs nevertheless were found to fall within Article 9(1) of the ECHR (the right to freedom of thought, conscience and religion) and therefore also amount to a philosophical belief warranting protection under the Equality Act.

Takeaways The EAT’s decision focused solely on the technical legal question of whether Ms Forstater’s beliefs could be protected under the Equality Act, not if her behaviour on social media was right or wrong. The case will now return to the ET to determine whether she was dismissed as a result of her philosophical beliefs and whether that dismissal was discriminatory.

Other Employment Considerations

Menopause in the workplace

According to Acas, around two million women over the age of 50 have difficulties at work as a result of their menopausal symptoms.

While there is no specific duty in relation to the menopause, employers have a general duty to protect the health and wellbeing of their staff, and women experiencing the symptoms of the menopause should be treated fairly at work.

Employers who don’t take steps to provide support could find they are faced with claims for sex, age or disability discrimination. With compensation for discrimination claims being uncapped, it is particularly important that employers take steps to avoid the risks.

In addition to the risk of a claim, there is also a risk to employers in terms of reduced productivity, high levels of absence and the loss of good members of staff who decide they do not feel supported.