Welcome to the BBS Law Private Client round-up of news and cases of interest from the first few months of 2022.

Probate News

Probate Applications on the Rise

The Ministry of Justice has confirmed that there were 63,414 applications made for Grants of Representation (‘Grant’) in October to December 2021. For the whole of 2021 there was a 7% increase on applications for a Grant from 2020– with a total number of 273,422 applications.

The average time for a Grant to be issued after submission of the application is 8 – 12 weeks with 81% of applications being made digitally using the Probate Service’s online system.

The speed of issuing a Grant is affected if the case has been ‘stopped’ for any reason (which can occur when there’s a dispute about either who can apply for probate or issues with a Will or proposed Will, or if an error is identified and a request for further information made). It takes on average 17 weeks to issue the Grant in these cases.

When a probate case is contested, the Chancery Division of the High Court deals with the matter. In 2021 there were 104 contested probate cases, up from 68 cases in 2020 as there has been an increase in people who seek to challenge Wills.

Probate Fee: Another Price Increase

The Ministry of Justice has announced a fee increase for all users. Previously there were different fee levels depending on whether a solicitor was making the application (£155) or a non-solicitor (£215).

As from 26th January 2022 there is now a single flat fee of £273.

The Law Society of England and Wales president I. Stephanie Boyce responded:

“We support the MoJ’s aim to make a simpler, more streamlined process for users of the probate service, and we understand funds are needed to help this change and development.

“However, we query why the UK government has decided to increase fees at this time, particularly as the probate service is still facing delays… This is unacceptable, the service must be timely and allow executors to settle a loved one’s estate.”

Whilst this is a significant price increase (to which we are all becoming accustomed at present), it is a considerable improvement on the proposals from recent years suggesting that the probate fee should be based upon the value of the estate.

Will News

Remote Witnessing: Time Limits Extended

The government has extended legislation to permit the remote witnessing of Wills until
January 2024.

Prior to Covid it was unthinkable that Wills could be witnessed in any way other than in the physical presence of two witnesses. Indeed, a leading case on this issue dated back over two hundred years, so this was unambiguously settled law.

However, in July 2020, the UK government brought in measures to allow remote witnessing of Wills via video link for an initial two-year period to make this easier during the pandemic period. This has now been extended to 31 January 2024 to support people who are isolating, vulnerable or in case of further restrictions.

A recent Law Society survey found that only 14% of responding solicitors who drafted Wills during lockdown utilised remote witnessing. Indeed, it is always our preference to witness Wills in the presence of our clients wherever possible. However, remote witnessing is a useful tool as a last resort and infinitely preferable to a testator feeling unable to execute their Will at the present time.

Testamentary Capacity: The Benefit of Using an Experienced Solicitor

The recent Court of Appeal case Hughes v Pritchard has raised some important issues about evidence provided when the issue of a testator’s capacity is subsequently challenged.

Mr Hughes (the deceased) was a wealthy farmer who died in March 2017 aged 84, having executed his final will in July 2016 (the ‘2016 Will’) when he was living with moderately severe dementia and was grieving for his son Elfed, who had died a few months earlier.

Mr Hughes left significant land and business interests to his surviving son and executor, Gareth. When the Will was submitted for probate, Elfed’s wife and son challenged the Will on the grounds that Mr Hughes lacked mental capacity in 2016.

The solicitor who prepared the 2016 Will had acted in accordance with the ‘Golden Rule’ for preparing Wills with those who have questionable mental capacity. The solicitor made very detailed attendance notes and asked the deceased’s GP for a medical assessment of his capacity to make a Will. As a result of this, the GP determined that Mr Hughes did have capacity to make his Will.

During the Court hearing the parties also instructed a single joint expert to give his opinion on capacity based on the records from the time. The expert also agreed that the deceased did have capacity to make his Will in 2016.

During the first hearing of the case, the GP changed his opinion as to Mr Hughes capacity. This was on the basis that the GP had thought that the 2016 Will was only making some small changes to Mr Hughes’ previous Will rather than making significant changes. On this basis the Judge stated that the Will should be disregarded and the previous Will would take effect.

This decision was challenged in the Court of Appeal, which overturned the previous judgment and held that the 2016 Will is valid. The Court of Appeal stated that there is a very strong presumption that a Will which has been drafted by an experienced independent lawyer should only be set aside on the clearest evidence of lack of mental capacity. This was also combined with the clear medical opinion which had been obtained at the time that Mr Hughes did have testamentary capacity. The combined contemporaneous evidence of the GP and solicitor, and the subsequent independent expert did not allow for a possible finding of lack of testamentary capacity.

This case is an example of how important it is that a Will is prepared by an experienced professional solicitor. We understand the disputes that can happen and ensure that Wills are prepared correctly so as to minimise future successful challenge.

LPAs

UK Government urges more public awareness of LPAs

Accordingly to UK-wide research by Which?, the general public does not fully understand Lasting Powers of Attorney (‘LPAs’) and often has difficulty getting banks to deal with them correctly.

A wide-ranging survey found that on average only one in seven people have given someone else power of attorney over their affairs due to a lack of awareness, combined with an outdated and difficult system.

Whilst 85% of respondents had heard of LPAs, there was widespread confusion about their use. For example 16& of people thought that completing an LPA meant they lost control of their finances, and 77% of people did not realise that an LPA could not be created by someone who has lost mental capacity.

The survey also found that even those with a valid, registered LPA could experience difficulty in dealing with the donor’s finances.

The Office of the Public Guardian (a department of the Ministry of Justice responsible for registering LPAs) (‘OPG’) is now being urged by the Society of Trusts and Estate Practitioners (STEP) to focus on resolving these issues. Emily Deane, STEP Technical Counsel and Head of Government Affairs stated:
‘A “fast-track” procedure and channel should be established to deal with urgent matters’,
‘We are calling on the OPG to do more to end the emotional, financial and physical abuse of older or vulnerable people, and protect them from controlling or coercive behaviour’,

Deane adds:

‘The government also needs to focus on educating and informing the public about LPAs and why they are so important.’

The Ministry of Justice recently held a consultation on LPA reform in England and Wales and we now await their response and proposals for improvement going forward.

Office of the Public Guardian confirms Attorneys are entitled to see donor’s medical records

New guidance for NHS Staff has been released by the OPG regarding the disclosure of a Donor’s medical information to their Attorneys.

The new guidance clarifies that Attorneys appointed by an LPA should be able to access medical records if these assist them in making decisions which are in the Donor’s best interests.

On this basis, NHS staff should comply in providing access in a timely manner.

Currently there is no current statute allowing an Attorney to make a subject access request for medical records on behalf of an incapacitated person, but the advice given by the Information Commissioner’s Office is that ‘it is reasonable to assume that an attorney with authority to manage the individual’s property and affairs, or a person appointed by the Court of Protection to make decisions about such matters, will have the appropriate authority’.

Discretionary Management Schemes – OPG issues welcome clarification

A question we always ask clients who are preparing a Property and Finance LPA is whether they have any investments managed by a third party – known as a discretionary management fund (where day-to-day management of investments is carried out by regulated financial professionals). Currently we need to insert a standard clause in Property and Finance LPAs to let any such managed investments continue in the event of a loss of capacity.

The OPG has now confirmed that it will change its guidance on the need to have such an express clause.

The news has been welcomed by the Law Society of England and Wales as a positive step as it could mean a reduction in expense and bureaucracy for those who have omitted to include such a clause. Currently an Attorney wishing to invest a donor’s funds in a managed fund would have to make an application to the Court of Protection if the LPA did not include the relevant express provision.

Following discussions with practitioners, including members of the Law Society’s Mental Health and Disability Committee and Wills and Equity Committee, the OPG has agreed to review and revise its position and is now committed to changing its guidance so that an attorney can invest funds via a discretionary management fund without having to make a Court application.

Trusts

New Trust Registration Rules

With the introduction of The Money Laundering and Terrorist Financing (Amendment) Regulations 2022, the deadlines for extended trust registration have been changed with certain low-risk trusts being excluded from the need to register. In addition, from 1 September 2022 the information held on the register will be available to any third party who can demonstrate a ‘legitimate interest’ in the information held on the register rather than only available to law enforcement agencies.

The registration deadline for trusts newly required to register has been deferred until 1 September 2022, and the time limits for trustees to inform HM Revenue & Customs (HMRC) of changes to the information held on the register is extended to 90 days from the previous 30 days.

Certain types of life insurance trusts that pay out only on death, serious illness or disablement are added to the list of excluded trusts, as are bank accounts held on behalf of minors or adults who have lost capacity.

Baroness Penn, confirmed to the House of Lords:

‘This instrument will amend the money-laundering regulations as they relate to trust registration, to ensure that the regulations strike the appropriate balance between providing an effective anti-money laundering tool for law enforcement and minimising the administrative burden on those who use trusts for legitimate purposes’,

HMRC has stated that it will take a ‘proportionate approach’ to any registrable trust that comes to its attention after the 1 September 2022 registration deadline.

Tax

The Spring Budget

The Chancellor did not announce any new changes to the Inheritance Tax regime, with an announcement being made in March that IHT bands will remain frozen until 2026.

Accordingly, those with estates worth more than £325,000 (or £650,000 for a married couple or civil partners, potentially increasing to £1m where the family home is left to direct descendants) who face a future IHT liability can continue to plan and take legitimate steps to mitigate the exposure of their estate to this 40% tax.

Despite the fact that planning can reduce tax exposure, HMRC is receiving increasing revenues from IHT, as more estates become liable due in large part to rising property prices. From April 2021 to February 2022 HMRC received £5.5 billion in IHT receipts, being £0.7 billion higher than in the same period a year earlier.

Looking forward, any changes by the Chancellor to the IHT regime may be influenced by the Office of Tax Simplification’s 2019 report. The headline recommendations of this report were as follows:-
1. Removal of rebasing of capital gains tax (‘CGT’) on death when a relief (such as business relief) or an exemption (such as spouse exemption) is available.
2. Removal of excess income gifting (a very valuable tool when estate planning)
3. Tightening up of business relief and agricultural relief.
4. Removal of taper relief and instead reducing the gifting window from 7 year to 5 years.

It remains to be seen what changes will be made in due course and what impact this may have on existing estate planning. On this basis we always recommend regularly reviewing your Wills to take into account any changes in the law, or in your own personal circumstances.

Kerry Blackhurst
Private Client Solicitor
March 2022

It has been a busy period for employment law, with lots of cases and legislation. In this update, we have split it into two sections – one covering selective case law likely to be of interest and the other commenting on legislative changes.

Case law

Fentem v Outform EMEA Ltd – Where an employee resigns and the employer brings forward the termination date by making payment in lieu of notice, there is no dismissal.

The Employment Appeal Tribunal (“EAT”) held that where an employee delivers their notice of resignation and the employer brings forward the termination date by making a payment in lieu of notice pursuant to contractual terms of the contract, there shall be no dismissal under s.95 of the Employment Rights Act 1996.

Mr Fentem resigned by letter dated 16 April 2020, with his notice period due to end on 16 January 2020. On 19 December 2019 Outform advised Mr Fentem that it would be relying on a term in his contract to make a payment in lieu of notice and bring his employment to an immediate end. Mr Mr Fentem brought a claim for unfair dismissal and an employment judge had to decide if he had been dismissed.

The employment judge confirmed that Mr Fentem had not been dismissed. The judge distinguished between these facts and where an employer unilaterally brings forward the date of termination (in which instance this would amount to a dismissal). However, Outform relied on a contractual term allowing it to shorten or dispense with the period of notice given by the employee. The EAT upheld that the termination was one by reason of resignation.

USDAW and ors v Tesco Stores Ltd – Tesco prevented from firing and rehiring employees

The High Court granted an injunction preventing Tesco from ‘firing and rehiring’ employees in order to remove a contractual entitlement to enhanced pay. The enhanced pay entitlement was used as an incentive to retain employees at a time when Tesco was reorganising its distribution centres. When the clause was included within the contracts, it was done so on the basis that it would remain for as long as the employee remained in the same role. Tesco affirmed to the individuals that the enhanced pay would remain on this basis, and that it could not be negotiated away. It could only be changed through mutual consent, on promotion or in the case of an employee-requested change to working patterns.

The Court held it was proportionate to imply a contractual term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminshing the employee’s entitlement to the enhanced pay. The Court was of the view that Tesco’s intention to ‘fire and rehire’ workers would remove a significant proportion of the remuneration currently payable to the affected employees, causing significant injury to their legal rights. Damages was not an adequate remedy.

The Court concluded that it was just and convenient to make an order restraining Tesco from giving notice to terminate the contract of an affected employee.

Worker Status – Contrasting Cases on the genuine right to send a substitute – Stuart Delivery and DPD Group

A minimum criterion for both employee and worker status is the requirement to perform work personally and this issue will turn on whether there is a genuine right to send a substitute.

Stuart Delivery Ltd v Augustine

A moped courier was deemed to be a worker on the basis that there was no genuine right afforded to the worker in this case to send a substitute.

Mr Augustine was a moped courier working for Stuart Delivery. The couriers could work on an ad hoc basis, with the ability to take individual jobs. Couriers were also able to sign up for specific timeslots. If couriers signed up for a timeslot, they were required to stay within a certain geographical area and be available to take jobs in return for a guaranteed minimum hourly rate of pay.

If a courier signed up for a slot, but no longer wished to work, they could request to release the timeslot. If another courier did not take the shift, then the original courier would be required to work during that timeslot, or face a penalty.

The Employment Tribunal made a clear finding of personal service, and there was no right of substitution at all. The EAT upheld this finding, commenting that there was no right of substitution, but ‘merely a right to hope that someone else in the pool will relive you of your obligation. If not, you have to work the slot yourself. You cannot, for example, get your mate to do it for your, even if s/he is well qualified. All you can do is release your slot back into the pool.’

Stojsavljevic v DPD Group UK Ltd

DPD couriers entered into a franchise agreement to provide parcel collection and delivery services as independent contractors. Couriers could perform the work themselves or nominate another driver on a permanent or temporary basis up to 90 days.

The eligibility criteria for the 90-day couriers were not as stringent as the requirements for permanent drivers, and the agreement did not distinguish between the permanent and 90-day drivers.

The Employment Tribunal found that there was a genuine right to substitute, as the claimants were entitled to send other drivers in their place.

Lee v Ashers Baking Co – Appeal disallowed in ‘Support Gay Marriage’ cake case

The European Court for Human Rights (“ECHR”) has declared that an appeal brought by Mr Lee against the bakery that refused to supply a cake with the message “support gay marriage” is inadmissible. In Lee v Ashers Baking Co the Supreme Court held that the refusal by the baking company located in Northern Ireland to bake a cake with the slogan ‘Support Gay Marriage’ was not an act of discrimination on the grounds of sexual orientation or political opinion.

In lodging his appeal, Mr Lee relied on his rights to respect for private and family life, freedom of thought, conscience and religion, freedom of expression and freedom from discrimination. He asked the ECHR to consider whether the Supreme Court’s dismissal of this claim was an interference of his Convention Rights.

The ECHR stated that Mr Lee had not asserted that his Convention rights should be balanced against the bakers when bringing his claim to the Supreme Court. As the Supreme Court did not have the opportunity to consider where the balance of rights lay, the ECHR commented that it was being asked to usurp the role of the Supreme Court. Mr Lee had not exhausted the domestic remedies available to him and therefore the ECHR refused his appeal on the basis it was inadmissible. This brings an end to a seven year battle.

X v Y – Fear of Covid-19 is not protected under UK discrimination laws

Ms X brought a claim to the Employment Tribunal under section 10 of the Equality Act 2010, asserting that her fear of catching covid-19 amounted to a protected belief.

Section 10 protects employees who are discriminated against because they hold a particular religion or belief. For a person to be protected under the legislation, they must demonstrate that their belief:

  • Is genuinely held;
  • Isn’t an opinion or viewpoint;
  • Relates to a weighty and substantial aspect of human life and behaviour;
  • Has a level of cogency, seriousness, cohesion, and importance; and
  • Is worth of respect in a democratic society

Ms X had growing concerns about the increasing spread of covid-19 and decided not to return to her workplace on 31 July 2020. She was worried that she would contract the virus and pass it on to her highly vulnerable husband. Ms X claimed that her workplace posed a serious and imminent danger to her and others under section 100(1)(d) of the Employment Rights Act 1996.

Y withheld Ms X’s wages and she brought her claims to the Tribunal

Ms X’s claims were unsuccessful. The Tribunal accepted that Ms X genuinely believed that she might catch covid-19 and need to protect herself and others. The Tribunal found this belief to be cogent, serious, coherent and important. The Tribunal was also satisfied that it was worthy of respect in a democratic society. However, the Tribunal found her fear to be a ‘reaction to a threat of physical harm’ rather than a belief. In addition, Ms X’s concerns were about protecting herself and her husband and therefore was not wide enough to meet the human life and behaviour criteria.

Hope v British Medical Association – Employee who brought vexatious claims was fairly dismissed.

The EAT has upheld a decision that an employee who raised several claims which he refused to progress or withdraw was fairly dismissed.

Mr Hope was a senior policy advisor employed by the British Medical Association (‘BMA’). Within the space of a year he had raised seven grievances over the lack of an invite to attend meetings. Mr Hope refused to progress or withdraw his grievances. Mr Hope approached his line manager and asked to informally resolve his grievances; however, he was unable to do this given his complaints related to senior managers.

Mr Hope, having raised three grievances about this, was given a deadline to withdraw or raise the issues formally. In response, Mr Hope raised another grievance alleging an abuse of process. Following an unproductive meeting with a senior manager, Mr Hope was advised that his continuance to raise grievances could be treated as a disciplinary issue.

The BMA once again tried to resolve the issue by setting up a formal grievance hearing, which Mr Hope did not attend, and a decision was made in his absence. The decision maker established that his refusal to progress the formal grievance and his conduct in general, was frivolous, vexatious, disrespectful and insubordinate and his refusal to attend the meeting was an abuse of process. Ultimately, the grievance was dismissed, and the decision maker invoked the disciplinary procedure.

Mr Hope was dismissed for gross misconduct on the basis he had submitted a number of vexatious claims against his managers, failed to follow reasonable management instructions in relation to attending meetings and there was a fundamental breakdown of the working relationship.

Mr Hope claimed he was unfairly dismissed, but the Employment Tribunal held that his dismissal was fair, and this decision was subsequently upheld by the EAT.

Best v Embark on Raw Ltd Boss harassed employee by continually asking if she was menopausal.

In this case, the Tribunal was tasked with deciding whether asking a female member of staff if she was menopausal was discrimination against on the grounds of her age and sex.

Ms Best was a 52-year-old sales assistant, selling pet food to the public. During the first lockdown in 2020, her relationship with her employers became strained as she felt that her colleagues were not taking the covid-19 measures seriously enough, which put hers and others health at risk. Ms Best brought her concerns to the attention of the owners on a number of occasions, and they consequently dismissed her because they thought her to be ‘obsessive, paranoid and irrational’.

Prior to the dismissal, one of the owners, Mr Fletcher, had directly asked Ms Best if she was menopausal, despite her not wanting to talk about it. On another occasion, Mr Fletcher read out a newspaper article about covid-19 which suggested that medical staff may need to ‘play god’ in prioritising younger people because they ‘are more likely to survive’.

Ms Best complained to Mr Fletcher’s wife about his behaviour (As she was a co-owner of the business). Mrs Fletcher was dismissive of Ms Best and gave her a verbal warning. Ms Best’s dismissal followed a couple of weeks after this.

When bringing her claims, Ms Best asserted that she had been unfairly dismissed and commented about the menopause violated her dignity ad created a humiliating environment at work. She also claimed that the comments about the ventilators amounted to harassment as her employers were insinuating she was not young or fit.

The tribunal held that the comments amount to harassment because of Ms Best’s age and sex. It also found that Mrs Fletcher victimised Ms Best after she had complained about Mr Fletcher and concluded that Mrs Fletcher did not want to entertain the idea that her husband might have behaved insensitively and inappropriately. Instead Mrs Fletcher chose to blame Ms Best calling her ‘paranoid, petty and obsessive’.

Legislation, Policy and other points of interest

Government brings forward ‘Brexit Freedoms’ Bill

On 31 January 2022, the Prime Minister’s Office announced that the new ‘Brexit Freedoms’ Bill will be brought forward by the Government. The Bill declares that it will ‘make it easier to amend or remove outdated “retained EU law” – legacy EU law kept on the statute book after Brexit as a bridging measure – and will accompany a major cross-government drive to reform, repeal and replace outdated EU law’. All EU retained laws are under view to assess if they are favourable to the UK.

Menopause in the Workplace: Government Commission report Published

In our October 2021 Review, we mentioned that the Government would be opening a commission into Menopause in the workplace.

The report was published at the end of 2021 and sets out a clear need to build support for menopausal women in the workplace.

The report also recommends that s.14 of the Equality Act 2010 is enacted. S.14 is the provision relating to the dual characteristic discrimination and if enacted, would have the effect of preventing direct discrimination though the combination of two protected characteristics.

It remains to be seen if the recommendations will be implemented.

Consultation on disability workforce reporting

The Disability Unit, which is part of the Cabinet Office, has opened a consultation on disability workforce reporting. The purpose of the reporting is to improve data and transparency on disabilities in the workplace. It is hoped that the data will give employers the tools to analyse the affect of inclusive practices relating to recruitment and retention of disabled people.

As part of the consultation, employers with 250 or more staff may put under a mandatory duty to report the percentage of their employees that identify as disabled. The Unit acknowledges there may be disadvantages to this approach in that employees may not offer information regarding the disability status.

The consultation is open until 25 March and seeks input from employees and employers on various issues.

Annual Increase in Compensation Limits

The Employment Rights (Increase of Limits) Order 2022 is coming into force on 6 April 2022. We set out old and new rates of awards affected by the Order which are of core relevance to our clients.

Provision/Award Old Limit to 6 April 2022 New Limit from 6 April 2022
Limit on compensatory award for unfair dismissal £89,493 £93,878
Maximum amount of a “week’s pay” for the purpose of calculating a redundancy payment or for various awards including basic award for unfair dismissal compensation £544 £571

 

Statutory Sick Pay Rebate Scheme Closed

The Statutory Sick Pay Rebate Scheme closed on 17 March 2022, meaning that employers will no longer be able to claim the statutory sick pay (‘SSP’) payments made to employees for covid-19 related absences or self-isolation after this date.

Employers had until 24 March to submit or amend their claims for payments made before 17 March 2022.

From 17 March, the normal SSP rules apply. Employers should pay SSP from the fourth qualifying day the employee if off work regardless of the reason for their sickness absence.

EHRC suggests employers should treat long covid as a disability

The head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat employees suffering with long covid as though they have a disability for the purposes of the Equality Act 2010.

The advice has been issued to help employers from breaching equality law, in the absences of clear legislation. Long covid has the potential to affect employees performance at work, particularly as symptoms include cognitive difficulties and fatigue. However, as symptoms can fluctuate it is not clear if all instances of long covid will fall within the legal definition of disability.

Compulsory vaccination of health and social care staff to be revoked

On 31 January 2022, the Health and Social Care Secretary announced that regulations making vaccination mandatory for staff working in health and social care settings are set to be revoked, subject to public consultation and parliamentary approval.

There was widespread support from the public in dropping the policy, and it has been announced that the mandate will be dropped.

Aron Heywood in our property litigation team has produced an update on the recent changes to the options available for commercial rent arrears recovery following the enactment of the Commercial Rent (Coronavirus) Act 2022.  For many landlords of commercial property the new legislation will be a welcome development allowing them to recover possession of their property and to recover up to two years’ of outstanding rent.

You can download the article here

If you need any help with anything you contact Andrew Haffner, David Bondt, Roger Rubin or Aron Heywood or call us on 0161 832 2500.

Article by Avi Barr – Secured Lending and Property Partner and Head of the London office of BBS Law

Auction sales tend to be a great way of disposing of tricky properties. It may be a shop in prime retail territory with a rapidly weakening tenant covenant or a challenging development site.  You would think that any buyer at an auction ought to know that what you see is not necessarily what you are going to get. However, a recent High Court case has tipped the balance strongly in favour of careless buyers by placing a surprisingly strong responsibility on sellers at auction and auctioneers to ensure that any defects are clearly pointed out to bidders.

The High Court case in SPS Groundworks and Building Ltd v Mahil involved Mr Mahil who purchased a piece of land for £130,000 at auction.  The land had development potential but was subject to overage provisions (additional payments normally to the seller contingent on future events).  The overage deed was included in the pack and the title even had reference to the overage arrangement.  However, Mr Mahil had not downloaded the legal pack and there was no mention within the auction particulars of the overage, nor did the auctioneer make any reference to the overage during the auction itself.  Mr Mahil decided not to complete and was then sued by the seller for his loss.  Although the initial County Court decision came up with what most of us would expect to be the anticipated decision in favour of the seller on the basis of, “caveat emptor”, being the very basic principle that any buyer ought to be aware of what they are buying, the High Court took a different view and actually agreed with Mr Mahil that the initial decision was wrong in law to conclude that the seller had fulfilled its duty to disclose the defect in title by simply including it in the legal pack.

The High Court decision will definitely be a surprise to many but underlines the importance when listing properties for auction (particularly where parties may be bidding unrepresented) to ensure that there is proper disclosure of any defects and its conclusion was that standard contractual conditions and auction disclaimers could not be relied upon to save the seller where a defect in the property was not clearly brought to the attention of prospective buyers.  A purchaser was entitled to assume, in the absence of any clear signposting to the contrary, that entries on the property register were not problematic and that the lot itself was being sold on a standard basis and in this case, the seller had failed to clearly draw sufficient attention to the overage.

For both buyers and sellers, auctions can be minefields and this decision creates even more uncertainty.  How much more did the seller have to do here? Is it necessary to have every defect clearly stated in the catalogue or announced by the auctioneer in the room. In some cases that would defeat the point of selling at auction at all.  If you are a seller, do make sure that you have clearly presented your lot to avoid any claims based on a failure to disclose material issues.  If you are buying at auction, particularly where development may be involved, do ensure that you at the very least download and review the pack and almost always it will be the right thing to do to have a sufficiently skilled solicitor review the pack on your behalf before you enter the bidding.

We are delighted to have acted on behalf of the shareholders of AA Projects in relation to the minority investment in the company by Drees & Sommer, which is the first step towards the full merger of the 2 companies.

AA Projects is a highly respected UK property and construction consultancy in six locations across the UK, with 200 employees, for whom we have acted for many years.

Drees & Sommer has 46 locations in Europe, the Middle East, China and the Asia Pacific, with over 4,000 employees worldwide and an annual turnover of €517.2 million (£429.8 million) in 2020.

Through the  investment by Drees & Sommer, AA Projects will be able to build on its current platform creating opportunities for greater access to the market and complementing its existing business plan.

Kenneth Wood, Managing Director, AA Projects said,

“This partnership will provide us with the springboard to expand in existing sectors and markets in the UK where we already have an excellent reputation. It has been a pleasure to once again work with BBS Law who provided strong commercial and legal advice throughout the transaction and we look forward to their continued input in the future growth of our business.”

Dov Black and Rebecca Mills provided the Corporate advice on the transaction, assisted by Paul Stedman, who acted on the Employee Management Incentive (EMI) aspects and Elaine Hackett who provided banking support on the transaction.

Was a pleasure to work with Alex White of KJG, who provided tax advice and support and UHY Hacker Young Manchester, who provided accountancy advice and support.

BBS is delighted at this outcome for a longstanding client and looks forward to working closely with the company in the future.

BBS are delighted to have acted on behalf of founder and managing director, Paul Crudge, in relation to the sale of his company, Pro-Networks, a North Wales-based IT support services specialist, to an Employee Ownership Trust. Dov Black and Rebecca Mills provided the Corporate advice on the transaction, assisted by Paul Stedman, who acted on all Employment and Trust aspects. This is the latest in a number of EOT transactions that our specialist EOT team have worked on over the past 2 years.

An established and successful business for over 20 years, with 350 customers worldwide, Pro-Networks has joined a host of other companies across the UK, which have adopted an employee ownership model since it was first introduced by the UK Government in 2014. Renowned EOTs include John Lewis Partnership, Richer Sounds and Aardman Animations.

Chief executive Geoff Coote said: “A great deal of effort and planning went into structuring this deal with the interests of customers and employees as the absolute priority……we are very excited for what lies ahead for us as a business following this change in structure.”

Dov Black commented, “We are delighted that our experience with EOT transactions enabled us to provide a great result for our client”. BBS is delighted at this outcome for a longstanding client and looks forward to working closely with the company and EOT in the future.

Welcome to our end of year round-up, where we  cover some of the key developments in employment law over the last 12 months and look at what is happening moving forward 

In keeping with the festive spirit, we promise not to mention Covid, Furlough or lockdowns, and to stick to the fun stuff like National Minimum Wage, the Working Time Regulations and discrimination.

Round up

National Minimum Wage (NMW)

All employers should be aware of the obligation to pay their workers at least the NMW.   Ensuring that the headline hourly rate of pay in a contract complies with the NMW Regulations is easy.  There are however several areas of risk for employers, such as where overtime is not properly captured, understanding what actually constitutes working time for NMW purposes, and whether certain deductions from pay take the hourly rate below the NMW rate.

One of the most significant cases of the year, with potentially far-reaching consequences for employers, was the case of Augustine v Data Cars Ltd (Augustine), which dealt with deductions from pay.

Regulation 13(1)(b) of the NMW Regulations says, in simple terms, that where a worker has to pay for something in connection with their employment, and this is not reimbursed by the employer, this can be taken into account when assessing if the worker has been paid NMW.  This topic has received a lot of press attention over the last few years, in particular in respect of uniforms, where workers’ pay at large employers such as Wagamama and TGI Fridays fell below NMW by virtue of them having to buy certain types of clothing or uniform.

Whilst the decisions in the Wagamama and TGI Fridays cases surprised some, the Augustine case has taken the interpretation of the law to the next level.  Mr Augustine was employed as a taxi driver.  He had to provide his own vehicle, which he could own outright or rent.  He was not compelled to wear a particular uniform, but if he wanted to get the ‘gold level’ jobs (which commanded better rates) he could rent a uniform.   Mr Augustine chose to rent a vehicle and a uniform.  In addition to these costs, Data Cars made various deductions from his pay, including insurance costs and equipment rental, which the Employment Tribunal (ET) held did reduce his pay for NMW purposes.

The ET held that the car and uniform rental should not be taken into account for NMW purposes.  Mr Augustine took this point to the Employment Appeal Tribunal (EAT) and succeeded.   The EAT concluded that the car and uniform rental, whilst optional, were clearly expenses ‘in connection with the employment’.  With that, Mr Augustine’s expenses for those costs took his pay below NMW.    The EAT went further, and said that expenses ‘did not, in fact, have to be a requirement of the employment. It neither had to be necessarily incurred nor wholly or exclusively incurred (for that employment)’.  

It is difficult to argue with the EAT’s literal interpretation of the legislation and the decision throws up all manner of practical problems and hypothetical scenarios in respect of NMW:

  • What if Mr Augustine rented a Rolls Royce?
  • What if Data Cars had their own vehicles to rent free of charge, but Mr Augustine leased a Lamborghini instead?
  • If your staff have to wear suits to work, what if one week they get giddy in Gucci?
  • If someone works for several employers with the same dress code (as is common in the hospitality sector, for example), which employer is liable to pay for the clothing?

The EAT has remitted the case back to the ET to determine the appropriate compensation, and it is unlikely that Data Cars, a relatively small employer, will appeal the decision.

Where does this leave us?

The decision in this case does appear to be illogical.  To fix this issue will either take a change in legislation or a case being taken to the Court of Appeal
(CA); neither of which appear to be on the radar any time soon.

For now, employers should look for areas of risk in their business and take steps to minimise those risks, such as tightening up expenses policies, requiring approval before certain employment related expenses are incurred and setting limits on such expenditure.

Discrimination

Defining disability

To qualify as a disabled person under the Equality Act (EQA), a person needs to show that they have a physical or mental impairment:

  • which has an adverse effect on their ability to carry out normal day to day activities; and
  • that the adverse effect is substantial; and
  • that the substantial adverse effect is long term.

It is normally easy to identify the physical or mental impairment and whether a condition qualifies as a disability tends to turn on the above points.

In Sullivan v Bury Street Capital, the Claimant had paranoid delusions that he was being followed by a Russian gang.   The CA held that whilst this mental impairment did have a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities between May and September 2013 and again between April and July 2017, on neither occasion was it likely that the substantial adverse effect would continue for 12 months or be likely to recur for such a period to make the condition ‘long term’.

Also on the issue of what is ‘long term’, in All Answers Ltd v W and Another, the CA confirmed that determining if the substantial adverse effect is ‘long term’ needs to be assessed on the facts and circumstances at the time of the alleged discrimination.    So even if the adverse effect continues after the event, this should not determine whether or not the condition qualifies (although it will of course be persuasive).

Finally on this topic, the case of Rooney v Leicester City Council considered whether the Claimant’s menopause qualified as a disability.   The EAT in this case held that the ET failed to properly take into account relevant information when deciding the Claimant was not disabled.  In particular, the ET failed to scrutinise the extent to which the symptoms impacted on her ability to perform day to day activities, such as forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness, incontinence and joint pain.  There was also no explanation as to how the ET did not conclude that the impairments were long term, given that they had last between August 2017 and 29 October 2018.

Age discrimination – retirement age

In 2011 the default retirement age in the UK was removed.  Since then, any employer seeking to impose a retirement age has had to show that the retirement was justified.

In order to prove justification, the employer needs to be able to establish a ‘legitimate aim’, and then show that dismissal by reason of retirement is a ‘proportionate means’ of achieving that legitimate aim.

In 2021 the EAT considered 2 cases brought against the same employer, the University of Oxford, in respect of the same default retirement age of 67.  Same employer, same policy, same conclusion……? No!

The University relied on 3 main legitimate aims to justify the retirement age:

  • Inter-generational fairness (by improving opportunities for career progression);
  • Succession planning (by maintaining predictable retirement dates)
  • Promoting equality and diversity (new recruits being more likely to be from diverse backgrounds)

In the case of Pitcher, the EAT upheld the decision that the compulsory retirement was justified, whereas in Ewart the EAT upheld the decision that it was discriminatory.  So how can the EAT reach a different decision in respect of the same policy?   The answer is that it came down to the evidence presented in each case.   In Ewart, the Claimant produced evidence to show that the retirement age had little to no impact on the number of vacancies that arose, so the retirement age was not justified.   This evidence was lacking in Pitcher and the EAT concluded that there was no error in law from the ET in concluding that the policy was not discriminatory based on the evidence presented in the case.

What can employers learn from this?   It is not easy to justify a retirement age.  If employers do want to impose a compulsory retirement age, they need to consider what ‘legitimate aims’ they are trying to achieve, and then test those legitimate aims by analysing data to see if the legitimate aims are justified.  The results of such analysis may change over time so should be kept under review.

Religious discrimination – dress codes

In 2021 the European Court of Justice (ECJ) considered two cases in which Muslim employees were told that they could not wear headscarves in work.

In the case of Wabe, the employer ran a non-denomination day care centre, and had a policy under which staff were not permitted to wear any signs of their political, philosophical or religious beliefs that would be visible to parents, children or co-workers.   The employer had information sheets which expressly stated that a Christian cross, Islamic headscarf or Jewish kippah could not be worn as ‘children should not be influenced by the teachers with regard to religion’.   The Claimant was suspended and issued with a warning as she refused to remove her headscarf.   Around the same time, a Christian teacher was asked to remove a cross.

In Muller, the employer instructed the Claimant not to wear any conspicuous, large-size political, philosophical or religious signs.

The ECJ held that whilst bans on certain types of religious dress may be discriminatory, it will not be directly discriminatory if the ban is applied in a general and undifferentiated way.

On the more complicated question as to whether these policies amounted to indirect discrimination, the ECJ held that whilst such policies could be indirectly discriminatory, they could be justified if there was a genuine need, as opposed to a desire, for the policy.   To that end, employers can take into account the legitimate wishes of customers or users, such as parents’ wishes to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.   The ECJ added that the policy must be applied consistently and systematically and must be limited to what is strictly necessary, taking into account the adverse consequences that the employer is seeking to avoid.

Working time

What amounts to ‘working time’ is an important concept in establishing statutory rights under the Working Time Regulations (WTR), such as rest breaks.  There were two key decisions from the ECJ in 2021 on this issue.  Although the UK is no longer bound by the ECJ, their rulings can be taken into account in the UK Courts and are likely to be persuasive.

Vocational training (WTR)

In BX v Unitatea Administrativ Teritoriala D, the ECJ held that time spent on vocational training, provided by a third party, offsite and outside of working hours was ‘working time’.  This was on the basis that the training was mandatory, the worker had to be physically present at a place determined by the employer and had to be available to the employer to provide services immediately.    This decision is however contrary to the WTR in the UK, which specifically exclude time spent training with third parties from the definition of working time.

Standby (WTR)

In Ville de Nivelles v Matzak (Case C-518/15) the ECJ considered time spent by firefighters on standby, during which time they could be expected to report to work within 8 minutes.  The ECJ held that this was working time, as the firefighters were required to be at a location determined by their employer (in this case their homes) and faced significant limitations in what they could do in their private lives in that time.

What’s coming

  • Increase to statutory payments in April 2022.

It is expected that maternity, paternity, adoption, shared parental and parental bereavement  pay and maternity allowance will increase from £151.97 to up to £156.66 per week statutory Sick Pay will  increase from £96.35 to £99.35 per week. NMW rates will also increase to £9.50 for workers 23 years old and over, £9.18 for ages 21 -22, £6.83 for ages 18 – 20 and £4.81 for ages 16 – 17 and apprentices.

 

  • Menopause

We covered this in our October Employment Law Review. Whilst there have not yet been any legislative changes since we last wrote about it, this could change and employers need to be aware of the impact of the menopause upon its employees, particularly in light of Rooney.

 

  • Sexual harassment bill

Another topic covered in our October Employment Law Review. To recap, the Government plans to introduce a duty on employers to prevent sexual harassment in the workplace and protections against third party harassment. Draft legislation is expected in 2022.

In the meantime, the Equality and Human Rights Commission have published guidance for employers on how to prevent sexual harassment, which can be found here

  • Carer’s leave

In September 2021, the Government published its findings in response to the 2020 consultation on carer’s leave. As a result of the consultation, the Government plans to legislate for an entitlement to carer’s leave for employees as a ‘day one’ right. The leave will consist of 5 working days of unpaid leave for employees who have long-term caring responsibilities but has not announced when they plan for this to come into effect. The date when this will come into force is currently awaited.

 

  • Neonatal leave and pay

The Government will, on a date to be confirmed, introduce statutory neonatal leave and pay for parents of babies requiring neonatal care. Parents will have the right to take an additional week of leave for every week that their baby is in neonatal care, up to a maximum of 12 weeks.

 

  • Extending redundancy protection to women and new parents

The Government has promised legislation to extend the period of redundancy protection from the point an employee notifies their employer of their pregnancy until 6 months after a mother has returned to work. If passed, the additional protection will also apply to those taking adoption and shared parental leave. We are currently awaiting to hear when these new protections are due to become effective.

How not to do it

Sacking 900 over Zoom – Vishal Garg: US boss fires 900 employees over Zoom – BBC News

Here today, gone tomorrow

The CEO of a US firm has recently come under fire for sacking around 900 of his employees over Zoom. Thankfully in England and Wales, employees have stronger legal protections where an employer is making mass redundancies, as they will have to enter into a consultation process with the employees.

It pays to moan!

We all have a moan about work from time to time, but does that mean we should be fired for it? The Employment Tribunal in McMahon v Heron Financial Services seemed to think not.

Heron Financial Services was not favoured by the Employment Tribunal earlier this year for dismissing one of its highest performing employees because “she was always moaning”. The Employment Tribunal ruled that Mrs McMahon had been unfairly and wrongful dismissed and had suffered an unauthorised deduction of wages. Damages of £23,127.93 were awarded.

Heron Financial Services has appealed to the EAT.

Whistleblowing from the squash courts

Earlier this year we heard how Mr Thomas, a former PE and maths teacher at Berwick Academy in Northumberland, took to social media to allege that his former workplace hid poorly behaved pupils on a squash court during an Ofsted inspection.

Mr Thomas was dismissed, and the Tribunal held that he was unfairly and wrongfully dismissed after the school had undertaken an unfair investigation into Mr Thomas’ whistleblowing. Mr Thomas had exhausted other official avenues to raise his concerned, but “the frustration of not being listened to had led him use social media as no one was listening.”

This highlights the need for a thorough investigation in dealing with whistleblowing complaints.

When an employer is considering dismissing an employee for conduct issues, it must ensure that it has carried out a reasonable investigation, and then it must show that the decision to dismiss was in the band of reasonable responses open to it.

Where employers lose unfair dismissal claims at Tribunal, it is often because of failings in the investigation stage.  This was perfectly demonstrated in the recent case of Smith v Teleperformance Limited, which all started with a miserly portion of chicken nuggets.

Facts

The issues at hand in the disciplinary were very narrow.  The Claimant, who had just finished a long shift, went to the canteen and ordered chicken nuggets, chips and beans (with a pot of cheese on the side) – don’t mind if I do…..  He was then presented with the meal, which contained just three chicken nuggets.  The Claimant was not happy with this and rejected the meal – saying that he was not a kid and that if he wanted a happy meal he would go to McDonald’s.  The Canteen Assistant, unhappy with the Claimant’s conduct in turning the nuggets away, made a complaint which was then investigated under the Respondent’s disciplinary policy.

The investigation

Whilst the investigation in this case was a poor one, there are lots of good examples that employers can learn from to make sure that they don’t fall fowl of the same mistakes:

Witnesses:

    • The Respondent only took statements from the two Canteen Assistants and the Claimant.
    • The Claimant referred to a lady with purple hair behind him in the queue, but the Respondent made no effort to ascertain who this was.
    • There was a security guard nearby – he was not interviewed.
    • There was a pool table by the canteen, no effort was made to see if anyone playing pool witnessed the incident.
    • The canteen was accessed by swipe card, but the Respondent did not check the records to see who was in the canteen at the time.

Failure to question evidence:

    • Canteen Assistant A alleged the Claimant swore, saying ‘I am not a f*****g kid’. Canteen Assistant B made no reference to swearing and the Claimant denied it.   Rather than checking the inconsistency with Canteen Assistant B, the investigator concluded that the Claimant did swear and that Canteen Assistant B was too shy to refer to bad language.
    • There was a dispute as to whether the Claimant ‘forcefully’ returned his meal, or simply slid it back. The investigator failed to ask sufficient questions to ascertain the level of aggression the Claimant applied when returning the meal.
    • The Tribunal held that the Respondent acted unreasonably in relying on the limited statements that were taken, rather than taking additional steps to verify the detail.

Too much emphasis on demeanour and failure to consider Claimant’s evidence:

    • The Canteen Assistants referred to the Claimant’s face going red as evidence of his rage. The Claimant explained that he had a medical condition which may have caused his face to colour, but this was not considered by the Respondent, who concluded that his face went red with anger.

The Employment Tribunal Judge was keen to emphasise the impact of a poor investigation, stating:  ‘Given the Claimant’s livelihood was at stake, it was unreasonable to rely on the evidence presented without further enquiries being made’ and held that the shortfalls in the investigation rendered the dismissal unfair.

Other elements of unfairness

The finding of unfair dismissal did not rest solely on the investigation.

Other procedural unfairness

The Claimant’s invitation to the disciplinary hearing referred to:

‘Acting violently. Including fighting or physical assault, using rude and abusive language or behaving immorally or obscenely towards other employees or our clients and customers’.

The Tribunal concluded that the Claimant was not given sufficient information about the precise allegations against him, and that this too rendered the dismissal unfair.  The Judge also criticised the categorisation of the allegations, which exaggerated the incident.

Too severe sanction

Another common mistake employers make is to determine that if someone has done something wrong, they should be dismissed.  This is fundamentally wrong, and all disciplinary policies should include sanctions short of dismissal, including warnings or final written warnings.

The Judge was not satisfied that the allegations made against the Claimant were as serious as the Canteen Assistants suggested, and held that a reasonable employer would not have dismissed the Claimant in the circumstances.

Lessons learned

Even if an employee has committed an act of gross misconduct, a poor investigation can result in a finding of unfair dismissal, which will come with side dishes of compensation and legal costs.   Anyone investigating a disciplinary matter, or chairing a disciplinary hearing, needs to carefully apply their mind to what evidence may be available and what questions need to be asked to establish the facts of the case.

Talk to us!

Investigating and probing doesn’t come naturally to everyone, but its what we do every day!  We encourage our clients to contact us at the start of an investigation, so we can work together to ensure that the investigation will stand the scrutiny of the Tribunal and, hopefully, avoid cases being brought altogether.  In the long run, this approach should save time and money. If you need help with a disciplinary case, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500.

Employment Law Review

Welcome to the third edition of our employment newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our third issue comes at a time where the Furlough Scheme has been withdrawn and put to bed. As we enter a ‘post-Covid world’, we are seeing more Covid related cased being heard in the Tribunals and discussions around compulsory vaccinations.

Contents

  1. End of Furlough – Consider your options
  2. Compulsory Vaccinations and Care Homes
  3. New duty proposed for employers to prevent sexual harassment
  4. Menopause in the workplace
  5. Case law update
  6. Talk to us!

End of Furlough – Consider your options

The furlough scheme ended on 30 September 2021, and the scheme was completely withdrawn on 1 October 2021.

With the winding down of the furlough scheme and relaxation of Covid-19 restrictions, employers should be considering their options for staff returning to the workplace. No doubt employers will be looking forward to re-welcoming employees who have been furloughed and bringing staff back to work, but unfortunately this will not be an option for all employers.   Many employers are considering changing employees’ terms and conditions or making redundancies.

If employers are considering making changes to employment terms, they need to consider whether notice needs to be given to effect the change, and even if formal consultation is required.   Employers also need to be aware of the risk of claims for unfair dismissal or constructive unfair dismissal if the changes are not agreed.

If an employer needs to make redundancies, it is important that a fair process is followed before effecting the dismissal.   If this is not done, the employer will be at risk of claims for unfair dismissal.  If 20 or more redundancies are proposed there are also strict statutory consultation procedures that must be followed and the risk of costly group litigation if this is not done correctly.

If you are considering making redundancies or changing terms and conditions, we recommend that you contact us for advice and guidance on what steps need to be taken and the risks of not following a fair process.

Compulsory vaccinations and Care Homes

On 11 November 2021 new Regulations come into force which will require Care Quality Commission registered care homes to only permit access to workers who are fully vaccinated against Covid-19, unless medically exempt. The Government has said its decision was made after extensive public consultation, and that compulsory vaccination is to promote the protection of care home residents from the risk of death or serious illness that can arise from contracting Covid-19.

The legislation has faced harsh criticism from those working in care homes, unions, and professional bodies alike and the legislation opens questions about the approach care homes will take with staff who have not had the vaccine and are not medically exempt.

There are many reasons why a person may refuse to take the vaccine, such as religious or health based, but employers should be careful in hastily dismissing staff. Employers need to seriously consider their staff’s reasons and will need to demonstrate they have acted reasonably before dismissing employees who refuse to be vaccinated.

UK Government proposes new duty for employers to prevent sexual harassment

In August the Government published its response to its 2019 consultation on measures to combat sexual harassment in the workplace and reinforce existing legal protections. As part of its response, the Government has proposed a new proactive duty on employers to prevent sexual harassment in the workplace, pledged to strengthen existing protections against third-party harassment (such as by clients or suppliers), and considered extending the time limit to bring sexual harassment claims.

The response contains very little detail about how this duty will be implemented, although we do expect the Equality and Human Right Commission to issue a code of practice in the near future.

Proactive Duty

At present, employers are under no proactive duty to prevent sexual harassment in the workplace. If a member of staff reports an incident of sexual harassment an employer can be held liable unless it can show that it took all reasonable steps to prevent the sexual harassment form occurring. Under the new proposed duty, employers will still be required to take reasonable steps, but they could also be held accountable for failing to take preventative steps to stop harassment, even if no incident has occurred.

Protections against third-party harassment

Similar to the above, the Government has not provided any clear indication as to how this will be introduced, although it has confirmed that it will introduce a defence of having taken all reasonable steps to prevent third party harassment. There is no clarification if this will be a proactive duty. It is also unclear as to whether this will extend to all forms of harassment, or if it will only apply to sexual harassment.

Extending time limits to bring a claim

Currently, claims brought under the Equality Act must be made within three months of the act, or most recent act, complained of. The Government is considering extending the time limit to six months in relation to all claims made under the Equality Act, not just sexual harassment.

Menopause in the workplace

Women over the age of 50 are the fastest growing group in the workforce. In 2019 BUPA and the Chartered Institute for Personnel and Development conducted a survey which found that three in five women of menopause age were negatively affected at work.

With such a large portion of the work force experiencing the menopause during their working life, it is an increasingly pressing topic for employers. There is also a rise in number of women being dismissed or treated unfairly for reasons related to the menopause.

The Government has opened an inquiry into menopause-based discrimination experienced in the workplace.

Currently, women who are treated unfairly for reasons related to the menopause have to bring claims under the sex or disability discrimination legislation in the Equality Act.  The menopause is not a disability unless the individual concerned meets the statutory requirements in their particular circumstances, which is rarely the case, and neither type of claim is easy to pursue.  The purpose of the inquiry is to examine whether or not current equality laws need to be strengthened and if the menopause should be added as a protected characteristic under the Equality Act.

The inquiry closed submissions for evidence on 17 September 2021. We will update you when the findings are released.

Case law update

Covid Case Law

In our last update, we discussed the case of Accattatis v Fortuna Group (London) Ltd. Since then the Tribunals have heard a number of Covid-19 related cases

In Gibson v Lothian Leisure, Ham v ESL BBSW Ltd and Monanaro v Lansafe the Tribunal found that Covid-19 was a serious and imminent threat, and that the Claimant’s dismissal was automatically unfair after he was dismissed for raising concerns about the lack of Covid-related safety measure at his workplace.

Gibson and Accattatis relate to the first lockdown so the same might not be said for subsequent lockdowns or the situation following mass vaccination.

In Mhindurwa v Lovingangels Care Ltd the Employment Tribunal held that there was a duty to consider furloughing employees as an alternative to redundancy. Whilst furlough should be considered (or should have been when the scheme was running), that does not mean that is has to be offered. This approach was also upheld in Handley v Tatenhill Aviation Ltd.   This will not apply now that the furlough scheme has ended, but these cases serve as a reminder that employers do need to consider alternatives to redundancy before effecting the dismissals.

Pay for zero-hours workers when suspended

This was considered by the Employment Appeal Tribunal (EAT) in Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust Mr Agbeze was a healthcare assistant who provided his services as a ‘bank’ worker. Under the terms of Mr Agbeze’s contract, he was only paid for the hours he worked. There was no obligation on the NHS Trust to offer him work, nor was there an obligation for him to accept work. In essence, he was employed under a zero-hours contract.

Following an allegation of misconduct, the Trust suspended Mr Agbeze, meaning he was not eligible to be offered any work and he was not paid whilst the case was investigated.

Mr Agbeze asserted that there was an implied term in his contract which meant that he was entitled to be paid average wages during the suspension period.  The EAT upheld the Tribunal’s decision, that there was no obligation for the Trust to offer work, nor for Mr Agbeze to accept work, and that there was no express or implied term that required the Trust to pay Mr Agbeze during his suspension.

You can see other updates on other topics  in our earlier blogs here  disability discrimination and rights of appeal.

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.