Employment Law Review

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

Our first issue marked the anniversary of the first lockdown and we considered the impact of the pandemic.  The Government has just announced that all restrictions in place in England have been lifted as of Monday 19 July 2021.  The easing and lifting of lockdown measures will vary in the other home nations but it is hoped that a return to something that resembles the ‘pre-pandemic normal’ is on the horizon.  

The past 15 months have been a difficult and testing time for both employers and employees and with restrictions now lifting/easing many employers have been and will continue to take stock on how the past year has affected and may continue to impact their operations.  For some answers to the most common questions, we have faced from business owners in recent weeks please see our blog post https://bbslaw.co.uk/returning-to-the-office-post-lockdown/  

Keeping with the theme of the pandemic here is a quick Covid-19 related update

Travel restrictions –  there are currently conditions in place which are attached to foreign travel from England.  Foreign destinations are classified as Green, Amber or Red with the list being subject to frequent change. 

The latest government update is that unless individuals are fully vaccinated there is a mandatory requirement to quarantine for 10 days following foreign travel to Amber list countries, although the rule for fully vaccinated individuals will not apply to France (on the Amber list) and individuals returning from France must quarantine for 10 days upon arrival in England. For those returning from Red list countries, they must quarantine for 10 days in a managed hotel.   

The requirement for individuals to quarantine is likely to impact businesses and we recommend that employers are mindful of the mandatory requirements when authorising holiday requests.  Thought should be given to how operations will be affected if there is a reduced workforce due to quarantine.    Employers may want to consider adopting the following approach for employees returning from holiday who then need to quarantine.  This is subject to ongoing government guidance, and we would recommend any such requirements are confirmed to employees in writing;

i. If a role permits home working, employees may work from home for the duration of the  period of quarantine, however, all usual terms of employment will apply, including  usual hours of work. ii. If an employee has enough remaining annual leave they may choose to take a further period of leave to cover all or part of their quarantine period.

iii. If home working cannot be accommodated or the employee does not wish to take/does not have enough remaining annual leave, any period of quarantine must be taken as unpaid leave.  

Furlough – as of 1 July 2021 the Furlough Scheme has seen some changes which mean that employers are required to take on more of the costs relating to furloughed employees.  The below table sets out how the scheme has begun to, and will further taper down between June and September 2021.   

(Source:  https://www.gov.uk/government/publications/changes-to-the-coronavirus-job-retention-scheme/changes-to-the-coronavirus-job-retention-scheme)

What else is and has been happening?

The new Employment Bill

The long-awaited Employment Bill, which was expected to come in to force following the Queen’s Speech in May 2021, has been put on hold.  Whilst the bill has been delayed it is expected to come in to force at a future date. Some reforms which are expected include; 

• • The introduction of a single labour market enforcement body to ensure that vulnerable workers are better informed of their rights, and to support businesses in compliance.
  • Plans to ensure that all tips and service charges go to workers in the hospitality, leisure and service sectors.  
  • Extending redundancy protection to cover pregnant employees, so that they are given priority for suitable alternative employment.
  • Extended leave for parents of children in neonatal care.

Some of these areas were subject to consultation, the outcome of which is still awaited. 

Gender pay gap reporting

Employers with 250 or more employees are required to publish their gender pay gap report by 4 April (30 March for public-sector employers).

Due to the impact of the pandemic, the Equality and Human Rights Commission (EHRC) have announced that employers will have an additional six months after the current deadline to report their gender pay gap information – therefore, 5 October 2021, meaning that no enforcement action would be taken before this date.  The EHRC is however encouraging employers to report their data before October 2021, if possible.

Right to Work

The EU Settlement Scheme, which allowed EEA nationals who were in the UK at the end 2020 to formalise their status, closed to most applications on 30 June 2021. On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks.  Up until 30 June 2021, EEA nationals could present their passport or national ID card as evidence of their right to work in the UK, however, as of 1 July 2021 EEA citizens and their family members will need an immigration status in the UK and will no longer be able to rely on their passport/national ID card.

Due to COVID-19 restrictions the new guidance confirms that the temporary adjustments to right to work checks made to assist remote working arrangements and social distancing, will now be extended to 31 August 2021.  From 1 September 2021 employers will be required to either check their prospective employees’ original documents or check the prospective employees’ right to work status online.

Since our last update the following important increases have also come into force

As at 1 April 2021 

The national living wage increased £8.91 per hour and the age threshold for the national living wage was altered so it now applies to 23 and 24 year olds (previously it was only available only to those aged 25 and over).

• Other national minimum wage rates increased as follows:
  • £8.36 per hour for workers aged 21 and 22;
  • £6.56 per hour for workers aged 18 to 20; 
  • £4.62 per hour for workers aged 16 and 17;
  • £4.30 per hour for apprentices under 19 and those in the first year of their apprenticeship.

As at 4 April 2021

• The weekly rate of statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased to £151.97.

As at 6 April 2021

• The weekly rate of statutory sick pay increased to £96.35.

All employers should be mindful of the above increases and if any of your policies and documents refer to precise rates (such as a sickness absence procedure) this should be updated.

• New limit on the weekly capped sum for statutory redundancy pay, this is now £544 per week.   

Where an employer dismisses an employee by reason of redundancy (if they have two years’ service) a sum is calculated based on the employee’s weekly pay, length of service and age. 

Case law update

Covid-19 related dismissal – this is an interesting case that has arisen as a result of the pandemic.

Accattatis v Fortuna Group (London) Ltd 

The Claimant made repeated requests during March and April 2020 to work from home or to be furloughed as he said that he felt uncomfortable commuting and attending the office during lockdown.  The Claimant was told that his job could not be done from home and that furlough was not possible due to how busy the employer was.  The Claimant was told that he could take holiday or unpaid leave. He declined these options, repeated his requests and was later dismissed.

Employees usually require 2 years continuous service in order to pursue a claim for unfair dismissal.  In this case the Claimant did not have the requisite length of service, however, he claimed automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996.  Section 100(1)(e) states that employees may refuse to work if they consider that there is “serious and imminent danger”.

The Employment Tribunal accepted that based on public health guidance available at the time, the Claimant had a reasonable believe that commuting during the lockdown could amount to serious and imminent danger. However, under section 100(1)(e) the Claimant was required to take appropriate steps to protect himself. The employer was unable to offer home working but did provide a possible alternative (holiday or unpaid leave), which the Claimant refused stating he wanted to be furloughed or to work at home on full pay. The Tribunal found that the Claimant’s requests were not appropriate steps to protect himself, and his claim failed.

Whilst the decision is not binding on other Tribunals it is a reminder that the pandemic may not on its own be a reasonable justification for an employee to refuse to attend work under section 100(1)(e), if an employer has tried to reasonably consider an employee’s concerns.   The case is also a helpful reminder that the Tribunal will consider the public health guidance that was available at the time, so as more and more people are vaccinated and restrictions are eased, claims of this nature will be less likely to succeed.

Protection from discrimination – gender-critical views 

Forstater v CGD Europe

The Employment Appeal Tribunal (EAT) has handed down a significant judgment which can protect individuals who hold gender critical beliefs from discrimination.

Ms Forstater worked as a consultant for CGD Europe. After expressing a number of gender critical beliefs via social media her consultancy contract with the business was not renewed.  Ms Forstater presented a claim for discrimination on the basis of her philosophical belief, which is one of the protected characteristics listed within the Equality Act.  The claim failed in the Employment Tribunal and the judgment stated that the way in which Ms Forstater expressed her gender critical beliefs was not “worthy of respect in a democratic society” and was therefore, not protected. 

The decision was appealed, and the appeal was upheld.  This outcome means that beliefs will be capable of protection even if they are expressed in a way that may offend or create a hostile and degrading environment, as such it is unlawful to discriminate on this basis. 

Employment Tribunal makes a record discrimination award

Barrow v Kellogg Brown and Root (UK) Ltd

An Employment Tribunal has given the second highest award ever made in an Employment Tribunal, amounting to over £2.5 million. 

After 36 years of service the Claimant presented claims against his former employer for unfair dismissal, direct disability discrimination, harassment related to a disability, discrimination arising from disability, failure to make reasonable adjustments and victimisation.

The Claimant was excluded from work following an email exchange with his manager. At this time the Claimant was taking steroids to assist his cancer symptoms, which at the time had not been diagnosed, and was suffering from adverse side effects which affected his mental health and behaviour.

The Claimant was called to a meeting and dismissed, without any formal procedure being followed and without being given any detail as to the reasons for his dismissal.   Following his dismissal, the Claimant was diagnosed with a rare form of cancer and he informed the employer of this.  The employer attempted to rectify the dismissal procedure followed and instigated a retrospective dismissal process.  The outcome was to dismiss due to a breakdown in the implied term of trust and confidence.  

The Employment Tribunal considered the original dismissal, and the later dismissal which was labelled a ‘sham’.  The Tribunal considered that the dismissal was predetermined, and faults/defects were found in the process. The Tribunal pointed criticism at the attempts made by the employer to make the decision to dismiss appear credible.  The Tribunal concluded that no reasonable employer would have acted in the way the employer did in dismissing an employee who had spent 36 years working for the company.

The claims of unfair dismissal, harassment and discrimination arising from disability succeeded.  The employee was awarded a career-long loss award, aggravated damages and a further £25,000 for pain, suffering and loss of amenity.

This case demonstrates that discrimination awards are not subject to a cap, unlike unfair dismissal claims, and it highlights the importance of employers following a fair dismissal process and not predetermining the outcome. 

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.