Employment Law Review: November 2022

Legislation and Points of Interest

There have been some key developments in employment law since our last update, which have the potential to cause a big impact.

The Retained EU Law (Reform and Revocation) Bill

This Bill was published in September 2022 and could pave the way for the most significant changes in employment law we have seen for some time.  Under the Bill, all retained EU law will be revoked on 31 December 2023 (or if agreed a later date prior to 23 June 2026) unless steps are taken to incorporate it into UK law.  The Bill will enable the Government to amend, repeal and replace retained EU law more easily.  

What does this mean for employment law?

It is currently uncertain as to what this will means for employment law in the UK.  However, it has the potential to impact particular areas such as TUPE, paid annual holiday, the 48-hour working week, part-time and fixed term worker regulations and the agency worker regulations.  We will keep you updated concerning this when it becomes clearer what the Government has in mind.

Right to work checks

From 1 October 2022 employers can no longer rely on the temporary concessions which were granted to allow more flexibility due to COVID.  This means employers can no longer carry out right to work checks over video calls and permit workers to send scans or photos of documents.  

From 1 October employers now have to:

• Perform an in-person manual check using original documents.
• Perform an online check using the Home Office online service.
• Engage the services of a certified Identity Service Provider.

Neonatal care and leave

In September 2022 the Neonatal Care (Leave and Pay) Bill passed Committee Stage in in the House of Commons.  The Bill aims to provide leave and pay for employees with responsibility for children receiving neonatal care.  Once introduced, it will give parents up to 12 weeks extra leave and pay where their babies are born prematurely or sick, provided that they meet the qualifying criteria.  It is hoped that it will be implemented by Spring 2023.

Government guidance on employment status

The Government has issued new guidance on employment status for workers and businesses.  This aims to bring together all the employment case law to assist businesses and individuals to work out their status. 

A word of warning; this is a technical area and one which we frequently deal with.  It is advisable to seek legal advice on this as it is often not clear cut.  

ACAS guidance on suspension

The question as to whether an employee should be suspended is one that is often asked of us.  Suspension is often imposed all too easily and in certain circumstances, where it is clearly inappropriate, it can lead to claims for constructive unfair dismissal. For instance, where there has been a serious breakdown in trust and confidence and an employee resigns.  Therefore, the decision to suspend should never be taken lightly.  

The new guidance emphasises that an employer should consider each situation carefully before suspending an employee and it is usually best to only do so in serious circumstances where there are no alternatives.  The guidance provides examples of such alternatives, by way of example:

• Working from home
• Changing shifts
• Working from a different office or site.

Read the guidance for greater detail.

ACAS guidance on asking and answering questions about discrimination at work

ACAS has also recently produced new guidance in relation to the above. This follows the repeal of the statutory questionnaire procedure which used to be in place.

The guidance includes steps for an employee who believes they may have been subject to discrimination and guidance on the information and questions they should provide to their employer in writing.  The guidance further details how employers should consider and respond to those questions. It provides an example statement and suggested questions and responses from both the employers and the employees perspective.

The guidance on it all is here on their site.

Case Law Update

Onibere v Rodman Pearce Solicitors

Solicitor was unfairly dismissed and subject to disability discrimination awarded £17,000.  

This case is a stark warning to employers of the need to consult during a redundancy process. It highlights the need to consider carefully before relying on an “incapacity provision” in a contract of employment in order to bring that employment to an end.  

The Claimant was working in the housing department.  Between 2017 and 2019 she fell below her targets and as a result was told she may be placed in a selection pool for redundancy.  In March 2019 she was diagnosed with cancer and was undergoing chemotherapy; she informed her employer of this and submitted sick notes.  In April the housing department was closed.  

The Claimant submitted a sick note in July 2019 signing her off work until 12 August 2019.  Her email submitting the note confirmed she had not received her salary.

The Claimant’s contract contained a provision stating that the employer could terminate the contract in the event of incapacity for 26 weeks in any one year period.  The employer sought to rely on this and wrote to the Claimant by letter dated 29 July 2019 stating “I write to provide you with one month’s notice of termination of your employment.  In view of your inability to return to work due to illness since 14 February 2019, your entitlement to SSP will cease on 29 August 2019.  In the event you are unable to return to work prior to 29 August 2019, your contract of employment will terminate”.  The Claimant said she had not received this letter.  

The Claimant sent a further sick note on 29 August 2019.  The next day the employer sent a letter confirming the termination of her contract due to incapacity. 

The Tribunal found the employer had failed to follow the correct procedure when dismissing the Claimant.  The Tribunal held that they should have consulted with the Claimant to discuss alternatives and upheld her claims of unfair dismissal and disability discrimination.  

McKenzie v University of Leicester NHS Trust

A nurse was discriminated against and unfairly dismissed when her employer unfairly counted disability related absences when dismissing her.

The Claimant suffered from migraines and depression and her employer accepted that she was disabled for the purpose of the Equality Act 2010.  The Claimant also had caring responsibilities for her grandmother who had dementia. This resulted in the Claimant taking further time off work.  

Her employer managed her absence through its formal procedure and issued a number of warnings.  By May 2020 when the Trust invited her to a meeting, the Claimant had taken almost 300 days absence during her employment since it started, with 85 of those days being in the preceding 12 months.  The Trust terminated her employment due to her absence.

The Claimant successfully pursued claims of unfair disability dismissal and discrimination.  The Trust was criticised for failing to consider medical evidence which said her absence levels should improve. Further, the Trust was criticised for failing to make reasonable adjustments and discount disability related absences against its absence targets.  

Employers should therefore be careful not to rigidly follow their policies and targets on absence; each case should be considered individually.

Wierowska v HC-One Oval Limited

COVID-19 vaccine beliefs held to be religious in nature.

The Claimant was a Roman Catholic care worker who asserted that one of the reasons for her dismissal was that she refused to have a COVID-19 vaccine on religious grounds.  

At a preliminary hearing to deal with the issue, the Claimant’s beliefs were explained, and a reference was made by the employer to the fact that the Vatican had previously issued a statement to the effect that vaccines were “morally acceptable”.

The employer stated the Claimant’s views were not religious beliefs, but opinions based on the fact that she was unconvinced by evidence as to the safety (or effects) of the vaccines available.  The Judge disagreed and found that concerns held by some members of the Catholic community about COVID-19 vaccinations were “closely linked to the longstanding Catholic position on abortion and the resulting opposition to the use of stem cells or foetal material in medical experiments of any sort. They are therefore part and parcel of a fundamental view about the sanctity of human life”.  As a result, the Claimant’s views about the vaccine were intimately connected with her faith entitling her to rely on that religious faith as a protected characteristic.  The fact that the Vatican had issued a contrary stance did not affect the finding.  

Kon v Gulf International Bank

Employee was not automatically unfairly dismissed after making protected disclosures as her dismissal was for misconduct which was separable from the disclosures.

The Claimant was employed by Gulf International Bank.  She raised a number of concerns which were protected disclosures under whistleblowing legislation, including to the firm’s head of legal, Ms Harding, regarding a document being unsuitable.

Ms Harding was upset and considered that her integrity had been questioned. There was a disagreement between them resulting in Ms Harding walking out of the office, slamming the door and making comments to others.

The Claimant was dismissed after this and claimed she was a whistle-blower – she claimed a detriment by reason of the way she was treated by Ms Harding and that she was automatically unfairly dismissed.  

The Tribunal found she had been subject to detriments, although this claim was out of time.  Her unfair dismissal claim was rejected as it was found the reason for her dismissal was her conduct in questioning Ms Harding’s professional awareness and competence.  The Claimant appealed to the EAT.  The EAT agreed and held that the disclosures and her criticisms of Ms Harding were properly distinguished and that the Claimant’s conduct in questioning Ms Harding’s professional awareness and competence was the principal reason for the dismissal.  The Court of Appeal dismissed the Claimant’s appeal and agreed the employer can take action against a worker who makes a protected disclosure in an unreasonable or unacceptable manner.

It is understood that the Claimant may be appealing to the Supreme Court.  

Mellor v The MGF

Tribunal hold it is sex harassment for an employer not to provide a private space for an employee to express breast milk.  

There is no statutory right to the provision of a room for breastfeeding or expressing milk at work.  However, HSE guidance does recommend employers should provide facilities such as a private, clean environment (other than toilets) for expressing milk and a fridge for storing it.

The employer in this case failed to provide a suitable room to express milk. Therefore, the Claimant expressed in either the school toilets or her car.  As she only had a 25-minute break and expressing took 20 minutes, she was forced to eat her lunch at the same time whilst sitting in the toilet.

The Tribunal upheld the claim for sex harassment but dismissed the claims for direct and indirect discrimination.  We believe this is an unsatisfactory decision as the only legal resort to a woman in these circumstances is a sexual harassment claim. This is inadequate as the lack of facilities to express will not always give rise to a degrading or humiliating environment, as was the case here.  

Mogane v Bradford Teaching Hospitals NHS Trust and another 

EAT held dismissal unfair where redundancy consultation was not meaningful and only took place after a decision had been taken to apply a single selection criterion which led to pool of one.

The claimant was one of two band six level nurses, and both were employed on fixed term contracts. The Trust needed to reduce headcount and costs. 

The Trust decided that the sole criterion to select was the length of time left to run on the fixed term contract and selected the Claimant as she had the shortest period to go. 

The claimant was not consulted about this criterion, which essentially meant that she would be selected for redundancy. Alternative roles were considered, but none were suitable, and the claimant was made redundant.

The claim for unfair dismissal was dismissed by the Tribunal and the claimant appealed to the EAT. The EAT held that the failure to consult regarding the criterion rendered the dismissal unfair. The EAT also held that the implied term of “trust and confidence” requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy.

Mr McClung v Doosan Babcock Ltd and Others

And finally for all you football fans, supporting Rangers FC is not a protected belief!

Mr McClung carried out work for Doosan Babcock between January to June 2019 at which point he lost his job. He claimed unfair dismissal. He claimed his contract had been terminated as a result of prejudice against him due to him supporting Rangers FC. His claim for unfair dismissal was unsuccessful as he was found not to be an employee.  

Mr McClung then claimed unlawful discrimination. He said that his support for Rangers FC was such a vital part of his existence that it qualified as a protective belief.  The Tribunal held that following a football team cannot be deemed as a protected characteristic like religion.  

If you have any queries in relation to any of the matters in this update or would like to discuss an employment case with us please do not hesitate to contact one of our team.

• Vicky Beattie – [email protected]
• Sarah Obrien – [email protected] 
• Paul Stedman – [email protected]
• Phone – 0161 832 2500