Non-Compete Clauses Consultation – BDBF Response

Employment Law News

Non-Compete Clauses Consultation – BDBF Response

As mentioned at our recent webinar, the government has launched a consultation about regulating the use of non-compete restrictions in employment contracts. Views are being sought on requiring employers to pay compensation for the duration of non-compete restrictions, or banning their use altogether. As recognised experts in this field, BDBF has responded to the consultation. In short, our view is that a requirement to pay compensation is a fair way of deterring inappropriate use of non-compete clauses, but that an outright ban is a step too far. You can read our full response below.

Please view the PDF by clicking the image below:

If you or your business needs advice on non-compete clauses or other restrictive covenants please contact Tom McLaughlin (tommclaughlin@bdbf.co.uk) or your usual BDBF contact.

Discrimination: worker’s complaint about discrimination did not engage protection from victimisation

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Employment Law News

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Discrimination: worker’s complaint about discrimination did not engage protection from victimisation

In Chalmers v Airpoint Ltd & Ors the Scottish EAT had to decide whether an articulate HR professional was protected from victimisation after she had made a vague allegation of discrimination in an email to her manager.

What does the law say?

Workers are protected from retaliatory action – known as victimisation – by their employer or colleagues because they have committed a “protected act”, or it is believed that they have done so or may do so. The following are “protected acts”:

bringing a claim under the Equality Act 2010 (the Act);
giving evidence or information in connection with such a claim, regardless of who brought it;
doing any other thing for the purposes of, of in connection with, the Act; and/or
alleging that the employer or another person has breached the Act.

In order for an allegation to attract protection it doesn’t have to be factually correct, but it must be made in good faith. Although no specific form of words is required, the allegation must be clear, and the overall context should indicate a relevant complaint. The knowledge and experience of the complainant will be taken into account.

What happened in this case?

Mrs Chalmers worked for Airpoint Ltd as a Business Support Manager with responsibility for human resources functions. In December 2016, Airpoint arranged a Christmas party. Mrs Chalmers and the only other female member of staff were unable to attend. In January 2017, Mrs Chalmers sent an email to her line manager complaining about her exclusion from the Christmas party and also from an office hardware refresh. She said both of these matters “may be discriminatory”, but she did not specify upon what grounds.

Mrs Chalmers brought claims for sex discrimination, harassment and victimisation. The allegation made in the January 2017 email was identified as the “protected act” for the purposes of the victimisation claim. Despite the use of the word “discriminatory”, the Employment Tribunal held it was not clear that Mrs Chalmers was alleging that the Act had been breached. It took into account the fact that she was articulate and experienced in HR matters. Mrs Chalmers appealed to the Employment Appeal Tribunal (EAT).

What was decided?

Mrs Chalmers sought to argue that she had deliberately adopted a cautious tone because it was not her place to determine whether discrimination had occurred – that was for a Tribunal. The EAT acknowledged that that use of the words “may be discriminatory” could, in some cases, amount to an allegation of unlawful discrimination. However, this would turn on the overall context.

Here, Mrs Chalmers was an articulate and experienced HR professional, who was able to take a considered view on whether there had been discrimination on the grounds of sex. The cautious tone and the absence of the words “on the grounds of sex” was a deliberate choice. This was reinforced by the fact that other complaints in the grievance letter had been written in clear terms. The EAT concluded that had Mrs Chalmers intended to allege sex discrimination, she would have done so.

The EAT also went on to consider the factual background of the case. The Tribunal had found that Airpoint had not, in fact, discriminated against Mrs Chalmers in relation to the Christmas party. Rather, it was just bad luck that she and the other female employees were unable to attend on the selected date. By the time this had become clear, it was too late to rearrange things.

The EAT dismissed the appeal, holding that the Tribunal was entitled to find the words used in the January 2017 email did not qualify as a protected act.

What are the learning points for employers?

This decision shows that acquiring victimisation protection is not a certainty just because the word “discrimination” has been uttered. However, employers should not read this decision as setting down a hard and fast rule about the language that a worker must use to make a protected act. In different circumstances looser wording may be sufficient to get over the hurdle of having made an allegation of discrimination. A less articulate worker, without experience of HR matters, is likely to be given more leeway by a Tribunal.

In the real world, it’s a high-risk strategy for employers to second guess whether such a complaint will count as a protected act or not. Getting it wrong carries with it the danger of a costly victimisation claim. For this reason, the prudent course of action is to treat any allegation of discrimination, no matter how vague, as a protected act. As well as investigating the allegation in a timely fashion, employers should ensure that the worker is ringfenced from any action that could be viewed as detrimental.

Chalmers v Airpoint Ltd & Ors

If you would like to discuss any issues raised in this post please get in touch with Amanda Steadman (amandasteadaman@bdbf.co.uk) or your usual BDBF contact.

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Vaccines in the workplace part 1: unpicking the key legal issues

Employment Law News

Vaccines in the workplace part 1: unpicking the key legal issues

In the first of two articles examining the hot topic of vaccines in the workplace, we bring you up to speed with the UK’s COVID-19 vaccination programme, and explore the key legal issues faced by employers wishing to mandate vaccines for staff. In our second article on the topic, we will consider how employers should manage practical issues such as managing disclosure of employees’ vaccination status and what should go into a staff vaccination policy.

What is the UK Government’s COVID-19 vaccination programme?

There are currently two COVID-19 vaccines in use in the UK, namely the vaccines produced by Pfizer/BioNTech and Oxford/AstraZeneca. A third vaccine produced by Moderna has been licenced for use and should be available in the UK in Spring 2021. Further vaccines may be available in due course. The Joint Committee on Vaccination and Immunisation (JCVI) has advised that the UK’s vaccination programme is delivered in phases.

Phase 1 covers approximately 32 million people and includes all adults aged 50 or over, plus anyone aged under 70 who is classified as “clinically extremely vulnerable” and anyone aged under 65 who is classified as “at risk”. The Government is currently on track to complete phase 1 by 15 April 2021.

Phase 2 of the programme covers the remainder of the UK adult population (i.e. those aged between 18 and 49), comprising approximately 21 million people. On 26 February 2021, the JCVI advised against vaccination by occupational groups. Instead, the vaccine will be offered to all adults in descending age bands. The Government’s target is to complete phase 2 by 31 July 2021.

Vaccination is not mandatory in the UK, meaning that individuals are free to refuse the vaccine.

Is everyone able to have the vaccine?

No, there are some groups who will not be routinely offered the vaccine or for who it may not be suitable. These are:

Under 18s: as the vaccines have not been trialled on younger people, the programme does not cover children and the under 18s. However, this may change in future.
Pregnant women: the vaccines have not yet been tested in pregnancy, so until more information is available, those who are pregnant will not routinely be offered the vaccine. However, the JCVI recognises the potential benefits of vaccination are particularly important for some pregnant women. Women in that cohort are advised to discuss the vaccination with their doctor to decide whether to receive the vaccine or not.
Breastfeeding mothers: although there is no data on the safety of COVID-19 vaccines in breastfeeding or on the breastfed child, COVID-19 vaccines are not thought to be a risk to the child. The JCVI has recommended that the vaccine may be received whilst breastfeeding, however, it is acknowledged that some mothers may prefer to wait until they have finished breastfeeding.
People suffering from long COVID symptoms: guidance states that the vaccine should be deferred for those who have contracted COVID-19 in the past and are suffering from ongoing symptoms.
People who are immunosuppressed: guidance states that people who have suppressed immunity may not develop a full immune response following vaccination, meaning the vaccine will not be as effective for them as it is for others. Therefore, they can have the vaccine, but they may remain exposed to COVID-19.
People with an allergy to products within certain of the vaccines: a small minority of people are allergic to some products found in the Pfizer/BioNTech and Moderna vaccines. However, such products are not present in the Oxford/AstraZeneca vaccine and so anyone in this position will still be able to be vaccinated (subject to availability).

Why do employers need to be concerned with whether their employees are vaccinated?

Employers have legal duties to protect the health and safety of their employees and third parties who come into contact with their staff. The principal statutory duties are set out in the health and safety legislation set out below. If an employer fails to comply with these obligations, it may be subject to enforcement action by the Health and Safety Executive.

The Health and Safety at Work Act 1974: this is the primary piece of legislation covering occupational health and safety in Great Britain. It imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees and third parties who are affected by work-related activities.
The Management of Health and Safety at Work Regulations 1999: these regulations require employers to assess the risks of work-related activities and identify and implement measures to control such risks. Employers must also develop a coherent overall risk prevention policy and issue appropriate instructions to employees.
The Control of Substances Hazardous to Health Regulations 2002: these regulations govern the control of occupational exposure to “biological agents”. This includes micro-organisms which may cause infection, including COVID-19. Employers must take steps adequately to control exposure to biological agents.

In addition to these statutory duties, employers also have a common law duty to take reasonable care of the health and safety of employees and third parties. A breach of this duty may give rise to a claim for personal injury. Further, employers may be exposed to Employment Tribunal claims from employees who feel the employer has not taken sufficient protective steps. Employees are protected from detriment and dismissal for blowing the whistle about health and safety dangers or taking certain actions in relation to health and safety matters.

Given these obligations and risks, employers must assess the risk of allowing unvaccinated employees into the workplace and consider what, if any, measures should be taken to control that risk.

Can employers require employees to have the vaccine?

As mentioned above, the COVID-19 vaccine is not mandatory in the UK: an individual must consent to receiving it. Guidance published by Acas provides that employers should “support” staff to have the vaccine. It’s likely that a voluntary approach will be preferable for many employers, with staff strongly encouraged, but not required, to have the vaccine.

However, there may be some limited cases where an employer decides it’s necessary to require that some or all staff are vaccinated. This will most commonly occur where, after assessing the risks, it’s considered necessary in order to discharge the duty to protect the health and safety of staff and third parties. For example, the care home operator, Barchester Healthcare, has introduced such a requirement in order to “deliver on its duty to protect…residents, patients and staff”. This is most likely to arise in the health and social care sector and it will be more difficult for employers operating in lower risk environments (such as offices) to justify such a requirement.

There may also be cases where it’s necessary for specific employees to be vaccinated in order to perform their role, for example where they need to travel to countries which require visitors to be vaccinated.

It’s advisable for employers to consult with staff about their preferred approach and address any questions or concerns before taking a final decision. It’s also a good idea to communicate the chosen approach in a staff Vaccine Policy.

Can employers discipline or dismiss employees who do not comply with a requirement to have the vaccine?

If an employer introduces a requirement to have the vaccine, what can it do when faced with an employee who does not comply? As discussed above, there will be some employees who are unable to have the vaccine at all. Further, many working age people will not be vaccinated until phase 2 of the roll out is completed. No action should be taken against anyone who falls into one of these groups, since the decision to have the vaccine is out of their hands.

However, there are likely to be some employees who could have the vaccine but simply refuse to have it. Can an employer discipline or dismiss a vaccine-refusing employee? This is a difficult and novel issue and employers in this situation should always seek legal advice before taking action.

Employees are subject to an implied duty to comply with reasonable management instructions. Here, the employer would say the requirement to have the vaccine is a reasonable management instruction and a refusal to comply amounts to misconduct justifying disciplinary action up to dismissal. The Acas Guidance suggests that a refusal to be vaccinated may justify disciplinary action where:

vaccination was required by the employer’s policy;
vaccination was necessary for an employee to do their job; and
the action was not discriminatory (this is discussed further below).

Dismissal would expose the employer to an unfair dismissal claim where the employee has 2 years’ service or more. Therefore, an employer would need to show there was a fair reason for dismissal and that they acted reasonably in treating that reason as sufficient to dismiss. Here, the reason for dismissal would be misconduct (or possibly “some other substantial reason”). The battleground will be whether the employer has acted reasonably in the circumstances. The employee’s reason for refusing to comply with the instruction will be highly relevant here: it will be risky to dismiss an employee who can show that they had a good reason for refusing to comply.

The presence of a clear policy and the ability to demonstrate the necessity of vaccination will be important. In the recent case of Kubilius v Kent Foods Limited, an Employment Tribunal held that a lorry driver was fairly dismissed for refusing to wear a face mask on a client’s premises. This was in breach of the employer’s policy requiring compliance with instructions relating to health and safety and PPE.

Could a requirement to have the vaccine be discriminatory?

On the face of it, a requirement for staff to have the vaccine is neutral, but it could put individuals with certain protected characteristics at a particular disadvantage compared to others. The “disadvantage” would be having a vaccine that they do not wish to have or face disciplinary action. This could give rise to a claim for indirect discrimination.

A number of protected groups are less likely to have the vaccine and might be able to say that they have suffered a particular disadvantage. For example:

Disability: employees with certain mental impairments (e.g. anxiety) may be especially fearful of having the vaccine.
Age: research shows that there is greater vaccine hesitancy amongst 18 to 29-year olds.
Race: statistics show that take up of the vaccine is lower amongst black and Asian people due to a variety of factors, including low confidence in the vaccine and mistrust.
Religion or belief: most mainstream religions support vaccination, however, employees with certain philosophical beliefs might reject the vaccine. For example, ethical vegans may refuse to have the vaccine because it has been tested on animals. Alternatively, subscribers to naturopathy may refuse the vaccine on the basis that it is not a natural intervention. However, it’s unlikely that anti-vaxxer or conspiracy theory beliefs would be protected.

Employers are able to justify indirect discrimination where they can show that there is a “legitimate aim” and the requirement is a “proportionate” means of achieving that aim. In most cases where an employer is introducing a vaccine requirement, the aim would be the protection of the health and safety of staff and third parties. This is likely to be a legitimate aim. The challenge for employers will be showing that they have acted proportionately.

Adopting a blanket approach, without considering less discriminatory measures will not be proportionate. For example, could alternative health and safety measures be put in place to mitigate the risks posed by, and to, unvaccinated staff (e.g. social distancing, mask wearing, regular hand washing or segregation in the workplace)? If not, could unvaccinated staff be redeployed to a lower risk environment or allowed to work from home indefinitely? Ultimately, these alternatives may not be feasible, but it will be necessary for the employer to show that it has, at least, considered them.

Even where alternatives can be discounted, it is important that the requirement is kept under review as the situation changes. If COVID-19 recedes to negligible levels, then it may become more difficult to justify a requirement to have the vaccine.

If you would like to discuss your approach to staff vaccination please get in touch with Amanda Steadman (amandasteadaman@bdbf.co.uk) or your usual BDBF contact.