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The 2021 Queen’s Speech was delivered on 11 May 2021.  In this briefing, we take stock of what it had to say about employment law reform.

The Queen’s Speech in December 2019 outlined the Government’s intention to bring forward an Employment Bill delivering change in a number of areas of employment law including:

• The right for workers to request a more “predictable contract”.
• Extending redundancy protection to pregnant women and returners from family leave.
• Making flexible working the default for all jobs.
• A new right to unpaid carers’ leave.

You can read more about those plans in the BDBF’s 2021 employment law tracker.  Unsurprisingly, given the onset of the pandemic, the planned Employment Bill did not materialise in 2020.  There was no Queen’s Speech in 2020.

The 2021 Queen’s Speech was delivered on 11 May 2021, but the Employment Bill was conspicuous by its absence.  The background briefing notes to the Queen’s Speech also made no mention of the Bill and referred only to two employment law matters of interest.  First, the employment tribunal process will be aligned with that of other tribunals in the Unified Tribunals structure.  Second, there are plans to bring forward measures to address racial and ethnic disparities.  In connection with this, the Government is currently considering its response to the report published by the Commission on Race and Ethnic Disparities on 31 March 2021.

Yet it appears that the Employment Bill has not (yet) been abandoned.  Just a few days after the Queen’s Speech, the Government published its response to the Women and Equalities Committee (WEC) report on the gendered economic impact of COVID-19.  The Government’s response states that the Government is still committed to bringing forward the Employment Bill “when Parliamentary time allows”, but this will not be by the end of June 2021 (as the WEC report had recommended).  This was echoed on 25 May 2021 by Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, when he confirmed that he still intended to bring forward the Employment Bill when Parliamentary time allows.

It’s also worth noting that the Government’s response to the WEC report also specifically states that:

• The Government will consider making the right to request flexible working a Day 1 employment right (currently, 26 weeks’ service is required) and it commits to making flexible working the default position, with a consultation to be published in due course.
• The Government plans to extend redundancy protection to pregnant women and for six months after a mother has returned to work (with similar protection for those returning from adoption and shared parental leave).

Both of these are measures which were to be included in the Employment Bill.  The response also confirms that the Government still plans to respond on the consultation on ethnicity pay reporting (which closed on 11 January 2019).

Employers may be relieved to hear that they don’t have to grapple with a raft of employment law reforms at the same time as dealing with the recovery from the pandemic and the ongoing fall out from Brexit.  However, change is likely to come as part of the Government’s “levelling up” agenda and employers should watch out for further news.  BDBF will keep you updated on developments as they are reported.

If you would like to discuss any issues arising out of this briefing please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Commissioner of the City of London Police v Geldart the Court of Appeal held that an employer did not discriminate against a female employee when it mistakenly withheld an allowance during her maternity leave.

What does the law say?

Individuals on maternity leave are entitled to receive all of their contractual benefits while on leave, excluding pay.

The Equality Act 2010 sets out that it is unlawful for an individual to be treated less favourably than someone else because of their sex.  For individuals to succeed in such a claim they need to be able to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different from their own.

Previous case law has established the principle that discrimination on grounds of pregnancy is automatically discrimination on grounds of sex. Since pregnancy is a condition that only affects women there is no need for a claimant to find a male comparator in such cases.

What happened in the case?

Mrs Geldart was a police officer with the City of London Police and her terms and conditions of service were prescribed by the Police Regulations 2003.

In December 2016, Mrs Geldart started maternity leave. During this period, she received enhanced occupational maternity pay for 18 weeks and statutory maternity pay for a further 16 weeks.  Ms Geldart was paid her usual London allowance during the 18 weeks in which she received occupational maternity pay.  After this period, the employer ceased payment of the London allowance.  The Police believed that the London allowance formed part of her “pay”, which individuals are not entitled to receive when they are on maternity leave.

Mrs Geldart brought a claim against the Police for direct sex discrimination relating to the non-payment of the London allowance after the first 18 weeks of her maternity leave. She argued that the London allowance was not treated as “pay” under the Police Regulations 2003.  Instead, it, was dealt with separately under a section headed “allowances”.  As such, she argued it was payable throughout her maternity leave and the fact that it had not paid was because she was on maternity leave and this was inevitably because of her sex.

At first instance the employment tribunal upheld Mrs Geldart’s claim for direct sex discrimination and this was also upheld on appeal to the Employment Appeal Tribunal.

What was decided?

The Police appealed again to the Court of Appeal where it was decided that the Police had not directly discriminated on the grounds of sex.

The Court accepted that the fundamental issue was the distinction between “pay” and “allowance” in the Police Regulations 2003.  The “pay” section expressly provided that the entitlement to pay was suspended during periods of absence from work, including maternity leave.  By contrast, the “allowance” section provided that the only condition of an entitlement to an allowance was that the recipient was in office of one of the London police forces.

The Court noted that the correct approach when looking at discrimination was to focus on why the claimant had been treated in the way that she had. In this case the reason why Mrs Geldart had not received the London allowance during the whole of her maternity leave was because the Police had wrongly understood it to be a form of pay and, as such, not payable in respect of any period of absence from duty.

Therefore, the reason why it had not been paid to Mrs Geldart was simply that she was absent from work. The Court said this was distinct from being because she was absent on maternity leave.  Therefore, maternity was not the reason she stopped receiving the London allowance.

However, the Court also decided that the London Allowance did not constitute “pay” for the purposes of the Police Regulations 2003. Therefore, Ms Geldart had been entitled to receive the London allowance for the duration of her maternity leave and this money was owed to her.

What does this mean for employers?

Although fact-specific, this decision reminds employers to check that maternity policies are crystal clear about entitlements during maternity leave, particularly where complex remuneration arrangements are in place.  Although genuine mistakes should not result in liability for direct discrimination, as here, they can still lead to time-consuming and costly disputes, damage the relationship with the employee and, potentially, cause wider reputational damage.  Employers can avoid mistakes by ensuring that those with responsibility for determining entitlements during maternity leave (and similar forms of leave) understand both the internal rules and the impact of equality law.

Commissioner of the City of London Police v Geldart

If you would like to discuss any issues arising out of this decision please contact Hannah Lynn (hannahlynn@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Sinclair v Trackwork Ltd the Employment Appeal Tribunal (EAT) determined that it was unfair to dismiss an employee who caused friction in the workforce as a result of the way he undertook mandatory health and safety activities.

What does the law say? 

S100(1)(a) of the Employment Rights Act (ERA) states that where the reason or principal reason for dismissal is that the employee was carrying out health and safety activities (having been designated to do so), such dismissal will be automatically unfair.  This protection is similar to that offered to whistleblowers.  If an employer dismisses an employee because he or she blew the whistle, then the dismissal will be automatically unfair.

In the case of Panayiotou v Kernaghan, the EAT considered whether the manner in which the employee pursued his whistleblowing complaints was genuinely separable from the protected disclosure itself. The EAT held that, in certain circumstances, it will be permissible to separate out factors or consequences following the making of a protected disclosure from the making of the protected disclosure itself.  

What happened in this case?

Mr Sinclair was a track maintenance supervisor who was given a mandate to implement a new safety procedure.  His colleagues were unhappy with his approach, considering him to be over-cautious and overzealous.  However, they were unaware that he had been tasked with implementing the new procedure.

Given the soured relationship in the workforce, Trackwork Limited dismissed Mr Sinclair. The reasons given included that Mr Sinclair had created friction and upset by the manner in which he had gone about implementing the new procedure.

Mr Sinclair brought a claim for unfair dismissal under s.100(1)(a) of ERA.  The employment tribunal rejected his claim, holding that the dismissal was not because of the health and safety activities he was performing, but because of the manner in which he carried out the activities, which caused the upset.  Mr Sinclair appealed to the EAT.  He argued that the employment tribunal’s conclusion was perverse given that there was “a clear and unbroken causal link between [his] carrying out of health and safety activities and his dismissal.”

What was decided?

The EAT explored whether the health and safety activities were genuinely separable from the manner in which they were carried out.  It concluded that this could be the case where the conduct was, for example, “wholly unreasonable, malicious or irrelevant to the task in hand”. 

However, the EAT held that Mr Sinclair had not exceeded his mandate and his actions were not unreasonable, malicious or irrelevant.  Therefore, his manner of performing the activities could not be separated from the activities themselves.

The EAT held that the very mischief which section 100(1)(a) seeks to guard against is the fact that carrying out health and safety activities will often be unwelcomed and even resisted. Allowing an employer to distinguish the activities from the upset they caused, and relying on the latter to dismiss the employee, would undermine the protection.

Accordingly, the EAT substituted the tribunal’s decision to one of automatically unfair dismissal.

What does this mean for employers?

As a result of the pandemic, employers have had to prioritise health and safety activities and deliver significant changes in the workplace.  This case illustrates that the protection offered to employees performing health and safety activities is broad and there are very limited circumstances in which an employer can say that the manner in which such activities were carried out is distinguishable from the activities themselves.

Whilst this case relates to automatic unfair dismissal in respect of health and safety activities, the same principles can be read across to the more common case where an employee has blown the whistle on some unlawful practice.  It is important to remember that the disruptive manner in which an employee pursues a whistleblowing complaint will not necessarily be distinguishable from the protected disclosure itself.  This is a fine balance to strike and, of course, getting it wrong in a whistle blowing case can result in liability for an uncapped award of damages.

Sinclair v Trackwork Limited

If you would like to discuss any issues arising out of this decision please contact Blair Wassman (blairwassman@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the recent constructive unfair dismissal case of Flatman v Essex County Council, the Employment Appeal Tribunal (EAT) held that a tribunal misapplied the law by failing to identify whether a fundamental breach of contract occurred at any point up to the employee’s resignation. In so doing, it reaffirmed the principle that once a fundamental breach has been committed, it cannot be cured.

What does the law say?

Employees have the right to resign and claim that they have been constructively unfairly dismissed where their employer has committed a fundamental breach of a term of their contract of employment (either an express or an implied term).  The employee must resign in good time and in direct response to the specific breach.

For these legal rights to arise, three conditions must be met:

• First, the employer’s breach must effectively demonstrate an intention to no longer to be bound by the contract going forward.
• Second, the breach must be the reason for the employee’s resignation.
• Third, the employee must not have affirmed the contract after the breach has occurred. This happens, for example, where employees continue to work for their employer or delay their resignation before claiming constructive unfair dismissal.

Irrespective of the employee’s actions following the breach, if the employer’s breach is fundamental, it cannot be cured – i.e. there is nothing that the employer can do to redeem the position.

What happened in this case?

Ms Flatman worked as a Learning Support Assistant in a school maintained by her employer, Essex County Council. From September 2017, Ms Flatman was required to support a disabled pupil at the school.  This involved her undertaking daily weight-bearing and lifting tasks.  It was identified at an early stage that Ms Flatman required manual handling training in order to undertake her work safely. Despite assurances that this would be arranged, and Ms Flatman repeatedly asking for such training, it was not provided.

In December 2017, Ms Flatman developed back pain. This became increasingly severe and Ms Flatman was eventually signed off work on 1 May 2018 for three weeks.  She returned to work on 22 May 2018.  Upon her return, the headteacher of the school advised Ms Flatman that she would not be required to lift the pupil, she would be assigned to another class in the next school year and training would be provided.  However, Ms Flatman resigned and claimed constructive unfair dismissal.

What was decided?

The Employment Tribunal dismissed the claim, holding that the Council was not in fundamental breach of its implied duty to take reasonable care of Ms Flatman’s health and safety. Instead, it found that the communications when Ms Flatman returned to work demonstrated genuine concern for her health and safety.

The EAT allowed Ms Flatman’s appeal. By failing to provide training and requiring her to lift the pupil on an ongoing basis, the employer had breached the implied duty to provide Ms Flatman with a safe work environment. Having reached this decision, the EAT concluded that the tribunal had erred by looking only at the overall picture at the point of Ms Flatman’s resignation when assessing the breach. Instead, the focus should have been on whether there had been a fundamental breach at any point during the relevant period, and, if there had, whether Ms Flatman had affirmed the contract.

The EAT concluded that, at the latest, the breach had become fundamental when Ms Flatman was signed off sick.  Ms Flatman had repeatedly requested training and the employer had repeatedly promised it.  The risk of harm increased throughout the period, with the result that she was signed off work on 1 May 2018 having suffered significant harm.  It could not be said that Ms Flatman had affirmed the contract between 1 May 2018 and her resignation.

The EAT also made an interesting point concerning the assessment of whether a breach is fundamental in relation to different implied terms. It suggested that the heightened risk profile connected with the employer’s implied duty to provide a safe working environment for employees is the reason why positive statements of intention or good attitude on the part of an employer have less significance than they might do where the breach is of the implied term of mutual trust and confidence (which does not necessarily have such a serious risk profile).

The EAT ultimately held that if the tribunal had correctly applied the law to its finding of fact, only one outcome was possible. Therefore, it upheld the appeal and substituted a finding of constructive unfair dismissal without remitting the case for a rehearing.

What does this mean for employers?

Whilst the legal position is that a fundamental breach of contract cannot be cured, the commercial position might well be slightly different. Even when the legal position is irretrievable, an employer’s attempt to make good will often be enough to resolve the matter with the employee and avoid a dispute. This employer was probably unlucky.

Flatman v Essex County Council

If you would like to discuss any issues arising out of this decision please contact James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Gareth Brahams will be speaking at the annual conference of the Employment Lawyers Association on 14 June 2021 on the subject of protecting confidentiality and the right to a public hearing. He will speak alongside James Laddie QC. This follows Gareth and James’s recent win in the case of Millett v Queensgate Investments which established that interim relief hearings must be held in public. You can book a place by following this link: https://www.elaweb.org.uk/training-and-events/1203.

You can also read more about the case in a recent article by Gareth Brahams and Clare Brereton published by ELA Briefing: https://www.elaweb.org.uk/resources/ela-briefing/eat-applications-interim-relief-should-be-heard-public

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