As the country emerges from months of lockdown restrictions, a new survey commissioned by Acas reports that around half of British employers expect to see a rise in staff working from home for some or all of the time.   Another survey by EY suggests this expectation is well-founded.  The Work Reimagined Employee Survey found that 80% of workers surveyed wanted flexibility in their job, with 40% wanting flexibility about where they worked for at least part of the week.  In the light of this, Acas’ new guidance on hybrid working is well-timed and covers a wide range of issues for employers to consider.  The guidance is split into five sections, each of which is discussed below.

Considering hybrid working for your organisation

The guidance notes that employers may be considering introducing permanent hybrid working of their own volition, or in response to an employee’s flexible working request.  It points out the many positives of hybrid working including helping to:

• increase job satisfaction;
• attract and retain a more diverse workforce; and
• improve trust and working relationships.

However, the guidance stresses the need for employers to give careful thought to where, when and how work could be done before making any decisions. 

In terms of the “where”, consideration should be given to the use of technology, how teams will stay in touch, health and safety concerns and why certain tasks have to be carried out in the workplace.  In terms of the “when” thought should be given to how important it is for work to be done at a specific time.  And in terms of the “how” a checklist of different issues to think about is provided, including things like how new employees will be onboarded and how the workplace will be configured. 

Employers are also urged to discuss their employees’ needs before making any changes.  This includes things like their home working environment, whether any reasonable adjustments are required and whether they have caring responsibilities.  Essentially, employers need to avoid a “one size fits all” approach – different arrangements might be needed for different job roles and different employees. 

It is suggested that hybrid working arrangements are trialled for a short period to judge how they work.  Where such arrangements are not possible (for some or all), employers are urged to discuss alternative flexible working options with employees and keep the position under review.

Consulting and preparing to introduce hybrid working

Before bringing in hybrid working arrangements, the guidance points out that employers may be obliged to consult with staff.  This may be necessary to secure an employee’s agreement to vary certain terms of their employment contract (such as place of work or hours of work clauses).  Additionally, the employment contract, or non-contractual policy, may state that the employer will consult with staff about organisational changes.

Employers may also have statutory obligations to consult with employee representatives where:

• the proposals affect health and safety;
• require changes to 20 or more employment contracts;
• where the employer is party to a collective agreement with a trade union; and/or
• the employer is party to an information and consultation agreement.

The consultation process involves explaining what the proposals are and inviting employees to provide feedback and raise any concerns.  There are different ways of doing this, including face-to-face meetings and staff surveys.  Employers should listen to any concerns and try to resolve them before introducing the changes.

Creating a hybrid working policy

There is no obligation to introduce a specific hybrid working policy and employers may feel that they can address hybrid working within an existing flexible working policy.  However, the guidance indicates that it is a good idea to have a stand-alone policy since it can address in detail how hybrid working will operate and specify any limitations.

In terms of outlining how things will work, the policy could, for example, explain:

• how someone may request hybrid working and how that request will be dealt with;
• what equipment will be provided and how it will be set up (and, interestingly, the EY survey revealed almost 43% of workers wanted their employer to upgrade at-home hardware);
• how health and safety risks will be assessed and addressed;
• what, if any, insurance is needed; and
• how staff will be trained and performance managed.

The policy could also set out any limitations such as any roles or tasks that cannot be performed at home and any restrictions on where homeworking can take place (e.g. not in a public place or overseas if this may trigger tax and immigration issues).

Treating staff fairly in hybrid working

Wherever staff are working they should be given access to the same work, support and opportunities for training, development and promotion.  Line managers should communicate regularly with all of their reports, regardless of where they are located, and work should be allocated fairly and not according to location.

The guidance highlights the risks of directly or indirectly discriminating against people with certain protected characteristics.  For example, it could be directly discriminatory not to allow a mother to work at home because of a concern that she will be distracted by her children, whilst allowing a father to work from home.  Refusing hybrid working for certain roles could amount to indirect discrimination, for example, against disabled people who find it difficult to attend the workplace every day or against women who bear the primary childcare burden and have a greater need for flexibility. 

In addition, employers must ensure that they proactively make reasonable adjustments for disabled staff where required, regardless of where they are working.  For example, if an employee has a physical disability which is exacerbated by sitting down all day, it may be necessary for the employer to pay for a sit/stand desk to be installed at the employee’s home. 

Supporting and managing staff in hybrid working

The guidance underlines that employers have responsibility for staff wherever they are working.  This encompasses things like:

• health, safety and wellbeing;
• supporting mental health;
• managing performance; and
• providing training for hybrid working practices and more generally.

As far as performance management is concerned, it suggests that employers discuss with staff whether there is a need to monitor performance and how this could be done in a consistent manner when working in the workplace and/or remotely.

Comment

It seems inevitable that we will see a permanent shift towards hybrid working given the experience of homeworking over the last 16 months.  As with anything in life, homeworking has its pros and cons, but most employers and employees would now acknowledge the benefits of some degree of homeworking.  Yet the shift to hybrid working on a permanent basis is not without its challenges.  Employers must ensure that not only do they meet their legal obligations, but that they make hybrid working a positive experience for staff.  This guidance, together with our recent FAQs on hybrid working, gives employers a good grounding in the issues they need to grapple with in order to achieve this.

Acas Guide to Hybrid Working

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Keating v WH Smith Retail Holdings Ltd an Employment Tribunal ruled that a female employee was indirectly discriminated against on the grounds of sex when her employer sought to impose Saturday working on her.  It also said that she had been constructively unfairly dismissed.

What does the law say?

Indirect discrimination occurs where:

• The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
• The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
• The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
• The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Keating was employed as a retail assistant by WH Smith. She was contracted to work flexibly for 20 hours per week (with a further eight hours per week when more staff were required). Her contract also stated that she may be required to work Saturdays, Sundays and/or public and Bank Holidays. She was a single parent with one dependent child aged eight and her childcare responsibilities meant, in practice, she only worked on weekdays.

In the early summer of 2018, her manager, Mr Cruickshanks, identified a business need to introduce a Saturday rota for the weekday staff. This was due to falling sales revenue in the store and budget constraints that followed from this. There was an anticipated departure of University students who worked weekends and Mr Cruickshank wanted to fill those shifts with the weekday staff. The proposal was for the weekday staff to work one in every four Saturdays.

Numerous meetings followed between Ms Keating and Mr Cruickshanks, where she highlighted her concerns about childcare. Ms Keating heard no more about the proposed Saturday working until September 2018 when she was rostered to work Saturdays.  She reiterated her concerns and Mr Cruickshanks told her she would need to arrange shift swaps with her colleagues.

Ms Keating worked the first rostered Saturday but had to bring her daughter to work with her due to lack of childcare.  Once again, she explained to Mr Cruickshanks that she had no one to look after her daughter on Saturdays.  No satisfactory response was given.  Ms Keating resigned on 22 October 2018 and claimed indirect discrimination on the grounds of sex and constructive unfair dismissal.

What was decided?

The Employment Tribunal upheld both claims.

Indirect sex discrimination

The Tribunal concluded that the PCP of requiring weekday staff to work one in four Saturdays put women at a particular group disadvantage when compared with men because, statistically, women are still the primary carers of dependent children and more women than men are single child carers.

The Tribunal used its collective experience and judicial discretion to assess the impact of the PCP to women at large as WH Smith did not clearly identify the pool of staff in the store (i.e. how many were men and how many were women, how many had childcare responsibilities of dependent children and how many had partners). The Tribunal concluded that Ms Keating was put at a disadvantage: she was a woman, a single mother who could not afford childcare and had no network she could call on.

The Tribunal also accepted WH Smith had the legitimate aim of needing to manage costs and the desire to share Saturday working fairly amongst the team.  However, the aim was not proportionate. Mr Cruickshanks had not considered less discriminatory alternatives.  For example, he had not asked any other employee whether they could work the Saturday shifts for Ms Keating and/or considered recruiting one dedicated member of staff to work Saturday shifts.

Constructive unfair dismissal

The Tribunal concluded that WH Smith failed to have any regard to Ms Keating’s childcare issues, despite there being several opportunities to address it.  This conduct was likely to destroy or seriously damage the relationship of trust and confidence.  In particular, the Tribunal noted that the express flexibility provisions in Ms Keating’s contract were fettered by the implied term of trust and confidence.  Ms Keating had resigned in response to WH Smith’s reliance on this clause and she had done so promptly.

What does this decision mean for employers?

This case, and the recent decision in  Dobson v North Cumbria Integrated Care NHS Foundation Trust, show that Tribunals are willing to accept as a fact that women bear the primary responsibility for childcare and this may limit their ability to work certain hours or working patterns.  Any rigid requirement to work weekends, nights or unpredictable hours may well mean that group disadvantage will follow. 

Employers should avoid imposing rigid and onerous working patterns on women with childcare responsibilities, especially single mothers without a support network as was the case here.  Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties.  Ignoring an employee’s repeated concerns is a dangerous strategy.  Even if no compromise is possible, the efforts made here will help employers demonstrate that they have acted proportionately and also not breached the duty of trust and confidence.

Keating v WH Smith Retail Holdings Ltd

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 the recent case of Montanaro v Lansafe Limited, an Employment Tribunal held that an employer unfairly dismissed an employee who was on annual leave in Italy when the first lockdown was announced and was unable to return to the UK. 

What does the law say?

It is automatically unfair for an employer to dismiss an employee if the reason or principal reason for the dismissal is that:

• in circumstances of danger;
• which the employee reasonably believed to be serious and imminent;
• the employee took (or proposed to take) appropriate steps either to protect himself and/or others from the danger or communicate these circumstances by any appropriate means to the employer.

Employees do not need any qualifying service to bring this claim unlike the two years required for standard unfair dismissal claims.  Compensatory awards for automatic unfair dismissal award are also uncapped, whereas they are capped in ordinary unfair dismissal claims (at the lower of a year’s pay or £89,493).

What happened in this case?

In March 2020, M travelled to Italy to attend his sister’s wedding.  By the time he was due to fly back to the UK, Italy had declared a national lockdown.  On 10 March 2020, M went to the airport, however, he did not take his flight because he had concerns about health and safety as a result of Government announcements in both Italy and the UK.  Furthermore, he believed he needed documentation from his employer to show that his journey qualified as essential business travel.

Whilst at the airport, M updated his employer about what had happened and asked for their advice.  His employer told him that he should keep his laptop and mobile online and await further instructions. During the weeks that followed, M asked his employer whether they required him to return to the UK and, if so, to provide the documentation he believed he needed to travel. However, M’s communications with the company’s Managing Director, Mr Roby, were ignored.

Given the lack of direction from his employer, and the gravity of the health crisis in Italy and the UK, M remained at home in Italy. He communicated directly with a client, Boohoo, for whom he had provided services for many months.  Boohoo agreed that M could work for them remotely from Italy.

On 11 March 2020, M’s employer sent a letter to his UK address purporting to dismiss him with effect from 6 March 2020.  As M was in Italy, he did not receive the dismissal notice.  The company claimed that M had travelled to Italy in breach of their annual leave booking procedure and that his absence amounted to gross misconduct.  M first became aware of the termination on 1 April 2020 when he received an email attaching his P45 and final payslip.

M brought a claim in the Employment Tribunal for automatic unfair dismissal on health and safety grounds.

What was decided?

The Employment Tribunal upheld the claim finding that:

• there were circumstances of danger given the declaration of a pandemic and the risk of catching a contagious virus about which little was known;
• M reasonably believed the danger was serious and imminent; and
• M had taken appropriate steps to protect himself and others by returning to his home in Italy and asking his employer for instructions and assistance with documentation. M had also forwarded appropriate information to his employer about the situation in Italy.

The Tribunal held that the real reason for the dismissal was because M had communicated the difficulties and dangers posed by the pandemic in Italy and the UK, and because he had proposed to work remotely from Italy until those circumstances changed.  Accordingly, the dismissal was automatically unfair.

What does this mean for employers?

It should be remembered that COVID-19 dismissals are fact and context specific.  Here, the fact that M’s claim related to the very early stages of the pandemic when little was known about COVID-19, and the death rate was rising exponentially, no doubt influenced the Employment Tribunal’s assessment of the claim.  The situation now is rather different given the higher level of knowledge about COVID-19 and the presence of effective vaccines.

However, there are several scenarios where an employee who takes an overseas holiday may not be able to return to work as planned, and this raises the question of how employers should treat such absences.  For example, if employees contract COVID-19 while overseas they will usually not be allowed to travel back to England (as a negative COVID-19 test is a requirement of entry).  Alternatively, employees might test positive for COVID-19 on their return, meaning they will have to self-isolate.  In either situation, the employer should treat the employee as on sick leave in the usual way, unless it is possible for the employee to work remotely.

Alternatively, new travel restrictions might be imposed while employees are overseas, meaning they cannot return to work.  For example, if a green or amber list country is unexpectedly moved to the red list, this will usually mean that employees have to quarantine in a managed quarantine hotel for 10 days on their return.   Assuming they cannot work remotely, the position on pay entitlements is unclear.  On the one hand, the employee is unable to work and so the implied right to be paid would not apply, meaning it could be treated as a period of unpaid leave.  However, the Courts have previously held (in the context of a suspension from work) that where employees are ready and willing to work, and an inability to work is a result of an external constraint, they may still be entitled to be paid.  Either way, dismissing an employee in this position is likely to be automatically unfair.

The best course of action is to seek legal advice before taking any action against an employee who is unable to return to work after an overseas holiday

Montanaro v Lansafe Limited

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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On 21 July 2021 the Government published its long-awaited response to the consultation on sexual harassment in the workplace.  In this briefing we explain the Government’s commitments and what they will mean in practice.

Background

Following the explosion of the #MeToo movement in 2017, the Women and Equalities Select Committee undertook an inquiry into sexual harassment in the workplace in the UK.  In 2018 the Committee published its report, setting out wide-ranging recommendations for change.  On the back of that, the Government opened a public consultation on four of those recommendations, namely:

• the introduction of a mandatory duty on employers to protect workers from harassment and victimisation;
• how to strengthen and clarify the law in relation to third party harassment;
• whether protection was needed for interns and volunteers; and
• whether the time limit for bringing discrimination claims should be extended beyond three months.

Almost two years have passed since the consultation closed, but, finally, on 21 July 2021 the Government published its response and has committed to making some changes to the law.  

Mandatory duty to protect workers from harassment and victimisation

The current position is that sexual harassment in the workplace is unlawful and employers and individuals can be found liable in claims brought in the Employment Tribunal.  Employers can avoid being found vicariously liable for harassment committed by their workers if they can show that they have taken reasonable steps to prevent such harassment occurring.  In this context, reasonable steps include implementing an anti-harassment policy, providing good quality and regular training to staff and dealing with complaints effectively.  In practice, most employers elect to take such steps, but there is no legal obligation to do so.

The consultation proposed introducing a legal duty on employers to take proactive steps to prevent sexual harassment.  In practice, this would compel employers to take the steps mentioned above and they could be held to account for failing to do so, without the need for a claim of sexual harassment to be brought before an Employment Tribunal.  The consultation proposed that this duty be enforced by the Equalities and Human Rights Commission (EHRC).  It also asked whether individuals should be able to take enforcement action.

The response confirms that the Government intends to bring forward legislation to introduce a new duty requiring employers to take all reasonable steps to prevent sexual harassment as soon as Parliamentary time allows.  It is not clear from the response whether this new duty will apply to all forms of harassment under the Equality Act 2010, or whether it will be confined to sexual harassment only.

The response also confirms that the EHRC will be responsible for enforcement of this duty using their existing powers.  The Government will also “discuss scope for further EHRC action in this area”.  It is not yet clear what such further action may entail.  The EHRC will also be asked to develop a statutory code of practice that will explain the steps that employers need to take to prevent harassment.  In tandem, the Government will publish guidance outlining practical steps employers can take.  This will supplement the EHRC’s detailed technical guidance on sexual harassment published in January 2020 (you can read our briefing on that guidance here).

As far as individuals are concerned, the response says that individuals will be able to bring legal challenges, but only when an incident of harassment has occurred.  Unfortunately, the response is vague about the scope of an individual’s ability to bring a legal challenge.  It is not clear whether this extends to individuals who have not themselves been the victim of harassment.  It is also not clear where such legal challenges should be brought (presumably the Employment Tribunal but this is not stated) or what remedy, if any, will be available to the individual.  We will need to see the legislation to understand the precise detail.

Liability for third party harassment

Until October 2013, the Equality Act 2010 contained provisions making employers liable for harassment of their staff by third parties (such as contractors or clients), although liability only arose where the worker had been harassed on at least three occasions.  These provisions were repealed by the Conservative Government on 1 October 2013.  This left individuals who were harassed by third parties at work in the unsatisfactory position of having to argue that their employer’s inaction in the face of third-party harassment itself constituted an unlawful act.  The Court of Appeal held in Unite the Union v Nailard [2018] EWCA Civ 1203 that an employee would need to show that the protected characteristic was the reason for the employer’s failure to protect them against the harassment by the third party.   In practice, this is a difficult hurdle to overcome.

The consultation asked whether explicit legal protection against third party harassment should be introduced (or, rather, re-introduced).   It also asked whether – in a context in which harassment was likely – employers should be liable for failing to take all reasonable steps to prevent third-party harassment even where an incident had not occurred.  Alternatively, should liability only arise where an incident had occurred (and, if so, one or more than one)?  It also asked whether a “reasonable steps” defence should be available to employers in third-party harassment claims, as it is in existing harassment claims.

The response confirms that this will be taken forward and legislation introduced when Parliamentary time allows.  The precise scope of the protection has yet to be determined.  The response says that the Government will work with stakeholders to shape the protection, particularly on whether it should only apply in situations where an incident of harassment has already occurred.  However, the response confirms that the reasonable steps defence will be extended to third-party harassment. 

Protection of interns and volunteers

Currently, interns will often qualify as employees or workers for employment law purposes.  As such, they will already be protected from discrimination and harassment in the workplace by virtue of the existing provisions of the Equality Act 2010.  However, such protections do not extend to volunteers.  The consultation asked whether it would be right to extend the Equality Act 2010 to cover volunteers (and, if so, whether this should be some or all volunteers).  It also asked for feedback on whether there were any groups of interns who would not be covered by the existing legislation.

In relation to interns, the response said that this group of people can be understood as working for free in order gain professional experience.  As such, the Government was satisfied that “in almost all cases” these groups would qualify as workers and would already be covered by the Equality Act 2010 meaning no further measures are necessary.

In relation to volunteers, the response says that the same protections should not apply to “pure” volunteers in the same way as for workers and employees.  Extending protections to all volunteers could create a disproportionate level of liability and difficulties for organisations, which could outweigh the service they provide.  The response draws a distinction between ad hoc, informal, small-scale volunteering and formal, large-scale volunteering.  It says it would not be right to extend the protection to the former group, but it might be appropriate to extend it to the latter group. 

The response is unclear about whether the Government will make any changes in relation to protecting volunteers from harassment, save for saying that it is important that any steps that are taken do not deter individuals from volunteering or result in organisations having to deal with additional red tape.  Certainly, no firm commitments have been made, suggesting that reform will not be imminent.

Increasing the time limit for bringing discrimination claims

Currently, there is a three-month time limit for bringing claims of discrimination or harassment in the Employment Tribunal (subject to the rules on extending time through Acas Early Conciliation).  Employment Tribunals have the discretion to extend the time limit for bringing a discrimination claim where a Tribunal Judge considers it is just and equitable to do so. 

Nevertheless, this short time limit can act as a barrier to justice, particularly in sexual harassment cases where the trauma experienced may delay an individual’s efforts to pursue a legal claim.   It can also be a factor in other discrimination cases, such as pregnancy and maternity discrimination claims, where the individual may have just given birth (or be about to) or is caring for a new baby and may be unable or less able to take the steps needed to pursue a claim.   Relying on a Tribunal’s discretion to extend time is not a failsafe option and many individuals will be reluctant to commence a claim which is already out of time. 

Therefore, the consultation asked whether the time limit for such claims should be extended and, if so, whether this should be for all types of claim.  It also asked what the new time limit should be.  Around 60% of the respondents to the consultation felt that the time limit was too short. Of these, roughly half thought that it should be extended to six months and the other half though it should be even longer.

The response recognises the powerful arguments for extending the time limit, particularly in sexual harassment and pregnancy and maternity discrimination cases.  However, it balances this against the additional pressure placed on the Employment Tribunal service by the pandemic, pointing out that: “…restoring its existing levels of services needs to be the priority before additional loading is added.”  The conclusion is that the Government will commit to looking closely at extending the time limit in future.  The response goes on to say that if the time limit is extended in future it will be extended:

• for all claims under the Equality Act 2010, not just a subset of claims; and
• to six months, not twelve months.

It is felt that this approach will avoid confusion and strike the right balance between ensuring access to justice for claimants, while minimising the potential negative impact on employers (on the basis that it becomes harder to answer a case the more time passes).  It is not clear when a decision will be reached on this issue.  The response simply says the Government will continue to engage with stakeholders as further work is carried out. 

What’s next?

Although these commitments are to be welcomed, closer scrutiny reveals that they are somewhat broad-brush and as usual, the devil will be in the detail.  Nonetheless, in principle, these changes will provide workers with better protection from sexual harassment at work (and perhaps harassment in the wider sense). 

Employers will need to benchmark the steps they already take to prevent harassment against the proposed new statutory code of practice and guidance to ensure they are doing enough.  In practice, we suspect this will involve taking some or all of the following steps:

• Having a good suite of policies in place. The EHRC’s existing guidance recommends having separate policies for sexual harassment and other forms of harassment (or having one clearly delineated policy).  The anti-harassment policies should also cohere with other relevant policies such as disciplinary and social media polices.
• Raising awareness of the anti-harassment policies amongst the workforce. This could mean requiring employers to provide copies to staff at regular intervals and before events where harassment has occurred in the past (e.g. Christmas parties).
• Reviewing the anti-harassment policies every year. Policies should have an annual health check and be updated to reflect any legal changes and trends apparent from internal complaints, staff surveys and/or exit interviews.
• Putting in place methods to detect harassment (including third party harassment). This could include informal one-to-ones, sickness return to work meetings, exit interviews and external reporting systems which allow anonymous reports.  We have previously reported on how some employers are making use of apps which permit real time and anonymous reporting.
• Providing high quality and regular training to staff. As a recent decision showed, an employer won’t have taken reasonable steps if the training it provides doesn’t pass muster.  Such training should also be tailored to the audience.
• Dealing with harassment complaints effectively. This includes taking appropriate disciplinary action against the perpetrator of the harassment.

While there will probably be work for all employers to do, in many cases it should not require doing anything radically different to what is already in place.

Employers and workers should watch out for further news on the possible extension of the time limit in all Equality Act 2010 claims to six months.  If taken forward, this will provide victims of harassment with valuable breathing space to consider whether they wish to pursue a legal claim and mean that employers are “on the hook” for such claims for a longer period of time.

Consultation on Sexual Harassment in the Workplace: Government Response – 21 July 2021

If you need help or would like to discuss the issues raised in this news article, please contact Amanda Steadman or your usual BDBF contact.

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The Government has announced that England will move to step 4 of the roadmap out of lockdown on 19 July 2021 – aka Freedom Day.  Step 4 represents the last stage in the roadmap and will see most COVID-related legal restrictions replaced by guidance.  In this briefing, we consider what Freedom Day means for office-based employers.

Can we instruct staff to return to the office from 19 July 2021?

“Yes, but…” is the answer to that.  The “stay at home” order was lifted on 29 March 2021.  While that order was in place it was a criminal offence to leave home to go to work save where it was not reasonably possible to work from home.  Once that order was lifted it was no longer unlawful to leave home to go to work.  However, this was not the only consideration for employers.  Importantly, employers must comply with health and safety legislation and guidance, including the “Working safely during coronavirus guidelines” (Guidelines).

Earlier versions of these Guidelines had said that office workers should continue to work from home if possible until at least step 4 of the roadmap.  The confirmation that step 4 will take place on 19 July 2021 means that employers may start to return workers to the office from that date.  However, the new Guidelines in place from 19 July 2021 suggest that the return process should not be a one-off event.  Rather, the Government “expects and recommends a gradual return over the summer”.

A gradual return of the workforce could be implemented in various ways, for example, by reference to essential business needs or by asking for volunteers.  Another option would be to create fixed teams of employees that attend the office on different days or weeks for a period of time.  The Guidelines also acknowledge that many employers are looking at adopting permanent hybrid working practices which include an element of home working.

Employers are advised to discuss the return process with workers and remain responsive to their needs.  Before returning workers to the workplace, employers should also update their risk assessments and take appropriate measures to manage the risk of COVID spreading at work.  Here, particular care needs to be taken in relation to clinically extremely vulnerable workers and pregnant workers (see below).

Will we have to restrict the numbers of staff who return to the office and/or ensure staff can socially distance?

Not necessarily.  From 19 July 2021 there will be no limitations on the numbers of people who can meet indoors, including in the workplace.  Similarly, all social distancing restrictions will be removed.  However, as discussed above, employers must still comply with their legal obligations and this includes ensuring the health, safety and welfare of staff and third parties so far as is reasonably practicable. Therefore, as part of their risk assessment, employers should consider whether some degree of social distancing would help to mitigate COVID-related risk and, if so, whether it is reasonably practicable.   The Health and Safety Executive has produced a COVID template risk assessment which employers may wish to use.

The Guidelines in place from 19 July 2021 suggest that employers should consider measures to reduce contact between workers, such as assigning workers to fixed teams, using screens and using back-to-back or side-to-side working. Reduced contact could also be achieved by the use of hybrid working, with staff attendance in the workplace staggered on different days.

Will staff have to wear face coverings in the office?

No.  At no point have face coverings been mandatory for workers in most kinds of office setting, although they could be used if desired.  In any event, from 19 July 2021, the legal requirement to wear a face covering will be lifted in all settings.

However, the Guidelines in place from 19 July 2021 suggest that office-based employers may wish to encourage the use of face coverings by workers particularly in areas where they come into contact with people they do not normally meet.  This is said to be especially important in enclosed and crowded spaces (for example, lifts and corridors).  Where masks are to be used, consideration should be given to making adjustments for disabled staff and to the fact that some people are unable to wear face coverings.

How should we approach the issue of staff vaccination?

Although the Government plans to introduce mandatory vaccination for care home workers, and potentially for healthcare workers, there are no plans to do so for the wider population.  The Guidelines in place from 19 July 2021 do not address the issue of staff vaccination as a means of controlling risk in the workplace.  As such, it’s likely to be very difficult for office-based employers to justify a requirement for staff to be vaccinated.  If you would like to know about the risks of doing so, and vaccinations more generally, please view our recent webinar on the topic.

Underlining the voluntary approach, the Government has published new guidance for employers on vaccination, which is designed to help them encourage staff to be vaccinated.  A toolkit is also available which includes materials for employers to use such as a Q&A document, key facts on vaccination, scripts for internal conversations and links to videos, webinars and posters.  The guidance also recommends that employers take steps such as allowing staff to take time off to be vaccinated and amending sick leave policies to disregard any vaccine-related ill-health absence (which might disincentivise someone from getting vaccinated).

How should we deal with clinically extremely vulnerable workers (i.e. those who had to shield)?

The shielding guidance for clinically extremely vulnerable people was paused with effect from 1 April 2021.  Earlier versions of the Guidelines had said that such individuals should work from home where possible and only attend work if they could not work from home.

There are no special rules in place for this group at stage 4 of the roadmap, meaning that employers may instruct them to return to work from 19 July 2021.  However, it is recognised that affected workers may wish to continue to limit close contact in order to reduce the risk of catching COVID.  The Guidelines in place from 19 July 2021 say that employers should give extra consideration to those at higher risk and “take additional precautions advised by their clinicians”.

All of this means that before asking such workers to return to the workplace, employers must consider whether special measures are needed for them as part of their overall risk assessment.  Employers should also bear in mind that clinically extremely vulnerable workers may well be disabled for the purposes of discrimination legislation.  Where this is the case, they may also be under a duty to make reasonable adjustments to their working practices.

How should we deal with pregnant workers? 

Special guidance remains in place for pregnant women which advises that a “precautionary approach” on returning to work is adopted for women who are either: (i) 28 weeks pregnant or more; or (ii) pregnant and have underlying health conditions which put them at greater risk of severe illness from COVID.  This precautionary approach means that such workers should limit contact with others to minimise the risk of catching COVID.  This means that many such workers will need to work from home, potentially in a different capacity if necessary.  Employers must prioritise homeworking options for this group wherever possible.  Where homeworking is not possible, affected women may need to be suspended from work on full pay on health and safety grounds

The position is slightly different for pregnant women who are less than 28 weeks pregnant and have no underlying health conditions.  For this group, a risk assessment should be conducted, and affected women may attend the workplace provided the risk assessment says it is safe to do so.  If the workplace is not safe (and cannot be made safe), then suitable alternative work or working arrangements (including working from home) may be necessary, or, again, affected women may need to be suspended from work on full pay on health and safety grounds.

What happens if a staff member contracts COVID?

If a staff member contracts COVID then they must not come to work and should self-isolate.

Similarly, anyone who:

• has COVID symptoms;
• is a close contact of someone with COVID;
• is told to self-isolate by NHS Test and Trace; or
• is “pinged” by the NHS Test and Trace app,

should self-isolate.  Employers must not require self-isolating workers to attend work and must send them home if they turn up.  Self-isolating workers will usually be entitled to statutory sick pay and may also be entitled to company sick pay

COVID-19 Response: Summer 2021

Working safely during coronavirus guidelines for offices, factories and labs (applicable from 19 July 2021)

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic, including preparing for the return to the workplace.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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As we get closer to an end to lockdown restrictions many employers are now beginning to consider what a return to working life will look like.  In this briefing, we examine some of the most frequently asked questions about the return to work and hybrid working.

For the vast majority of employers in the services sector, the pandemic has drastically shifted what a normal working environment looks like and resulted in a huge shift to home working.

Some employers, such as Morgan Stanley and Goldman Sachs have made public statements supporting a return to a 100% working from the office model, while others are now keen to reduce their overheads completely and pursue a 100% remote working model.

Many employers prefer to adopt a middle ground and pursue a hybrid working strategy.  However, a shift to a hybrid working arrangement throws up many potential issues for employers that need to be considered in advance.

Do we need to change employment contracts if we adopt a hybrid working model?

Before the pandemic, most employment contracts stipulated that employees’ normal place of work was the office.  This was, of course, something that the pandemic made impossible for significant periods of time for many.

Employers considering a move to a hybrid working system may be wondering whether this will mean that they need to change employment contracts for their existing staff.  Some contracts may already permit the employer to change an employee’s normal place of work or working arrangements on reasonable notice.

If employment contracts do not allow such flexibility, a belt and braces approach would be to ask employees to document their agreement to any change in writing.  Employers who do wish to formalise these changes have the option of achieving this by consent, imposing the change or terminating employees’ contracts and re-employing them on new terms.  In most cases, consent is likely to be the simplest route forward.

Terminating the employment of employees who do not agree to changes will require consultation and may also expose the business to statutory claims such as unfair dismissal, as well as potentially triggering collective consultation obligations.  Imposing changes is not a risk-free route either and employees may work under protest after the change has been implemented or argue that they have been constructively dismissed.

Many employers, particularly those who adopt a flexible model going forward, may take the view that, if changes have been agreed in consultation with the workplace and by consent, they are comfortable with not seeking written confirmation of the change and relying on an employee’s ongoing conduct as evidence of their acceptance of the new arrangements.

Irrespective of the approach that they take with existing staff, employers who do not already have language in their contracts allowing them flexibility to change an individual’s place of work may at least want to amend their standard terms of employment for new employees.

What if we don’t know how we want to work when we return to the office?

Having worked remotely or largely remotely for many months, the patterns of hybrid working that best suit a business, or a particular team may not be clear yet.  For many employers, it will be a question of trial and error to determine the pattern of working that best fits the needs of the business, its clients and its staff.

For example, some employers may initially wish to trial having certain days where everyone attends the office.  However, such arrangements may become impracticable or even illegal in the event of a third (or even fourth) wave.  They also create a demand for larger premises for a small proportion of the week which will then be empty the rest of the time.  Other employers may start out working on one hybrid model and need to adapt it as a result of the practical difficulties encountered, such as ensuring adequate supervision for staff.

Employers should bear in mind that the model of hybrid working that they adopt now may need to be revisited in the future.  It is important that this is communicated to staff at the outset and that employers do not contractually commit to a working model that may need to be changed.

Transparency is key and employees should be clear that there will inevitably be further review as a hybrid model is trialled.  Employers who do keep their working arrangements under review should consult with staff and give them notice of any anticipated or proposed changes.

If employers are amending the terms and conditions of staff to allow for hybrid working arrangements, they will also need to ensure that their contractual terms are sufficiently broad to enable them to alter arrangements on an ongoing basis.

What if some people are unhappy about coming into the office?

Inevitably not all staff will be pleased with a move to hybrid working.  Some may prefer a full-time working from home model and others may prefer to work full-time in the office.

The latter group of employees may be easier to appease, and many hybrid working models can easily accommodate employees working in the office for more than a few days.  Employees who make flexible working requests and ask to work full time from home are considered further below.

For some employees, the fear of catching or passing on covid may be driving a reluctance to work from the office.  For example, because they, or someone that they live with, are in a vulnerable or shielded category.  If an employee’s health condition is a disability, then unreasonably refusing to change their working arrangements could be discriminatory. Employers should take the time to understand these concerns and assess what measures they can introduce to address them.

Employers should also bear in mind that those raising health and safety concerns or refusing to attend the office on health and safety grounds can have additional legal protections and these situations will require careful handling.

Can we require all staff to be vaccinated when returning to the office?

For a full discussion about whether employers should require all staff returning to the office to be vaccinated, please see our recent ‘no jab no job?’ webinar.

How do we deal with flexible working requests?

Employees with over 26 weeks’ service can make a flexible working request for any reason.  Many employers are anticipating an increase in flexible working requests over the coming months.

On the face of it, flexible working requests are relatively easy to refuse.  An employer must give one of eight prescribed statutory reasons, which include a detrimental effect on ability to meet customer demand or a detrimental impact on quality or performance.

However, employers faced with requests to allow people to work from home for all of their working time may find it more difficult than they did before the pandemic to refuse those requests.  For example, are they concerned about lower quality work because there are fewer opportunities for supervision when remote working?  Employers should also consider what evidence they have in support of that from the past 12 to 18 months.

Even if an employer’s reason for refusing a request falls within a prescribed ground under the flexible working legislation, that refusal could still give rise to a discrimination claim (on the grounds of sex, for example, where someone has requested flexible arrangements to accommodate their childcare commitments).

How should we deal with people who want to work abroad?

There have been increasing numbers of people who have begun to work 100% remotely over the last 18 months or so and many have been requesting to do so from abroad.

If an employee wishes to work abroad on a part-time or full-time basis, employers will need to consider carefully the tax, immigration and employment law implications at the outset.

By way of example only, individuals working abroad will need the appropriate visa arrangements to do so – a holiday visa or a right to be in the country will not necessarily give them the right to work in that jurisdiction.   Employing someone who works remotely abroad may also trigger tax or social security obligations in the country in which they work for both the employer and the employee.   By working abroad either some or all of the time, the employee may also benefit from local statutory employment law protections.

Employers also need to ensure that line managers are alive to the risks above and do not informally approve working arrangements of this nature (either explicitly or implicitly) without informing HR and the business of them.

This note is prepared for information purposes only and addresses some complex legal issues, it should not be used as a substitute for obtaining legal advice.

If you have any questions on the topics raised in this note, please contact your usual BDBF contact or Amanda Steadman (AmandaSteadman@bdbf.co.uk).

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In the last few weeks the press has reported that employees are to be given the legal right to work from home forever.  How realistic is this? In this briefing, we explain the proposals for reforming flexible working laws and what this might mean for employers.

It’s true to say that most workers have indicated an appetite for some degree of permanent homeworking, even when the pandemic has passed.  A survey of staff working at 500 financial services firms in the City found that 70% felt that homeworking through the pandemic was a positive experience since it allowed them to avoid the daily commute and gave them more time for leisure pursuits and family.  Another survey of working parents found that 15% wanted to continue with permanent homeworking and 55% wanted a hybrid form of working but with no more than three days in the office per week.

Recent press reports suggest that the Government agrees with them and plans to give employees the legal right to work from home forever.  But just how realistic are these reports?  The old adage “don’t believe everything you read in the papers” springs to mind.  Although proposals to shake up flexible working are afoot, it’s unlikely that this will mean wholesale homeworking.  Indeed, the Prime Minister’s official spokesperson is reported to have said this month: “It’s important to stress that there are no plans to make working from home the default or introduce a legal right to work from home”.  In this briefing we look at what has actually been proposed and when any changes are likely to come into force.

What are the proposed changes?

The Government does intend to change the law to make flexible working a “Day 1” employment right and the default position for all job roles, save where an employer had a good reason not to allow it.  We don’t know much more than this about the proposal, but it seems that the idea is to shift the burden from employees having to persuade the employer to accept flexible working for their roles, to the employer having to justify why it cannot be allowed.

It’s not yet clear how employers will be able to do this.   It’s possible that they will be able to rely on the same or similar grounds that justify a refusal of a flexible working request under the current regime, namely:

• it would cost too much;
• inability to reorganise the work among other staff;
• inability to recruit more staff;
• negative effect on quality;
• negative effect on the business’ ability to meet customer demand;
• negative effect on performance;
• not enough work for the employee to do when the employee has requested to work; and/or
• planned changes to the business, for example, plans to reorganise or change the business and the request will not fit with these plans

If so, it should be relatively easy for an employer to justify not allowing flexible working, including permanent homeworking.  That said, where an employee has been working effectively from home for a long period of time, then this may be more difficult.

We also don’t yet know what, if any, employment rights will be available to employees where an employer failed to comply with the new law.  Under the current regime, employees can bring claims for failure to comply with the flexible working request process, but compensation is limited to a maximum of eight weeks’ pay (and capped at £4,532).

In order to recover meaningful compensation, employees usually have to bring other claims such as indirect sex discrimination or constructive unfair dismissal.  Although a recent case has made things easier for women complaining that working patterns are indirectly discriminatory, it remains the case that pursuing such claims in the Employment Tribunal is not something that most employees will wish to do.

When are the proposed changes going to come into force?

The Queen’s Speech in 2019 outlined plans for a new Employment Bill which would deliver the changes outlined above.  However, the onslaught of the coronavirus pandemic meant that the Bill was not brought forward in 2020.

Two years later, the Bill has still not materialised and the 2021 Queen’s Speech delivered on 11 May 2021 also made no mention of it.   Nevertheless, the Government has said it is still committed to bringing forward the Employment Bill “when Parliamentary time allows”.  In its response to the Women and Equalities Committee report on the gendered impact of COVID 19, the Government said it remains committed to the proposals but will hold a public consultation before making any changes.

That consultation has yet to be published.  Assuming it is published in or around July 2021 and runs for three months, we are unlikely to know the Government’s final position until late 2021.  Legislation would then need to be passed in Parliament, meaning that the law will almost certainly not change this year.

Separately, on 30 June 2021, Tulip Siddiq MP will introduce a 10 Minute Rule Bill in Parliament which provides that flexible working becomes a Day 1 employment right available for all job roles and that all forms of flexible working should be listed in job advertisements.  Although this Bill will not become law, it helps keep the pressure up on the Government to follow through with its commitments.

What should employers do now?

Most employees will be asked to return to the office before this change comes into force (if it ever does).  Remember that under the existing regime, a returning employee may (if eligible) make a flexible working request, which could include a request for permanent homeworking.

Where an employee has been working from home throughout the pandemic, then this could make it more difficult to refuse such a request.  Employers will need to assess whether there are legitimate grounds for refusing such a request, for example, if the quality of the employer’s product or service has deteriorated or the employee’s performance has dipped.

However, the reality is that many employers are tackling the issue of flexibility head on and voluntarily introducing some form of hybrid working, which is likely to suit the majority of employees and quite possibly achieve savings for employers.  In short, working practices are evolving, but the gloomy predictions of empty offices and deserted cities are unlikely to come to pass and certainly not as a result of legislation in the near future.

If you would like to discuss your approach to flexible working please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” sticky_enabled=”0″]

In Forstater v CGD Europe and others the EAT held that gender critical beliefs, including beliefs that biological sex cannot be changed and is different to gender identity, are protected beliefs under the Equality Act 2010 and the European Convention of Human Rights. 

What does the law say?

Workers are protected from discrimination in employment on the grounds of their religious or philosophical belief.   However, only philosophical beliefs which meet a certain standard are protected.  In order to be covered, a philosophical belief must satisfy five criteria.  Namely, the belief must:

1. be genuinely held;
2. be more than a mere opinion or viewpoint;
3. concern a weighty and substantial aspect of human life and behaviour;
4. have a certain level of cogency, seriousness, cohesion and importance; and
5. be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

In the last few years, Tribunals have had to grapple with the question of whether gender critical beliefs meet this standard.

In October 2019, in the case of Mackereth v Department for Work and Pensions and anor, an Employment Tribunal held that a Christian doctor’s beliefs that God created males and females and that people cannot choose their gender or change their sex were not protected beliefs as they were incompatible with human dignity and conflicted with the fundamental rights of others.  Dr Mackereth’s appeal of this decision is due to be heard in October 2021.

A few months later, in December 2019, at a Preliminary Hearing in the case of Forstater v CGD Europe and ors, an Employment Tribunal held that Ms Forstater’s beliefs that being male or female is a biological fact (as opposed to a feeling or identity) and that people cannot change their sex were not protected beliefs as they were not worthy of respect in a democratic society and were incompatible with human dignity and conflicted with the fundamental rights of others.  Ms Forstater appealed this decision and her appeal was heard in April 2021.

By contrast, in October 2020, in the case of Higgs v Farmor’s School, an Employment Tribunal held that Ms Higgs’ beliefs that people cannot choose their gender or change their sex were worthy of respect in a democratic society and were protected beliefs.  However, the Tribunal also found that Ms Higgs had not been disciplined and dismissed because of those beliefs, but because of inflammatory language she had used in Facebook posts which could have led readers to believe she was homophobic and/or transphobic.  Ms Higgs is seeking permission to appeal this decision.

Also relevant is the Tribunal’s decision in September 2020 in the case of Taylor v Jaguar Land Rover Ltd, where it was decided that a worker who was transitioning from male to female, and who self-identified as non-binary and gender fluid, was protected from discrimination on the grounds of gender reassignment despite not undertaking a surgical transition.

This briefing considers the Employment Appeal Tribunal’s (EAT) decision in Ms Forstater’s appeal. This is important because it is the first appellate (and, therefore, binding) decision on the matter.

What happened in this case?

Ms Forstater was a visiting fellow of CGD Europe and also worked on specific projects for them on a consultancy basis.  CGD Europe is linked to the Centre for Global Development based in the US. 

Ms Forstater believes that:

• Being male or female is a biological fact which is not capable of being changed and is not a feeling or identity. As a result, in her view, a trans woman is not really a woman and a trans man in not really a man.
• A person can identify as another sex, ask people to refer to them by their identified sex and change their legal sex, but this does not, in fact, change their actual sex.

In late 2018, Ms Forstater began expressing her beliefs on her personal Twitter account.   Colleagues from the Centre for Global Development in the US saw her tweets and raised concerns that they were transphobic and offensive.   The matter was investigated, and the decision was taken not to renew Ms Forstater’s visiting fellowship and to end her consultancy work.

Ms Forstater claimed that she had suffered direct discrimination and harassment because of her philosophical beliefs.  At a Preliminary Hearing, the Employment Tribunal held that Ms Forstater’s beliefs satisfied the first four criteria needed to acquire protection from discrimination (see above).  However, they decided the beliefs were not worthy of protection in a democratic society because they were absolutist and meant that she would refer to a person by the sex that she viewed as appropriate, even if this meant violating their dignity or creating an intimidating, hostile, degrading or offensive environment for them.  Although it was true that Ms Forstater had a right to freedom of expression (arising under the European Convention of Human Rights (ECHR)), this was not an absolute right and could be infringed where the beliefs being expressed violated the rights of others, as was the case here.

Ms Forstater appealed to the EAT.

What was decided?

The EAT allowed the appeal, holding that Ms Forstater’s beliefs were protected philosophical beliefs under the Equality Act 2010.    

The EAT said the Tribunal had erred in its application of the fifth criterion needed to acquire protection from discrimination, namely that it be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.  Only the most extreme beliefs the expression of which would be akin to Nazism or totalitarianism or which incited hatred or violence would be excluded for failing to satisfy that criterion. 

Ms Forstater’s gender critical beliefs did not seek to destroy the rights of trans persons and did not fall into that category.  Although her beliefs may be offensive to some and could even result in the harassment of trans persons in certain circumstances, they were protected under the right to freedom of thought, conscience and religion under the ECHR and as philosophical beliefs under the Equality Act 2010. 

The EAT acknowledged that some trans people would be disappointed by the judgment and it took the opportunity to correct any misconceptions about the decision.  The EAT stressed that:

• the EAT had not expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing;
• it does not follow that those holding gender-critical beliefs are free to misgender trans people with impunity. Whether or not such conduct would amount to harassment or discrimination will be for a Tribunal to determine in a given case;
• trans people are protected from discrimination and harassment.  The protected characteristic of gender reassignment may apply to a proportion of trans people, but there are also other protected characteristics that could potentially be relied upon in the face of such conduct; and
• employers are capable of providing a safe environment for trans people.  Employers continue to be vicariously liable for acts of harassment and discrimination against trans people committed in the course of employment (save where reasonable steps have been taken to prevent such actions).

The case has been sent back to the Employment Tribunal to decide whether Ms Forstater was, in fact, discriminated against and/or harassed because of her gender-critical beliefs.

What does this decision mean for employers?

Employers must now be ready to navigate this clash of rights.

On the one hand, gender critical beliefs are protected beliefs and workers should not be discriminated against or harassed for holding such beliefs (for example, by being gossiped about, shunned or labelled as a “transphobe” or “bigot”). 

On the other hand, trans workers are also protected from discrimination and harassment on the grounds of gender reassignment (for example, by misgendering them) and potentially other grounds.  Further, other workers who are not trans themselves may find the expression of gender critical views to be offensive and also complain of harassment. 

In either case, employers can be vicariously liable for acts of discrimination or harassment committed by its workers.  What practical steps can employers take to manage this risk?

• Update relevant polices to reflect the fact that those holding gender critical beliefs and trans workers are protected from discrimination.
• Set out the standards of behaviour expected from staff, including the need to treat colleagues with dignity and respect. Explain that disciplinary action will follow where staff fail to meet such standards, up to and including dismissal.
• Ensure that such policies are actually communicated and read by staff. Consider asking staff to provide a written acknowledgement that they have read and understood them.
• Deliver equality training to staff, ensuring that it is thoughtful and forcefully presented and refreshed at regular intervals. As a recent case showed, a failure to do this may mean you cannot rely on the defence that you have taken all reasonable steps to prevent discrimination.
• Respond quickly and effectively to complaints of discrimination or harassment.
• Continue to monitor this fast-moving area of law, in particular, the appeals in the Mackereth and Higgs cases and also the forthcoming Tribunal decision in the Forstater case itself.

Forstater v CGD Europe and others

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

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″][et_pb_row _builder_version=”3.26.6″][et_pb_column type=”4_4″ _builder_version=”3.26.6″][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” sticky_enabled=”0″]In Dobson v North Cumbria Integrated Care NHS Foundation Trust the EAT ruled that Employment Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.  This approach may help working mothers show that onerous working patterns are indirectly discriminatory on the grounds of sex.

What does the law say?

In the employment context, indirect discrimination occurs where:

• The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
• The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
• The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
• The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Dobson was employed as a community nurse by an NHS Trust, working in a team made up of nine women and one man.  She had three children, two of whom are disabled.  Her childcare responsibilities meant that she only worked on Wednesdays and Thursdays each week.  In September 2016, the Trust asked its community nurses to work flexibly, including occasional weekends (but not more than once a month).  Ms Dobson refused due to her childcare commitments and was dismissed in July 2017.

Ms Dobson claimed that that her dismissal was unfair and indirectly discriminatory on the grounds of sex. (She also brought a claim for victimisation which is not discussed in this briefing).  The Employment Tribunal dismissed the unfair dismissal claim holding that the Trust had explored reasonable alternatives with Ms Dobson, which she had rejected.  Ultimately, the increasing demands on the Trust’s service meant that it was reasonable for it to conclude that there was no other option but to dismiss.

In relation to the indirect sex discrimination claim, the Tribunal concluded that the claim failed because there was no evidence that the requirement for community nurses to work flexibly including at weekends caused particular disadvantage for women compared to men.  Everyone else in Ms Dobson’s team, including the eight other women, was able to comply with the PCP.

Although the Tribunal had sympathy with Ms Dobson’s particular situation, it said the fact that she is a parent of disabled children is not a protected characteristic that she could rely on in an indirect discrimination claim.  In any event, the Tribunal concluded that if it were wrong about the lack of group disadvantage, the Trust would have been able to justify the new week-end working requirement , meaning the claim would still fail.

Ms Dobson appealed to the Employment Appeal Tribunal (EAT).

What was decided?

Ms Dobson’s appeal was allowed, and the case has been remitted to the Employment Tribunal.  We discuss the key grounds of appeal and the EAT’s decision on each one below.

Indirect sex discrimination

(i) Wrong pool used for determining group disadvantage

The first key ground of appeal was that the Tribunal had gone wrong by only considering group disadvantage in the context of Ms Dobson’s small team, rather than for all community nurses working across the Trust.

The EAT agreed.  Since the new rule applied to all community nurses, the logical pool for determining group disadvantage was all the community nurses working for the Trust.  It was wrong to look only at Ms Dobson’s team.  This produced a potentially unrepresentative pool in terms of childcare responsibilities.

(ii) Failure to take judicial notice of the “childcare disparity”

The second key ground of appeal was that the Tribunal had erred in requiring Ms Dobson to produce evidence of group disadvantage.  Instead, this was a case where the Tribunal ought to have taken “judicial notice” of the fact that women are more likely than men to bear the bulk of childcare responsibilities and that this may limit their ability to work certain hours.  “Judicial notice” means to accept something as fact without it needing to be proved.

This fact has already been recognised in many other employment cases, including by the Court of Appeal in London Underground v Edwards (No.2) and the Supreme Court in Essop v Home Office (UK Border Agency).  Requiring evidence on each occasion would make the bringing of such claims more difficult than it already is.

The EAT accepted that authorities have established that women bear the greater burden of childcare responsibilities than men and this limits their ability to work certain hours.  It also accepted that judicial notice of this “childcare disparity” had been taken without further enquiry on several occasions.  As such, it was a matter that Tribunals must take into account if relevant.  However, the EAT accepted that this does not mean the matter is set in stone.  Of course, things can change over time.  However, this was not the case as far as the childcare disparity is concerned.  The EAT said: “Whilst things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal.”

The EAT concluded that the Tribunal had erred in not taking judicial notice of the childcare disparity and in treating Ms Dobson’s case as unsupported by evidence.

(iii) Objective justification

The EAT agreed that the Tribunal’s finding on objective justification was unsafe given the error made in relation to the pool and group disadvantage.  Objective justification would, therefore, have to be revisited (however, it is still possible that the Trust may be able to justify the discrimination).

Unfair dismissal

The reason for dismissal was Ms Dobson’s inability to comply with the requirement for community nurses to work flexibly, including at weekends.  This was inextricably linked to the revised working arrangements giving rise to the alleged indirect discrimination.

Having found that the Tribunal had erred on the indirect discrimination claim, the EAT agreed that a different outcome in that claim might mean that a different conclusion should be reached in the unfair dismissal claim.  In other words, if it is decided that the new working arrangements were indirectly discriminatory, then dismissal for failing to comply with that requirement might be outside the band of reasonable responses and unfair.

What does this decision mean for employers?

The fact that Tribunals must take judicial notice of the childcare disparity (for as long as it persists) helps women bringing indirect sex discrimination claims connected to working patterns.  But it’s worth remembering that this does not inevitably mean that group disadvantage will be present – it will always depend on the particular rule or practice in issue.  A rigid requirement to work weekends, nights or unpredictable hours will usually mean that group disadvantage will follow.  But a less onerous provision (e.g. working any period of 8 hours across a fixed window of time) might not necessarily disadvantage those with childcare responsibilities and, in fact, might even favour them.

Employers should also note that in cases like this, “disadvantage” does not have to mean that compliance is impossible.  Women can still be disadvantaged by a PCP relating to working patterns, where they could comply, but this would cause them difficulties and/or force them to make arrangements for someone else to take responsibility for childcare (including their husband or partner).

The key take-away for employers is to avoid imposing rigid and onerous working patterns on women with childcare responsibilities.  Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties.  Even if this proves to be impossible, the efforts made here will help employers demonstrate that they have acted proportionately and will help to justify the chosen pattern.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

If you would like to discuss any issues arising out of this decision please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″][et_pb_row _builder_version=”3.26.6″][et_pb_column type=”4_4″ _builder_version=”3.26.6″][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” sticky_enabled=”0″]

World Whistleblowers Day (23 June 2021) looked at how best to support the mental wellbeing of whistleblowers.  What can employers do to empower staff to speak up about malpractice and protect whistleblowers from reprisals?  We round up five actions that employers can take to support whistleblowers within their business.

1. Encourage the reporting of malpractice

Legal protection for whistleblowers is not as far reaching as many employers believe.  Only “workers” and “employees” are covered, meaning that some groups such as job applicants, interns and self-employed contractors are unprotected.   Furthermore, protection is only available where the disclosure concerns one of the specified types of malpractice listed in the legislation.  While it is down to the Government to close these gaps and extend legal protection, employers have an important role to play in encouraging everyone to report all forms of malpractice, regardless of the legal position.

Some sectors have already been leading the way.  In September 2016, the financial services sector introduced its own whistleblowing rules which extend to all whistleblowers, not just those protected by law.  Under the rules, a “whistleblower” is defined as someone who discloses a “reportable concern”, which, in turn, means “any concern” about the activities of the firm.

A company statement that all reports of wrongdoing will be reviewed and, where appropriate, investigated, and that all whistleblowers will be protected by the company, should provide reassurance to those considering blowing the whistle and ensure that wrongdoing comes to light.

2. Establish whistleblowing arrangements and communicate them to staff

Outside of certain sectors, there is currently no requirement for employers to establish whistleblowing reporting channels and communicate these to the workforce through a whistleblowing policy.  Firms regulated by the FCA or PRA are obliged to implement internal arrangements which, among other things, require the firm to:

• respect the confidentiality of whistleblowers and permit anonymous disclosures;
• permit disclosures to be made through a range of communication methods;
• ensure the effective assessment and escalation of concerns within the firm and to the regulator;
• providing appropriate feedback to whistleblowers; and
• prepare and maintain written whistleblowing procedures that are readily available to staff.

After two years in place, a review of this framework found that the rules helped firms to implement effective whistleblowing arrangements and manage disclosures fairly and consistently, while also protecting whistleblowers from reprisals.

Lessons can be learnt from this: a clear approach communicated to staff is the best way for employers to manage whistleblowing disclosures consistently and support the whistleblower. Indeed, the Government’s guidance on whistleblowing also recommends that employers adopt whistleblowing policies, noting that: “By having clear policies and procedures for dealing with whistleblowing, an organisation demonstrates that it welcomes information being brought to the attention of management.”  The guidance includes a helpful checklist of what such policies should include.

From 17 December 2021, the EU Directive on Whistleblowing will require employers with 50 or more employees based in EU member states to have internal whistleblowing procedures which offer a range of reporting mechanisms.  The UK Government has not indicated whether legislation will be brought in to align with the new Directive, but this is an area to watch.

3. Appoint a whistleblowers’ champion

Allocating overall responsibility for internal whistleblowing arrangements to a senior person is a sensible step for employers.  Not only does it show senior “buy in” to the arrangements, it provides staff with an identifiable point of contact with whom to raise concerns in appropriate cases.

Firms in the financial services sector are obliged to appoint a non-executive director into this role – dubbed the “whistleblowers’ champion”.  The whistleblowers’ champion oversees the integrity, independence and effectiveness of the firm’s whistleblowing arrangements.  Further, the whistleblowers’ champion must have access to resources, including independent legal advice and training, to enable her/him to carry out that role, although s/he is not expected to have a day-to-day operational role handling disclosures.

4. Train staff about whistleblowing

There is evidence that the percentage of whistleblowers with under two years’ service has dropped in recent years, with the figure falling from 44% in 2015 to 39% in 2018.  This downward trend could suggest that firms are not doing enough to empower new joiners to voice concerns.  One way to improve this would be through targeted training.

Yet there is no general requirement for employers to train staff about whistleblowing (although the Government guidance does recommend that such training is delivered).  Although it is not yet clear whether the UK will align, the EU Directive on Whistleblowing will require employers to whom it applies to provide whistleblowing training to staff.

There have been calls for mandatory training to educate staff about whistleblowing, similar to the requirements in the financial services sector.  The FCA and PRA rules already require tailored training to be delivered to:

• all UK-based employees;
• managers of UK-based employees (wherever they are based); and
• all employees who are responsible for operating the internal arrangements (wherever they are based); and
• the “whistleblowers’ champion”.

All employers would benefit from providing this kind of tailored training to staff.  It will help junior staff understand how to raise concerns and ensure that managers and HR teams know when an issue could amount to both a personal grievance and a wider whistleblowing concern.  This is particularly important given that there is evidence that employees are increasingly likely to view discrimination and harassment as a whistleblowing issue.

Importantly, training will also help employers defend claims that they are vicariously liable for acts of victimisation by co-workers.  Employers may have a defence to such claims where they can demonstrate they have taken “reasonable steps” to prevent such treatment.  Such steps will include things like having a well-communicated policy and delivering training to staff.  However, as was made clear in a recent case, for employers to be able to rely on this defence, such training needs to be “thoughtful and forcefully presented”, rather than “brief and superficial”.

5. Proactively protect whistleblowers from victimisation

Victimisation is still a major problem for whistleblowers.  Protect’s Silence in the City 2 Report revealed that 35% of whistleblowers reported having been victimised by managers or co-workers.  The All-Party Parliamentary Group for Whistleblowing also reported that more whistleblowers are going off sick than ever before (39% in 2018, up from 24% in 2015).

There are steps employers can take to combat victimisation.  Indeed, some financial services firms have adopted particularly good practices in this area, such as monitoring employment records for 12 to 18 months after a concern had been investigated to check whether the whistleblower had been victimised.

Employers should devise a strategy addressing how they will protect whistleblowers from victimisation.  This could cover “front end” steps such as well-publicised procedures and firm-wide training, to “back end” steps such as having regular follow-ups with the whistleblower for a period after they have blown the whistle and disciplining perpetrators of victimisation.  As well as tackling victimisation head on, this strategy should have the added benefit of helping the employer establish the reasonable steps defence in a vicarious liability claim.

If you would like to discuss how BDBF can help your business implement an effective whistleblowing strategy please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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1. Whistleblowing is the act of a worker passing on information concerning malpractice or wrongdoing of some kind, usually witnessed in the course of their employment.

2. The Public Interest Disclosure Act 1998 (“the Act”) makes it unlawful for an employer to dismiss or to subject any worker to a detriment on the grounds that they have made a ‘protected disclosure’.

3. Protection from dismissal under the Act arises from day one. This means that you do not need to have been working at your employer for any minimum length of time to be protected.

4. It is a good idea to make your protected disclosure in writing, clearly setting out your concerns.

5. Make clear that you are making a protected disclosure and that it falls under one of the following categories: criminal offences, failure to comply with a legal obligation, miscarriages of justice, endangering someone’s health or safety, damage to the environment or concealing wrongdoing of the above.

6. Think carefully about who to make the disclosure to e.g. is your line manager in the first instance the most appropriate person?

7. Review your employer’s whistleblowing policy (should they have one) before making the disclosure and follow the procedure it sets out.

8. Always act in a timely manner if you have suffered a detriment or been dismissed.

9. Time limits for bringing an employment tribunal claim are strict and apply even where an internal grievance process or investigation is ongoing.

10. Take advice as soon as possible to maximise the protection available to you and ensure you do not miss any time limits to bring a claim.

For more information, please see our article.

If you would like to know more, or your business needs advice, please contact Theo Nicou (TheoNicou@bdbf.co.uk) on 020 3828 0350 or get in touch with your usual BDBF contact.

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The word “whistleblower” derives from 19th Century U.S. police officers who blew their whistles to alert citizens to riots. Nowadays, the term is used to describe anyone who conveys information highlighting wrongdoing in the public interest.

The purpose of World Whistleblowers Day (23 June) is to raise awareness of the important role that whistleblowers play in the combating of corruption and maintenance of national security.

In the employment law context, whistleblowing disclosures are less likely to relate to national security issues than to legal obligations relating to the running of the business and individuals’ conduct. However, given the strong public interest in the exposure of civil and criminal wrongdoing, individuals making disclosures play an important role in reducing unlawful and unethical behaviour in our society.

UK employment law grants important protections to whistleblowers. It is unlawful to subject someone to a ‘detriment’ or to terminate their employment because they have blown the whistle. Doing so leaves the employer, and the individuals responsible, liable to a potential claim for compensation that is not capped by statute in the way that a standard unfair dismissal claim is.

For claimants who have been dismissed because they have blown the whistle, one of the most powerful tools in their litigation armoury is the right to make an application for interim relief.

What is interim relief?

Interim relief is only available to claimants bringing a small number of specific claims for automatic unfair dismissal in the Employment Tribunal. In our experience, interim relief applications are most commonly brought in relation to whistleblowing dismissals.

In order to make an application for interim relief, the claimant must submit a claim for automatic unfair dismissal and  make an application for interim relief within seven days of the date of dismissal. The Tribunal is then required to list a hearing “as soon as practicable”.

A claimant will succeed in their application if the Tribunal is satisfied that they are “likely” to succeed in their claim for automatic unfair dismissal at the Final Hearing. Put another way, the claimant needs to have a “pretty good chance” of success (Taplin v. Shippam).

If the Tribunal grants the application, it must then ask the respondent whether it is willing to reinstate the claimant in their previous role, or reengage them in a suitable alternative role, pending the determination of the full claim at the Final Hearing. If the respondent is willing to reinstate then the claimant goes back to work. Where (much more commonly) the respondent is not willing, the Tribunal will make a ‘continuation order’, meaning the respondent is ordered to pay the claimant as if their employment contract was still continuing, until the Final Hearing.

Sums paid to a claimant under a continuation order are irrecoverable. This means that a claimant does not have to repay the salary paid under the order even if they ultimately lose their claim at the Final Hearing. This makes interim relief a potentially very valuable remedy for claimants, and burdensome one for respondents.

Interim relief – public or private?

BDBF recently acted for the successful claimant in Queensgate Investments LLP v Millet, an Employment Appeals Tribunal decision which confirmed that interim relief applications should be heard in public.

This is the first appellant authority on this point and is of particular importance given the public interest nature of whistleblowing cases.

The majority of the EAT’s decision focussed on the construction of the Employment Tribunals (Constitution and Rules of Procedure) 2013, finding that the wording of these rules required interim relief applications to be heard in public. However, the EAT also emphasised the importance of the principle of open justice when interpreting rules of procedure, with the need to resolve any ambiguity in favour of the principle of open justice.

In our view, the principle of open justice is of particular importance when Tribunals are considering whistleblowing cases as if interim relief applications were heard in private, the disclosures, made in the public interest would be heard by the public for the first time at the Final Hearing. This would deny the public the ability to scrutinise the allegations. This is perhaps particularly important at a time when claimants are experiencing very lengthy delays in reaching the Final Hearing in some Employment Tribunals.

What does this mean for whistleblowers?

Given the very short time limit for making an interim relief application, it is important that anyone who considers they have been subjected to a detriment, or are about to be dismissed, as a result of blowing the whistle seeks legal advice as soon as possible. Doing so will put them in the best possible position to make an application for interim relief, in the appropriate case.

If you want to find out more about whistleblowing, please contact Clare Brereton (ClareBrereton@bdbf.co.uk) or Gareth Brahams (GarethBrahams@bdbf.co.uk) on 020 3828 0350 or get in touch with your usual BDBF contact.

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