The Lifecycle of a Working Woman

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Today is International Women’s Day, and this year’s theme is #BreakTheBias.

Research shows that, despite this awareness day being celebrated for over a century, almost 60% of women experience bias at work. Whilst many believe gender inequality is a thing of the past, this is sadly not our experience as employment advisors to many women.

In order to stop the cycle of bias, whether conscious or not, it is important to understand the life-stages in a woman’s career where they may face obstacles. In this article, BDBF Associate Blair Wassman explores the lifecycle of a woman at work, the various barriers they may face during that time, and what employers can do to ensure women flourish.

Finding a job

I recall going to many job interviews whilst looking for a training contract, where I was frequently asked: “are you in a serious relationship?”, “do you want to get married?” “do you want to have children?”. As a young woman of 22, I had no idea what I was going to eat for lunch let alone what the next ten to fifteen years of my life looked like. But, if I answered ‘yes’ or ‘maybe’ to any of these questions, the usual response was “are you sure law is for you?”.

Colleagues have had similar experiences and recall not wearing their wedding bands or engagement rings to avoid these questions to secure the job. This reflects the bias that women face, or perceive that they will face, when seeking work.

Assumptions about women’s life choices mean that women fear they will be seen as a burden on the business as opposed to vital and necessary contributors. The inappropriate questions employers ask women during interviews, as well as the outdated notion that all women want to have a family have no place in a modern society.

Additionally, we encounter women who are unable to secure a flexible role which enables them to balance their work with personal life. A positive outcome of the pandemic is that many companies are moving to a more hybrid/flexible working regime which helps those who are trying to achieve work-life balance. However, this is not without consequences with many reporting a lack of ‘face time’ contributing to preference of male counterparts. More on that below.

Progression, Promotions and Pay

Women are frequently overlooked for promotion, suspicious that the decision may have been motivated by a concern of impending or likely maternity leave. The same is true of women with other caring responsibilities, for example caring for elderly relatives or older children with additional needs.

Despite the progress made over the years, the reality is that the majority of primary caregivers are women. But why? Is it because men overall still get paid more than women, they are not given the opportunity to take extended periods of leave as is the case with maternity leave or perhaps because of historical habits, women are the “natural selection” to stay at home?

Whatever the explanation, it follows that women are more likely to want to work flexibly meaning they may not have a physical presence in the office as often as male colleagues. This presents ‘out of sight, out of mind’ concerns. This is becoming even more common following the pandemic. UN Women have analysed the impact of the pandemic, and in its brief it states that:

“[a]vailable data from 38 countries overwhelmingly confirm that both women and men have increased their unpaid workloads, but women are still doing the lion’s share. Women are also taking on a greater intensity of care-related tasks than men. Meanwhile, parents are getting more help from daughters than sons. Worryingly, more women than men are leaving the workforce, perhaps as a result of these increased workloads. The economic fallout, including loss of jobs and livelihoods, is expected to push millions of additional people into extreme poverty – and women and girls stand to be the hardest-hit.”

Another difficulty women face is that employers pay them less than their male counterparts. Recent research shows that unequal pay remains prevalent because employers ask women at interviews how much they earn, and employers are less inclined to offer women more than they earned previously. This perpetuates historical pay discrepancies. Statistics have also revealed that women are far less likely to negotiate for higher salaries when moving jobs as men in the same position. You can read more about the gender pay gap and equal pay here.

Starting a family

For those who wish to have a family, they may need to take time away from work. Whether it be because of antenatal appointments, pregnancy-related illness, maternity leave, adoption leave, shared parental, parental leave, or flexible working arrangements, many women are concerned about balancing having children with a career. Sadly, we find that concern can be well placed.

Positively, women have enhanced rights, including whilst pregnant and during maternity leave. One such rights is additional protection during a redundancy process during maternity leave. However, it is not uncommon for employers to simply postpone redundancies to avoid this additional protection. As part of the Good Work Plan, we hope to see reform to extend this protected period. You can read more about women’s rights whilst pregnant or on maternity leave here.

As a result of the impact of starting a family on a woman’s career, many women delay starting families to focus on their careers first. This gives rise to less obvious obstacles which are becoming more common in the workplace. Most employers are familiar with their maternity leave obligations, but less is known about the challenges faced by women who want to start a family. Issues such as pregnancy-related illness or miscarriage are forgotten, taboo or employers are not equipped to deal with them. Another area which deserves attention is fertility challenges, and the impact that has on a woman’s career due to the time needed to attend fertility appointments, and the emotional and physical effects of fertility treatment.

Menopause

There has been a significant push over the past 20 years to get women into senior positions. However, women reaching those senior positions are doing so around the time they enter their menopausal journey, which on average lasts for a period of 10 years.

Women can suffer a variety of debilitating symptoms during menopause, which naturally impacts their working life. In our experience, this can lead to women losing their jobs, not being adequately supported at work or being subjected to harassment.

There have been significant developments over the past year or so in raising awareness about this important stage in a woman’s life, including a case of discrimination being brought and won in the employment tribunal by a woman experiencing the menopause. We welcome this movement and hope that going forward the stigma around this topic will be no more. You can read more about the menopause and these developments here.

How do we break the bias?

Whilst a woman’s journey may differ depending on the lifepath they choose, the reality is that every woman is likely to encounter at least one of the events described above during their career. As employment and discrimination solicitors we are acutely aware of the impact that unfair and outdated practices can have on a woman’s career. Whilst many businesses are tackling these issues head-on, others are turning a blind eye. Perceptions need to change in order to level the playing field. Equality will not be achieved by allowing women to take enhanced maternity leave. Rather, employers need to educate their workforces, encourage men to take paternity leave, provide enhanced paternity leave and better options for shared parental leave.

A few simple steps can make a positive difference to a career woman, including:

Keep an open mind and avoiding assumptions;
Ensure there are no unequal pay practices in your business;
Offer enhanced maternity, paternity, shared parental and adoption leave;
Encourage men to take paternity leave / shared parental leave;
Offer enhanced parental bereavement leave;
Offer flexible working;
Implement effective policies to address discrimination, bullying and harassment;
Implement effective policies to address menopause, fertility treatment, and pregnancy related events and illnesses;
Educate managers about menopause and the impact it can have on women’s health to ensure that adequate support is in place if and as needed; and
Nominate workplace champions and inviting open discussions in the workplace about gender equality.

This International Women’s Day, we pay homage to those who have fought for equality through the years and we celebrate the strides that have already been taken to empower and support women in business. However, there is further to go, and we hope that by raising awareness about the journey of the working woman employers will be inspired to look at their business and workforce, and take proactive steps to #BreakTheBias.

You can read more about the movement and the various events on the IWD website.

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Living with Covid: what does the end of self-isolation mean for employers?

On 21 February 2022, the Prime Minister announced the end of the Government’s Covid restrictions in England and a move towards personal responsibility. In this briefing we explain the changes and the key risks for employers.

What is changing and when?

The following changes will take effect on 24 February 2022:

Self-isolation: between 24 February 2022 and 31 March 2022 (the self-isolation transitional period) those who test positive for Covid will be advised to stay at home and avoid contact with other people for at least five full days if they can, but they will not be legally required to do so. They may resume their normal routine once they have tested negative on two consecutive days (from day five onwards).
Notifying employers: individuals will no longer be required to notify their employers that they have been advised to self-isolate.
Support payments and SSP: the £500 self-isolation support payment for people on low incomes will end. However, the special Covid provisions for Statutory Sick Pay (SSP) will end a month later on 24 March 2022 (i.e. from this date, Covid sickness or self-isolation will no longer mean an individual is automatically deemed incapacitated and entitled to SSP from day 1 of their sickness or self-isolation).
Contact tracing: routine contact tracing will end. Those who are fully vaccinated (or under 18) and are close contacts of a positive case will no longer be asked to test daily for seven days. Those who are not fully vaccinated and are close contacts of a positive case will no longer be required to self-isolate.

The following further changes will take effect on 1 April 2022:

Self-isolation: those with Covid symptoms will be encouraged to “exercise personal responsibility” and show consideration to others, but will not be required, nor advised, to stay at home.
Covid testing: free LFT and PCR testing will end for the general public (PCR tests will remain available for social care workers and certain vulnerable groups).
Risk assessments: the requirement for employers to explicitly consider Covid in their health and safety risk assessments will be removed.
Guidance for employers: the “Working safely” guidelines for employers in different sectors will be replaced by new public health guidance, which will urge employers to continue to consider the needs of those at greater risk from Covid.
Covid certification: the use of voluntary Covid-status certification will no longer be recommended for use (although the NHS app will still allow people to indicate their vaccination status for international travel).

How should employers handle Covid positive employees during the self-isolation transitional period and what are the risks?

During the self-isolation transitional period, employees will still be able to access free LFT and PCR tests and discover whether they have Covid. Where they test positive, the Government’s advice is that they should self-isolate for at least five full days, but this is no longer a legal requirement. Employees will not be legally required to notify the employer that they have tested positive for Covid and advised to self-isolate. It would, therefore, be sensible for employers to introduce their own requirement for employees to notify them if they test positive for Covid.

Where a Covid positive employee is unwell during this period, they will usually take sick leave in the normal way. However, where a Covid positive employee is fit to work the employer will need to decide its approach. Will such employees be permitted to attend the workplace or directed to stay at home? Below we consider four possible scenarios that may arise and the associated employment law risks.

Scenario 1 – Employer directs the Covid positive employee to come into the workplace / Covid positive employee wishes to stay at home:

If an employer instructs a Covid positive employee to attend the workplace in these circumstances this would not breach any Covid-specific law, but it would be contrary to Government guidance and it may also breach wider health and safety legislation.

The employee may be able to argue some or all of the following:

It is not a reasonable management instruction and, therefore, non-compliance does not put them in breach of contract. If the employee was dismissed for non-compliance, they could argue the dismissal was unfair.
The instruction puts the employer in breach of (i) the implied duty to take reasonable care of the health and safety of employees; and/or (ii) the statutory duties arising under the Health and Safety at Work Act 1974. In theory, the employee could constructively dismiss himself / herself in response to those breaches.
That they will not comply with the instruction to attend the workplace because they are concerned about the health and safety risks of passing Covid onto their colleagues and the public at large (especially vulnerable and pregnant people) and the employer’s instruction puts those people at risk of serious and imminent danger.If the employee is subjected to a detriment (e.g. not paid) and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
That the voicing of concerns about attending the workplace in these circumstances represents a whistleblowing disclosure. If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
That they have a philosophical belief in the protection of public health and the compliance with Government guidance on the same, meaning that the instruction to attend the workplace is indirectly discriminatory. A similar argument failed in this recent case, but an employee may have more success if they could show that their belief concerned wider public health rather their own / their partner’s wellbeing.

Scenario 2 – Employer directs the Covid positive employee to come into the workplace / Covid positive employee is willing to attend the workplace:

In this scenario, the employer and employer are aligned but other employees may object to the attendance of a Covid positive employee at work (especially if they are vulnerable or pregnant). They could argue:

It is not a reasonable management instruction to ask them to attend work alongside a Covid positive employee and they may refuse to attend work. If an employee was dismissed for non-compliance with the instruction, they could argue the dismissal was unfair.
The instruction puts the employer in breach of (i) the implied duty to take reasonable care of the health and safety of employees; and /or (ii) the statutory duties arising under the Health and Safety at Work Act 1974. In theory, the employee could constructively dismiss himself/herself in response to those breaches.
That they will not comply with the instruction to attend the workplace because they are concerned about the health and safety risks of catching Covid and the employer’s instruction puts them at risk of serious and imminent danger (particularly pertinent if they are vulnerable or pregnant or live with someone who is). However, there have been cases where this argument has been run by employees who were dismissed earlier in the pandemic, and such dismissals were held to be fair. The difference now is that the employer would knowingly be placing an employee in close proximity to someone who had Covid, and they would be doing so contrary to Government guidance. If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
The voicing of concerns about attending the workplace in these circumstances represents a whistleblowing disclosure. If the employee was subjected to a detriment and/or dismissed as a result, then they may have claims for unlawful detriment and/or automatically unfair dismissal.
If the employee is pregnant, they may be able to argue that the employer has failed in its duty to assess specific risks for them and take measures to address those risks (i.e. keep the Covid positive employee out of the workplace), failing which they must be suspended from work on full pay.
If the employee is vulnerable and disabled, they could argue that an instruction to work alongside a Covid positive employee is indirect disability discrimination. If the employee is not disabled themselves, but had caring responsibilities for someone who is, then they could argue that the instruction to work alongside a Covid positive employee amounts to “associative” indirect disability discrimination.

Scenario 3: Employer directs the Covid positive employee to stay at home / Covid positive employee wishes to stay at home:

In this scenario, the employee and employer are aligned, and this shouldn’t present any problems provided that the employee is able to work from home. However, if the employee’s role cannot be performed from home, the question is how should such leave be treated? The position during the self-isolation transitional period is complicated.

As discussed above, the special Covid provisions for SSP will remain in place until 24 March 2022. This means that anyone who is sick or self-isolating due to Covid is automatically deemed to be incapacitated and is entitled to SSP from day 1 of their sickness or self-isolation (rather than the usual day 4). Therefore, if the employee stays at home and adheres to the self-isolation guidance, they will be entitled to SSP and contractual sick pay if applicable. However, if the employee refuses to adhere to the self-isolation guidance then they will not be entitled to SSP and the employer will need to decide how to treat this leave.

Further, from 24 March 2022, the special Covid provisions for SSP will be removed, meaning that an employee will only be entitled to SSP if they qualify in the normal way. One such qualification is that they are incapacitated. Therefore, a Covid positive employee who is fit to work will not be entitled to SSP. Again, the employer will need to decide how to treat this leave.

In such cases, the employer may elect to treat this leave as sick leave and pay it in the usual way. However, given that the absence it is not really attributable to sickness, will it count for (i) entitlement to contractual sick pay; and (ii) the purposes of any sickness absence management threshold? If it is counted for such purposes, then this could present issues at a later date if the employee becomes sick for another reason and has exhausted their entitlement to contractual sick pay and/or they are disciplined for their level of absence.

To avoid such issues, the employer could elect to treat the absence as some sort of special leave, but the key question will be whether or not it is paid. If it is paid, there should be no problem. If it is not paid, the employee could argue that the employee is in breach of the implied duty to pay wages and/or the implied duty of trust and confidence. The employee is likely to raise a grievance and may constructively dismiss himself/herself in response to those breaches.

Scenario 4: Employer directs the Covid positive employee to stay at home / Covid positive employee wishes to attend the workplace:

Here, the employee and employer are not aligned. However, this is likely to be a reasonable management instruction (given the Government guidance during the self-isolation transitional period) and so the employee should usually comply with it.

Again, this scenario shouldn’t present any problems provided that the employee is able to work from home. However, if the employee’s role cannot be performed from home, then the same issues outlined in scenario 3 above will arise.

How should employers handle Covid positive employees from 1 April 2022 onwards?

From 1 April 2022, free Covid tests will be withdrawn and so it will become harder to identify when employees have Covid. Where an employee reports Covid symptoms and is unwell enough not to attend work during this period then the assumption could simply be made that they have Covid without the need for a test. Such employees would take sick leave in the normal way.

Where the employee has some symptoms but is fit to attend work, then their status could be confirmed by way of a private Covid test. The Government has said that it is working with retailers to ensure that everyone who wants a Covid test can buy one. One question for employers will be who pays for the test in these circumstances? If the employer is asking the employee to take the test in order to be allowed to attend the workplace, then it would be reasonable for the employer to pay.

In addition, some employers have instituted routine Covid testing arrangements for staff. These arrangements may continue if the employer wishes, but, again, if the employer is asking the employee to take these tests before attending work it will probably have to foot the bill for them.

Where an employee tests positive for Covid after 1 April 2022, they will not be required, nor advised, to self-isolate. In tandem, the requirement for employers to specifically assess Covid risks will be removed, as will the special Covid “Working safely” guidance. On the face of it, therefore, it appears that employers will have greater flexibility to instruct Covid positive employees to attend work, without facing the risks that arise during the self-isolation transitional period. However, employers should review the new public health guidance when it is published and consult with their workforce before deciding their approach.

Prime Minister’s Statement

Living with Covid-19

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus pandemic. 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.

Bank ordered to conduct an equal pay audit of all employees within six months and publish its findings on its website

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An Employment Tribunal has ordered an employer who lost an equal pay claim to conduct, and publish the findings of, an equal pay audit showing whether it is paying men and women equally where required. The employer was also ordered to pay compensation of over £2 million to the female banker who brought the claim.

What happened in this case?

Ms Macken was a female banker working for BNP Paribas in London. She brought equal pay and sex discrimination claims against the Bank. She alleged that she had had been paid less than a male comparator, both in terms of basic pay and bonuses. She also complained that she had been the victim of sex discrimination at work, which included being spoken to in a demeaning way on numerous occasions and having a witch’s hat left on her desk one day by male colleagues.

In 2019, Ms Macken succeeded in her claims and a remedy hearing was due to take place in May 2020. This was postponed due to the pandemic and eventually went ahead in Spring 2021. The remedy judgment was published in February 2022 – and it had a considerable sting in its tail for the Bank.

What remedy was ordered by the Employment Tribunal?

The total compensation award was in excess of £2.08 million and included £401,797 for the equal pay claim, £860,120 for future losses, £35,000 for injured feelings and £15,000 for aggravated damages. Notably, aggravated damages was awarded in this case because the Bank had not offered Ms Macken a “genuine and heartfelt” apology and had failed to sanction one of the main perpetrators of her mistreatment. The award also included the sum of £317,016 for failing to deal with Ms Macken’s grievances in accordance with the Acas Code of Practice on Disciplinary and Grievance Procedures.

You might think that the reputational damage, £2 million compensation award and its own legal fees was punishment enough for the Bank. However, the most painful bit of the remedy judgment was yet to come.

The Tribunal went on to order the Bank to carry out an equal pay audit under the Equality Act 2010 (Equal Pay Audits) Regulations 2014 (Regulations). This is the first time that an Employment Tribunal has made such an order. The Tribunal said that the purpose of the audit is to enable a comparison of pay to explore whether the Bank is paying men and women equally where required.

Why did the Employment Tribunal order the Bank to conduct an equal pay audit?

Importantly for employers, the Tribunal noted that they did not have any discretion about whether to order the equal pay audit. This is because the Regulations state that such orders must be made where there have been breaches of equal pay law, unless the case falls within one of several exemptions.

For example, there are exemptions for micro businesses (i.e. businesses with fewer than 10 employees) and new businesses (i.e. businesses which began to carry out business in the year prior to the date of the claim). An employer will also be exempt where it has conducted an appropriate equal pay audit in the previous three years. None of these applied to the Bank.

However, there are further exemptions available which the Bank sought to rely upon, namely that:

it is not necessary to conduct an equal pay audit in order to identify the remedial action needed;
the breach was a one-off and there is no reason to think there may be other breaches; or
the disadvantages of conducting an equal pay audit would outweigh the benefits.

The Bank’s arguments and the Tribunal’s responses are discussed below.

Was it necessary to conduct an equal pay audit?

The Bank’s position was that it understood what action was needed to prevent equal pay breaches occurring or continuing without the need to conduct an equal pay audit. It highlighted that it had conducted internal equal pay reviews and had a remedial programme in place to address anomalies that may have existed.

The Tribunal accepted that the Bank had taken the liability judgment seriously and was making “excellent strides in the right direction”. However, this did not bring them within the exemption. The Tribunal noted that such cultural shifts take many years. More damningly, the Tribunal made a number of criticisms of the Bank’s approach.

The Bank has chosen to retain an opaque pay system, albeit with introduction of increased transparency around its job hierarchies.
The Bank had provided very little information about its internal equal pay reviews. They offered no information on the comparative process undertaken or how they could be confident that they had compared roles of equal value. Nor was any information given on the approach taken to material factors that justify pay differences between men and women. Further, no examples of the output of the reviews were provided to the Tribunal.
The Bank’s internal reviews did not extend to bonuses, even though the Tribunal’s finding had covered bonuses. The Bank’s position was that controls and checks were included in the bonus approval process to avoid discrimination. However, no information was given to the Tribunal about the nature of such checks or how discrimination was avoided.

In other words, much greater transparency was needed from the Bank if they wished to rely upon this exemption.

Was the equal pay breach a one off?

The Bank argued that the breach of equal pay law was a one-off in Ms Macken’s case and there was no reason to think that there were any further breaches afoot. The Tribunal rejected this argument, noting that a significant factor that led to Ms Macken’s claims being upheld was the comparison of the Bank’s pay policies and practices with the recommendations set out in the EHRC’s Statutory Code of Practice and Equal Pay Statutory Code. The Tribunal had found that the Bank’s practices fell short of the recommendations by a significant degree and largely because “it chose to have an opaque pay system in common with other financial sector organisations”. The logical conclusion was that other women working at the Bank may have been in the same position as Ms Macken.

Would the disadvantages of conducting the equal pay audit outweigh the advantages?

The Bank’s only argument here was that an equal pay audit would duplicate the work it would undertake for its own internal equal pay review process. The Tribunal gave this argument short shrift, noting that the Bank did not need to undertake an internal review if the equal pay audit could provide a substitute for that process.

What does the Bank now have to do?

Having rejected the Bank’s arguments that it fell within one of the exemptions, the Tribunal ordered them to produce an equal pay audit by 30 June 2022.

The audit must contain the relevant “gender pay information” for all those employed by the Bank between 1 January 2021 and 31 December 2021 (suitably anonymised). “Gender pay information” covers all monetary forms of remuneration including basic pay, pension contributions, allowances and discretionary bonuses, but not benefits in kind. Included within the scope of the audit are those whose employment ended within that period, employees absent on various forms of leave (and perhaps not in receipt of full pay) and both full and part-time employees. The Tribunal said the Bank should deal with these complexities via the use of pro-rated calculations.

The audit must identify any difference in pay between men and women and must include a “sophisticated analysis”whereby the Bank explains its approach to equal value. Finally, the audit must explain the reasons for any potential equal pay breach identified by the audit and set out a plan to avoid equal pay breaches occurring or continuing.

The Tribunal said that around six months was a “sufficiently generous timescale” to complete all of this work.

What happens after the equal pay audit has been completed?

The Bank’s nightmare does not end there.

After the equal pay audit has been submitted to the Tribunal, it will determine whether the audit complies with the Tribunal’s order. If it does not, the Tribunal may order the Bank to amend the audit until it is compliant. In these circumstances, it may also order the Bank to pay a relatively nominal penalty of £5,000. If an amended audit also falls short, further penalties may be ordered.

Once the audit is deemed compliant, the Bank will have 28 days to publish it on its website and leave it there for at least three years. It must also inform everyone whose gender pay information was included in the audit where they can obtain a copy. Therefore, this will cover both current and former staff.

If publication of the equal pay audit would result in a breach of a legal obligation then the Bank may publish a redacted version, or potentially not publish it at all. However, the Bank will have to explain its position to the Tribunal, giving the reasons for publishing a redacted version or withholding publication altogether. Ultimately, if the Tribunal is not satisfied with the reasons given, it can force publication of the equal pay audit.

What does this mean for employers?

Employers facing equal pay claims must always remember to factor in the risk of a Tribunal ordering an equal pay audit should they lose the claim. As noted in this case, the Tribunal has no discretion about whether to make such an order, unless one of the exemptions apply.

As well as the considerable amount of work involved in producing the equal pay audit itself, the audit must be made public. Where the audit reveals further unequal pay practices, this is likely to harm the employer’s reputation, damage employee relations and, potentially, trigger further equal pay claims.

Further, the employer must have committed to a plan to avoid equal pay breaches occurring or continuing. In future disputes, such employers should expect claimants to scrutinise what steps have been taken and capitalise on any failure to implement such plans.

Macken v BNP Paribas London Branch

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.

A further twist in the holiday pay saga: workers can recover unlimited compensation for both untaken and unpaid annual leave taken during their engagement

In the recent case of Smith v Pimlico Plumbers, the Court of Appeal held that a worker was entitled to claim compensation for unpaid holiday covering the entire period of his engagement. This included both holiday that he did not take and holiday that he did take but which was unpaid.

What does the law say?

The right of employees and workers to take paid annual leave comes from EU law. Under the Working Time Directive, they are entitled to take four weeks paid leave per year. In addition, the Working Time Regulations 1998 gives UK workers and employees an additional 1.6 weeks’ paid leave per year, taking the entitlement to 5.6 weeks’ paid holiday per year.

There has been a series of cases in recent years about the holiday entitlements of individuals who were wrongly classified as self-employed, and, as such, were not granted any paid holiday by the employer. In King v The Sash Window Workshop Ltd, the ECJ held that the right to paid holiday under the Working Time Directive was a single right and should not be spilt in two (i.e. one right to take annual leave and a second right to be paid for it). In that case, the ECJ held that Mr King was entitled to recover compensation for annual leave that he had not taken during his engagement. The initial interpretation of this case was that the ability to recover holiday pay was limited to holiday that workers had not taken and would not apply to holiday that workers had taken but for which they had not been paid.

In Bear Scotland Ltd and others v Fulton and others, the EAT held that claims for unpaid holiday pay can be brought as a claim for unlawful deduction from wages. The time limit for bringing such a claim is three months from the date of the last deduction. The EAT held that if more than three months had elapsed between two deductions then the chain of deductions would be broken and a claim for earlier deductions would be time-barred. Following this decision, the Government enacted regulations which imposed a two-year backstop on claims for unlawful deduction from wages.

What happened in this case?

Mr Smith worked for Pimlico Plumbers between 2011 and 2016. Throughout the engagement, Pimlico Plumbers maintained that he was a self-employed contractor and had no entitlement to paid holiday. As a result, Mr Smith took unpaid holiday during his engagement.

After the relationship ended, Mr Smith claimed that he had really been a worker, not a self-employed contractor, and was entitled to recover compensation for holiday pay that he should have been paid during the engagement. This included payment both for holiday that he had taken (but for which he was not paid) and for holiday that he did not take.

In 2018, the Supreme Court held that Mr Smith was a worker. As such, he was entitled to 5.6 weeks paid annual leave per year.

The question in this appeal was the extent to which Mr Smith could recover historic holiday pay, and specifically whether the decision in King meant that he could only recover holiday pay for holiday that he had not taken.

What was decided?

Applying the decision in King, the Court of Appeal held that the right to paid holiday was a “single composite right” to paid holiday, not two separate rights. If an employer refuses to recognise that a worker is entitled to paid holiday, forcing the worker to take unpaid holiday in order to have time off, then the worker is not exercising his right to paid holiday. This meant that Mr Smith could recover holiday pay for holiday that he had taken, as well as the remainder of his entitlement that he had not taken.

The next question was whether Mr Smith could recover holiday pay for the entire period of his engagement. UK law provides that the right to take the additional 1.6 weeks’ paid holiday can lapse at the end of the holiday year. However, under the Working Time Directive, the worker must have the opportunity to take the holiday in order for it to lapse.

The burden of showing this rests on the employer, who must show:

that it specifically and transparently gave the worker the opportunity to take the holiday;
that it encouraged the worker to take paid holiday; and
that it informed the worker that s/he would lose the right to paid holiday at the end of the holiday year if it were not taken.

If the employer cannot satisfy these conditions, then the right to take four weeks’ paid holiday will carry over until such time as the paid holiday is taken or the engagement ends. As Pimlico Plumbers could not satisfy these conditions, Mr Smith was entitled to recover compensation for holiday pay for the duration of his engagement.

Given these findings, the Court of Appeal did not specifically need to address whether the ruling in Bear Scotland was correct. However, it expressed a “strong provisional view” that the decision was not correct and that a series of deductions is not, in fact, broken by a gap of three months (although the two-year backstop would still apply to these claims).

What does this mean for employers?

This judgment will have the greatest impact on employers operating within the so-called gig economy, where there is scope for individuals to question their employment status. However, any employer who engages independent contractors should pause to consider whether they could, in fact, have worker status and be entitled to paid annual leave.

Employers should:

consider conducting a review of their workforce to identify any independent contractors who could be designated as workers and consider whether changes need to be made to the working relationship;
review employment contracts, holiday policies and practices around taking holiday to ensure that staff are genuinely able to take their paid holiday entitlement; and
remember that this decision only applies to four of the 5.6 weeks’ annual leave that a worker is entitled to under UK law.

Smith v Pimlico Plumbers

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

Employer not liable for an employee’s practical joke on a colleague which caused hearing loss

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In the recent case of Chell v Tarmac Cement and Lime, the Court of Appeal said that an employer was not liable for an employee’s practical joke which injured a contractor working at its site. The prank had not been done “in the course of employment” and nor was it realistic to expect employers to take steps to prevent horseplay in the workplace.

What happened in this case?

Mr Chell was employed by Roltec and contracted to work for Tarmac Cement and Lime Ltd (Tarmac) at one of its quarry sites. Tarmac’s employees were unhappy about the use of contractors at the site, fearing that they would be replaced by them. Tensions grew between the employees and contractors.

One of Tarmac’s employees, Mr Heath, decided to play a prank on Mr Chell. He brought two explosive pellets into work and placed them on Mr Chell’s work bench. He struck them with a hammer, causing them to explode. As a result, Mr Chell suffered a perforated eardrum, hearing loss and tinnitus.

Mr Chell brought a personal injury claim against Tarmac arguing that they were:

vicariously liable for the negligent actions of Mr Heath; and/or
negligent for breaching their own duty to take steps to prevent a reasonably foreseeable risk of injury.

The Judge dismissed the claims. Mr Chell’s appeal to the High Court was dismissed and he appealed again to the Court of Appeal.

What was decided?

The Court of Appeal dismissed the appeal.

Tarmac was not vicariously liable for Mr Heath’s prank. In order to be vicariously liable, the prank must have been done “in the course of employment”. For this to be the case, the prank would need to be closely connected to the field of activities that Mr Heath was authorised to do in his job. The Court found that this not the case. Mr Heath had brought the explosive pellets into the workplace – it was his own equipment and did not belong to Tarmac. Hitting the pellets was not a direct part of his work and nor was it in the general field of activities that he had been authorised to do.

Nor had Tarmac been negligent. The fact that there were underlying tensions in the workplace and that heavy and/or dangerous equipment was available was not enough to create a reasonably foreseeable risk of injury. There had been no threats of physical violence from Mr Heath to Mr Chell, or more generally. Even if there had been such a risk, the only relevant risk was a general risk of injury from horseplay. However, the Court said it would be unreasonable and unrealistic to expect employers to have a system in place to ensure that employees did not engage in horseplay.

What does this mean for employers?

This is a welcome decision for employers which underlines that they will not be liable for anything and everything that their employees do at work. There must be a sufficiently close connection between the wrongful act and the errant employee’s job role and activities. The fact that the employee’s job provides them with the opportunity to commit a wrongful act is not enough to establish a sufficient connection. There is a distinction between cases where the employee is misguidedly attempting to further his employer’s business interests and cases where the employee is simply “on a frolic of his own” and pursuing his own interests. An employee acting to further a personal vendetta is likely to be in the latter camp

Nevertheless, it would be sensible for employers to do their best to avoid this kind of situation arising in the first place (and spending the time and money fighting legal cases). Employers should ensure that employees understand that practical jokes are not tolerated in the workplace. Policies and training should reflect the fact that such jokes may breach health and safety rules and may also amount to bullying and harassment. Staff should understand that such behaviour could lead to dismissal.

Chell v Tarmac Cement and Lime Ltd

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.

BDBF Managing Associate, Tom McLaughlin talks to Financial News about LinkedIn and moving jobs

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LinkedIn has some 800million users globally and, at networking events, the traditional business card has given way to QR codes and NFC tags for ease of connecting. With professional networks being such a key part of many employees’ currency, who owns what on LinkedIn when switching jobs? And how else can social media land an employee in hot water if they become part of the #Great Resignation?

Managing Associate @Tom McLaughlin answers these questions in this article for Financial News. (subscription required):

https://www.fnlondon.com/articles/the-great-resignation-is-tempting-but-can-you-take-your-linkedin-contacts-with-you-20220216

Why telling LinkedIn contacts you’ve quit could breach your employment contract

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BDBF Partner Paula Chan speaks to the Evening Standard about how an employee’s activity on LinkedIn on moving jobs could breach their employment contract.

To view the article, please use this link: https://www.standard.co.uk/business/new-job-linkedin-contacts-breach-contract-employment-law-b983682.html

#restrictivecovenants #movingjobs #employmentcontract

Who owns LinkedIn contacts – an employee or employer?

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Who owns LinkedIn contacts – an employee or employer? Will an employee be in breach of their post-termination restrictions if they post on LinkedIn following termination of their employment?

Polly Rodway and Samantha Prosser discuss these thorny issues in this article published by International Employment Lawyer:

https://www.internationalemploymentlawyer.com/news/restrictive-covenants-and-social-media-whose-linkedin-contact-it-anyway

#emplaw #restrictivecovenants #linkedincontacts

BDBF settles high profile sexual harassment case

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BDBF is pleased to have reached a settlement on behalf of the Claimant in this widely reported sexual harassment case against the Dean of Christ Church, Oxford. BDBF’s Paula Chan, Melvyna Mumunie and Rebecca Rubin acted in this case together with Counsel from 11KBW, Sophie Belgrove and Ruth Kennedy.

You can read more about the resolution of the wider case, including our client’s statement here: https://www.ft.com/content/fe04e2b7-2a7e-4624-8bc0-982b654705f6

Nick Wilcox and Blair Wassman are quoted by Insurance Day

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Nick Wilcox and Blair Wassman are quoted by Insurance Day on team moves in the time of the Great Resignation. They consider common mistakes and myths, including the question of who owns the client relationship, steps employers should take if they face a team move and the impact of employee conduct on fitness and propriety under the Senior Managers Regime.

BDBF regularly provides specialist legal advice and representation in relation to competitive team moves on behalf of employers, individuals and hiring employers.

To access the full article click here (subscription required).

#thegreatresignation #teammoves #SMCR

BDBF is pleased to sponsor the French Chamber of Great Britain webinar

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BDBF is pleased to sponsor this French Chamber of Great Britain webinar looking at what employers need to know in 2022. Amanda Steadman, Emily Plosker and Tom McLaughlin will consider what should be on employers’ to-do lists this year including hybrid working, menopause in the workplace and how the ESG agenda impacts HR.

To register for the webinar please use the link below:

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Working from home guidance and other Plan B measures lifted

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On 19 January 2022, the Prime Minister announced that the Plan B contingency measures introduced to tackle the Omicron variant would be lifted, including the working from home guidance. In this briefing, we outline what is changing and what this means for employers.

Working from home

The latest round of working from home guidance came into force on 13 December 2021, with workers told that they should work from home if they could. Exceptions were made for those who could not work from home (for example, where they needed to access equipment necessary for their role, or where their role had to be completed in person). In addition, workers facing mental or physical health challenges, or those with particularly challenging home environments, were allowed to attend the workplace.

This guidance was lifted with effect from 19 January 2022. The Working Safely During Coronavirus Guidance for Offices (Office Guidance) confirms that workers no longer have to work from home. The Guidance says that employers should now talk to staff to agree arrangements to return to the workplace, consulting with workers where appropriate.

The lifting of the guidance means that employers can now resume office working, on a hybrid or full-time basis. However, employers are told they should “remain responsive to workers’ needs” and consult with them about health and safety measures in the workplace. In particular, extra consideration should be given to those who are at higher risk of severe illness from COVID and to those facing mental and physical health difficulties. This will include those who are clinically extremely vulnerable, disabled workers and pregnant workers. Special guidance is in place for pregnant workers.

Other changes

The other changes brought about by the lifting of the Plan B restrictions are discussed below.

Face coverings

From 10 December 2021, face coverings were required by law in some public indoor settings, such as theatres and cinemas, but not in hospitality settings. This was in addition to the existing requirement to wear them in shops, cinemas, premises that provide close contact services, transport hubs and on public transport. However, they were not required in office settings.

These requirements were lifted on 27 January 2022. However, people are advised to wear them in crowded and indoor spaces where they may come into contact with people they do not normally meet. The Office Guidance encourages the wearing of face coverings in offices in congested areas (e.g. corridors / lifts etc).

Changes to self-isolation rules

The rules on self-isolation have changed a number of times over recent months. The current default rules are that people infected with COVID-19 must self-isolate for a period of 10 full days. However, since 17 January 2022, it has been possible to be released from self-isolation on or after Day 6, provided the individual has had negative lateral flow tests on two consecutive days (e.g. negative results on Days 5 and 6 would mean release on Day 6). You can read more about these rules here.

The Government has said it intends to scrap self-isolation altogether after the current rules expire on 24 March 2022. The legal rules are likely to be replaced with advice and guidance. Without strict legal rules in place, employers will have to consider their approach to the issue and whether someone who has tested positive for COVID and is feeling well should be prevented from attending work (this is discussed further below).

Isolation and sick pay

Currently, if an employee is legally required to self-isolate, they are entitled to be paid statutory sick pay (SSP), if eligible. In addition, small and medium-sized businesses can recover the cost of SSP for COVID-related sickness absences occurring after 21 December 2021.

When the self-isolation rules change as discussed above, it is likely that entitlement to SSP will also change. There are two scenarios employers will need to deal with:

Where employees have COVID, and are too unwell to attend work, they should remain entitled to SSP. If eligible, they should also be entitled to company sick pay. In recent weeks, there have been reports of some employers (e.g. Ikea, Next, Ocado, Morrisons and Wessex Water) choosing to cut company sick pay for unvaccinated employees. However, on closer inspection, the removal of company sick pay in these cases only applied to unvaccinated staff who had tested negative for COVID, but who had to self-isolate as a contact of a positive case. (Vaccinated people are excused from self-isolation in such circumstances). It appears that company sick pay was still provided to unvaccinated staff who had tested positive for COVID.
Where employees have COVID and feel well enough to work, it is not clear whether they will remain entitled to SSP. If such employees are able to work from home, the solution would be to allow them to do so until they recover. However, if they are unable to work from home, should you allow them to attend work or not? If you prevent them from coming to work, how would that absence be treated? If it is treated as a period of enforced sickness absence, how would it be paid? And would it count towards sickness absence management thresholds? Yet, if it is not regarded as sickness absence, how should it be treated and paid? The situation will become clearer over the coming months, but there will be some tricky issues for employers to grapple with.

Covid status checks

From 15 December 2021, certain businesses and events (nightclubs and large venues) were required by law to check the COVID status of both workers and customers using the NHS COVID pass or a negative lateral flow test.

From 27 January 2022, this requirement was lifted, although affected businesses may choose to continue with these measures on a voluntary basis.

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.