In September, the Competition and Markets Authority (the CMA) published guidance for employers on how competition law impacts staff recruitment and the setting of pay and other working conditions. In this briefing, we digest the key messages and outline the “dos” and don’ts” for employers.

Does competition law apply in the workplace and what are the consequences of getting it wrong?

The Competition Act 1988 is the main piece of law governing competition in the UK.  It prohibits anti-competitive arrangements between businesses, covering formal or informal agreements and practices such as information sharing.  In the workplace context, where organisations collude on matters such as hiring workers or setting pay or benefits this can have harmful consequences for workers, for example, by reducing their job mobility and/or reducing their ability to negotiate pay.  It may also limit a business’s ability to grow.

The consequences of breaching competition law in the workplace are severe:

• Businesses that break competition law can be fined up to 10% of their annual worldwide turnover and prevented from bidding for public contracts.  They may also be exposed to civil claims for damages. 

• Individuals can be prosecuted and sentenced to up to five years in prison and/or a fine.  If the individual is also a director of the company, they may also be disqualified from being a director for up to 15 years.

What are “anti-competitive practices” in the labour market?

The guidance states that there are three main forms of anti-competitive behaviour within the labour market (all of which amount to “business cartels”): non-poaching, wage-fixing and sharing “competitively sensitive” information.

Non-poaching

Non-poaching covers agreements, understandings or practices whereby two or more employers agree not to poach or hire the other’s staff.  This covers agreements not to hire or solicit staff, or not to do so without the other business’s consent.  Importantly, the guidance highlights that such arrangements do not necessarily have to be mutual to be anti-competitive.

The guidance is careful to draw the distinction between unlawful non-poaching agreements and lawful non-solicitation of employees clauses of the kind seen in secondment or consultancy agreements or other types of commercial agreement.  Such non-solicitation provisions might not break competition law if they are necessary to enable the agreement to be carried out and are otherwise proportionate.

Wage-fixing

Wage-fixing is when businesses competing for the same type of worker agree to fix pay and/or benefits and/or other terms and conditions of employment.

This could capture informal agreements between employers to cap pay or pay increases for the year.  It might also capture a trade body’s circulation of a list of “recommended pay rates” for roles within their particular sector.

Sharing “competitively sensitive” information

Information exchange and benchmarking are common and often beneficial business practices. Such practices can help firms enhance efficiency and improve HR management through insights into market standards. However, when competitively sensitive information is exchanged between actual or potential competitors in the labour market this may breach competition law.

Information exchange becomes problematic when it is “competitively sensitive”.  This means information which reduces market uncertainty, or influences competitors’ strategic decisions on pay, benefits, or hiring practices.  The guidance says the following “high level principles” provide a steer on when information exchange is likely to raise competition law concerns:

• Public vs confidential: Publicly available data is rarely sensitive, whereas sharing confidential or restricted information is more likely to raise concerns.

• Aggregated vs individualised: Anonymised, aggregated data that cannot be linked to a specific business strategy is generally permissible.  In contrast, the more easily information can be attributed to a particular business the more competitively sensitive that information is likely to be.

• Past vs current and future: Historic data will usually be less competitively sensitive than current or forward-looking information.

Even unilateral disclosures of competitively sensitive information can breach competition law (i.e. where information only flows one way).  And it will be presumed that recipients of information have acted on the information unless they have clearly distanced themselves or reported the matter to the CMA.  In March 2025, the CMA fined four companies more than £4 million for unlawfully exchanging pay information in the sports broadcasting sector. The businesses coordinated freelance pay rates to avoid a bidding competition. However, a fifth company involved in the information exchange obtained immunity from a fine by reporting the matter to the CMA.

The guidance goes on to give some examples of risky and less risky information-sharing activities:

Risky	Less risky
Sharing current pay rates with competitors. Bilateral or unilateral disclosure of future pay intentions between competing employers. Multilateral exchange (directly or through third parties) that provide insight into competitors’ pay structures. Informal or social conversations where competitively sensitive information is disclosed.	Benchmarking via independent third parties using anonymised and aggregated data. Relying on publicly available sources, such as ONS data or job advertisements. Industry discussions limited to non-sensitive HR topics, such as workforce development or education partnerships.

Are collective bargaining negotiations between workers and employers covered?

Collective bargaining is a process through which employers and workers (usually represented by trade unions) negotiate terms such as pay, benefits and working conditions.  Successful negotiations typically result in a collective agreement setting out agreed terms and obligations for both sides.  While competition law can, in principle, apply to such discussions and agreements, the CMA guidance confirms that it will not seek to enforce competition law where workers and employers reach a genuine collective agreement.

The CMA also recognises that coordination between different employers may be a legitimate and necessary part of preparing for the collective bargaining process.  Nevertheless, employers must not exchange competitively sensitive information with each other unless strictly necessary.  Further, any coordination among employers outside the collective bargaining process may still be unlawful.

What does this mean for employers?

There are some important “dos” and “don’ts” for employers to stay on the right side of the line:

• Do make sure that HR and line managers involved in recruitment and/or setting pay and benefits understand how competition law affects those areas.  

• Don’t agree with other businesses not to approach or hire each other’s employees – and remember this covers informal agreements or practices as well.

• Don’t agree with other businesses to align salary, benefits or salary increases.

• Do treat all non-public pay, benefits, and recruitment data as competitively sensitive.

• Don’t share or discuss competitively sensitive information about your business or employees with competing employers, either directly or through a third party.

• Do ensure solid internal reporting processes are in place, and that staff are aware of these and how they can use them.

• Do seek legal advice before sharing pay or employment information with competitors or where a competitor or industry contact discloses such information to you.

Competing for talent – CMA guidance (9 September 2025)

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

In the recent case of Handa v Station Hotel (Newcastle) Ltd and others, the EAT held that independent HR consultants may be viewed as agents of an employer for the work they are instructed to do.  However, here, the HR consultants were not asked to, and did not, decide whether to dismiss and so were not liable as agents in a whistleblowing detriment claim concerning the dismissal.

What happened in this case?

The Claimant was a director of a company operating in the hotel sector (the Respondent).   After the Claimant blew the whistle on alleged financial impropriety, several members of staff raised grievances alleging that he had bullied and harassed them.

The Respondent instructed an independent HR consultant, Mr Duncan, to investigate the grievances.  He upheld two complaints and recommended that disciplinary action be taken against the Claimant.  A second independent HR consultant, Ms McDougall, was instructed to conduct the disciplinary hearing.  She produced a report which indicated that the Respondent was entitled to dismiss the Claimant for gross misconduct, but she did not go as far as recommending that it do so.  The Respondent went on to suspend the Claimant and remove him as a statutory director of the company.  A few days later he was summarily dismissed. His appeal was rejected.

The Claimant brought a whistleblowing dismissal claim against the Respondent.  He also brought whistleblowing detriment claims against two of the Respondent’s directors, and also against Mr Duncan and Ms McDougall, arguing that they were “agents” of the Respondent and, as such, liable for the detrimental treatment i.e. the dismissal.  However, the Employment Tribunal struck out the claims against Mr Duncan and Ms McDougall on the basis that they were not agents of the Respondent, and the claims had no reasonable prospect of success.  The Claimant appealed that decision.

What was decided?

The EAT held that an HR consultant tasked with investigating, reporting and concluding a grievance or disciplinary could, in principle, be an agent of the employer.  Traditionally, it is understood that an agent usually has the power to affect the principal’s legal relationships with third parties.  However, this is not necessarily the case in the employment context.  Here, the key question to ask is whether the services the person is contracted to provide relate to a significant aspect of the employment relationship, rather than the employer’s business activities.  Where a third party is instructed to run a process closely related to the employment relationship (such as a grievance or disciplinary process) there is no reason why they cannot be an agent of the employer, although the assessment is fact-sensitive in each case. 

However, in this case, neither Mr Duncan nor Ms McDougall had been contracted to make the decision about whether to dismiss the Claimant, and nor did they do so.  The mere fact that the Respondent had relied upon their work to support its position that the dismissal was fair did not mean they were liable for the detriment of dismissal.  Nor did the fact that their work was part of the chain of events which led to the dismissal decision mean they were liable for the dismissal.

The appeal was dismissed.

What does this mean for employers?

There are many reasons why an employer may wish to appoint an independent HR consultant to conduct a grievance or disciplinary process.  For example, where a very senior member of staff is implicated in the complaint, an external person brings a neutral perspective and so reduces the risk of perceived or actual bias.  It might also be desirable to appoint an HR consultant where there is no dedicated HR team or the team is overstretched and/or where specialist knowledge and experience is required.

This decision will be helpful to employers wishing to reassure HR consultants that they will not be on the hook for dismissals – provided that they do not, in fact, make or implement the dismissal decision.  To protect the HR consultant, employers should take the following steps:

• Be clear about the remit of the HR consultant’s role: spell out what they are being engaged to do, for example, advise on a process, conduct an investigation or chair a hearing.

• Ensure the HR consultant’s impartiality is protected: ensure that the independence of the HR consultant is not compromised by being too closely aligned with management (e.g. by acting as an adviser to the business on the process and as an investigator).  Consultants should be wary of cases where they feel they are being used to “rubber-stamp” a predetermined decision.

• Retain decision-making responsibility: ensure that the company, not the HR consultant, makes the final disciplinary or grievance decisions.  HR consultants should be careful to stick to their remit and resist any pressure to tell the employer what to do.

• Transparency and disclosure: remember that any written communication with the HR consultant will need to be disclosed in litigation unless it is legitimately protected by legal privilege.  Both parties should avoid making comments that suggest bias or predetermined outcomes.

Even with all these safeguards in place, HR consultants should remember that they could be liable as agents of the employer in respect of the work that they have been instructed to do.  For example, in this case, if the Claimant had argued that the handling of the grievance process or disciplinary hearing was detrimental to him (as opposed to complaining about the dismissal itself), the HR consultants could have been liable given that they were instructed to run those processes.  Therefore, HR consultants must take care to act fairly and transparently.  It would be wise to keep clear records of the entire process, separate to any fact-finding or recommendations, as this will help defeat any claims attacking the process.

Handa v Station Hotel (Newcastle) Ltd

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

Deloitte has recently published the results of its Global 2024 Gen Z and Millennial survey. Over 22,800 respondents from 44 countries participated in the survey, which aimed to uncover their attitudes to work and the wider world.  In this briefing, we distil the key points of interest for employers and consider what really matters to younger workers.

Stereotypes of Gen Z and Millennial workers (those born between 1995-2005 and 1983-1994 respectively) tend to present them as demanding, entitled, disengaged, lacking in loyalty and obsessed with technology.  Like most stereotypes, these labels are unfair and are likely to lead to unjustified negative views of younger workers.  Deloitte’s Global 2024 Gen Z and Millennial survey seeks to cut through the labels, by using data to find out what actually motivates workers from these generations.  

The survey made six key findings, which will be of interest to all employers of Gen Z workers and Millennials.

• Work/life balance is the top priority: work/life balance topped the list of priorities for when choosing a new job role. Conversely, poor work/life balance or feelings of burnout were commonly cited reasons for leaving a job.  Two thirds of respondents had been mandated to return to office working post-pandemic.  There were mixed feelings about this.  On the plus side, respondents liked the improved engagement, connection, collaboration and routine.  Yet others reported increased stress levels, a drop in productivity and a negative financial impact.  Overall, these workers prized flexibility in both where and when they worked and wanted employers to offer part-time working opportunities and four-day working weeks.  Last year, a pilot scheme in the UK trialled a four-day working week – you can read more about this in our article here.  More recently, UK flexible working laws have been overhauled to improve access to flexible working – you can read more about the reforms in our article here.

• The cost of living is a major concern: although just under half of respondents expected their personal finances to improve within the next year, financial insecurity was still a major concern for many.  Around a third reported feeling financial insecure and over half were living from pay day to pay day.  The cost of living remained the top concern for these workers, ahead of other concerns such as unemployment, climate change, mental health and crime.   In our recent article, we explored way that employers support workers facing financial difficulties – you can read that article here.  These concerns were exacerbated by social and political uncertainty, particularly in countries (including the UK) facing elections over the next year.

• Stress and mental health at work needs to managed properly: only around half rated their mental health as either good or very good, and stress levels remain high.  Around 40% reported feeling stressed all or most of the time.  Financial and family matters are major stressors, as are job-related factors such as long working hours, lack of recognition, overwork and not feeling decisions are made in a fair or equitable way.  Although many reported that their employers took mental health at work seriously, only around 40% said they would feel comfortable discussing mental health with their manager or would be confident that the manager would know how to respond if they did raise it.  Concerningly, around 30% said they feared their manager would discriminate against them if they raised concerns about mental health.  Acas has recently published guidance on making adjustments for mental health, with specific guidance aimed at managers – you can read more about the guidance in our article here.

• Purpose and values at work are important:  the vast majority of respondents (almost 90%) say having a sense of purpose is important to their overall job satisfaction and wellbeing.  So much so, that around 40% of these workers had rejected roles with prospective employers who did not align with their values or beliefs on issues such as the environment, inclusivity and work/life balance.  Others reported turning down specific tasks or projects with their current employer for the same reason – although around a fifth said they were not listened to and made to complete the task anyway, while others reported that detrimental treatment followed.  Emphasis was also placed on an employer’s purpose beyond making profit, with three-quarters of respondents reporting that societal impact was an important factor when considering a future role.  Respondents wanted businesses to champion protection of the environment, ensure that Generative AI was used ethically, and influence social equality, for example by creating inclusive employment opportunities.

• Environmental sustainability affects career decisions: in keeping with the focus on purpose and values, respondents also reported environmental sustainability as a top concern.  Around 60% reported feeling worried or anxious about the environment in the past month.  This group want employers to take more action to protect the environment and make sustainable choices.  The actions that these workers wanted employers to take included educating staff about sustainability, renovating the workplace to become greener and committing to net-zero greenhouse emissions in the next decade.  Again, workers in these groups were prepared to choose job roles which aligned with these values, with 20% saying they had changed jobs for this reason, and another 25% reporting that they intended to do so in the future.  And around 70% said environmental credentials and policies were important when assessing a potential employer.

• There are mixed feelings about the rise of Generative AI in the workplace: only around a quarter of respondents use Generative AI all or most of the time at work, the remainder used it rarely or not at all.  Less frequent or non-users were more likely to feel uncertainty about such tools, with women being more uncertain than men.  In contrast, frequent users were more likely to feel trust and excitement about such tools, believing that they will free up time, improve work/life balance and enhance the way they work.  However, such users also had concerns that Generative AI drive automation would eliminate jobs and make it harder for young people to progress in their careers.  In response, some are focusing on reskilling and/or applying for roles that are less vulnerable to automation. Overall, only half of respondents felt their employer was providing sufficient training on the capabilities, benefits and value of Generative AI.

You can read the full results of the survey here.

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

The Equality and Human Rights Commission has recently published guidance for employers on menopause and the workplace.  The guidance explains what the menopause is, its symptoms, the impact it can have at work and the legal obligations that an employer has.  We round up the key points to note in our briefing. 

What is the background?

Back in January 2023, the Government published its response to a Women and Equalities Select Committee report which had recommended significant changes to the law on menopause in the workplace.  The Government rejected the majority of the recommendations, committing only to appoint a “Menopause Employment Champion”, make the right to request flexible working a Day 1 employment right and publish new workplace guidance.  You can read more about the Government’s response in our briefing here.

The Government appointed Helen Tomlinson as its Menopause Employment Champion on 6 March 2023 and the right to request flexible working from Day 1 of employment is due to come into force on 6 April 2024.  The new guidance issued by the Equality and Human Rights Commission (EHRC), fulfils the Government’s final commitment.

What does the guidance cover?

The guidance is brief and includes addresses the following areas:

The symptoms of the menopause and perimenopause

The guidance explains what the menopause is and how it typically occurs between the ages of 45 and 55, although it may arise earlier or later.  It also explains that perimenopause is the phase where a woman is experiencing menopausal symptoms but is still having periods.

The guidance highlights that the menopause may cause a range of physical and/or psychological symptoms and it links to the NHS website which sets out those symptoms in full. 

The impact that menopause symptoms may have at work 

The guidance explains that menopausal symptoms may have a significant impact on women at work.  It cites statistics from the CIPD, including that 67% of working women who experienced menopausal symptoms said it had “mostly negative” impact on them at work.  These negative effects included:

• being less able to concentrate;
• experiencing more stress;
• feeling less patient with clients and colleagues; and
• feeling physically less able to carry out work tasks.

Further, around 50% said they were able to think of times when they were unable to go to work because of their symptoms.  

An employer’s legal obligations

The guidance points out the menopause symptoms may be treated as a disability in law, which will trigger the duty to make reasonable adjustments and protect the worker from disability discrimination.  It also highlights that menopausal workers are protected from age and sex discrimination and that risks to their health and safety should be considered in workplace risk assessments.

The guidance also links to several short “explainer videos” covering:

• menopause and the Equality Act 2010;
• making workplace adjustments and preventing discrimination; and
• how to hold conversations with workers about the menopause.

What does this mean for employers?

The guidance is informative only – it is not statutory guidance setting out rules on how employers should and should not deal with menopausal workers.  However, it would be wise for employers to consult the guidance and train members of HR and line managers accordingly.  This should aid understanding, promote open conversations and allow managers to identify appropriate support for affected workers.  In doing so, it should also have the added benefit of minimising exposure to legal claims.  

If you would like to gain a deeper understanding about menopause at work, you can also watch BDBF’s webinar on the subject. 

Menopause in the workplace: guidance for employers

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In the recent case of Hilaire v Luton Borough Council, the EAT held that a competitive interview process could disadvantage someone suffering from depression, meaning the duty to make reasonable adjustments would be triggered.  However, it was also held that it will not necessarily be reasonable to dispense with the interview process altogether.

What happened in this case?

The Claimant suffered from depression and arthritis which caused him to suffer from lethargy, lack of motivation, problems with memory and concentration, persistent low mood, social disengagement and difficulty with normal social interaction.  The employer was aware of the Claimant’s disability.

A redundancy situation arose, and the Claimant was invited to apply for a role within the new structure.  The employer gave the Claimant extra time to prepare his application and offered him support in doing so.  As part of the process, the Claimant was required to attend an interview.  He said he could not attend the interview on the basis that he was unwell.  The employer asked when he would be able to attend, and he did not reply.

The employer wished to resolve the recruitment process.  It had already interviewed 13 candidates who were awaiting a response.  The employer considered whether there was any other way of testing suitability other than an interview but decided there was not as it would mean treating candidates inconsistently.  Therefore, it set a deadline for the Claimant’s interview to take place. 

Three days before the new interview deadline, the Claimant said he would not attend as he was unwell.  However, it is worth nothing that a few days later he was well enough to attend an internal appeal hearing regarding a warning he had received.  He also wrote to the employer a few days later stating that even if he had not been unwell, he would not have attended the interview as he had lost confidence in his employer.

The Claimant was dismissed by reason of redundancy.  He brought a claim alleging that the employer had failed to make a reasonable adjustment to the recruitment process.   He argued that the requirement to attend an interview caused him a substantial disadvantage as a disabled person suffering with depression.  In his view, postponing the interview was not sufficient to remove the disadvantage.  Instead, the employer should have dispensed with the interview altogether and slotted him into the role.

The Employment Tribunal dismissed claim, finding that that the Claimant could have engaged in the interview process, but had chosen not to do so.   This meant that the Claimant was not disadvantaged by his disability in the interview process.   The Claimant appealed.

What was decided?

The EAT held that a competitive interview process (in terms of both attendance and performance) could clearly cause substantial disadvantage to a disabled person suffering with the problems that the Claimant had, thereby triggering the need to make reasonable adjustments.

However, in this case, the EAT agreed with the Tribunal that the Claimant’s disability had not, in fact, caused him to suffer a disadvantage.  The Claimant’s non-attendance at the interview was nothing to do with his disability.  Rather, he did not attend out of personal choice (because he had lost confidence in his employer).  The fact that he had been able to attend the disciplinary appeal meeting at around the same time underlined this point.   

Although the claim failed on causation grounds, for completeness, the EAT went on to consider the issue of the reasonableness of adjustments.  In the EAT’s view, the only adjustment that could have alleviated the potential disadvantage in this case, was to have slotted the Claimant into the role without an interview.  However, the EAT concluded that this would not have been reasonable as it would have disadvantaged other candidates.  The EAT noted that “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage”.  It may be a reasonable adjustment in certain circumstances, but not where 13 other candidates were vying for the role and had already been through a competitive interview.  In fact, in this case, there were no reasonable adjustments that could have been made.

What are the learning points for employers?

Although the Claimant lost, the important takeaway for employers is that it was found that a competitive interview process could substantially disadvantage a person with depression.  Equally, this could be the case for people with other disabilities which would affect the ability to attend and/or perform well in an interview, for example, chronic fatigue syndrome, Long Covid or severe menopausal symptoms.

Where a worker is disadvantaged in this way, the duty to make reasonable adjustments will be triggered and employers must be proactive in considering what adjustments might help.  There are a range of possible adjustments that might be suitable depending on the case, for example, conducting a shorter interview and/or conducting the interview remotely. 

In some cases, slotting into the role without an interview might be a reasonable adjustment, but this will not necessarily be the case.  The wider impact of a proposed adjustment will be relevant to whether or not it is reasonable.

Hilaire v Luton Borough Council

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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In R v Andrewes the Supreme Court ordered the confiscation of almost £100,000 from a senior executive who committed “CV fraud” by making false representations and failing to disclose the truth about his qualifications and experience when he applied for and secured several senior posts. 

What happened in this case?

In 2004, Mr Andrewes was offered and accepted a role as Chief Executive Officer at St Margaret’s Hospice in Taunton. The job advert stated that a first degree was “essential” and an MBA “desirable”. In terms of experience, ten years of managerial experience with three years in a senior position was “essential” and five years in a senior appointment was “desirable”. Mr Andrewes fraudulently misrepresented his qualifications and experience on his application form.  In July 2007 and July 2015, Mr Andrewes applied to join two NHS Trusts again relying on the same false academic qualifications and falsehoods about his employment history.

In 2015, the truth emerged about Mr Andrewes misrepresentations and his employment at the Hospice and appointments at the two NHS Trusts came to an end.  The Chair of Trustees of the Taunton Hospice said that Mr Andrewes would not have been offered the CEO role if it had been known that he was lying about his previous education and experience. This was also the case with his appointments to the two NHS Trusts.

Despite this, throughout Mr Andrewes’ time as CEO, his performance and aptitude for the CEO role was never called into question. Indeed, Mr Andrewes was regularly appraised as being either strong or outstanding in his annual reviews. A review of his work at one of the two NHS Trusts just one month before the termination of his appointment gave a similarly glowing account of his skills in all areas.

Mr Andrewes was prosecuted under the Theft Act 1968 and the Fraud Act 2006, and the Crown sought a confiscation order in respect of his earnings under the Proceeds of Crime Act 2002.

What was decided?

In the Crown Court, it was decided that Mr Andrewes’ benefit from his criminal conduct comprised the earnings he received from his employment and the two NHS appointments. The total benefit was £643,602.91. The Court went on to identify the available amount, and hence the “recoverable amount”, as £96,737.24.  A confiscation order was made for the full recoverable amount on the basis that it would not be disproportionate to do so since that amount represented less than 15% of the total benefit figure.

The Court of Appeal allowed Mr Andrewes’ appeal on the grounds that the confiscation order was disproportionate. It found that by performing the services which it was lawful for him to carry out, Mr Andrewes had given full value for the remuneration he had received. This situation, according to the Court of Appeal, amounted to “double recovery” which went beyond confiscation and amounted to a penalty. It was this “double recovery” that made the confiscation order disproportionate.  The Crown appealed to the Supreme Court.

The Supreme Court considered the “take all” approach put forward by the Crown and the “take nothing” approach put forward by Mr Andrewes. Under the “take all” approach, the Crown argued that it would not be disproportionate to take Mr Andrewes’ full net earnings from the period in question as it would otherwise allow him to enjoy the proceeds of his criminal enterprise. Under the “take nothing” approach, Mr Andrewes argued that to deny him his net earnings where he had restored the benefit by providing his services in full would constitute “double recovery” and therefore be a penalty which was disproportionate (as had been held in the Court of Appeal).

However, the Supreme Court found a “middle way” between these two approaches and restored the confiscation order of £96,737.24.  The Supreme Court compared the salary that Mr Andrewes received in his new job as CEO in 2004 with the salary he earnt immediately beforehand. The percentage difference between the two was 38%. On a broad-brush basis, a proportionate confiscation order (assuming it did not exceed the recoverable amount) would have been 38% of the total benefit (i.e. 38% of £643,602.91) which would was £244,569. This amount represented the profit Mr Andrewes had made from his CV fraud.  As this amount far exceeded the recoverable amount of £96,737.34, the Supreme Court held that it was proportionate to confiscate the full recoverable amount.

The Supreme Court also stressed that this “middle way” would not, at least as a general rule, be appropriate where the performance of the services constitutes a criminal offence. This is because the employee or officeholder in that situation has not provided restoration by performing valuable services. In at least most cases, performance of those services has no value that the law should recognise as valid. In that situation, confiscation of the full net earnings would not be disproportionate. That is, the “take all” approach is a proportionate approach in that situation and there is no justification for taking the “middle way” which may lead to a lower confiscation order. This was not the case for Mr Andrewes who had provided his services lawfully and in full, albeit that they were tainted by his initial fraudulent representations.

What does this mean for employers?

The key takeaway from this case is that employers should always conduct thorough due diligence when hiring employees and ensure that they verify an applicant’s qualifications and experience where these are necessary for a particular role.  Employment contracts should also state that a failure to meet the specified requirements for the role may result in summary dismissal and, if appropriate, be reported to the police.

R v Andrewes

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Associate James Hockley (jameshockley@bdbf.co.uk), Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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The Supreme Court has ruled that permanent part-year workers are entitled to 5.6 weeks’ holiday per year, regardless of how many weeks they actually work.  Further, if they work irregular hours, their holiday pay must be calculated as an average of pay earned over a reference period – any other method of calculation is not permitted.

What happened in this case?

Mrs Brazel was employed by the Harpur Trust as a visiting music teacher.  She had a permanent “zero hours” employment contract.  She only worked during term-time (which amounted to between 32 to 35 weeks per year) when she would typically work between 10 to 15 hours per week.  She was paid an hourly rate for her work and was paid monthly in arrears.  During the school holidays she remained employed by the Trust but received no pay as she had performed no work.

Mrs Brazel was entitled to 5.6 weeks’ paid holiday per year.  The Trust required her to take holiday outside of term time when schools were closed during April, August, and December.  Relying upon Acas guidance, the Trust calculated her holiday pay by multiplying her earnings for the previous term by 12.07% (this multiplier was obtained as follows: 5.6 weeks / (52 weeks – 5.6 weeks)).  The end result was that she received less than 5.6 weeks’ worth of holiday and holiday pay.

Mrs Brazel said this method of calculating her holiday pay was incorrect and resulted in an underpayment.  She said that the law required the Trust to calculate it by reference to her average earnings over a reference period of the preceding 12 weeks, which would have given her a higher amount of holiday pay.  This method of calculation is more time-consuming since it requires the employer to look back over the previous 12 weeks’ earnings (discounting any weeks where no pay was received and looking back to earlier weeks if necessary).

The Employment Tribunal rejected Ms Brazel’s claim, concluding that where a worker worked for fewer than 46.4 weeks per year, it was permissible to base holiday pay on 12.07% of hours worked.  However, the Employment Appeal Tribunal overturned this decision, agreeing with Mrs Brazel that the correct method was to base holiday pay on an average of the hours worked in the previous 12 weeks.  The Court of Appeal agreed with the EAT.    The Trust appealed to the Supreme Court.

What was decided?

The Trust argued that the paid annual leave entitlement for those who work only part of the year should be pro-rated to reflect to reflect the amount of work actually performed.

The Supreme Court dismissed the Trust’s appeal.  It held that all workers – including part-year workers – are entitled to 5.6 weeks’ paid holiday per year (and this entitlement applies from the beginning of each leave year rather than accruing throughout the year).  Therefore, a worker who works for 35 weeks per year is entitled to the same amount of paid holiday as a worker who works for 52 weeks per year.   The working time legislation does not permit the pro-rating of the annual leave entitlement, apart from when a worker starts or leaves employment part-way through the leave year.

The Court also held that holiday pay for workers without normal working hours had to be calculated by averaging pay over a reference period.  In Ms Brazel’s case the relevant reference period was 12 weeks, but this has since been increased to 52 weeks.  Any weeks in the reference period where no pay was received are discounted and the employer should look back to earlier weeks if necessary (and if the worker has been employed for fewer than 52 weeks, the averaging should be based on the number of complete weeks that the worker has been employed).  The reference period method was the one adopted by Government and no other method of calculation, including the 12.07% method, was permissible.  In the case of part year workers, this may mean counting back further than the reference period in order to discount any weeks not actually worked.

The Court acknowledged that the end result was that part-year workers would have a more favourable holiday entitlement than full-year workers.

What does it mean for employers?

This decision means that holiday pay for permanent part-year workers is 5.6 weeks’ paid holiday per year, no matter how many weeks they actually work per year.  This means that they will get proportionately more paid holiday than those who work throughout the whole year.  A failure to provide this would entitle a worker to bring a claim for unlawful deductions from wages (which can cover deductions going back for up to two years).

The decision also means that holiday pay for workers with irregular hours must always be calculated by reference to an average of hours worked in previous weeks.  In Mrs Brazel’s case, the averaging had to be conducted over a 12-week period as this was the reference period in force at the time.  On 6 April 2020, the reference period was changed from 12 to 52 weeks, which should result in fairer outcomes all round, as such workers will not benefit from the fact that they have taken holiday after a period of more work (and, equally, they will not be disadvantaged for taking holiday after a period of little or no work). 

Although this decision is of most relevance to employers within the education sector, it is relevant to any employer who has workers engaged on flexible working arrangements which mean that they are employed for the whole year but have periods of no work.   It is also relevant to all employers who have workers who work irregular hours, since it underlines the correct method of calculating holiday pay.

Harpur Trust v Brazel

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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The 40-degree heatwave may be over for now, but as global warming causes temperatures to rise, meteorologists predict warmer temperatures will be a regular event in the UK.  What does this mean for the workplace?

What is the law currently on temperature at work?

At the moment, employers must make sure indoor workplaces remain at a reasonable temperature and manage the risk of working outdoors in hot environments, for the “thermal comfort” (whether someone feels too hot or cold) of its employees. However, there is currently no maximum temperature beyond which it is not legal for workers to work in.

What is a “reasonable” temperature will vary depending on the nature of the individual workplace.  For example, some outdoor workers may need to have their working hours varied so that they can work in cooler temperatures, and office staff may need to work from home or have the air conditioning regularly checked.

What should employers do?

If employees have to come into work, then you should think about what common sense alterations you could do to make the environment more comfortable for them. For example:

• using fans;
• regulating the air conditioning;
• closing blinds/curtains if possible;
• providing access to cold water;
• relaxing any dress code;
• changing working hours; and/or
• allowing flexibility in travelling.

Indeed, if there are potential health and safety risks at the workplace or in travelling to the workplace then working from home should be considered although for many staff it may be overall more comfortable to work in an air-conditioned workplace than to work from home.

Legal issues for employers

Some of these alterations could potentially be viewed as a reasonable adjustment for a disabled employee. A failure to make a reasonable adjustment will be discriminatory.

Employers should also be keeping an eye on workers who are more susceptible to heat stress, such as pregnant and menopausal workers. As above, it could be discriminatory if alterations are not made to how they work during a heatwave.

It is also important for employers to note that if the temperature presents a health and safety risk, then, in certain circumstances, an employee may be entitled to stay away from (or leave) the workplace.

Employers are under a duty to make a suitable assessment of risks to the health and safety of their employees. It would be wise to review any assessment before a heatwave to ensure you are equipped in such circumstances. This should assist in helping to mitigate any potential legal claim.

Is there going to be a change in the law in the future?

A number of MPs have recently backed a call for a maximum workplace temperature via an early day motion, and the GMB union and the TUC have also called for a maximum workplace temperature to be set to protect the health and safety of workers in heatwaves.

Despite this, there does not appear to be an appetite from the Health and Safety Executive to regulate this more formally. They say there is no maximum temperature because workplaces with hot processes (such as bakeries, glass works or foundries) would not be able to comply with such requirements.

As temperatures are only set to rise in the coming years, it looks like this is going to become a hot topic, with the possibility of stricter regulation in future.

BDBF is a law firm based at Bank in the City of London specialising in employment law.  If you would like to discuss any issues relating to the content of this article, please contact Associate Hannah Lynn, Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Blue Monday is upon us!

For those unfamiliar with this turn-of-phrase, “Blue Monday” is commonly considered the saddest day of the year. It’s been long enough since December for Christmas cheer to have worn off, yet there is little prospect of Winter’s dark and cold grasp loosening any time soon. Add to this the bills racked up from Christmas generosity, and the fact that most of our New Year’s resolutions have already failed, and it is little surprise that we tend to feel a little more “blue” than usual today. This may be particularly true this year, as we share the sinking feeling of being back in lockdown-lite, with COVID infections rife and instructions to “work from home” still in place.

Of course, depending on the nature and extent of your feelings, you may be suffering from more than mere Blue Monday blues. For some people, struggles with mental health such as depression or anxiety will constitute a “disability” under the Equality Act 2010. A condition will amount to a disability if it is a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. While there are many aspects to this definition, it is important to be aware that for a condition to be “long term” it needs to have lasted, or be expected to last, for at least 12 months.

Employers are under a proactive duty to make reasonable adjustments for disabled workers to avoid the disadvantage caused by their disability in the workplace. For mental health issues, this duty arises irrespective of whether the impairment was caused by work or by an external factor.

Even for workers not suffering from  mental health impairments, January can be a bleak month. It is important that we all do as much as we can to protect our own (or our employees) health and wellbeing during this time. With this in mind we have put together a few tips for keeping your spirits up while working from home this winter:

1. Get properly dressed before starting work each morning. We all loved the rush that comes from joining a Zoom meeting with a smart-shirt on show and a pair of pyjamas hidden below the camera lens, but, in truth, a pair of jeans or similar will help most of us feel more motivated and ready to face the day.
2. Make sure you are walking. We are all aware of the seemingly unattainable target of 10,000 steps a day. It is particularly difficult this month where it is dark by 4pm, and many of us are working from home. But walking is extremely beneficial for our health and wellbeing (and cannot be substituted by a trip to the gym!). Try and build a walk-a-day into your routine – even if it’s only for 15 minutes.
3. Slow down. January is a month where we are all trying to achieve a lot, both at work and in our personal lives. Make sure you are taking moments for yourself. Meditation isn’t for everyone (it’s not for me!) but you can still take time for you. One simple tip is to leave your phones behind (work and personal) when making a cup of tea or coffee. Use those few minutes to check-in with yourself, watch the kettle boil, try and settle your racing mind. Trust me, most things can wait 5 minutes!
4. Reduce screen time. The cold and dark of January, and the fact that we are still largely working from home, inevitably increases our (already excessive) screen time. The first thing most of us probably do in the morning is check our phones. Then we sit in front of our computer screens working all day. Exhausted after dinner we will probably flop in front of the TV. Make sure you are finding some time each day to disconnect from your screens, whether that be going to the gym, cooking dinner in the evening or sitting and talking to those you live with.
5. DON’T PUT TOO MUCH PRESSURE ON YOURSELF! January is hard enough without self-flagellation for being the same person you were in 2021. We would all like to see some self-improvement this year, whether that be progressing in our careers, being healthier, or being happier – but this doesn’t need to start and end with success in January. Have patience, set yourself achievable goals and if all goes wrong remind yourself… no one expects you to be or feel perfect all of the time.

Remember, these are just a few personal tips for combatting Blue Monday blues. If you believe you are suffering from more serious mental health issues please speak to your doctor.

If you would like to discuss any issues relating to the content of this article, please contact Rebecca Rubin (rebeccarubin@bdbf.co.uk), or your usual BDBF contact.

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Employment Law News

BDBF’S Webinar: 10 things for employers to know about in 2021

On 25 January 2021, we held a webinar looking at the top 10 things for employers to know about in 2021.  Here you can access the recording of that webinar, together with the slide presentation used on the day.  Also on our website, you can access the BDBF 2021 Roadmap for HR, which covers the key actions points from the webinar.

To view the PDF webinar slides please click on the image below, or view the recording of the webinar:

BDBF can help businesses and employers prepare for the future. Please contact Amanda Steadman (amandasteadman@bdbf.co.uk), or your usual BDBF contact, for further advice.

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Employment Law News

 

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 BDBF’S 2021 Roadmap for HR 

On 25 January 2021, we held a webinar looking at the top 10 things for employers to know about in 2021.  Here you can access the BDBF 2021 Roadmap for HR, which covers the key actions points from the webinar.  Each action point has been given a “red, amber, green” rating to help you prioritise your activities for the year ahead.

To view the PDF guide please click on the image below:

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BDBF can help businesses and employers prepare for the future. Please contact Amanda Steadman (amandasteadman@bdbf.co.uk), or your usual BDBF contact, for further advice.

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https://www.youtube.com/watch?v=VNrVPZEsz0I

Guide to understanding the reforms to the IR35 rules in the private sector

From 6 April 2021, the way in which the IR35 rules operate in the private sector is set to change.  These reforms will see contractors lose the ability to determine their own tax status and place this burden on those who engage them.  In this guide, we discuss the new framework and the next steps for clients and contractors.

To view the PDF guide please click on the image below:

BDBF can help businesses and contractors prepare for the new regime. Please contact Amanda Steadman (amandasteadman@bdbf.co.uk), or your usual BDBF contact, for further advice.