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What are the employment law highlights from the last 12 months?   We’ve picked out some of the most interesting cases and other developments from 2021 for employers to reflect on as the year draws to a close. 

COVID-19

• Vaccines and the workforce: employers had to grapple with the tricky issue of whether to require staff to be vaccinated against COVID-19. Introducing such a requirement raises the risk of unfair dismissal and discrimination claims, as well as raising a number of practical issues such as allowing time off to be vaccinated, how post-vaccination sickness is treated and the data protection implications of holding vaccination status information.  You can read more about all of these issues in our two-part series of briefings here and here.  You can also catch up on our “No Jab, No Job?” webinar here.

• COVID-related dismissals: claims of unfair dismissal for COVID-related reasons began to appear for the first time, with the Employment Tribunals taking a relatively robust approach.  For example, in Kubilius v Kent Foods Limited the Tribunal held that an employee had been fairly dismissed for refusing to wear a face mask when attending a client’s premises.  You can read more about that decision here.  Also, in Rodgers v Leeds Laser Cutting Ltd the Tribunal decided that an employee had been fairly dismissed for refusing to attend work because he was worried about catching the virus and giving it to his children.  You can read more about that decision in our briefing here.   

• Furlough scheme extended and closed: the furlough scheme was due to close at the end of April.  Yet, in late March, the Chancellor announced that the scheme would be extended by five months and close on 30 September 2021. Throughout this extended period, furloughed employees remained entitled to be paid 80% of their normal wages for any furloughed hours, subject to the maximum cap of £2,500 per month.  It is not yet known whether the scheme would be resurrected in the event of further national lockdowns in 2022.  You can remind yourself of how the scheme operated and the impact of its closure in our guide to the scheme here.

• Hybrid working here to stay: as restrictions lifted on “Freedom Day” on 19 July 2021, many employers began to return staff to the workplace over the Summer and Autumn months. However, a full-time return was not on the cards, with the majority of employers preferring some form of hybrid working. This was recognised by Acas, who issued new guidance for employers on implementing hybrid working.  You can read more about this in our briefing here.   We also published some FAQs about the return to work and hybrid working here.   In the last few weeks, the CIPD has published its own practical guidance on hybrid working, which you can view here.

• The arrival of Omicron: just as life had begun to return to some semblance of normality, the virus mutated yet again, with the Omicron variant being identified as a cause for concern. You can read our initial briefing on what Omicron meant for office-based employers here (as the situation is fast-moving please do get in touch with us for advice on the latest position).

Equality

• Harassment: in the harassment sphere there were a couple of important decisions for employers to note this year. First, in the case of Driscoll v V&P Global Ltd and another, the EAT held for the first time that where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment under the Equality Act 2010, then the constructive dismissal itself is capable of amounting to an unlawful act of harassment.  You can read the EAT’s decision here.  Second, in the case of Allay (UK) Ltd v Gehlen the EAT held that an employer’s failure to provide regular and effective equality training meant that they could not rely on the “reasonable steps” defence to a race harassment claim.  You can read more about this decision in our briefing here.

• Sexual harassment: a report from the Fawcett Society revealed the continued prevalence of sexual harassment at work, despite the rise in hybrid working. You can read more about this report in our briefing here.  The Government also announced plans to reform sexual harassment laws to introduce a positive duty on employers to take all reasonable steps to prevent sexual harassment and reintroduce protection from third party harassment at work (e.g. harassment by a client or a contractor).  You can read more about these reforms in our briefing here.
   

• Sex discrimination and flexible working: this year we saw a spate of discrimination cases arising out of the refusal of flexible working patterns requested by working mothers.  In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust an employee and mother of three (including two disabled children) brought a discrimination claim after she was dismissed for refusing to work occasional weekends.  The EAT ruled that Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours.  You can read more about this decision in our briefing here.  In the case of Keating v WH Smith Holdings Ltd the imposition of a Saturday working requirement on a single mother was held to be discriminatory and in Thomson v Scancrown Ltd t/a Manors a refusal to make modest adjustments to a maternity returner’s working hours was also said to be discriminatory.  You can read more about these decisions in our briefings here and here.

• Associative indirect disability discrimination: in another case concerning refusal of a flexible working pattern, an Employment Tribunal upheld a claim of associative indirect discrimination for the first time. In the case of Follows v Nationwide Building Society an employee refused to move from a hybrid working arrangement to an office-based working arrangement as she had caring responsibilities for her disabled mother.  Her refusal led to her dismissal.  The Tribunal held the requirement to work in the office full-time indirectly discriminated against the employee because of her association with a disabled person, even though she was not disabled herself.  You can read the Employment Tribunal’s decision here.

• Sex discrimination claims brought by men: 2021 saw two notable sex discrimination claims brought by men – with differing results. In the case of Price v Powys Council, the EAT held that it was not discriminatory to enhance pay for a female employee on adoption leave and not to do so for a male employee on shared parental leave.  You can find out why in our briefing here.   The male claimants in the case of Bayfield and Jenner v Wunderman Thompson (UK) Ltd were more successful.  Here, the Tribunal decided that the dismissal of two senior male employees amounted to sex discrimination, where the dismissals had followed the announcement of the employer’s high gender pay gap figures and a radical new approach to diversity within the business.  You can read more about this decision in our briefing here and you can also read Gareth Braham’s article in the ELA Briefing on this topic here.

• Gender critical beliefs are protected: in the high-profile case of Forstater v CGD Europe and others, the EAT held that gender critical beliefs, including beliefs that biological sex cannot be changed and is different to gender identity, are protected beliefs.Although the beliefs may be offensive to some and could even result in the harassment of trans persons in certain circumstances, they were protected under the right to freedom of thought, conscience and religion under the European Convention of Human Rights and as philosophical beliefs under the Equality Act 2010.  You can read more about this decision in our briefing here.

• Menopause and the workplace: the impact of the menopause on workers has been a hot topic this year. Two Parliamentary Inquiries were launched, with a view to introducing better legal protections for affected workers.  Further, a new report highlighted the severe impact of the menopause on those working in the financial services sector.  You can read more about these developments in our briefings here and here.   We also saw the second ever appellate decision on a claim concerning the menopause.  In the case of Rooney v Leicester City Council, the EAT held that an Employment Tribunal had been wrong to say that a woman suffering from a wide range of menopausal symptoms which affected her day to day life was not disabled for employment law purposes.  You can read more about this decision here.   If you would like a deep dive on menopause and the workplace, you can also listen to the podcast we recorded for Daniel Barnett’s “Employment Law Matters” podcast.
  

• Equal pay: the supermarket chain equal pay litigation continued in 2021, with David overcoming Goliath in two notable decisions. In Asda Stores Ltd v Brierley and ors the Supreme Court upheld a decision that a group of female retail store workers could compare themselves to a group of male distribution centre workers for the purposes of an equal pay claim, even though they worked at separate establishments.  In Tesco Stores Ltd v Element and ors, the EAT upheld an order for the employer to disclose documents and provide information relating to the alleged pay comparators’ contracts, job descriptions and pay.  It rejected the employer’s argument that the specific disclosure request amounted to a “fishing expedition”.   Both decisions will help claimants get equal pay claims off the ground.  You can read the decisions here and here.

• Pay reporting: having been suspended in 2020 due to the pandemic, gender pay gap reporting resumed in 2021, albeit that the reporting date was postponed from April to October.  You can read more about this in our briefing here.   Analysis by PwC of the most recent round of reports shows a small decline in the average median pay gap from 14.2% in 2017/8 to 13.1% in 2020/21.  By contrast, proposals to introduce ethnicity pay gap reporting appear to have stalled.  The Government consulted on the issue in 2019 but, to date, has failed to publish its response.  To mark this year’s Race Equality Week in February, we published a briefing summarising where things currently stand.

Employment status, contracts and policies

• Who is a worker? In Uber BV v Aslam, the Supreme Court upheld a decision that drivers working for Uber were workers and not self-employed contractors.   This decision is important for employers engaging contractors as it highlights the continued willingness of the Courts and Tribunals to scrutinise the way a relationship works in practice, regardless of contractual labels.  You can read more about this decision in our briefing here.    

• Reform of the IR35 regime: the way in which the IR35 rules operate in the private sector changed on 6 April 2021.  These reforms saw contractors lose the ability to determine their own tax status and placed the burden on those who engage them (often the end user).  You can remind yourself of the new framework and the action points for clients and contractors in our guide to the regime here.

• Changing terms and conditions: a survey conducted by the CIPD this year revealed that 22% of employers have made changes to their employees’ terms and conditions since the start of the COVID-19 pandemic, including to terms relating to place of work, hours of work and pay. Acas has published new guidance for employers on how to navigate changes to terms and conditions and they caution against the use of “fire and rehire” strategies. You can read more about this guidance in our briefing here.

• Holiday pay: in the case of Smith v Pimlico Plumbers the EAT decided that workers do not have a right to carry over holiday pay where they had taken unpaid annual leave. This contrasts with an earlier European Court decision where it was decided that workers are entitled to carry over unlimited annual leave which had not been taken because it was unpaid.  You can read the EAT’s decision here.   This decision is of importance for organisations who engage people they think of as independent contractors who may, in fact, have worker status.  It should be noted that this decision has been appealed to the Court of Appeal, with judgment expected in 2022.

• Flexible working reform: the Government published a consultation seeking views on proposals to expand and improve the flexible working framework.  The consultation looks at a range of proposals including whether the right to request flexible working should become a “Day 1” employment right and whether employers should be required to show they have considered alternatives before rejecting a flexible working request. The consultation closed on 1 December 2021 and the Government’s response is expected in 2022.  You can read more about the proposals in our briefing here.

• New right to carer’s leave: the Government announced that a new right for employees to take up to one week of unpaid carer’s leave per year will be introduced when Parliamentary time allows.  The right will be a “Day 1” employment right and employees will be able to take the leave to care for and/or make arrangements to provide care for a dependant who has a long-term care need. In due course, employers should put in place a policy to outline the new right and how staff can take such leave.  You can read more about the new right in our briefing here.

Whistleblowing

• New EU Whistleblowing Directive: the EU’s new Whistleblowing Directive is due to be implemented by EU Member States by 17 December 2021. Legislation must be introduced which, amongst other things, requires private employers with 50+ workers to establish internal reporting channels, keep a whistleblower’s identity confidential, confirm receipt of a whistleblower’s report within seven days, and provide a response within a reasonable period which should generally not exceed three months.  Post Brexit, the UK does not need to implement the Directive, however, it may elect to enhance whistleblowing laws to keep pace with the EU.  You can read more about the Directive in our briefing here.

• World Whistleblowers Day and tips for employers: World Whistleblowers Day fell on 23 June 2021 and looked at how best to support the mental wellbeing of whistleblowers.  What can employers do to empower staff to speak up about malpractice and protect whistleblowers from reprisals?  In our briefing here, we considered five actions employers could take to support whistleblowers within their business.

• Dismissing whistleblowers: in the case of Kong v Gulf International Bank (UK) Ltd the EAT handed down an employer-friendly decision, holding that in whistleblowing dismissal claims, it will rarely be the case that an employer will be fixed with the motives of anyone other than the person/s making the decision about whether to dismiss. The EAT also held that if a whistleblower is dismissed for the manner in which they conveyed or pursued their concern, this is genuinely separable from the raising of the concern itself and, as such, will not be automatically unfair.  We understand this decision is to be appealed to the Court of Appeal.  You can read the EAT’s decision here.

• Interim relief hearings should be heard in public: in the case of Queensgate Investments LLP v Millet the EAT ruled that applications for interim relief should be heard in public, save where an order is made to restrict publicity.  Interim relief is a powerful remedy open to claimants in a small number of specific claims for automatic unfair dismissal and is most commonly sought in whistleblowing dismissal claims.  This is the first appellant authority on this point, with BDBF acting for the successful respondent to the appeal.  You can read more about the EAT’s decision in our briefing here.

Termination

• Constructive unfair dismissal: in the case of Flatman v Essex County Council, the EAT held that a Tribunal misapplied the law by failing to identify whether a fundamental breach of contract occurred at any point up to the employee’s resignation. In so doing, it reaffirmed the principle that once a fundamental breach has been committed, it cannot be cured. You can read more about this decision in our briefing here.

• Misconduct: in the case of Daley v Vodafone Automotive Ltd an employee was dismissed for gross misconduct for behaving in an offensive, threatening and intimidating manner towards a colleague. During the disciplinary investigation, the employee disclosed that he took medication for depression which caused side effects including anger and frustration. The employer took no action in response to this information and went on to dismiss.  The EAT held that the Employment Tribunal should have considered whether the employer’s failure to probe the impact of the employee’s depression and medication rendered the dismissal process unfair.  You can read more about this decision in our briefing here.

• Redundancy and appeals: in the case of Gwynedd Council v Barratt the Court of Appeal confirmed that, on its own, the absence of a right to appeal against dismissal for redundancy does not make it unfair. However, it is one of the factors to be considered when determining the overall fairness of the dismissal. You can read more about this decision in our briefing here.

• Post-termination restrictions: the Government launched a consultation about regulating the use of non-compete restrictions in employment contracts.  Views were sought on proposals including requiring employers to pay compensation for the duration of non-compete restrictions or banning their use altogether.  The consultation closed on 26 February 2021 and the Government’s response is awaited. You can read BDBF’s response to the consultation here.

If you would like to know more about any of these developments please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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It has been some time coming but, finally, the legislators seem to be taking the issue of menopause and the impact it has on some women’s professional lives seriously. 

The Women and Equalities Committee (WEC) has asked for submissions from the public to help them understand the extent of discrimination faced by menopausal workers and how Government policy and workplace practices can better support those experiencing menopause.

Research conducted in 2019 by the Chartered Institute of Personnel and Development (CIPD) laid bare the difficulties faced by menopausal women (usually aged between 45-55, although menopause can occur earlier or later) at work.  The report highlighted that of those who experienced menopausal symptoms at work:

• Nearly two-thirds (65%) said they had trouble concentrating.
• More than half (58%) said they experienced more stress.
• More than half (52%) said they struggled to be patient with clients and colleagues.
• Only a quarter (25%) felt able to explain their symptoms and the reason for them to their manager.This was due to privacy concerns (45%), embarrassment (34%), and unsupportive management (32%).

This year, the CIPD, in partnership with Bupa, issued guidance for line managers on menopause at work.  This contained a startling statistic – almost a million women have left the workforce due to menopause-related symptoms.  Few would deny that this exit of talent is damaging to not only the women concerned, but the economy as a whole.

Children, elderly parents, and menopause – a difficult combination

Research shows that the more highly educated a woman is, the later she is likely to have children.  In London, for example, the rate of women giving birth for the first time over the age of 40 now outstrips those becoming mothers in their teenage years.  However, having children between the ages of 35 and 45 means that many women in professional sectors such as finance, engineering, law, and medicine hit perimenopause[1] just as their children are moving into the sometimes challenging teenage years and their ageing parents require more care.  Unfortunately, to date, little research has been done on the impact of this ‘triple whammy’ on women’s careers.

New research on menopause and workers in the financial services sector

A study examining the effects of perimenopause and menopause on women’s economic participation in the financial services sector is being conducted by Standard Chartered Bank and Financial Services Skills Commission.   The research is being carried out by the Fawcett Society, the UK’s leading charity campaigning for gender equality and women’s rights.  The study aims to explore how perimenopause and menopause impacts women working in the financial sector and their ability to progress into senior roles, especially given that the opportunity to advance into those senior roles usually presents itself between the ages of 45-55 years.

The findings from the research will be published in Autumn 2021.

Supporting working women through the menopause transition

A 2016 paper[2] made the following recommendations to improve workplace conditions for peri- and postmenopausal workers:

• Raise awareness amongst the workforce
• Encourage disclosure of symptoms
• Temperature control
• Stress reduction
• Flexible work arrangements
• Access to water and toilets

These are relatively simple changes that employers can make to support women managing symptoms such as hot flashes, exhaustion, heavy periods, anxiety, depression, and difficulty concentrating.

The argument for making menopause a protected characteristic under the Equality Act 2010

One solution for safeguarding women dealing with perimenopause and menopause symptoms is to make menopause a protected characteristic under the Equality Act 2010.  Currently, women bringing a claim for menopause-related discrimination must do so under one of the existing protected characteristics, typically sex, age, or disability.  This limitation has resulted in Employment Tribunal decisions being mixed.  Furthermore, lumping a natural condition that 50 per cent of the population experience underage, sex, or disability reinforces stereotypes of the older woman being less competent and able.  Making menopause a protected characteristic in its own right moves the term away from illness, disability, ageing, and ‘female problems’, none of which have anything to do with the natural hormone shift that brings on menopause.

Caroline Nokes MP, Chair of the WEC inquiry has said she is open minded about recommending that equality laws be changed to protect menopausal women if evidence received during the inquiry supports such a proposal.

Final words

There are significant gaps in our knowledge of how menopause affects working women and the inquiries and study mentioned above will help address this issue.  In turn, Government policies can be adjusted to fit the reality of the modern workplace.  Menopause at work needs to become a mainstream issue for employers to ensure organisations can retain the experience and talent provided by those aged over 40.

If you would like to discuss how the menopause is affecting you at work, or how your organisation can support staff though the menopause, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

[1] The transition period before menopause which can result in significant menopausal symptoms.  Perimenopause can last a few months to a few years (sometimes up to a decade) before menopause officially occurs.

[2] GRIFFITHS. A., CEAUSU, I., DEPYPERE, H., LAMBRINOUDAKI. I., MUECK, A. PEREZ-LOPEZ, F.R., VAN DER SCHOUW, Y.T., SENTURK, L.M., SIMONCINI, T., STEVENSON, J.C., STUTE, P. and REES, M. (2016) EMAS recommendations for conditions in the workplace for menopausal women, Maturitas, Vol. 85, pp.79-81, ISSN 1873-411

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Claire Dawson, Employment Lawyer and Partner at BDBF spoke to Anita Rani on BBC Womans Hour about pregnancy discrimination and maternity rights in light of Dr Katie Lidster’s case.

Clcik here to listen: https://bbc.in/3xIcobK

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[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row column_structure=”3_5,2_5″ admin_label=”row” _builder_version=”3.25″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”3_5″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” sticky_enabled=”0″]

Feel pushed to go back to the office? How will a daily commute impact on the job being done, professional and business development? What should employees be asking their employers as the much anticipated return to the office approaches?

Emily Plosker, BDBF Senior Associate, was recently quoted on this topic by Financial News. What are your views?

Read the full article here: https://www.fnlondon.com

#covid #returntotheoffice #21June #ukemplaw

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Employment Law News

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Webinar: No jab, no job? Key questions about vaccines and the workplace

In this 45 minute webinar, BDBF’s Knowledge Lawyer Amanda Steadman and Managing Associate Tom McLaughlin consider key questions about vaccines and the workplace.  This webinar was originally delivered on 22 April 2021 and reflects our understanding as at that date.  Do get in contact with either of the speakers if you would like to discuss any of the issues raised. 

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

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Please contact Amanda Steadman (amandasteadman@bdbf.co.uk), Tom McLaughlin (tommclaughlin@bdbf.co.uk), or your usual BDBF contact, for further advice.

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https://www.youtube.com/watch?v=vj_6LfTRsDE

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Employment Law News

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Do NDAs stop finance employees from flagging workplace discrimination

Ever since the Weinstein scandal broke in 2017, there has been concern about the use of non-disclosure agreements – known as NDAs – to silence victims of sexual harassment and assault. Legislators in the US continue to tackle the improper use of NDAs. So what’s the position here in the UK? In this article for the Financial Reporter, BDBF Partner, Claire Dawson, looks at the protection individuals have if they speak up about discrimination and harassment after signing an NDA.

View the article here: https://www.financialreporter.co.uk/features/do-ndas-stop-finance-employees-from-flagging-workplace-discrimination.html

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Employment Law News

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Just Blue Monday, or something more? 

The third Monday in January is typically labelled “Blue Monday” and is said to be the most depressing day of the year. Christmas festivities are over, the weather remains is cold and dark, New Year’s resolutions have fallen by the wayside and Christmas credit card bills are in but people have not yet been paid.

In 2021, people are likely to feel the effects of Blue Monday more acutely due to the third lockdown imposed by the government in response to the Covid-19 pandemic. It is therefore more important than ever for people to ask themselves whether any “blue” feelings are a temporary symptom of the season or a sign that they could be suffering from a more serious condition.

This article considers this question in the context of the workplace, although of course this issue is relevant to all aspects of life.

What if you’re just “feeling blue”?

Short periods of “feeling blue” are completely normal and for the most part do not interfere with doing your job. You might find that making use of informal support networks, such as attending (virtual) coffees with colleagues can be all that it takes to lift your spirits. Some employers have mental health first aiders and/or support helplines that can provide valuable advice for those needing more support. 

Whatever the case, you should keep your moods under review by keeping a record of how you feel from week to week. This does not need to be formal, but it can help you spot signs of a more serious or prolonged condition and will enable you to take appropriate measures to prevent it.  

What if it is something more serious?  

If you consider that you are already suffering from a more serious condition, it is important to seek support from a medical professional, like your GP.

Employers have a duty to provide their employees with a reasonably safe system and place of work, exercise reasonable care for their safety and health and take all necessary steps to protect employees from risks that are reasonably foreseeable, including risks of psychiatric injury or damage.

If you believe your working conditions are affecting your health, start a conversation with your employer. It is important to discuss this with your line manager, HR, or someone else in the management chain that you feel comfortable approaching.

Let them know how you are feeling and what is causing you to feel unwell. Talk through the support you need to alleviate your condition. In some cases, it may be beneficial to attend an appointment with Occupational Health, so that a more formal support program can be put in place.

Depending on the nature and extent of your condition, you may have a “disability” under the Equality Act 2010. Your condition will amount to a disability if it is a physical or mental impairment and the impairment has a substantial and long-term adverse effect on your 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, so as to satisfy this part of the test, it needs to have lasted, or be expected to last, for at least 12 months. 

Importantly, employers are under a proactive duty to make reasonably adjustments for disabled employees 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.

The duty to make reasonable adjustments is the cornerstone of disability law. It arises only once the employer knows, or could reasonably be expected to know, of an employee’s disability. In practice, this means that you do need to communicate with your employer about your condition so that they are put on actual notice. This makes having a conversation with your employer incredibly important. For example, if you are unable to work because you are struggling with your mental health, you should consider making this clear during a return to work interview and on any sick notes provided by your GP rather than, as happens frequently, recording your absence as a cold or other such illness. As well as helping you to access immediate support, it will assist your position in any subsequent legal proceedings should the support you need be unavailable or should you be subjected to detrimental treatment.

It is unlawful for your employer to treat you unfavourably because of your disability. It is also unlawful for you to be treated unfavourably because of something arising in consequence of your disability, unless such treatment can be objectively justified. For example, some people with depression find it difficult to get up in the mornings, making them late for work. If this is an effect of your depression and you are disciplined for poor time-keeping, without account being taken of your depression, this could constitute discrimination arising from your disability, i.e. the unfavourable treatment was because of something that was not the disability itself, but caused by the disability. If you find yourself in this situation, it is important to be open with your employer about why your timekeeping suffers in the mornings and discuss whether changes can be made to your working pattern to assist you.

Conclusion

The stigma around mental health in the workplace is reducing, but there is still some way to go. If you are finding work difficult due to mental health reasons, an important first step is to have a conversation with someone within the organisation that you trust so that they can help you access the support that should be available, whether that is to alleviate the effects of Blue Monday or as part of a longer term need.  

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Employment Law News

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Coronavirus and the workplace – twelve key questions

The Government has declared the coronavirus to be a “serious and imminent threat to public health” and that it is highly likely that the virus will become widespread.  Indeed, it has been estimated that up to one fifth of the UK workforce may be off sick at the peak of an epidemic.  Employers need to take steps to protect their workers and be ready to deal with the disruption that the coronavirus will cause.  In this briefing, we consider twelve frequently asked questions from employers.

1. None of our employees have the coronavirus – do we need to do anything?

Yes.  Even if there are no instances of the coronavirus in your workplace, you must still take steps to meet your legal duty to protect the health, safety and welfare of your workers.  This duty requires you not to expose people to material risks and this includes risks posed by the coronavirus.  You should assess and document risks generally for all workers and specifically for those who are vulnerable to the coronavirus (e.g. those with underlying respiratory problems, heart conditions, diabetes, cancer and older workers).  Special consideration should also be given to any specific risks to pregnant workers, those who have given birth in the last 6 months or who are breast feeding.

You will be expected to take reasonable steps to control or eliminate identified risks.  The Government’s latest guidance for employers highlights that the virus is most likely to spread by touching or standing close to an affected person and, possibly, by touching contaminated surfaces and then touching the face.  Risk control measures could include steps such as:

• Circulating the Government’s latest guidance to staff and giving them a point of contact within the business to discuss any concerns.
• Reminding staff about the recommended hygiene measures.
• Discouraging physical forms of greetings such as handshakes and kisses.
• Temporarily banning attendance at non-essential meetings, conferences and social events.
• Cancelling any large gatherings such as internal conferences or parties.
• Providing plenty of free tissues and additional bins.
• Providing access to anti-bacterial handwash and hand sanitiser.
• Providing anti-bacterial surface spray or wipes in kitchen and eating areas;
• Engaging additional cleaning services.
• Designating a special area for breastfeeding mothers to wash and store breast pump equipment and expressed milk.
• Designating a special area for anyone who is displaying symptoms of coronavirus whilst at work.
• Allowing vulnerable workers and pregnant workers to work from home.
• Allowing other staff to work from home wherever possible.

2. One of our employees feels unwell and thinks they might have the coronavirus – what should we do?

If the employee is at work, they should immediately be removed to an isolated area until they are able to go home.  The Government’s latest guidance is that such individuals should not go to a GP or hospital and nor should they contact NHS 111 for advice.  Currently, such individuals will not be tested for the coronavirus.  The employee will need to self-isolate for 7 or 14 days depending on their household arrangements (see 8 below).

The Government’s advice is that employers in this situation do not need to take any special measures such as sending staff home or deep cleaning the workplace.  This is because most suspected cases turn out to be negative.

3. One of our employees has been in direct contact with someone who has a confirmed case of the coronavirus – what should we do?

The employee should be advised to call NHS 111 for advice.  They will probably be advised to self-isolate for 14 days even if they are displaying no symptoms.  If they subsequently become unwell, they should contact NHS 111 for reassessment, and they may be tested for the virus.  If the test result is negative, the employee will be advised to remain in self-isolation until 14 days has passed.  However, you won’t need to take any special measures.

4. One of our employees has been diagnosed with the coronavirus – what should we do?

The employee will either be treated in hospital or cared for at home.  The employee should not attend work until they have fully recovered and have medical clearance to do so.  You should pay sick pay to the employee in the normal way (see 9 below).

You should notify other staff that a colleague has been diagnosed with the coronavirus, however, you should not usually need to name the individual and you should only disclose necessary information.  The Information Commissioner’s Office has published some short guidance for employers on this issue.

You will be contacted by Public Health England’s local Health Protection Team to identify those who have been in contact with the employee and discuss any special measures to be taken.  This may affect the following staff members:

• anyone who has been in close face-to-face or touching contact;
• anyone who has talked with, or been coughed on, for any length of time while the employee was symptomatic;
• anyone who has cleaned up bodily fluids; and
• close friendship or work groups.

They may advise that anyone who had contact with the affected employee should self-isolate for 14 days and be tested for the virus.   They will advise you how to undertake a deep clean of the premises and how to collect and store any rubbish produced by the affected employee.

Staff who have not had close contact with the affected employee do not need to take any precautions and can continue to work.

5. Should we restrict or cancel overseas business travel?

Depending on the destination, yes.  Currently, the Foreign and Commonwealth Office (FCO) is advising against all travel to the Hubei province in China and the cities of Daegu, Cheongdo and Gyeongsan in South Korea (known as the “special care zones”).  All proposed travel to these destinations should be cancelled.

The FCO is also advising against all but essential travel to:

• Italy
• USA
• Mainland China outside of the Hubei province.
• South Korea outside of the special care zones.

Any proposed travel to these areas should be restricted to business-critical trips only.   In addition, the Government’s latest guidance is that everyone should now try to avoid all unnecessary travel.   If you wish to proceed with a business trip to one of these areas, be prepared for resistance from the affected employees.  In that situation you should obtain legal advice on the safest way forward.

Separately, the European Union has announced that it will suspend non-essential travel between the EU and non-European countries for 30 days from 17 March 2020.  However, this restriction does not apply to the UK.

As the situation is changing rapidly, you should track the FCO’s travel advice on a daily basis here.

6. Can we ask employees to change or cancel their personal travel plans?

No, you cannot force an employee to change or cancel their travel plans.  The best thing you can do is keep staff updated about the Government’s latest travel advice and explain what will happen if they elect to travel to a high-risk area (i.e. self-isolation for 14 days and what that will mean for their pay – see 9 below).   In addition to avoiding high-risk areas, the Government has advised that those aged 70 or over and/or with certain underlying health conditions should avoid cruise ship travel and that everyone else should try to avoid all unnecessary travel.

7. Do we need to take any special measures for employees returning from recent overseas trips?

Again, depending on the destination, yes.  If an employee has returned from certain areas in the last 14 days, then they must self-isolate for 14 days and call NHS 111 for advice even if they have no symptoms.  Currently, the affected areas are:

• Italy
• Iran
• The Hubei province in China.
• The special care zones in South Korea.

On top of this, if an employee has returned from certain areas in the last 14 days and has a cough, a high temperature and/or shortness of breath then the advice is the same: self-isolate for 14 days and call NHS 111 for advice.  Currently, the affected areas are anywhere else in mainland China and South Korea not listed above.  Other affected areas are: Cambodia; Hong Kong; Japan; Laos; Macau; Malaysia; Myanmar; Singapore; Taiwan; Thailand; and Vietnam.

You should consider whether you have any employees returning from these areas.  If you do, you should alert them to the Government’s advice and direct them to stay at home and call NHS 111.  If an employee turns up at work having visited one of these places in the last 14 days, you should immediately remove them to an isolated area (preferably a separate room with a separate bathroom) and tell them to call NHS 111 and follow their advice.

8. What exactly is self-isolation and who needs to do it?

Self-isolation means staying at home, not attending work or other public areas and limiting contact with other people for a period of either 7 or 14 days.  The Government has produced guidance on self-isolation here and here.  Currently, the following people are required to self-isolate:

• those living alone who have symptoms of the coronavirus (e.g. a continuous cough or fever) must self-isolate for 7 days from when the symptoms started;
• all of those who live in a household with others where one person has symptoms of the coronavirus must self-isolate for 14 days from when the ill person’s symptoms started (i.e. everyone in the household must self-isolate);
• those awaiting a coronavirus test result must self-isolate for 14 days;
• those entering the UK from certain countries must self-isolate for 14 days; and
• those who have been in direct contact with someone who has the coronavirus must self-isolate for 14 days.

At present, nobody outside of these groups is required to self-isolate.

9. What should we pay to an employee who self-isolates?

The pay entitlement for employees in self-isolation will turn on their situation – we explain the entitlements for the different scenarios below.  Employers should also note that the Government has committed to helping employers with fewer than 250 employees by refunding the cost of Statutory Sick Pay (SSP) paid out as a result of the coronavirus.   The scheme will be limited to 2 weeks’ worth of SSP per employee.  At the time of writing, this scheme is not yet up and running, but further details are expected shortly.

Too unwell to work, diagnosed with the coronavirus

You should pay sick pay in the normal way, save that SSP may be payable from the first day of absence rather than the fourth.  The Government has committed to change the usual rules on entitlement to SSP for coronavirus-related absence.   At the time of writing, however, this change has not come into force.  You should also not insist upon receipt of a Fit Note (see 10 below).

Too unwell to work, not diagnosed with the coronavirus

If an employee self-isolates and is too unwell to work but has not been diagnosed with the coronavirus (either because they have not been tested or are awaiting a test result), then you should pay sick pay to them in the normal way.  Again, SSP may be payable from the first day of absence rather than the fourth day.  You should not insist upon a receipt of a Fit Note (see 10 below).

Not unwell, self-isolating because of medical advice or Government guidance

Even though the employee is not sick, they will be entitled to be paid SSP because they are following medical advice or Government guidance to self-isolate.  Again, SSP may be payable from the first day of absence rather than the fourth day.  You would probably not be obliged to pay contractual sick pay because the employee is unlikely to satisfy the terms of your policy.

However, both Acas and the CIPD recommend that employers should elect to pay contractual sick pay to an employee in this situation.  This is to ensure that the employee follows advice to self-isolate and does not attempt to return to work due to concerns about not being paid. You may wish to outline your approach in an addendum to your Sickness Absence Policy.  For example, you could say you are willing to pay contractual sick pay in this situation, save where the employee has elected to travel to a high-risk area or embark on cruise ship travel contrary to the Government’s advice.

Not unwell, self-isolating because of employer’s advice

If you have instructed an employee to self-isolate, then the employee should be paid their normal pay (not sick pay).  This is because they are complying with your instructions.

Not unwell, self-isolating out of choice

If an employee wishes to self-isolate out of fear of catching the coronavirus then you should discuss the way forward with them.  In light of the Government’s latest guidance on social distancing (see below), you should aim to agree that the employee can work from home where possible.  Where this is not possible, you could agree that the employee takes a period of paid or unpaid leave.  Ultimately, if the employee is not unwell or self-isolating, is unable to work from home and is refusing to come to work, then you could consider disciplinary action.

Not unwell and working from home

The Government’s latest guidance on social distancing is that everyone (and especially those based in London) should:

• stop non-essential contact with others;
• work from home where they can; and
• stop all unnecessary travel.

This kind of social distancing is said to be very important for the over 70s, those with underlying conditions and pregnant women.   It is also expected that by the weekend of 21st – 22nd March 2020 those with the most serious health conditions should be largely shielded from all social contact for 12 weeks.

Accordingly, employers should be directing employees to work from home wherever it is possible to do so.  If the employee is working from home, you should pay them their normal pay (not sick pay).

10. Should we insist upon a Fit Note to certify sickness absences of more than 7 days?

Medical evidence is not required for the first 7 days of sickness absence.  After 7 days, employers usually ask employees to provide a Fit Note from their GP to certify their absence.  However, the Government has advised employers to use their discretion around the need for medical evidence where an employee has been advised to self-isolate.  In other words, do not insist upon the production of a Fit Note at the moment.  The Government has also announced plans to allow a special notification via the NHS 111 helpline to be used where an employer requires evidence.

11. Do we have to allow employees time off work if their child’s school or childcare setting has closed? Do we have to pay them?

Employees are entitled to take a reasonable amount of dependent’s leave to care for their children in emergency situations. Typically, such leave should be taken for no more than a few days.  If an employee needs a longer period of leave, they may be entitled to take parental leave (up to a maximum of 4 weeks per year per child).  Both dependent’s leave and parental leave are unpaid (unless you choose to enhance the basic right and pay for some or all such periods of leave).

Alternatively, an employee could ask to take paid annual leave or to work from home.  Whether working from home is feasible will depend on the nature of the employee’s job and the ages and/or numbers of children they will have to care for.

12. What other preparatory steps should we be taking?

There are several helpful steps that you can take now to put your business in the best position to deal with the unfolding situation.  These include:

• Assembling a team to be responsible for developing and operating your contingency plan.
• Implementing an internal communications strategy.
• Cancelling or restricting business travel to the affected areas.
• Ensuring managers understand the approach to be followed regarding sickness absence, self-isolation and pay.
• Ensuring staff contact numbers and emergency contact details are up to date.
• Considering control measures such as segregation or shift working to limit the number of people in the workplace at one time.
• Testing out homeworking arrangements and allowing staff to work from home wherever possible.

Should you require any further advice on your response to the coronavirus, please contact Amanda Steadman or your usual BDBF contact.

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Employment Law News

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TUPE and long-term sickness benefits: employee had contractual entitlement to receive benefits until he could return to original job

A long-term sick employee transferred under TUPE but was denied long-term sickness benefits by both the old and new employers’ PHI insurers.  After he was dismissed, he brought claims against the new employer.  The Court had to consider whether the new employer was liable to compensate the employee for the lost benefits until he was able to return to work and, if so, what that meant. 

What does the law say?

The right to benefit from an insurance scheme, such as permanent health insurance (PHI) will automatically transfer under TUPE.  What is not clear is whether the old employer’s right to be indemnified by their PHI insurer transfers to the new employer.  As a result, this is a high-risk area for the new employer.  If an employee who is receiving (or waiting to receive) PHI benefits transfers and is unable to claim under the old employer’s PHI scheme, then the new employer may be on the hook to make those payments itself. 

Further, where an employee is entitled to receive PHI benefits the courts may imply a term preventing dismissal where such dismissal would deprive them of those benefits.  If an employer dismisses in those circumstances it will be in breach of contract and may have to pay compensation equivalent to the lost PHI benefits, potentially up to the earlier of retirement or death.   

What happened in this case?

Mr Visram was employed by American Airlines as an International Security Co-ordinator at Heathrow airport. His employment contract provided for a long-term disability benefits plan.  Under the plan, he was entitled to be paid after 26 weeks’ sickness absence until the earlier of the return to work, death or retirement.  The plan was funded by a PHI policy that American Airlines held with Legal & General.  That policy provided that Mr Visram would be entitled to benefits provided that he remained employed and was too sick to perform the essential duties of the role he performed immediately before going off sick.

In October 2012, Mr Visram went off sick.  Several weeks later his employment transferred from American Airlines to ICTS (UK) Ltd (ICTS).   He remained off sick after the transfer.  When he had been off sick for 26 weeks, he expected to receive the long-term disability benefits.   However, ICTS’ own PHI insurer, Canada Life, refused to pay because Mr Visram was already on sick leave when the policy commenced.   Legal & General also refused to pay because Mr Visram was no longer employed by American Airlines.  After some discussion with ICTS, Legal & General agreed to make 18 months’ worth of payments.  At the end of that period, ICTS dismissed Mr Visram on the grounds of capability and he brought claims for unfair dismissal and disability discrimination. 

What was decided?

Mr Visram succeeded in his claims and the Employment Tribunal decided that he had a contractual entitlement to the long-term disability benefits until he was able to return to work.  This meant that ICTS had been liable to make the payments, regardless of the PHI insurers’ position. 

The question was then how long such payments should have been made for.  If return to work meant the original role, then Mr Visram should be compensated for lost benefits until the earlier of death or retirement.  If return to work meant any suitable full-time work, then, in the Tribunal’s view, compensation should be limited to 4 years’ worth of lost benefits.   The Tribunal decided that “return to work” meant returning to his original role, not an alternative role.   Therefore, ICTS had to pay compensation based upon the lost long-term disability benefits until the earlier of death or retirement.  ICTS appealed to the EAT and then the Court of Appeal.

The Court of Appeal rejected the appeal.  The Court decided that the way the contract was drafted made it clear that Mr Visram was entitled to receive the benefits until he was able to return to his previous work as an International Security Co-ordinator, not just any work.  If the intention had been to provide benefits until the point that the employee could return to any work, then this should have been made clear. 

What are the learning points?

This decision highlights two key points for employers:

• Very careful drafting around the entitlement to long-term disability/PHI benefits is needed. Here, the drafting ultimately obliged the employer to pay these benefits to a qualifying employee.  Although the benefit was funded by insurance, the contract did not stipulate that the employee’s entitlement was contingent upon the insurer accepting the claim and making the payment to the employer.  Further, the employer’s hands were tied by the requirement to pay the benefits until the employee returned to their original role.  Had the wording been extended to cover return to an alternative role, the employer may have avoided liability.

• Incoming employers in TUPE transfers must conduct careful due diligence on the precise nature of such entitlements. In this case, both the old and new insurers refused to fund the claim, meaning the new employer was on the hook for the payments.   Incoming employers in this situation should seek to agree an adjustment to the sale price and/or seek an indemnity from the seller to cover the risk.

ICTS (UK) Ltd v Visram

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row admin_label=”row” _builder_version=”3.25″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.2.2″ text_orientation=”justified” use_border_color=”off”]Polly Rodway, BDBF Partner makes a clarion call to government for stronger legislation and guidance to close the gender pay gap

In April 2020, companies with 250 or more employees must publish their gender pay gap information for the third time under the Equality Act (Gender Pay Information) Regulations 2017.  Whilst gender pay reporting turned the spotlight on the issue of pay inequality, we remain a long way off achieving the ambition of those regulations of closing the gender pay gap within a decade. Indeed, the Fawcett Society predicts that it will take 60 years to close the gap at the current rate of decline.  What’s more, there is serious doubt about the reliability of the gender pay information published by companies to date, which calls into question even this depressing prediction.  To combat this, it is essential that the Government provides strict guidelines to companies about gender pay reporting and swiftly, before the April 2020 deadline.

There are three key issues which better guidance would address.

The first, is that employers struggle with how to navigate the pay reporting process and regularly make mistakes.  After the first year of publication, the BEIS Select Committee on Gender Pay Gap Reporting published a report stating that employers had published “highly improbable, inaccurate or questionable” data with mathematically impossible figures.  We can only hope that this has improved over time.

Second, existing guidance (which is non-statutory and non-exhaustive) is ambiguous meaning business must make judgement calls on their own data.  As a result, it is common for companies to ‘cut’ their data to avoid a large gap, for their own PR purposes.  This might include, for example, excluding overseas employees, or bonuses/allowances, or by hiding behind corporate structures (because, for example, LLP members are excluded from the data).  The regulations, and the guidance, allow for all of this.  Lack of consistency applied from company to company clearly undermines the transparency of information. Lack of clear guidance from the Government enables companies to behave in this unscrupulous way for their own purposes.

Third, publication of isolated figures, without any explanatory narrative and plan of action to close the gap is not helpful.  The Government chose not to mandate a requirement to do so, hoping instead that transparency would be enough of a driver. It is clearly not.  If companies are required to commit to paper an explanation of their own pay gap, and most importantly an action plan as to how they will address it, this will drive the necessary change.

The gender pay gap is a global issue, and one which is not going away as the profile of gender pay disputes continues to rise.  The UK Government took a positive step in 2017 requiring gender pay reporting, but its duty does not stop there.  Further action is needed to ensure that companies provide accurate and transparent data to enable those fighting the cause to get to the root of the problem, and resolve it.

Polly Rodway is a partner specialising in sex discrimination, harassment, pregnancy and maternity  discrimination, and senior executive equal pay.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″][et_pb_row _builder_version=”3.26.6″][et_pb_column type=”4_4″ _builder_version=”3.26.6″][/et_pb_column][/et_pb_row][/et_pb_section]

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Employment Law News

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What’s on the horizon for HR in 2020?

Brexit aside, 2020 promises to be yet another busy year for HR professionals, with a raft of reforms coming into force on 6 April 2020.  On top of this, the Queen’s Speech delivered at the end of 2019 outlined plans to introduce a new Employment Bill, which will contain further measures aimed at enhancing workers’ rights.   Here, we round up the top 10 reforms for HR professionals to focus on over the coming year.  To complete the picture, next month we will round up the top 10 employment law cases in 2020 for HR to track.

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

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Employment Law News

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Protection of workers’ rights downgraded in Brexit withdrawal legislation

With Britain set to leave the European Union on 31 January 2020, thoughts inevitably turn to what lies ahead.  A key question for those working in HR is what will happen to workers’ rights post-Brexit.  Will EU workplace rights be retained and will the ECJ’s judgments on workers’ rights remain binding?

An important part of the jigsaw in understanding the future of workers’ rights in the UK is the European Union (Withdrawal Agreement) Act 2020 (the Act).  The Act is the legislation which enshrines the draft Withdrawal Agreement between UK and EU in law and allows the Government to formally agree the Withdrawal Agreement.   The Act became law on 23 January 2020.

The previous draft version of the legislation contained provisions which ringfenced workers’ rights.  First, there was a lock on EU-derived workers’ rights as at the end of the transition period (currently, 31 December 2020).  This lock meant that before the Government could change workers’ rights, it would have to consult employer bodies and trade unions and issue a “non-regression statement” confirming that EU-derived workers’ rights would not be watered down by any new proposals.  Second, there were provisions which put ECJ decisions on a par with UK Supreme Court decisions.  In other words, only the UK Supreme Court would have the power to depart from a ruling of the ECJ; lower courts could not.

However, these two key protections have been removed from the Act.  The lock on EU-derived rights has gone and there are new provisions which would allow lower courts and tribunals to depart from earlier decisions on EU-derived workers’ rights, whether from the ECJ or our own courts or tribunals.  What do these changes mean in practice?  The Employment Lawyers Association (ELA) has considered these changes and concluded that they have the potential to “create substantial, and long-lasting, uncertainty” for both employers and employees alike.  You can read ELA’s full statement on the Act and its potential impact on workplace here.

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