To help you keep quickly up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.
If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, Senior Associate, or with your usual contact in the Foot Anstey employment team.
In the courts...recent case updates
Hextall v Chief Constable of Leicestershire Police: not paying enhanced shared parental pay may be indirect sex discrimination
In factually similar circumstances to the case of Capita Customer Management Ltd v Ali and another UKEAT/0161/17, the EAT has remitted the case of Hextall v Chief Constable of Leicestershire Police for a fresh hearing. The Tribunal in Capita Customer Management held that there had been no direct sex discrimination (please click here to view our previous coverage of the decision). However, the present proceedings cast doubt on this decision as the EAT have remitted the case for a fresh hearing at the ET following its earlier decision of no indirect discrimination.
In what was a very technical legal case, the EAT were asked to consider two types of leave which the Claimant alleged were comparable:
- a man on shared parental leave being paid statutory shared parental pay (£145.18 or 90% average weekly earnings, whichever is lower); and
- a women on maternity leave entitled to full pay for 18 weeks
The EAT considered that the ET had erred in its decision on many levels however, specifically that a) and b) were not comparable and a) should instead be compared with a woman on shared parental leave. The ET should not have deployed the comparator test used in direct discrimination claims to reject the indirect discrimination claim.
The EAT’s decision in Hextall leaves the door open for claiming that not enhancing shared parental pay may be indirect sex discrimination in contrast with the Capita decision. However we will keep you up to date with any developments and updates arising from the fresh tribunal proceedings.
EAT follows the recent Uber BV decision finding that a cycle-courier was a worker and not an independent contractor
In the recent case of Addison Lee Ltd v Gascoigne, the EAT upheld the ET's previous decision that cycle couriers are 'workers' entitled to basic employment rights. For a case summary please click here.
Employers can be found liable for discrimination arising from disability despite not knowing that the disability caused the misconduct
The Court of Appeal has ruled in City of York Council v Grosset that where an employer dismisses a disabled employee for misconduct, and that misconduct is held to have arisen in consequence of the employee's disability, the employer can be held to have breached s.15 of the Equality Act 2010 despite not knowing that the disability caused the misconduct. In this case, the Claimant was a teacher who was dismissed for showing an 18-rated horror film to vulnerable 15 year olds. He argued that although this was an error of judgement, it was caused by the stress of balancing an increasing workload with his cystic fibrosis condition.
The EAT had found, and the Court of Appeal agreed, that for the purposes of s15, all that must be shown is that the “something” which was the reason for the unfavourable treatment (i.e. showing the film) was a consequence of the disability. This is purely a question of fact meaning the employer's knowledge of the causal link is irrelevant. All the employer needs to know is that the employee is disabled which was accepted by the Appellant.
Although this can be seen as a harsh decision, it re-emphasises the Court's strictly objective approach to s.15 discrimination claims which aims to prevent Defendants escaping liability by relying on their own ignorance.
Dismissal on expiry of fixed-term contract still unfair despite compliance with Fixed-Term Employees Regulations 2002
In Royal Surrey County NHS Foundation Trust v Drzymala, the EAT has upheld an ET decision that an employee working under a fixed-term contract was unfairly dismissed when her contract was not renewed. The ET had previously found that although the employer had followed the 2002 regulations in giving the employee notice of an impending permanent position, this did not mean the dismissal would be automatically fair. Indeed in the circumstances, the ET found an unfair dismissal as the employer had failed to discuss and consider suitable alternative employment and only given the Claimant a right of appeal after she had been dismissed.
The EAT confirmed this finding stating that the ET had not erred in law by substituting its own view of fairness, nor by placing too high a burden on the employer when finding that alternative employment opportunities should have been considered. Although the employer had followed the 2002 Regulations, it remained settled law that expiry of a fixed term contract could constitute 'some other substantial reason' for the dismissal and the general test of fairness continued to apply.
It can be reasonable to dismiss an employee without prior warning for multiple acts of misconduct
The EAT has ruled in Mbubaegbu v Homerton University Hospital that an employer can dismiss an employee without prior warning for multiple acts of misconduct despite none of the breaches in isolation amounting to gross misconduct. In this vein, the EAT stated that "it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence" and justify summary dismissal.
In this case the Claimant was a surgeon of black African origin and was dismissed for multiple breaches of a newly introduced reporting procedure. The EAT found that the repeated breaches (which gave rise to concerns about patient safety) were enough to justify the dismissal as within the range of reasonable responses the Hospital could have taken, notwithstanding that no single act of gross misconduct was found. The Claimant also argued that the ET had erred in looking at the discrimination allegations individually rather than cumulatively. The EAT again sided with the ET, confirming that their approach had not been fragmentary on a fair reading of the whole judgement. The dismissal was therefore held to be fair, not discriminatory and not wrongful.
Legislation and Guidance
As readers will be aware, the GDPR comes into force on 25 May 2018. Whilst businesses should have geared up and be ready for the new legislation, recent commentary indicates that data protection regulators will continue to take a proportionate approach, as emphasised by the Information Commissioner and other European regulators. In particular, Elizabeth Denham (UK Information Commissioner) has stated: "I have no intention of changing [the ICO's] proportionate and pragmatic approach after 25 May. My aim is to prevent harm, and to place support and compliance at the heart of our regulatory action.". She has also been quoted as saying "We're not going to be looking at perfection, we're going to be looking for commitment."
Government Equality Office publish new guidance on Dress Codes and Sex Discrimination
The guidance entitled "Dress Codes and Discrimination: what you need to know" and published in May 2018, reminds employers that dress policies for men and women do not have to be identical, but standards imposed should be equivalent. It warns that requiring any gender-specific items, such as skirts, high heels or certain hairstyles is likely to be unlawful assuming that there is no equivalent requirement imposed on men. The advice also provides employers with guidance on current issues such as dress codes for transgender staff, which makes clear that they should be allowed to follow the company's dress code in a way that best matches their identity.
In terms of general advice, the Office suggests that dress codes should be reasonable and equally enforced between genders. Employers should engage constructively with employees concerns regarding dress code and seek to reach a compromise so that workplace appearance is acceptable to both the organisation and its staff. This echoes the Equality Act 2010: Employment Statutory Code of Practice, which confirms for example that it is good practice for employers to consult their staff on possible exceptions to the dress code, such as religious jewellery.
Equality Act 2010: Handbook for Advisers
The recently published Handbook for Advisers has been prepared by the Equality and Human Rights Commission (EHRC) and provides an updated version of the guidance for advisers when seeking to comply with the Equality Act 2010.
The guide is intended to act as a starting point and provides information for those operating in various sectors and helpfully provides a 6 point checklist to consider when analysing whether any discrimination has or is likely to take place. Specifically, it reiterates its previous guidance on the protected characteristics whilst providing examples and further reading for those looking to obtain more detailed information on a particular subject.
Sleep-in staff: parliamentary briefing paper published
The House of Commons Library has published a briefing paper, National Minimum Wage (NMW) which provides a useful update on the payment of the national minimum wage for sleep-in carers. This has previously been a hot topic and an issue that we previously covered in May 2017 when we considered the case of Royal Mencap Society v Tomlinson-Blake. Interestingly, it was this decision that was the driving force behind the new guidance and which encouraged the Government to provide clarity on what it revealed to be a widespread issue.
The document outlines the current law and legal framework in addition to setting out the ways in which individuals can enforce their NMW rights – either through the courts or tribunals. Importantly, it also highlights the availability of the Social Care Compliance Scheme which is available to employers who have underpaid employees (for more information see our November 2017 in brief). If eligible, employers will not be liable for any financial penalty nor be publically named as having underpaid.
Religion and Belief: new guidance published
Acas has launched new Guidance on Religion and Belief to help prevent discrimination at work. In particular it contains guidance on talking about religion and particular considerations for some religions such as food and fasting and washing and changing rooms
Employment growth to continue but more employers face increasing challenge in finding the people they need
The continued growth in demand for labour is set to lead to a further tightening of the UK labour market for employers, making it harder for them to source the skills need. The CIPD's quarterly survey of more than 1,000 employers suggests that in the second quarter of 2018, there will be a surge in demand for labour which is likely to outstrip supply. There are already signs that this is increasing wage pressures, as mean basic pay expectations have risen by 0.3% over the last quarter. Employers may therefore soon find themselves struggling to fill vacancies without enticing new talent with higher starting pay.
Despite this, employers are cautiously optimistic, with the UK Government having recently confirmed that EU nationals arriving during the Brexit transition period (March 2019 to December 2020) can stay in the UK indefinitely. The global labour market is therefore hoped to provide a much needed boost to sectors such as manufacturing and business services, at least until the post-Brexit position is made clear.
Cabinet members told to demand gender pay gap action plans from key sectors, as EHRC confirms a "zero tolerance" approach to enforcement
Following the recent introduction of mandatory gender pay reporting, the BBC has now confirmed that 78% of companies pay men more than women. This shocking finding has sparked the Government into action, with Cabinet ministers having been given six months to collect action plans on how their respective sectors intend to close their gender pay gaps. Following reports that pay between men and women in the UK will not equalise until 2052, Penny Mordaunt MP, the recently appointed women and equalities minister confirmed that ministers would be tasked with collecting data on how each sector intends to close the gap and would report back to the cabinet by November this year.
This re-emphasises the zero-tolerance approach taken by the Equality and Human Rights Commission, who have recently warned employers that if they fail to meet the reporting deadline they could face summary conviction, an unlimited fine or even be forced to publish data under a court order. Those that did meet the deadline for the first round of reporting shone the spotlight on how men dominate the highest-earning senior roles, which companies must work hard to tackle if they are to maximise their talent pool from which to draw. More on the key trends emerging from the gender pay reporting requirement can be found in our article.