Employment legal update #73

1. The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force in October 2024 and introduces a duty on employers to take reasonable steps to prevent sexual harassment of their employees.

The Equality and Human Rights Commission has launched a consultation on draft guidance which it has produced on the preventative duty. Key points are:

• the duty is “anticipatory”, meaning employers should anticipate scenarios in which employees may be subject to sexual harassment and take reasonable steps to prevent it;
• if sexual harassment has occurred, the employer should take steps to stop it happening again;
• guidance on reasonable steps that employers may take in assisting prevention;
• sets out the potential consequences of failure to comply with the duty, which include enforcement action by the EHRC and for tribunals to increase compensation by up to 25% where an individual succeeds in a sexual harassment claim and the employer has not complied with the preventative duty;
• emphasises that the preventative duty and the enforcement powers also cover harassment by third parties.

2. The Kings speech introduced the new legislation which the Labour government is intending to implement via the Employment Rights Bill. The proposed changes are as follows:

• a ban on ‘exploitative’ zero-hour contracts, ensuring workers have a right to a contract that reflects the number of hours they regularly work and that all workers get reasonable notice of any changes in shifts with proportionate compensation for any shifts cancelled or curtailed;
• ending the practice of ‘fire and rehire’ by reforming the law to provide effective remedies and replacing the previous Government’s statutory Code of Practice;
• “day one” rights to be extended to encompass parental leave, sick pay and, crucially, protection from unfair dismissal (subject to probationary periods to assess new hires);
• removing the lower earnings limit and the three-day waiting period for SSP;
• flexible working to be default from day one for all workers, with employers required to accommodate this as far as is reasonable (the day one right came in on 6 April 2024);
• extending the protected period for new mothers so that it will be unlawful to dismiss a woman who has had a baby for six months after her return to work, except in specific circumstances (effectively already in force in respect of the redundancy right to be offered a suitable alternative vacancy up to 6 months following the return from maternity leave);
• establishing a new Single Enforcement Body, also known as a Fair Work Agency, to strengthen enforcement of workplace rights;
• establishing a Fair Pay Agreement in the adult social care sector and to review its operation to assess how and to what extent such agreements could benefit other sectors;
• reinstate the School Support Staff Negotiating Body, to establish national terms and conditions, career progression routes and fair pay rates;
• update trade union legislation, removing unnecessary restrictions on trade union activity – including the previous Government’s approach to minimum service levels – and ensuring industrial relations are based around good faith negotiation and bargaining;
• simplifying the statutory recognition process and introducing a regulated route to ensure workers and union members have a reasonable right to access a union within workplaces.

3. The King’s speech also introduced the Equality (Race and Disability) Bill; key points as follows:-

• full right to equal pay for ethnic minorities and disabled people, to make it easier for them to bring pay discrimination claims
• mandatory ethnicity and disability pay reporting for employers with 250+ employees to help close the ethnicity and disability pay gaps.

4. The statutory Code of Practice on Dismissal and Re-engagement ( ‘fire and rehire’) came into force on 18 July via the Code of Practice (Dismissal and Re-engagement) Order 2024.

Unreasonable failure to follow the Code may result in compensation for certain claims in a tribunal, including unfair dismissal, being increased or reduced by up to 25%. The Government has stated it will bring forward new legislation to make fire and rehire unlawful and will then replace the Code with a strengthened version.

5. Regulations have been made to bring the Employment (Allocation of Tips) Act 2023 into force on 1 October 2024.

The Act imposes a duty on employers to ensure that all qualifying tips, gratuities and service charges are allocated fairly to workers. Regulations have also been made to bring the statutory Code of Practice on Fair and Transparent Distribution of Tips into force on the same date.

Lay tribunal member recused on basis of bias

The case of Higgs v Farmor’s School concerns a request by the claimant to recuse a lay member of the EAT on the grounds of bias evidenced in social media posts by the individual, which indicated that the lay member could have homophobic or transgender views which might adversely influence their decision-making in the case. The social media posts indicated opposition to the kinds of ‘gender critical’ beliefs for which the claimant asserted she had been dismissed for expressing.

The claimant was employed as a pastoral administrator and work experience manager. She posted on Facebook about sex education and the teaching of “gender fluidity” which resulted in a complaint of homophobic and prejudiced views towards LGBT people. The school accepted that someone reading the posts might conclude that the claimant felt strongly that gender fluidity should not be taught in schools and demonstrated hostility towards the LBGT community, and trans people. Consequently she was dismissed, and brought claims of direct discrimination and harassment on the ground of her protected beliefs, including her lack of belief in ‘gender fluidity’ and lack of belief that someone can change their biological sex.

Her claims were dismissed because, while the tribunal accepted her beliefs are protected under the Equality Act, it took the view that this was not the reason for her dismissal, which was that she would be seen to hold unacceptable views regarding gay and trans people (which she denied). She appealed to the EAT, but when the appeal was listed in front of the judge and two lay members, the claimant sought the recusal of one of the lay members. This was because the individual had made posts on Twitter which the claimant said indicated strong opposition to gender critical views equivalent to trans phobia and support for sex and relationship education in schools. Her claim focused on this subject area and as such, she was concerned that the lay member would be biased.

The application was granted on the basis that it might appear to the public at large that the lay member concerned could potentially be biased against the claimant, given the highly sensitive nature of the beliefs held.

Costs order must not be subject of Unless Order

In Chumbu v The Disabilities Trust, the EAT has held that an employment tribunal was wrong to require a claimant to pay an award of costs under an unless order. The effect of this was to make the costs award akin to a deposit order.

The claimant failed to comply with an unless order that required him a) to serve his witness statement, and b) pay the sum awarded against him by way of an earlier costs order. As a result, his claims were dismissed. He applied to the tribunal to set aside the unless order but it refused, whereupon he appealed to the EAT.

The EAT agreed with the tribunal that it was right not to set aside the unless order in relation to the witness statement; he had not complied with several previous orders in the case.

However, the EAT held that the tribunal had been wrong to make the costs award the subject of the unless order. This turned the order into a form of deposit order without the safeguards provided by the relevant Tribunal rule in relation to making orders. The EAT held that the costs part of the unless order placed a condition on the claimant’s access to justice in respect of claims that had either been considered to have reasonable prospects of success or in respect of which he had already paid a deposit as a condition of continuing with his claims. Furthermore there were significant changes in the claimant’s circumstances since the costs award had been made which should be taken into account.

The EAT held that the tribunal decision in respect of the non-compliance with the costs award being enforced by an unless order demonstrated a failure to consider the interests of justice and was perverse. However the Tribunal decision about the unless order with regard to the witness statement was upheld by the EAT.

Fair dismissal for failure to comply with vaccination policy

In Masiero and ors v Barchester Healthcare Ltd, the EAT has rejected an appeal against an employment tribunal’s decision that care home workers were fairly dismissed for refusing to comply with their employer’s policy of mandatory vaccination for all employees against COVID-19 during the pandemic. The tribunal had addressed in detail the question of whether these dismissals were fair in all the circumstances, looking at all the factors identified by the claimants – including the limited risk posed by them as individuals and the fact that 95% of staff were already vaccinated – as well as human rights considerations. The tribunal was entitled to find that even a small reduction in the risk to life of care home residents could outweigh the claimants’ right to a private life under Article 8 of the European Convention on Human Rights. This was particularly apposite in the circumstances of a pandemic with an uncertain future impact and where both the employer’s and the employees’ primary responsibility was to ensure the welfare of care home residents.

Part-time Workers Regulations not breached by part-time driver having to pay the same fee as full-time

In Augustine v Data Cars Ltd the EAT has held that, for there to be a breach of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations, a claimant’s part-time status must be the sole reason for the less favourable treatment.

The claimant was a private-hire driver. All drivers, whether full-time or part-time, had to pay a circuit fee of £148 per week to access the employer’s database. He worked 34.8 hours a week on average against a comparator who worked over 90 hours. Because both full and part-time drivers had to pay the same fee, the tribunal found that there was no less favourable treatment and that his claim therefore failed because he was not charged the fee solely because he worked part-time. He appealed.

The EAT overturned the findings regarding the same fee being payable, observing that treating someone the same as someone else can amount to less favourable treatment. Pro-rata, the claimant was treated less favourably because the fee was a greater proportion of his earnings compared to a full-time driver. Under the pro rata principle in regulation 5 (3) of the Part-Time Workers regulations, the claimant was therefore treated less favourably. Another way of looking at it was assessing the amount of the fee as a proportion of hours worked by him compared to his comparator so that he would be paying a proportionately higher fee.

The “sole reason” test was rejected, with the EAT instead preferring the “effective and predominant cause” of the less favourable treatment. However, it felt obliged to follow the Court of Session precedent which held that the fact of the individual working part time had to be the sole cause of the less favourable treatment. Although the EAT in England and Wales is not strictly bound by Court of Session decisions the EAT felt it was in the public interest for consistency of approach to do so.

Provocative sign-off inappropriate manifestation of gender critical belief

In Orwin v East Riding of Yorkshire Council a tribunal (so a non-binding decision but interesting nonetheless) dismissed an employee’s claims against his former employer of direct discrimination, unfair dismissal and wrongful dismissal in relation to his gender critical beliefs.

The claimant held views that sex is biologically immutable and binary. As is not uncommon these days, the respondent introduced a policy inviting staff to add pronouns to their email signature. They gave no guidance as to what was acceptable and it was not mandatory.

The claimant objected to this policy because he considered it promoted a political ideology of self-identification with which he disagreed. He demonstrated his disagreement with this policy by adding the words “XYchromosomeGuy/AdultHumanMale” to his email signature. The council requested him on numerous occasions to remove the words but he refused and was eventually sacked.

The tribunal rejected the claimant’s argument that his dismissal was because of the legitimate manifestation or expression of his beliefs under Articles 9 and 10 of the European Convention on Human Rights (ECHR). It instead found that he had created the sign-off as a deliberate provocative act of gender self-identification designed to mock the concept, and not as an expression of his gender identity. As such, the purported manifestation of his belief was not protected under the ECHR because there was not a sufficiently close connection between the email signature and the claimant’s gender critical beliefs. The Council’s dismissal of the claimant was a reasonable response to an inappropriate manifestation of the claimant’s beliefs, rather than because he held gender critical beliefs, and its decision to dismiss was not direct discrimination. The tribunal took into consideration that the claimant had a public facing role and was utilising the Council’s resources to be deliberately provocative. There was a much higher risk of reputational damage in this way than where employees express views on social media. It also flew in the face of the council’s attempts at inclusivity in accordance with its public sector equality duty. This notwithstanding, the tribunal took a fairly dim view of the way in which the policy had been created and implemented.