Working Relations February 2019

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HighlightsKey developmentsKey casesFuture developmentsRecent changesEvents


Highlights

Brexit continues to dominate the headlines, including within the employment sphere with the publication of new draft legislation designed to protect workers’ rights. There also remains a focus on speak-up culture, with the Government’s new consultation on the use of confidentiality clauses and the strong policy reasons to restrain disclosure of sensitive confidential information confirmed in Linklaters v Mellish to encourage complainants to come forward. There have also been a number of successful sex discrimination cases.

Key developments

Brexit: draft legislation published regarding workers’ rights post-Brexit

The Government has published a new draft policy paper “Protecting and enhancing worker rights after the UK withdrawal from the European Union” before the next vote on Theresa May’s Brexit deal on Tuesday 12 March. The paper contains new draft legislation designed to protect workers’ rights, including a requirement that where a new Bill will affect employment rights, a minister in charge of the bill must make a Statement of Compatibility with the commitment to non-regression, as well as a mechanism to consider whether the UK should align with changes to EU employment rules on a case-by-case basis. It is thought to have been introduced in an attempt to win over the support of Labour MPs.

Brexit: BEIS issues guidance on using personal data after Brexit

BEIS has published guidance on using personal data after Brexit both in the event of a deal or no deal. If there is a deal, there will be no change during the Implementation Period while the EU assesses the UK for an adequacy decision. The situation is more complicated if there is no deal because it is unlikely that there will be an adequacy decision before 29 March 2019 and therefore businesses may need to put safeguards in place to allow data transfers from the EU. BEIS recommends following the ICO’s six step guidance.

BEIS launches new consultation on confidentiality provisions (or NDAs)

BEIS has launched a consultation to identify what measures can be taken to prevent the misuse of confidentiality clauses in situations involving workplace harassment or discrimination, typically found in settlement agreements and employment contracts. The consultation seeks views on:

  • whether certain categories of persons should be guaranteed as exceptions to confidentiality provisions, such as the police
  • whether legal advice given to employees entering settlement agreements should specifically cover the meaning and effect of confidentiality clauses
  • whether legislation should be introduced to require confidentiality clauses to follow a prescribed form of wording.

The consultation is set to close on 29 April 2019. We will be submitting a response to the consultation, which will incorporate client input.

For further information, see our elexica article.

Further guidance to help employers close gender pay gaps

In advance of the next gender pay gap reporting deadline in April 2019, the Government Equalities Office (GEO) has published further guidance to help employers close their gender pay gaps, including:

  1. Eight ways to understand your gender pay gap, which aims to help employers identify different potential causes of GPG throughout the employment lifecycle.
  2. Four steps to developing a gender pay gap action plan, which makes suggestions based on feedback from employers with effective plans in place.
  3. What works to reduce the gender pay gap: family friendly policies, which provides guidance on the actions employers can take to improve their family friendly policies.
BSB consults on best practice guidance for regulatory reference requirements

The BSB has published a consultation paper on draft guidance on implementing the regulatory references requirements, a core element under the Senior Managers and Certification Regime (SMCR). The BSB appreciates that firms must balance a range of significant considerations in implementing the regulatory reference requirements, including legal and regulatory obligations (employment law, data protection, requirement to give to full and accurate disclosure regarding fitness and propriety), but also general, ethical principles such as consideration to an individual's career and livelihood. The draft guidance aims to help firms navigate these considerations. It is not intended to be binding, but good practice guidance. The consultation closes on 20 March 2019.

For firms in scope of the extension of SMCR, we have developed a toolkit with practical and user-friendly templates and guidance on how to implement and comply. Please click here to find out more. For further information, see our SMCR microsite.

New Acas guidance on age discrimination

Acas has published new guidance on age discrimination for employers (and others), which includes steps to take to prevent age discrimination in the workplace, examples of how it might still occur in the different stages of the employment lifecycle and how it might be dealt with. The guidance was published alongside two interesting factsheets: top ten myths and ten obligations for employers.

BEIS holiday pay guidance and online calculator

BEIS has published guidance and an online calculator on calculating holiday pay for workers without fixed hours or pay. The guidance comes after data from a recent poll suggested that 35% of respondents thought that only those in permanent roles were entitled to holiday pay.

Key cases

Keeping Records of Working Time

Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE - Advocate General

In this group action brought by a trade union (the CCOO) against Deutsche Bank in Spain, the Advocate General has suggested that employers be required to set up a system for recording the actual number of hours worked each day (not just for night work and average working time) for full-time workers who have not expressly agreed, individually or collectively, to work overtime. As is commonly the case, Deutsche Bank use an Absence Calendar which only records absences of full days such as annual leave and sick leave, not the actual hours worked on any given day. The AG’s opinion is not binding, but is usually followed by the CJEU. The impact on UK law will not be clear until the CJEU has delivered its decision.

Early Conciliation and Time Limits

Galloway v Wood Group Ltd - Employment Appeal Tribunal

In this case, the Claimant had provided an invalid email address to ACAS by mistake. ACAS sent the early conciliation certificate to this email address. Under the rules of early conciliation, the certificate is deemed received on the day it is sent and starts the clock running again for the purposes of lodging a claim. By the time the error was corrected, the time limit for his claim had expired. Overturning the decision of the Tribunal, the EAT held that the non-existent email address was not really an email address and that the clock is not triggered until the certificate is sent to an actual, valid email address. As a result, the claim was not out of time.

Agency Workers: right to equal pay and benefits

London Underground v Amissah & Ors - Court of Appeal

Agency staff working for London Underground (LU) brought claims against LU for breach of the Agency Workers Regulations (AWR) because they were paid less than comparable LU staff. The Court of Appeal confirmed that the AWR confers a substantive right to equalised pay and benefits, not just for workers to be issued with compliant terms and conditions.

It transpired that LU had previously paid the agency to cover the underpayments, but the agency had dishonestly withheld that money from the agency staff. The agency then went into liquidation. The Tribunal apportioned liability 50/50 between the agency and LU, but then applied the "just and equitable test" in AWR awarding the Claimants no compensation otherwise LU would "pay twice". The Court of Appeal held that it was wrong not to award compensation on this basis, and that this should only apply in exceptional cases where the Claimant was blameworthy. LU had chosen to work with the agency and should bear the burden of its dishonesty.

Automatic unfair dismissal: future breach of a statutory right not sufficient

Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare) - Employment Appeal Tribunal

The Claimant was dismissed for gross misconduct following an allegation of sexual harassment against him. At the disciplinary hearing, he said that he had been informed by a colleague that the decision to dismiss him was already predetermined. With less than two years’ service, he brought a claim for automatic unfair dismissal on the basis that he was dismissed for alleging that his employer had breached a statutory right. The Tribunal struck out his claim and the EAT upheld this decision. Section 104 of the Employment Rights Act 1996 requires an allegation “that the employer had infringed a right of his which is a relevant statutory right”, in the past tense. An allegation that there may be a breach in the future is not sufficient - there must have been an actual infringement by the employer.

TUPE: automatic unfair dismissal

Hare Wines v Kaur - Court of Appeal

The Claimant was a cashier for a wine wholesale business. In 2014, the business was transferred to a new entity, Hare Wines, which constituted a TUPE transfer. The Claimant had a difficult working relationship with Mr Chatha (C), who was to become a director of Hare Wines. Her employment was terminated on the day of the transfer and she claimed automatic unfair dismissal on the basis that her dismissal was for a reason related to the transfer.

The Court of Appeal upheld the decisions of the Tribunal and EAT. The Claimant was dismissed because the transferee did not want to employ her due to anticipated ongoing difficulties with C, and therefore the reason for dismissal was the transfer. Whilst dismissals for economic, technical or organisational (ETO) reasons can be fair, this type of ‘personal’ reason would not prevent a transfer-related dismissal from being automatically unfair.

Religious Discrimination

Gan Menachem v de Groen - Employment Appeal Tribunal

Ms De Groen was a teacher at an ultra-orthodox Jewish nursery. At a BBQ, her boyfriend revealed that they were cohabiting (outside of marriage) in front of parents of the children, in contravention of the beliefs of ultra-orthodox Jews. At a subsequent meeting with the nursery, Ms De Groen was told that what she did in her private life was of no concern to them, but asked to confirm that she no longer lived with him so that the nursery could relay this message to concerned parents. Ms De Groen refused to lie and was dismissed.

At Tribunal, she won claims of discrimination on grounds of religion/belief and sex. On appeal, her claims of sex discrimination were upheld, but the EAT overturned the decision of discrimination based on religion/belief. Relying on the decision in Lee v Ashers (the gay cake case), it held that less favourable treatment because of the beliefs of the “discriminator” is not enough to make out a direct religion or belief discrimination claim.

Positive action: police discriminated against white heterosexual male

Furlong v Cheshire Police - Employment Tribunal

The Claimant, a white, heterosexual non-disabled male, applied to be a police officer. He was invited to their assessment centre and was one of the highest scoring candidates, but was informed he was unsuccessful because there were not enough vacancies. Cheshire police treated all candidates who had passed as being of “equal merit” and did not offer him a job because it sought to redress its lack of diversity in line with its positive action plan to recruit BAME, female, LGBT and disabled candidates.

The Claimant successfully claimed direct discrimination on grounds of sex, race and sexual orientation. Positive action is only permitted in limited circumstances where it can be justified and Cheshire police had failed to satisfy the legal requirements. The Tribunal was highly critical of the process adopted by Cheshire police, stating that it was a “fallacy” to treat all 127 candidates that passed as equally qualified. Their blanket approach was not considered a proportionate means of achieving a legitimate aim.

Sex discrimination: ONS economist wins £19,000

Renowden v Office for National statistics - Employment Tribunal

The Claimant, female, worked for the Office of National Statistics (ONS) as an economist. In 2017, the ONS advertised two positions for the role of senior economist. The Claimant applied for both positions, but was not invited for interview and rejected without explanation. After it emerged that the roles had been given to two younger men with significantly less experience, she successfully claimed direct sex discrimination. The judgment highlights that there was an “an informal process that led to temporary promotions for males in substantially greater numbers than females” and that the “culture of the respondent is one where advantage and favouritism towards males is not recognised as potentially discriminatory”.

Interim injunctions: restraining disclosure of sensitive confidential information

Linklaters v Mellish - High Court

Mellish was formerly the Director of Business Development and Marketing at Linklaters. He was dismissed on six months’ notice, together with an ex gratia payment. His termination letter contained a reminder regarding his ongoing confidentiality obligations, as set out in his employment contract. Shortly after receiving his last payment, he stated that he intended to “share [his] impressions of the current culture at Linklaters” and its “ongoing struggle with women in the workplace”, referring to specific examples and said that he would be giving “interviews” (to unidentified organisations in the press or media).

Linklaters sought an interim injunction to prevent him from disclosing the identities of the complainants and staff concerned, although not his general impressions of culture. The injunction was granted: it was considered likely that Linklaters would establish at trial that publication should not be allowed. It held that the Defendant’s ongoing duty of confidentiality outweighed the public interest in publication of that information. The Court also said that there were strong policy reasons to uphold the expectations of the complainants and those interviewed as part of internal grievance processes that what they say will be kept confidential, to encourage genuine complainants to come forward.

Future developments

  • Anticipated key changes to employment law in England and Wales are available here.

Recent changes

  • An overview of the recent changes to Employment law in England and Wales is available here.

Events

  • All other training materials relating to Employment, Pensions and Incentives across the European Union are available here.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.