Recent Cases of Interest

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

What are the rules about self-isolation and pay?

Sick pay for self-isolation

Staff must be paid at least Statutory Sick Pay (SSP) if they cannot work because they’re self-isolating for any of the following reasons:

• they have coronavirus (COVID-19) symptoms or have tested positive
• they are not fully vaccinated and someone in their household has symptoms or has tested positive
• they are told to self-isolate by an NHS test and trace service
• they have been advised by their doctor to stay at home before going into hospital for surgery

To be eligible for SSP, they must be off work for at least 4 days in a row, including any of their usual non-working days.

They’re entitled to be paid at least SSP for every day they’re off work. This is different to the usual rules for SSP where the first 3 days are unpaid waiting days.

Pay for self-isolating or quarantine after travel

Employees are not entitled to Statutory Sick Pay (SSP) if they’re in self-isolation or in quarantine after travel abroad in circumstances where they cannot work from home. But the employer could choose to make up their pay if they wanted to.

Managing Holidays

Holiday management is often overlooked, and the end of the holiday year brings a raft of requests from employees trying to use their holiday up or risk losing it. This year has also been made somewhat more complex with furlough leave and the government allowing the right to carry over the first four weeks of annual leave into the next two leave years; this applies where it was not reasonably practicable for the leave to be taken.

You should ensure that an employee is able to take as much of their leave as possible in the year to which it relates. Ideally you should keep a track on how much leave all of your staff have left to take at regular intervals throughout the leave year and remind them that they should book their leave otherwise they may lose it.

You can also require employees to take leave on dates that are convenient for you. Again, this can either be set out in the written contract of employment e.g. an annual shutdown or at other times during the year. However, if dates are not stipulated in the contract you must give employees notice which is equal to twice the length of the leave in question e.g. a minimum two weeks’ notice for one week’s leave. Many employers did do this during periods of furlough leave to ensure holidays were being taken and a problem was not building up.

Now is a good time to remind employees to book any remaining holiday to help ensure you do not have to refuse requests or allow carry over to another holiday year.

Next year also brings an additional bank holiday to mark the Queen’s Platinum Jubilee on Friday 3 June. Additionally, May Day will be moved to Thursday 2 June, in effect creating a four-day weekend for the event. 

Whether employers will need to permit staff to take this day will depend upon their contract of employment and if you need any assistance with this, please contact your consultant.

Holiday Travel

Before lockdown in March 2020, travelling outside the UK was the focus of attention. Transnational movement was effectively banned as flights were stopped through China, wider Asia and then Italy and France. The rest is history. Whilst the UK government is seeking to open up the economy and travel, holidaymakers are finding themselves facing complicated rules for traveling to each individual destination.   Travelling abroad remains in a state of flux at this time. More areas have recently been added to the Green list, many foreign countries have their own changing arrangements for testing and quarantining making forward planning difficult. The travel list is reviewed every 3 weeks, with the next update due to be announced on Weds 25th August. The government list for entry to England can be found here https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england   The costs for PCR testing have been under the spotlight in the last week and these will now be reduced.   Employers are finding complex travel arrangements leading to lots of uncertainty, cancellation, disruption and pleadings for every case to be treated on its merits.   This is an unprecedented situation. We suggest, where possible, discussing holiday arrangements in good time. Most holiday needs to be prebooked and authorised in advance.   Consider: – The likelihood of cancellation, holiday leave still needs to be taken. – The possible need for isolation on return, extended unpaid leave? – Is there an assumption that returning isolation will be “worked from home” – is this OK or will this amount to unauthorised leave, or be authorised as unpaid leave? – Amending previous holiday rules to allow extended leave (if this works for all concerned) – Objections from other work colleagues to overseas travel to high-risk areas   Key Action Point: Discuss holiday plans in advance, consider the impact of returning isolation and be prepared for requests to be flexible. Handle all cases as fairly as possible.

Covid-19: Workplace measures

What do employers need to do to keep work place safe? Workplace rules for wearing face masks or visors, hand washing, distancing, pedestrian routes, workstation sanitation or other hygiene measures and other shielding / preventative controls measures remain unaffected by 19th July removal of restrictions.   Statistics identify that people aged between 20-29 have the highest infection rates for COVID. Vaccination in the UK is not compulsory for all. There is no general provision that an employer can rely upon at the time of writing to compel their staff, freelancers, contractors, or visitors to take up the vaccine. There is a potential conflict within the workplace where employees refuse to work together for fear of getting COVID from a colleague whose lifestyle choice has greater exposure to infection; potentially giving rise to risk without any outward sign in the case of being asymptomatic. Separating workers in this situation would be wise. Existing workplace control measures may be sufficient. Should an unvaccinated worker have to work with others closely then this may give rise to redeployment to other duties.   Care Homes and health workers have special circumstances and specific justification for insisting that employees are vaccinated. Following consultation and discussions regarding any viable alternative redeployment, an employee may find that an employer is compelled to dismiss the unvaccinated employee. A dismissal of this kind falls under the heading of a Some other substantial reason [SOSR] dismissal. This is a potentially fair reason for dismissal, however, the specific context, the reasonableness of the employer’s discussions, and ultimately, justification for dismissal would all be relevant considerations for an employment tribunal. Should specific legislation be passed in this area, likely to be on a sector by sector basis, dismissal would be potentially fair but we await any changes here.     Regarding vaccination for Care Home workers, the requirement becomes law on 11th November 2021. The government has allowed a grace period of 16 weeks from the 22nd July to allow for vaccination to take place. This means 16th September is the last date for care workers to get their first jab so they are fully vaccinated before regulations come into force. Government ministers have stated at this time they have no intention of creating legislation in relation to compulsory vaccines outside Care Homes with employers needing to assess their own circumstances. This does not rule out a policy of “no jab – no job” for a business that can justify a vaccine policy and consult with staff who may not be able to comply.    Key Action Point:  Review the workplace rules that have been in place over the last year, assess the protective measures in place, ensure that necessary measures are implemented. Communicate with staff about the purpose of the measures: why they are in place and when they will next be reviewed. Social relaxation of lockdown rules does not automatically equate to an abandoning of workplace safety measures.

Return to work conversations

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We recommend that employers instigate a discussion with staff about their working environment and any new measures post-pandemic working.

Over recent months many employees have worked from home. Some mixed homeworking with attending the office. Some working teams have been bubbled to minimise and reduce the risk of exposure to Covid.

On 19 July the government advice, “to work from home wherever possible” ceased. There is an expectation that over the summer months there will be a gradual phased return back to “normal” working. What is normal however, remains to be seen.

Within some organisations this has left teams fragmented and displaced from the normal place of work. There is no single recipe that will satisfy every workplace.

For some businesses, returning the majority of workers back to the normal place of work is a priority. If a manufacturer has the means of production in one place, there is a need for people to return there. Other employers, such as those providing professional services, have experienced new ways of working. These new ways potentially offer employees a hybrid form of working. A way of working that some may have a desire to continue.

We do not offer a single solution to employers on the best way of working, however, we strongly suggest that employers have a clear working strategy that meets the needs of their business.

Clear expectations for employee and employer are key.

If employees need to return to the office, performing their duties “at the main place of work” as set out in their terms and conditions of employment, then this expectation should be made clear. The temporary arrangements since lockdown March 2020, may be

a) brought to an end,

b) continued for a further review, or

c) a new varied arrangement should be confirmed in writing.

We advocate talking to your staff now.

Calls over recent weeks into our offices from a variety of clients have highlighted the problems that can be caused by failing to establish clear expectations.

Some employees have assumed that their working from home arrangements will continue indefinitely. There have been some genuine employee issues where care responsibilities have changed during the last 18 months. Some of this is completely unrelated to the Covid-19 pandemic and would have happened anyway. Where an employee has care responsibilities for elderly parents or care for children there are well established processes for making a “flexible working request”. It is likely there will be circumstances where flexibility will need to be requested, considered and either rejected or accepted. The last months have potentially masked these issues and the relevant discussions have not taken place.

In a set of different scenarios, employees have decided to make lifestyle changes. These changes may have been influenced by having the flexibility of working from home. The 2 most common issues arising are firstly, the employee has moved house, and secondly, the employee has taken responsibility for a pet. We are aware of circumstances where employees have “declared” that they are now working a new pattern of work, or from a different place and they are unwilling or reluctant to now resume activities from the workplace. One employee cited that they are only able to attend their normal London based office on occasion with advance notice due to them now being domicile in Scotland!

We would suggest a simple practical step of organising a discussion with all staff around what working arrangements are being contemplated or now necessary for the resumption of future activity. (There is an outline framework for the types of topics for discussion).

These may include:

• Acknowledging what adjustments have been in place since lockdown, including full or part-time furlough

• Does the employee have any caring commitment that have arisen or changed during the recent period?

• Does the employee having the underlying health conditions that need to be accommodated or considered? (Including any fears or concerns about returning to the workplace)

• How will the employee travel to work? Are there any special considerations here?

• Will the employee need any further training on new or updated company process?

• Is the employee familiar with new health and safety procedures or other measures in place?

• Is the employer aware of who to contact if they have any symptoms or contact triggers in relation to Covid exposure?

• What arrangements are in place for accrued holiday?

• Does the employee have any fears, concerns, or additional need for support at this time or in the future?

We recommend employers to be proactive in communicating their future intentions and also identifying specific issues for employees that may impact on operational efficiency, employee performance and good productive working relationships.

10 Questions Employers are asking about Furlough

If you still have employees furloughed under the scheme, now is the time to start planning for the future. Here are the top questions employers are asking:

1. How is the grant available under the JRS changing?

From 1 July 2021, the Government grant will reduce to 70% of furloughed employees’ wage costs for unworked hours. Pay for furloughed employees must remain at a minimum of 80% which means that employers must contribute 10% from their own pocket.

From 1 August 2021 until the closure of the JRS, the Government grant will reduce to 60% of furloughed employees’ wage costs for unworked hours. Employer contributions will therefore increase to 20%.

This means that from July 2021, employers will have to cover a portion of the employee’s actual wages, as well as the national insurance and pension contributions that they have been liable for for some months now.

2. When do I want my employees to return to work?

If there is work available for the employee to do, then you can get them back into the workplace as soon as possible. It should be remembered that there will be additional costs to the employer for keeping an employee on the JRS from 1st July 2021, so this may also be a factor in making your decision

3. How much notice must be given about a return to work?

There is no minimum notice period required for returning from furlough, but it is advisable for employers to talk to staff about any plans to end furlough as early as possible and address any concerns or problems there may be. Should you have any employees who are returning from abroad, consideration should also be given to allowing for any quarantine periods that may be necessary before their return.

4. What do you do if your employee has Health and Safety concerns about returning?

You may want to consider informing employees what health and safety steps you have taken to make the work-place safe. You can give them a copy of the risk assessment if required (An example risk assessment is available on our website)

Note that there is new legislation that means workers (as well as employees) cannot be subjected to a detriment by their employer for leaving or refusing to return to their workplace or for taking steps to protect themselves in circumstances of danger which the workers reasonably believe to be serious and imminent.

These rights are contained in a piece of legislation which comes into force on 31 May 2021 and the full text of which can be found at: https://www.legislation.gov.uk/uksi/2021/618/pdfs/uksi_20210618_en.pdf

5. Do I need to confirm the end of Furlough Leave in writing?

You should confirm to the employee in writing the end of the furlough leave period. This letter is required as a record for your audit trail for HMRC. A template letter for your use can be found on our website.

6. Can annual leave be taken at the same time as furlough and can holiday pay be claimed through the scheme?

Yes, but the employer must top up to 100% pay. It can be taken during both full and flexible furlough.

80% can be claimed through the scheme until the end of June 2021. From July 2021, employers can claim 70%; this drops to 60% in August and September. The remainder must be made up by the employer.

7. Can you enforce annual leave during furlough?

Yes. Government guidance confirms that employers can require a worker to take annual leave when on furlough.

8. What about shielding for clinically extremely vulnerable employees?

Shielding was paused in England and Wales from 1 April 2021 and in Scotland from 26 April 2021. However, guidance confirms that clinically extremely vulnerable individuals are still eligible for furlough even though shielding advice is not in place. It also confirms that there is no requirement for an organisation to be closed or experiencing a wider reduction in demand in order to furlough someone who is clinically extremely vulnerable.

9. Can I make someone redundant when they are on furlough?

Although the JRS is in place to try and avoid redundancies, it is inevitable that some businesses will assess that redundancies are required. The Government guidance confirms that employees can be made redundant while they are on furlough. Redundancy processes are still subject to the normal rules when carried out during furlough and, to prevent an unfair dismissal claim, reasonableness of the decision will be a key factor. This includes the financial position of the employer. As part of the process, employers should consider why furlough, with its ability to claim capped wages from the JRS, was not suitable in the circumstances.

10. Can I make a claim for wages payable during the statutory notice period?

No. This was permitted in the early stages of the JRS, however, guidance was subsequently amended to confirm that, for claim periods starting on or after 1 December 2020, a claim cannot be made for any days on or after that date during which the furloughed employee was serving a contractual or statutory notice period (this includes people serving notice of retirement or resignation).

If you have any further questions about the return to work procedure, or on the JRS in general, then please don’t hesitate to contact your consultant.

Dealing with DSARs

Data Subject Access Requests (DSARs)

Employers sometimes have to deal with DSARs from employees trying to bolster grievances or from former employees. It can be very onerous to comply with DSARs, which are one of the core data subject rights under GDPR. The following guidance from the Information Commissioner’s Office provides some clarity on the subject.

Employers often hold large amounts of data on employees and if the employee has been vague or deliberately wide in the DSAR, it may be wise to ask for clarification as to the information sought. The ICO has now confirmed that the clock can be stopped while organisations wait for a requester to clarify their request.

Any DSAR must be dealt with effectively, within one month of receipt. This can be extended by two months if the DSAR is complex. Such complexity arises if it involves information from many different email accounts or requires a significant amount of redaction of others’ personal data.

As an employee making a DSAR does not have rights above other employees, redaction will need to occur if an employer must provide emails that contain personal data relating to others. Therefore, it’s possible that large sections of emails may be blacked out.

Following case law under the Data Protection Act, the ICO’s guidance makes it clear that data controllers should make reasonable efforts to retrieve data but should not conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information. It is not necessary to ‘leave no stone unturned’ – reasonable efforts should be good enough.

Employers need to be able to demonstrate they have looked in any email back-up systems and data saved on individual managers’ PCs. As a result, it is likely that managers may need to be asked to check and confirm they have not saved such information outside of their email account.

Organisations may also wish to closely consider retention periods for employee data. Keeping all data and emails relating to an employee during their 20-year career is likely to make an employer wish it had brought in a retention policy to delete data after six years, if a detailed DSAR is raised.

Data controllers need not comply with manifestly unfounded and excessive requests and the ICO has now provided additional guidance and broadened its definition of these terms. To determine whether a request is manifestly excessive employers should consider whether it is clearly or obviously unreasonable, considering all the circumstances. They should be prepared to justify their position to the ICO in the event of a complaint.

The ICO confirms what can be included in the “reasonable fee” that can be charged for dealing with excessive, unfounded or repeat requests. The fee should be reasonably calculated and can include the costs of making the information available, including photocopying or using an online platform, equipment and staff time. Data controllers may wish to give some thought to their hourly rates and whether they can provide information about these in their privacy notice.

Complaints about how an employer responds to DSARs are sent to the Information Commissioner, although employees often attempt to complain about it to employment tribunals as well. In extreme cases the Information Commissioner can serve enforcement notices and impose financial penalties.

Despite what employees often think, the Information Commissioner cannot award them compensation, although they could bring a court case seeking compensation for harm and distress arising out of failure.  

Sleep-in Payments Ruling

The Supreme Court has ruled that care workers are not entitled to national minimum wage for ‘sleep-in’ shifts. This follows appeals in the cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The court referred to a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the National Minimum Wage Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working. The same recommendation was also included in the National Minimum Wage Regulations 2015.

It was however made clear that this ruling only applies to shifts where an employee is expected to sleep during their shift, which the claimants in this case were.

Making Flexible Working Work

Flexible working arrangements are now helping to keep many businesses operational amidst restrictive coronavirus regulations. Many companies that once thought flexible working arrangements could not work for them, are now functioning with remote working and flexible working hours. The picture is very mixed. At one end of the spectrum Microsoft has decided that some jobs will no longer return to the office. This is diametrically opposed by Goldman Sachs saying that home worker is “a temporary aberration” that does not fit their dynamic interactive culture.
 
In our experience there is a place for homeworking. For the majority that is not full time but a portion of the working week. The “closed-minded” approach of an employer may now find some kickback!
 
This can include reduced stress to better engagement. It is recognised that employees able to achieve a work-life balance are more likely to be happier and more productive at work. It could be that it’s simply different working hours or some days working remotely. There are recruitment and retention benefits too. Opportunities for flexible working is likely to be a question from candidates in the future and some employees may start to seek out an employer who has a flexible working policy in place.
 
However, we suggest that now is the time for employers to assess potential benefits as part of the inevitable excess of re-examined job roles and functions upon return to the workplace post-Covid and in the foreseeable future.
 
There will be some compliance issues: working hours are subject to the Working Time Regulations. A change in location must be preceded by a health and safety risk assessment in respect of that workplace and equipment being used.
 
A foundation of trust is also needed for flexible working practices to be effective. For example, remote staff or out-of-hours working can mean less day-to-day visibility. Staff surveillance software is available, but this may undo all the good that flexible working can achieve and does not always make for a good relationship between the parties.
 
Also, consideration needs to be given to the impact of changing working procedures for some that can impact significantly on others, from employee workflow to client relations.
 
Just because a working pattern has been in place since lockdown, it is not necessarily the best thing for your business. It might be, but it might not. The sooner steps are taken to have those discussions the “returning” or “non-returning” workers the better! 
 
Changes that you agree to should improve and not hinder your business in the long run. If you wish to discuss how flexible working might work in your business, email us to book a flexible working strategy call.