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Protect, the UK whistleblowing charity established to promote ethical standards of conduct and compliance with the law, will be 30 years old next year – and the Public Interest Disclosure Act 1998 (PIDA) is only five years younger.
Standards of conduct and what we mean by whistleblowing have evolved in that time. 20 years ago, most of what Protect advisers heard about was financial misconduct or patient safety. The range of concerns is now dramatically wider, from greenwashing to anti-trans discrimination. Our 2021 Impact Report shows that, since 2017, the proportion of harassment cases reported to us has increased by 100%. After #MeToo and Black Lives Matter, what were once seen as purely individual grievances may now easily pass the public interest test. A sign of the change is that regulators consider that culture is part of their remit; we have come a long way from the time when disclosures were less likely to be protected if the whistleblower also had a private interest in raising them.
Expanding the scope of protection
After 25 years, there are some who argue that, due to PIDA’s low success rate at full hearing, the law is no longer fit for purpose. Yet we should not throw the baby out with the bath water when there is definite room for improvement, especially when the success rate at tribunal is comparable with other types of claim and does not consider the number of cases that settle. The official tribunal statistics for 2020/2021 show that only 3% of PIDA claims issued were successful at hearing (and 33% were resolved through Acas conciliation). Similarly, only 3% of race discrimination claims issued were successful at full hearing (and 29% were settled via Acas conciliation).
Reform should start with the need to fit PIDA into the 21st century gig economy, where there is no all-encompassing definition of “worker”. We need to expand the scope of whistleblowing protection. The EU Whistleblowing Directive 2019/1937/EU (Directive), which has now been implemented in ten EU member states, relates to “work-related activities” and expressly protects job applicants, the self-employed, shareholders, non-executive directors, volunteers (including trustees) and trainees – unlike PIDA which is much more limited in scope.
Imbalance of power
But more importantly, because of the power imbalance between the organisation and individual whistleblowers, it is often extremely difficult for whistleblowers to obtain any kind of redress for retaliation suffered, let alone ensure the concern is addressed.
The YouGov researchwe commissioned in spring 2021 showed that only 31% of workers knew how to raise a concern at work. And ourreportexamining COVID-19 whistleblowing concerns reported to our Advice Line in 2020 showed that 41% of whistleblowers felt ignored when they raised their concerns and 20% were dismissed as a result.
This may be because our law does not impose any minimum standards on employers. PIDA is only concerned about “after the event” retaliation. There is no positive requirement for organisations in the UK to have any particular whistleblowing process (outside a few regulated sectors, such as financial services). In the EU, the Directive requires employers with 50 or more workers to establish internal reporting channels and imposes strict deadlines to acknowledge and feedback on concerns raised. Impartiality, confidentiality and clear details on how to report externally to a relevant regulator are all required. This a change we should introduce in the UK.
Difficulty in succeeding at tribunal
Finally, we need to address the difficulty in winning a claim in the employment tribunal. The Directive reverses the burden of proof in whistleblowing claims so that, once a whistleblower demonstrates that they reported a breach and suffered a detriment, the burden of proof shifts to the person who caused the detriment to demonstrate that the detriment was not linked in any way to the whistleblowing and was based on justified grounds. The Directive also requires national governments to provide sources of free and independent legal advice and assistance to whistleblowers.
Protect’s proposal is to simplify the UK’s whistleblowing regime and harmonise it with the discrimination rules, which are much better understood by both employers and workers. There should not be different tests depending on whether you claim whistleblowing dismissal or detriment, for instance. Ms Kong’s plight illustrates this rather starkly (Kong v Gulf International Bank (UK) Ltd  EWCA Civ 941, in which Protect intervened).
Ms Kong was Head of Internal Audit at Gulf Bank and alerted the Head of Legal that the new investment products the bank wanted to sell were not regulatory compliant, which was indeed the case. The Head of Legal, who was partly responsible for the legal assessment, took this very badly and complained to HR that she did not want to work with Ms Kong anymore. The senior partners took the view that Ms Kong should be summarily dismissed because of her behaviour and manner towards the Head of Legal when raising her concerns.
Despite finding that Ms Kong had raised her concerns in a reasonable manner, the Tribunal decided that the fact that the dismissing officers considered her conduct to be unacceptable was enough to defeat her claim of automatically unfair dismissal. However, the Tribunal accepted that Ms Kong’s detriment claim would have succeeded had it not been brought out of time – which feels particularly unfair in cases such as whistleblowing where it is more appropriate to see the raising of concerns (and the victimisation resulting from it) as a journey rather than an act at a particular time.
This is despite the fact that the Court of Appeal agreed that the purpose of PIDA is to “encourage responsible whistleblowing” (Babula v Waltham Forest College  ICR 1026). There was no dispute that Ms Kong was acting as a responsible whistleblower.
When PIDA was introduced, Lord Borrie said in a House of Lords debate that it should send “a clear signal to people in places of work up and down the country that if they suspect wrongdoing, the law will stand by them provided they raise the matter in a responsible and reasonable way”.
But this was not the case. Ms Kong suffered dramatic retaliation and was denied any whistleblowing remedy. The UK framework appears inconsistent, unduly complex and just too difficult to access to ensure workers’ statutory whistleblowing rights. This risks having a chilling effect on workers’ willingness to “speak up” in the workplace, in the knowledge that even where that is done in a manner which is “conciliatory in tone and careful”, and is to be regarded as “acting reasonably” (as the employment tribunal found in Ms Kong’s case), they may nevertheless be denied protection from retaliatory treatment. Ms Kong is currently seeking permission to appeal to the Supreme Court.
Whistleblowing is good for workers who should feel psychologically safe at work, it is good for businesses who can detect and deter wrongdoing, foster productivity and loyalty, and it is good for society as a whole. It should not be controversial to be able to raise concerns safely when things go wrong: freedom of speech is a cornerstone of our democracy and whistleblowers are acting in the public interest.
So we need to improve our current law. It affects us all.
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There has been a significant shift in individual and societal openness around sex and gender identity in recent years. The debate is complex and inevitably there are a range of views and opinions on the issues.
Several recent employment tribunal cases have been brought by claimants who believe that a person cannot change their sex. This belief is generally referred to as “gender critical”. Employment Appeal Tribunal (EAT) decisions have concluded that this belief is capable of protection under the Equality Act 2010 (EqA) as a “philosophical belief“.
Gender critical beliefs provide scope for conflict and disagreement in the workplace, as well as complications arising from conflict with other protected characteristics under the EqA, particularly gender reassignment, sex, sexual orientation, disability and religion.
This poses a challenge for employers, who are responsible for preventing discrimination and harassment in the workplace and promoting diversity, equality and inclusion. Even the most well-intentioned employers can be subject to litigation if they fail to adequately balance the competing issues. Employers should consider the following points to navigate the challenges effectively.
One protected characteristic cannot trump another
There is no hierarchy of protected characteristics in the EqA. An employer should remember to revert to legal principles around discrimination and consider any specific guidance in place. It must not be swayed by its own subjective beliefs.
Distinguish between conduct and beliefs
Whether action taken was because of the claimant’s protected belief or the way in which that belief was manifested can be crucial to whether discrimination has or has not taken place. An employer is in a stronger position where it acts in response to a worker’s conduct in manifesting their views, but it is not always straightforward (or possible) to adequately separate that conduct from the beliefs themselves.
In Forstaterv CGD Europe and others ET/22200909/2019, the ET concluded that disassociation was only possible where the manifestation of a belief is inappropriate or where objection could reasonably be taken. As the claimant’s comments, while controversial and provocative, were not (on the whole) objectively offensive or unreasonable, but rather an expression of her views as part of a wider debate on the issues, her conduct and beliefs were intrinsically linked.
In contrast, in Higgs v Farmor’s School ET/1401264/19, the ET found Ms Higgs’ Facebook posts were objectively homophobic and transphobic, resulting in a finding in her employer’s favour.
Instil a culture of dignity and respect
While healthy and respectful debate is a normal part of life, this does not give individuals carte blanche to say whatever they like. All workers should be treated with dignity and respect, and discriminatory behaviour should not be tolerated. However, sometimes employers and staff have to tolerate views that they do not agree with.
It was relevant in Mackerethv DWP  EAT 99 that the claimant was not put under any pressure to change his beliefs, nor was he interrogated about them, and his employer had actively tried to find a way to accommodate his beliefs.
Use language carefully
An employer should consider using gender-neutral drafting in workplace policies, procedures and other documents. Where reference to men or women is required, it should also consider updating definitions of those terms to include those who identify as such or are non-binary.
An employer should not necessarily insist that staff declare their pronouns, instead leaving this to individual choice.
Revisit social media policies
An employer may benefit from revisiting its social media policies to ensure they provide guidance and sufficient coverage for workers sharing their views on social media, particularly on topics that could be controversial, discriminatory or in conflict with others’ rights.
Social media is a common way for views to be manifested: Forstater, Baileyv Stonewall and othersET/2202172/2020 and Higgsall involved posts and debates on popular social media platforms.However, an outright ban on social media use is perhaps unfeasible.
Understand and justify rationale
Where risks of discrimination and conflict are high, an employer should think carefully when making policy or other decisions in the workplace. Even where policies apply to everyone, they may disadvantage people with one or more protected characteristics.
This is not necessarily discriminatory unless the policy cannot be objectively justified as a proportionate means of achieving a legitimate aim. An employer who can clearly articulate its legitimate aims and demonstrate that its approach is proportionate with reference to alternatives is in a stronger position.
This is demonstrated in Mackereth, where the EAT was satisfied that the employer’s pronoun policy:
Had legitimate aims of ensuring transgender service users were treated with respect and in accordance with their identities, and of promoting equal opportunities.
Was a proportionate means of achieving those legitimate aims.
Implement regular training
The mere existence of anti-discrimination policies is not sufficient for an employer to demonstrate that it is taking steps to avoid discrimination. An employer should actively bring policies to workers’ attention and regularly repeat equality, anti-harassment and unconscious bias training.
Consider communal spaces, facilities and services
An employer should ensure that all workers, visitors, clients or service users have access to facilities and services where they are comfortable, can feel respected and safe, and can be free from hostility. This may require employers to revisit their bathroom, shower and changing room accommodation, and their identification and security measures.
Similarly, employers who employ or provide services to vulnerable people may need to think carefully about how to balance the needs of those service users with the rights of staff. In Mackereth, the vulnerability of transgender service users was relevant to the outcome of the claim.
Similarly, where organisations provide services to other vulnerable groups (for example, victims of sexual abuse), the welfare of those service users may result in having to exclude employees of a particular sex or gender identity from working with them.
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There is no denying that the UK is submerged in a cost of living crisis, with Shelter reporting an increase of 45% (since April 2022) in renters being behind with, or consistently struggling to pay, their rent (an increase to almost 2.5 million renters). It is no surprise that many are turning to second (and even third) jobs to try and increase their income.
Getting another income stream in itself may cause potential issues in terms of time (and lack of it for family and your loved ones) and increased tiredness, as well as the lack of any work-life balance, but some may see no other option than to take on another job.
However, further problems may occur when your new income stream impacts your existing job, and not just because of your tiredness and lack of energy.
Could your new income stream, taken on to help keep your head above water, actually put you in jeopardy of losing your main income?
Possible implications of taking additional jobs
As an employee, you will have both express and implied terms within your contract of employment that, if breached, could bring your employment to an immediate end and, in some cases, mean that you have to pay your employer.
It would make sense for you to take on another job in your skill set and in a similar industry to your main role, not least because you can capitalise on your expertise and experience. However, this could quite easily mean that you are competing with your existing employer and are therefore at risk of being dismissed for a breach of your contract.
This implied term does go further, but here I have highlighted the ways in which it could be breached (maybe even innocently) by taking up a second job.
Express termsare likely to be more obvious and employees should be more aware of them as they will be stated in their contract.
I discuss below some of the most common express terms of an employment contract that may cause issues when taking on a second role, but the main one to look out for has to be an express clause stating that the employee cannot work for anyone else while employed by the employer (usually without their consent or approval). This is a common clause within employment contracts. This may seem obvious, but it is surprising how quickly you forget all the clauses you sign up to once you are in a job. How many of us actually go back and review our employment contracts regularly?
Employment contracts, especially those for more senior roles, may also include a clause that states the employee must devote the whole of their time, attention and abilities to the business. Working for another employer, even if it is not a competing business, could breach this clause. If you are working for someone else, can you really be devoting your whole time and attention to your main employer?
For some roles, employees may also have restrictive covenants (also known as post-termination restrictions) and these will restrict what they are able to do both during their employment and after their employment ends. These are likely to include clauses that prevent the employee from poaching staff and clients from their employer, but could cause the employee problems if they take on a second role that means they are dealing with their main employer’s clients or customers and suppliers, as these are likely to be protected by the restrictive covenants. A breach of these covenants can be very costly, both in defending any legal action and injunction but also in damages. This could lead to the employee losing their second job (through an injunction) as well as their main job and lead to them paying damages and legal fees (something that may be impossible when the very reason they have taken the second job is to help their financial situation).
Ultimately, taking on that additional income may not be all that simple andcould cause you to lose your main income and worsen your financial circumstances.
As an employment lawyer mainly practising in Scotland who is originally from Northern Ireland, I take a keen interest in how the procedure and the law differs across the legal systems of the UK and how devolution impacts the landscape. Indeed, the separate legal systems and the doctrine of precedent can occasionally produce unusual results, which are challenging for those of us advising clients what the law actually is. At present, for example, the Court of Appeal has indicated that the Northern Irish Court of Appeal decision in Chief Constable of Police v AgnewNICA 32, IRLR 792 which affirmed that there did not need to be a limit on the gaps between deductions making up a series for the purposes of bringing deductions claims, should be preferred over the contrary Employment Appeal Tribunal (EAT) decision in Bear Scotland Ltd v Fulton IRLR 15,  ICR 221,. Technically, however, it is the EAT decision in Bear Scotland which is binding on tribunals across Britain.
Meanwhile, devolution of employment law remains high on the political agenda, particularly in Scotland. The Devolution (Employment) (Scotland) Bill, which seeks to amend the Scotland Act 1998 in order to grant legislative competence for employment matters to the Scottish Parliament, is due for its second reading on 3 February 2023.Further, devolution of employment tribunal functions is anticipated to occur in 2025. It seems an apt time therefore to consider how different the procedure and the substantive laws actually are throughout the employment tribunals of Scotland and England & Wales.
The procedure in the employment tribunals
Although the legislation is identical, the employment tribunals operate separately in Scotland and England & Wales. There is one set of rules – the Employment Tribunal Rules of Procedure 2013 – which apply north and south of the border. In Scotland and England & Wales there are different presidents producing Presidential Guidance. This guidance deals with all manner of issues and clarifies what should be done in particular situations. Practitioners will recall during the pandemic the guidance which was issued instructing parties how to conduct the online Cloud Video Platform hearings. Other guidance responds to the particular requirements of that jurisdiction. Parties using tribunals in Wales, for example, have the right to use the Welsh language in the conduct of hearings in Wales and a Presidential Practice Direction was issued in 2020 to guide tribunals.
One major difference in the jurisdictions is the use of witness statements to replace witness evidence given by examination-in-chief. These are much more commonly ordered in England & Wales, although the pandemic and the move to online hearings in Scotland certainly saw an increase in the use of witness statements. On 3 August 2022, the President of the Employment Tribunals (Scotland) issued a Practice Direction and Presidential Guidance on the use of witness statements in Scotland, including factors to consider when ordering witness statements. The Practice Direction reaffirms the presumption that oral evidence will generally be preferred over written evidence in most circumstances. In English & Welsh tribunals witnesses can be present in the tribunal and hear the witness evidence prior to giving their own evidence, whereas in Scottish tribunals this is not the recognised practice. Another notable difference is the greater likelihood in English & Welsh tribunals that a judge will issue an oral judgment without reserving judgment and sending a written judgment to the parties in due course. I find that when this happens in Scotland, it is more than likely issued by a judge who formerly practised in England. Another difference includes rules concerning disclosure of evidence (in Scotland there is no automatic duty to disclose documents which may adversely affect your own case).
In employment law, the tribunals and courts of the separate legal systems of Scotland, Northern Ireland and England & Wales often deal with legislation which applies UK-wide. The fact that there are two major sources of employment law – the individual contracts of employment and the various statutory rights which apply to the various employment relationships – typifies the confusion. Typically, the contractual aspects of disputes are governed by the legal system’s common law which tend to vary, in particular between Scotland and the rest of the jurisdictions. Meanwhile statutory rights tend to apply UK-wide reflecting the various devolutionary arrangements which reserve employment law to the law-making powers of the Westminster Parliament. Nowadays, the European Union (Withdrawal Agreement) Act 2020, currently makes all EU law part of domestic law (retained EU law), which applies throughout the United Kingdom.
Ultimately the Supreme Court as the final court of appeal for each jurisdiction will always have the last say and this generally creates a uniform approach to the interpretation of statute, provided of course that the particular disputes get that far. The Supreme Court routinely considers cases particular to the laws of each jurisdiction and the make-up of the court’s judges and their respective backgrounds makes them well placed to do so. Decisions of the Court of Session in Scotland and the Supreme Court are binding on employment tribunals. EAT decisions are also binding on tribunals regardless of where in the UK the EAT is sitting. The EAT tends to follow the decisions of the higher courts regardless of geography; the stated position of the Scottish EAT is that it will only depart from an opinion of the Court of Appeal where it purely relates to a particular aspect of Scots law (Brown v Rentokil Ltd  IRLR 302). Equally, the Court of Appeal has said it is a matter of “pragmatic good sense” that tribunals and the EAT in either jurisdiction will follow the decisions of the higher appeal court in the other jurisdiction (Caulfield and Ors v Marshalls Clay Products Ltd; Clarke v Frank Staddon Ltd.  EWCA Civ 422).
A recent case which came before the EAT sitting in Scotland – Ineos Infrastructure Grangemouth v Jones & Ors  EAT 22 – has emphasised that, where the legislation applies north and south of the border, it is desirable for it to be interpreted uniformly. In this case, the Scottish EAT considered an argument from the employer that an offer of a pay rise made to staff which would have engaged the prohibition on such offers in s145B of the Trade Union and Labour Relations (Consolidation) Act 1992 was not, in Scots law, an offer at all and therefore did not engage the statute. In Scots law, a unilateral promise can be distinguished from an offer even in a bilateral situation like an employment relationship and can be binding and enforceable without acceptance. The EAT nevertheless found this argument to be misconceived; the purpose of the statutory provision was to protect rights enshrined in article 11 of the European Convention on Human Rights and these were the same both north and south of the border.
The Court of Session has tended to not be as persuaded that uniformity is paramount. The Inner House was unwilling to ignore the Scots law doctrine of mutuality of contract in the interests of there being a consistency of approach to the law of constructive dismissal in the application of s.95(1)(c) of the Employment Rights Act 1996 (McNeill v Aberdeen City Council (No.2)  CSIH 102). Lord Drummond Young’s judgment referred to there being “no obvious reason why, in the absence of any express provision in the statute, section 95(1)(c) should be construed as referring to a rule of English law rather than Scots law”.
His Lordship added that consistency of approach “does not seem a sufficient justification for a major inroad upon the Scots law of contract in a case that is otherwise governed by Scots law”.
In reality, despite some differences, uniformity is the watchword across the nations of the UK with the trend arguably pointing towards things becoming more similar, with the notable exception of Northern Ireland. All of this is likely to change in the future if employment law is devolved from the powers of the Westminster Parliament. It is evident from Northern Ireland that the devolution of employment law has resulted in a distinct divergence of both law and procedure. What direction this will take things in Wales and Scotland remains to be seen, but some indication has been apparent already. Agricultural workers in Scotland and Wales, like their Northern Irish counterparts, rely on more favourable provisions on annual leave and rest breaks because this limited aspect of employment law is devolved. Apprenticeships in Scotland are governed by the common law, rather than the statutory overlay found in England and Wales. Separate Fair Work Commissions in both nations exist. Those concerned about the disparate results this might produce might be reassured by considering that, whatever the future constitutional set up will lead to, the principle of judicial comity will apply and the tribunals and courts applying employment law will generally cohere even where the rulings are not strictly binding.
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Neurodiversity Celebration Week took place between 21 and 27 March. The following week was Autism Acceptance Week, culminating in World Autism Awareness Day on 2 April. This means neurodiversity has featured heavily on social media recently.
During Neurodiversity Celebration Week, I spent some time reflecting on my practice as an employment lawyer. Were there any areas of my work that were not particularly neurodiversity-friendly? Could I improve things for neurodiverse clients? Was it something to consider?
At the time I had received a case file that included around 50 pages of policies on disciplinary, grievance, and harassment at work. The dispute involved a dyslexic member of staff. I perused the densely packed text. “Hardly dyslexia friendly,” I mused to myself, observing the irony.
I tried to imagine being dyslexic and receiving all that text to read as a new employee. How would that make you feel? How would it affect your perception of that employer?
What is neurodiversity?
The term “neurodiversity” (or ND for short) was first coined by the social scientist Judy Singer in the 1990s. It refers to a difference in brain processing that can affect social interaction, learning, attention, sensory processing, and other aspects of interacting with the world and other people.
It has become a collective term for conditions such as autism, ADHD, dyslexia, dyscalculia and dyspraxia. The word was an attempt to reframe the narrative away from the negative connotations that the conditions were pathological disorders needing to be remedied. Consider it as just another aspect of diversity.
I received a diagnosis of autism a couple of years ago. It was a shock at the time. But that was due to my own perceptions of what autism meant, no doubt influenced by the movie Rain Man.
The American scientist Temple Grandin has written extensively about how her autism is an asset in her specialist field of designing facilities for livestock. One of her theories is that autistic people are more likely to be visual thinkers. She has even written a book entitled Visual Thinking, which describes the way in which she thinks, quite literally, in pictures.
This concept of visual thinking has been commented on by a number of specialists as being a common experience across the ND community. Sir Richard Branson, who is dyslexic, has spoken about how he is able to “see” innovations and business opportunities. He has also written about the way dyslexia shaped his approach to developing products and services at Virgin by focusing on short, concise slogans that resonate immediately. Basically, dyslexia helps him cut out the waffle.
Written policies in the workplace
Some estimates suggest 15% of adults are ND. That translates to one in seven employees. Potentially, a sizeable chunk of your client’s workforce could be alienated by the presence of a text-heavy staff handbook. And if those 15% are more likely to be visual thinkers, preferring diagrams and pictures, how effective is the traditional staff handbook for ensuring information is absorbed?
As an employment lawyer, I realised that most workplace policies are presented as pages on pages of text. Usually they are typed as 10-point Arial or Times New Roman. Each policy laid out in paragraphs. Blocks of text, broken up only by headings and titles.
But is there any legal or technical reason why a staff handbook must be formatted as pages of continuous text? I cannot think of any legal requirement for the contents of a staff handbook to be presented that way. So why do employment lawyers continue churning them out when requested?
Is it convenience (I mean the lawyer’s convenience, not the client’s)? After all, what could be easier than accessing a precedent, replacing the square brackets with the name of the employer, and sending it to the client? And perhaps the client feels reassured. After all, if their lawyer has provided all those documents, it must be to satisfy a compliance obligation of some sort.
Somewhat ironically, there is one particular section of the staff handbook that is always laid-out clearly in bullet point format, with lots of space for the text to breathe: the non-exhaustive list providing examples of gross misconduct that could constitute dismissal. Lawyers always get that bit right.
Alternatives to text
In 2018 I recall seeing a sample subject access request procedure in the form of an infographic. Two pages of boxes, icons, and signpost text explaining how to respond to a data request. It was fantastic. It communicated the necessary information in a clear and concise way. Surely that is the purpose of a workplace policy: to convey essential information that the worker needs to know.
There might be circumstances where a text-heavy policy is required, which is fine. But if not, do lawyers have a responsibility to consider alternatives, such as using flowcharts, graphics or process maps? They are likely to be more inclusive towards the 15% of your client’s staff who are ND. Do we, as employment lawyers, ever mention this to a client?
I might be wrong, but I suspect there is a fear that turning workplace procedures into infographics would appear unprofessional. Style over substance. A workplace policy is a legal matter which should not involve a graphic designer.
It could also make the policy look childish. There is a counter to that: Steve Jobs (himself dyslexic) instructed his designers at Apple to make the iPad so easy to use that a small child could pick it up and start using it immediately.
Consider the last time you bought a gadget or piece of tech like a smart-TV. Usually, it comes with some form of “quick start guide”. Is it ten pages of unbroken formatted text? More likely it is a series of numbered graphics and text boxes explaining how to set-up and use the device.
There is a reason why they have been designed in that format. They are aiming to communicate essential information to a diverse range of people. Does that remind you of anything?
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Vexatious claims hit the headlines last year after one claimant who was hit with a costs order for bringing yet another claim of discrimination against an unsuspecting employer went on to succeed in his appeal against the Employment Tribunal’s decision to strike out his claim. Despite previous tribunal judgments (against different employers) recording a strong suspicion that the claimant was making vexatious claims to see if he could get a settlement payment, the serial claimant won his claim for disability discrimination, after having brought at least 30 other similar claims which were usually withdrawn or struck out.
Well, the ante was certainly upped by the Attorney General who recently turned the tide on a vexatious claimant in launching legal action against them. This was not a costs order, however, but an indefinite restriction of proceedings order (RPO).
Indiscriminate discrimination claims
According to the applications, the respondent, David Taheri, had made more than 40 claims in the Employment Tribunal over a period of ten years, all relating to unsuccessful applications for employment. His modus operandi, it claimed, saw him apply for a job and, once he was refused, launch legal actions against the potential employer on the basis of age, race or disability discrimination. Details and accusations were sketchy; he usually valued the claims between £25,000 and £40,000, but sought a nuisance settlement of a few hundred pounds, often with the threat of adverse publicity or regulatory referral against the solicitors acting for the employer. In some cases, he was also accused of harassing the employer by turning up at the workplace and angrily airing his grievance, writing repeatedly to demand settlement (or threatening to hold a press conference), and booking in fictitious appointments under different names.
The Attorney General’s application for an RPO was made pursuant to section 33 of the Employment Tribunals Act 1996. The applicant asked the Employment Appeal Tribunal to make an RPO of indefinite duration against the respondent, on the basis that he had habitually and persistently, and without reasonable grounds, instituted vexatious proceedings before the Employment Tribunal. Mr Taheri resisted the application on the basis that it would violate his rights to a fair trial under the European Convention on Human Rights.
Eady J found that the litigation in question was plainly habitual and persistent. Mr Taheri had issued at least 43 claims over a ten-year period. The judge did not derive any comfort from Mr Taheri’s submission that he had “only three” claims pending in the tribunals at present or that there had been a four-year gap in his pursuit of claims.
In determining whether claims had been brought “without reasonable grounds”, it was noteworthy that not one of his claims had been successful at a full merits hearing and that many other claims had been struck out or withdrawn after deposit orders were made against him. Mr Taheri had “weaponised” the tribunal process by subjecting would-be employers to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to him.
In conclusion, Eady J, allowed the application and was satisfied that the balance fell firmly in favour of making an RPO of indefinite duration: “That, it seems to me, is necessary for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings,” she added.
Pump up the volume
The case provides some interesting lessons. The sheer volume of cases (43 claims across ten years brought against potential employers who had refused to give him a job) shows a clear pattern of behaviour. While the RPO is, as the judge put it, a “filter rather than a barrier” to future claims, Mr Taheri is effectively banned indefinitely from starting court cases without permission. The RPO means that, without the leave of a judge from the Employment Appeals Tribunal, he cannot issue proceedings in the Employment Tribunal.
Many employers in this present case sought to “buy off” the spurious claim for a small sum as a commercial decision rather than incur the legal fees of defending it. The EAT stressed that did not necessarily mean the claim had not been vexatious. Going via ACAS is a cost-effective settlement route but not one to be recommended on multiple occasions as it sets a terrible precedent, one relied on heavily by Mr Taheri who was able to extract nuisance settlement payments via ACAS, without even incurring the costs of his own solicitor to advise on and sign off a settlement agreement.
Are there any other options? Consider applying for the case to be stuck out and, in the alternative, for a deposit order to be made as a condition of the case being pursued. In this case, Mr Taheri refused to pay a number of deposit orders made against him and so the proceedings were discontinued. If a claimant does make the deposit payment and the claim fails, the claimant will be treated as acting unreasonably in pursuing the claim and an award for costs may be made, including the payment of the deposit to the other party. Costs do not generally go in favour of the winning party in an Employment Tribunal, but an application for costs may be made. In a hopeless case that has been vexatiously brought, a tribunal may well be persuaded to make a costs award against the claimant.
Don’t settle for more
Having good housekeeping for those on an employer’s interview panel is a must for this sort of action and defending these claims generally. Make sure that the interview panel is up to date with their D&I training. Be clear about the importance of keeping notes: what to write and, more importantly, what not to write. In some cases, Mr Taheri’s claims were struck out or rejected where it was evident or noted that the decision not to hire him had been for some non-discriminatory reason (for example, because he did not have the relevant experience, had lied on his application form or failed to respond to text messages to arrange a work trial). Hiring decisions should be robustly made involving HR.
In conclusion, an employer should not panic if they receive a strongly worded letter before action. The financial and potential reputational cost of a discrimination allegation is obviously a cause for concern, but undertake a calm, measured review into the claim and the options. Do not be intimidated into to a settlement.
Working from home has taken centre stage over the last two years. In many industry sectors, it has been necessitated by the pandemic and the restrictions on interaction and travel. It has also evolved to become the preferred way of working for vast numbers of office workers.
The benefits of this ability to work more flexibly were significant. It enabled businesses to continue to operate during national periods of lockdown and the increased use of technology allowed people to effectively stay connected to colleagues, customers, suppliers and networks. It means less time spent commuting and arguably greater productivity.
The consequences of flexibility
Has this agile new world of remote working presented a different, widespread problem for workers?
Those that work from home are aided through advances in technology. There are so many ways to connect with colleagues; Teams, Skype, email, WhatsApp, phone calls, Facetime and various types of instant messaging, all of which are accessible on a mobile phone. Notifications signal receipt of messages and there is no need to have a laptop switched on.
It has become difficult to escape from work.
It becomes rather more sinister if you consider how some employees are monitored at home, through technology and various types of reporting.
When at work, workers leave to go home. The boundaries are clear. When your place of work is your home and your hours are not tightly defined, these boundaries become almost impossible to determine.
In many ways, this has adversely impacted workers’ mental health. The feeling of isolation, the lack of support, sometimes of purpose, has made remote working significantly detrimental for many. The pandemic has fast tracked us to an “always on” culture.
Of course, this is not new for all workers, with long and anti-social hours being commonplace in some sectors. Where a business has requirements to respond to clients within tightly defined timescales, or clients know that they can demand fast responses and turnaround times because of the competition, the pressure is on to work longer and later and to always be accessible.
Is there a need for legislation?
“The right to disconnect” is a term as yet undefined by UK or EU law. The Working Time Regulations 1998 set out statutory limitations around working time and breaks. This was introduced in order to protect the health and safety of European workers.
The European Convention on Human Rights also has a say in working time, at least indirectly. Article 8 of the Convention provides an enshrined right for a private and family life at home and Protocol 1, Article 1, confers a right on citizens to peaceful enjoyment of their property. There is also other health and safety legislation which is relevant to expectations over working time and the duty of care for the wellbeing of workers. Whether these are adequate is up for debate.
In January 2017, France introduced legislation prohibiting employers from encroaching on their employees’ personal and family lives. In practice, this provided protection from dismissal, or other adverse treatment, for failing to respond to emails or calls during non-working time. There is a right to be paid extra for that time if they do respond.
It is difficult to envisage legislation that can be effective in providing adequately defined rules, yet with suitable flexibility for practical application among the diverse requirements of hybrid or remote workers and businesses.
Are there better solutions?
There is no doubt that there is technology which can assist to enforce these rights, if introduced. Applications that freeze access to emails or other methods of contact between set hours wouldn’t be difficult to implement. The risk though, is that this creates more problems than it solves.
Burn out is real. Work related stress is present in perhaps every workplace in the UK, to a varying degree. Yet stress can be exacerbated by implementing rigid structures on working days. The success and evolution of flexible working is driven by the desire to have autonomy, not only over where workers work, but when and how they work. For working parents or carers to be told that they can’t do an hour in the evening, to allow them to take an hour to do the school run, will be too restrictive for many.
There is a balance to be struck. Employers have a duty of care to their workers to control the working environment and limit the risks associated with an intrusion to their rest and relaxation time. This contrasts with a workforce looking for more agile arrangements and greater autonomy over their schedule.
As is often the case, some sensible compromise is the most effective tonic. Allowing workers flexibility while encouraging them to strike an appropriate balance between work and family or home life is key. As is not taking punitive action against them if they don’t action an email at 7.00 pm or 7.00 am.
The expectations are everything. How clear a business is on this and how those expectations are managed may be the most effective way to achieve a healthy balance between work and rest.
REUTERS | Pedestrian cross the new diagonal crossing at Oxford Circus in London November 2, 2009. The design of the new £5 million ($8.2 million) pound crossing was inspired by the Shibuya crossing in Tokyo and allows pedestrians to cross diagonally. REUTERS/Stefan Wermuth (BRITAIN TRANSPORT CITYSCAPE SOCIETY IMAGES OF THE DAY)
The appeal involved two linked cases both of which dealt with the same retirement policy, but each of which came to the opposite conclusion as to whether it could be justified. What makes this EAT decision so striking and unusual is that the EAT upheld both of these apparently contradictory conclusions.
Facts of the case
The first appeal related to Professor Pitcher, an Associate Professor of English Literature. At 67 he was compulsorily retired by operation of Oxford University’s “Employer Justified Retirement Age” (EJRA).
The second appeal featured Professor Ewart, Associate Professor of Atomic and Laser Physics, who had been able initially to extend his retirement age by application for an exception, but whose second application was refused, under the EJRA provisions.
The ETs in each case held that the EJRA had the following legitimate aims:
Equality and diversity.
Although it did not achieve those aims of itself, it facilitated other measures taken to those ends by ensuring that vacancy creation was not delayed and that recruitment into senior academic roles could progress; from a more diverse cohort.
In Professor Pitcher’s case, the ET came to the conclusion that the EJRA could be justified by the University and that accordingly he had been fairly dismissed. In Professor Ewart’s case, to the contrary, the ET decided there was insufficient evidence that the EJRA really achieved the legitimate aims to a sufficient degree to outweigh the extreme severe discriminatory impact on him, and so found the dismissal unfair.
Role of the EAT
The EAT judgment, delivered by Eady J DBE, set out the law relating to its role and powers on appeal. From the relevant case law, it derived the following principles:
The EAT should, however, be slow to substitute its own judgment where the ET had been presented with a mass of evidence to assess, and what was required was that, as Lady Hale had said, “we must be able to detect an error of law” (Lord Chancellor v McCloud  ICR 1489; Essop v Home Office  UKSC 27).
Ultimately where the issue on appeal is objective justification, the test for interference by the appellate tribunal is one of perversity. There must be an “overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached” (British Airways plc v Starmer  IRLR 863; Yeboah v Crofton  IRLR 634 CA).
Law on justification for direct age discrimination
The relevant legislation provides:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
97. Where the claim is one of direct age discrimination, however, sub-section 13(2) allows for a defence of justification:
(2) If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.
Eady J distilled the relevant case law down to the following:
There are two broad types of legitimate aim: general policy objectives that might include social objectives and “inter-generational fairness”, or even “dignity”: by avoiding disputes about competency for older employees; and particular objectives relating to the circumstances of the specific business in question (Seldon v Clarkson  UKSC 16).
The policy put in place to achieve these aims must however also be “appropriate and necessary” bearing in mind the gravity of the effect of the discrimination. The test of whether it can be justified is an objective one to be carried out by the ET without reference to the subjective assessment of the employer (Seldon; Hardy; Chief Constable of West Yorkshire Police v Homer  UKSC 15).
“Appropriate” means that the policy must be capable of actually achieving the legitimate aim (Seldon; Homer).
“Necessity” involves a focus on the balancing act; whether there were less discriminatory means of achieving the legitimate aim (Hardy; Seldon).
Conclusions of the EAT and commentary
The EAT noted that the evidence in each of the two original ET cases had been presented slightly differently, and related to slightly different circumstances. In Professor Ewart’s case there had been evidence that the rate of vacancies created by the EJRA was trivial. By contrast, in the case of Professor Pitcher the ET accepted that the policy was only one part of a wider scheme of measures that, in combination, were “appropriately” effective at achieving the said aims.
The EAT examined both cases to see how the law had been applied and concluded that it was properly taken into account in each. Ultimately, although different conclusions had been reached on proportionality, neither ET had actually erred in law. The nature of the proportionality assessment was such that two differently constituted tribunals, each directing itself correctly on the law, could properly come to different conclusions about the same policy.
The task of the EAT was not to strive for a single “correct” answer, but to concentrate on the detection, or otherwise, of an error of law.
This unusual outcome is a salutary reminder of the limits on the EAT when it comes to determinations of fact and objective justification. The EAT’s role is not to substitute its own view of the matter but to respect the fact that the ET had far more information at its disposal when it made the decision, unless that decision is shown to be based on an error of law.
Finally, it is also a good pointer to all employers to review their retirement policies to ensure that the legitimate aims are not just stated but are being effectively achieved and evidenced.
REUTERS | Pedestrians walk to work in downtown Los Angeles, California May 13, 2014. REUTERS/Mike Blake (UNITED STATES - Tags: CITYSCAPE BUSINESS EMPLOYMENT TPX IMAGES OF THE DAY) - RTR3OZX1
ESG (environmental, social and governance) is a drum that everyone is now rightly beating. With COP26, sewage leaks and climate change ever-present in news headlines, we could be forgiven for thinking right now that it’s all about the “E”. Well, it isn’t.
Now don’t get me wrong, the “E” is high priority, but an organisation’s social impact and approach to governance also needs to be high on the priority list as each element of ESG relies on the other in order to be truly effective. The five points below highlight just how important a role HR departments can play in an organisation’s ESG credentials.
HR departments play a key role in ensuring that the right policies are in place to govern all working practices. They are there to provide advice on meeting not just legal obligations, but also on supporting the achievement of an organisation’s goals and ensuring that the organisation does “the right thing”. This means being able to challenge business decisions and playing an integral part in all board decisions.
And of course, environmental matters should be built into all these policies and practices, too.
Diversity and equality
Every part of an organisation should be focused on the importance of diversity, inclusion and equality. HR will however be a key player in areas essential to ensuring diversity, inclusion and equality such as recruitment, promotion and pay, not only promoting diversity from within but also engaging with the local community in furthering social mobility.
HR will also be able to ensure that the right processes are in place to enable wider engagement through building clear diversity and inclusion plans, setting targets and creating appropriate internal working groups and forums.
Remuneration and incentives
Let’s face it, we all know we should do more. However, HR and Reward teams can help with formulating the carrot to really help drive an organisation’s approach to ESG. ESG issues can be built into remuneration and incentive programmes and also appraisal systems to ensure that people are encouraged to do the right thing in the right way.
None of these points matter of course unless the preaching is practised. Training (and proper training, not tick-box exercises) is fundamental to ensuring this all happens. HR will most likely be responsible for learning and development. It goes wider, though; what we learn at work we take into the wider world. Everything from resilience workshops through to technical skills increase an employee’s opportunity to contribute in the workplace and translate into wider societal gains.
Employers hold a lot of data related to the points raised above. This data can be used constructively to identify risk, areas for improvement and help formulate plans to remediate them. Without this data, and HR teams to collate and provide it, ESG programmes will miss the mark.