REUTERS | Toby Melville
REUTERS | Toby Melville

In IX v WABE eV (Cases C804/18 and C341/19) EU:C:2021:594, the ECJ recently ruled that a ban on all visible signs of political, philosophical and religious belief could be justified by a policy of political, philosophical and religious neutrality in a particular workplace (a non-denominational school in Hamburg). It was made clear that a “neutrality” policy by an employer may represent a legitimate aim (although proportionality would have to be shown about the means for achieving it), as could a policy of “avoiding social conflict”. Essentially, it was not discriminatory to ask a Muslim member of the teaching staff not to wear a headscarf, and to discipline her for refusing to remove it, because the school and the municipality were fostering the individual and free development of children which could be undermined by wearing religious dress and symbols in front of them. The same rule did not apply to those in head office. 

We could talk about the case law on the limits of being able to manifest your religion in the workplace, or the competing strands that call for protection on the diversity front (I agree that this case represents the erosion of the prohibition of discrimination on the grounds of religion and belief through elevation of the rights of employers and, in this case, parents. So much for Eweida v United Kingdom [2013] ECHR 37). But I’d like to consider what it means for corporations increasingly to be defining what is an acceptable and desirable way for us to be expressing our ideology. 

This used to be (and still is) one of the remits of the state. As it was pointed out in the famous case of R (Begum) v Denbigh High School Governors [2006] UKHL 15 (about why a school uniform policy banning the jilbab was justified), part of the role of the state in the context of education is to enable children to choose the ideological space they wish to occupy, as between the dominant culture of their families and the dominant culture in society:

“A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women’s and girls’ rights to equality and freedom” (Professor Frances Radnay in “Culture, Religion and Gender” [2003] 1 International Journal of Constitutional Law 663, cited in Denbigh).

As corporations become more ideologically involved, attaching ethical allegiances to particular causes and organisations around sustainability, diversity and ethical labour standards, they invite workers to champion and celebrate certain causes, and to become vocal about supporting sponsored company values. Think of all the different symbols that have become commonplace as something to be shown and worn in the workplace: a pink wristband, a rainbow, a yellow ribbon, a moustache in November (you could think of them as acceptable dress code).

But are we at risk of being homogenised, in terms of our identities at work, if we are presented with predetermined “good causes” which we are invited to sign up to? What is wrong with an invite, you might say, no one is compelled to do anything. I suppose I am asking where the space is to work out, like the hypothetical girl in the Denbigh case example, where you stand with regard to your own personal dominant culture, and the corporation’s dominant culture, and to not always know where you stand.

The idea of the corporation as being the expression of human values, rather than a mere legal personality for Companies House purposes, is a relatively recent phenomenon but we seem to accept it has always been this way. Interestingly, many organisations now put “passionate” and “creative” at the heart of their search for candidates, which would not have been the case 20 years ago when strength of conviction was regarded as something private. Like an ideal love-match (possibly forged by an algorithm), the passionate worker and the passionate employer are destined to meet and set the world on fire. But what if the best lack all conviction and the worst are full of passionate intensity?

Could there be too much pressure for individuals to take on corporate ideology at the expense of the many ordinary aspects of their humanity, such as the ability to question, doubt and not know? Qualities which, according to a recent report on the robotisation of work, could make them more employable in future?

We are used to thinking of dress codes as something imposed by employers, for employees to conform to or not, with the debate usually centring around a person’s right to freedom to express or manifest their belief and the employer’s right to police individual expression in the interests of conducting business and serving their customers. But we are less used to the idea of the corporation itself being the sheer embodiment of a dress code which may offend the idea of space or neutrality within the workforce (and bear in mind that the absence of belief is capable of protection in law).

We are used to thinking of employers as wanting, potentially, to pursue a policy of neutrality, based on ethos or customer profile. But what if neutrality is the desired safe space for a significant group of employees in a workplace, not because they are discriminatory or indifferent to value-based agendas, but because they express their values differently to the ways identified by the corporation as appropriate and desirable?

The avoidance of social conflict was cited in WABE as a potential legitimate aim for an employer pursuing a policy of neutrality. But it seems that corporations are sailing right into the headwinds of social conflict by taking up so much ideological space as a core activity. By becoming the gatekeepers of appropriate expression of values and belief, they have to take a stand, or not, or be judged by their silence.

All views expressed are the author’s own.

Shireen Shaikh, Senior PSL, Taylor Wessing.

REUTERS | Benoit Tessier

The UK government has recently published its long-awaited response to its 2019 consultation on measures to combat sexual harassment in the workplace and strengthen existing legal protections. 

Most significantly, the government has committed to introducing a new proactive duty on employers to prevent sexual harassment in the workplace and to reintroduce protections from third-party harassment. It is also likely to extend the time limits for bringing claims under the Equality Act 2010 (EqA), but this is still being considered.  

The response is very light on detail about how these legislative changes will be implemented. Set out below are the headlines of the government’s response and what lies ahead for employers “as soon as parliamentary time allows”.  

Proactive duty to prevent sexual harassment 

The government intends to introduce legislation which requires employers to take positive, proactive steps to prevent sexual harassment. Currently, employers are under no proactive duty to prevent sexual harassment in the workplace. However, if an incident has taken place and an individual makes a claim, an employer will potentially be liable unless it can show it took “all reasonable steps” to prevent the sexual harassment.   

The main findings of the consultation were that many respondents were supportive of the new duty to prompt employers to take positive steps to prevent harassment. The #MeToo movement made it clear that existing laws with after-the-event liability were not enough and that more is needed to drive lasting cultural change. 

The government has said it anticipates that the new duty will require employers to take all reasonable steps to prevent harassment. Under this reformulation of existing laws, an employer would still be required to take reasonable steps (as they are now, assuming they want to be able to defend any claims) but could potentially be liable for failing to take preventative action without the need for an incident to have occurred.  

The response refers to the Equality and Human Rights Commission’s (EHRC) existing power to enter into legally binding agreements with employers who are found to be liable for breaches of the EqA and that there may be scope for “further EHRC action in this area”. It could be possible that employers find themselves the subject of enforcement action by the EHRC based on lack of policies, training or other steps to prevent sexual harassment, even if no incident has occurred. It is however anticipated that an incident would still need to have taken place before an individual could make a claim.  

The scope of this new duty will be clarified by a statutory code of practice, developed by the EHRC. Many respondents advocated that the steps themselves should be explicitly outlined, but the government has said this would remove the flexibility to take a proportionate approach. What taking all reasonable steps will involve will vary according to an employer’s size and resources. The government wants to motivate employers to put in place practices and policies which respond to the needs of their specific organisation, rather than creating a checkbox exercise.  

The response does not state whether the preventative duty will apply to all forms of harassment under the EqA, or whether protections against sexual harassment will be elevated over and above other forms of harassment. The original consultation paper referred to discussing options that would apply equally to all forms of harassment. Further clarity on this point is awaited.  

Legal protections against third-party harassment 

The government also intends to reintroduce protections against third-party harassment in the workplace. Historically, employers could be liable for harassment of their employees by third parties in the workplace (for example, a customer or supplier) under the “three strikes rule”, if the employee had been harassed on two prior occasions. This was repealed in 2013. It remains unclear in what form this protection will be reintroduced, but the government has confirmed that alongside this employer liability, it will introduce the defence of having taken all reasonable steps in response to a claim. There is no current indication it will be a proactive duty, as above.    

Again, the response is vague on whether the new duty will apply to all forms of harassment, or just to sexual harassment.  

Extending time limit to bring claims 

The government has said it will “closely” look at extending the time limit to bring claims under the EqA from three months to six months. This is said to be in relation to all claims under the EqA, not just sexual harassment.   

The general response to the consultation was in favour of increasing the time limit, with many respondents advocating for 12 months. The government stated that if an extension was to be introduced, a time limit of six months would be more appropriate than 12. This is in recognition of the need to strike a balance of ensuring access to justice while minimising the potential negative impact on employers. Any extension will lead to an increase in employer liability and also start to limit the reliability with which those involved can recall events, and the availability of documents and witnesses.  

It is not clear how this would intersect with other employment claims subject to a three-month time limit. For example, how easily could an employee claiming unfair dismissal amend their claim to tack on claims of discrimination? This would place an additional burden on employers to file an amended defence. 

Any extension in time limit is also likely to see an increase in the number of claims filed. The government is conscious of existing tribunal delays exacerbated by the COVID-19 pandemic and the need to first return the tribunal to previous levels of service before “additional loading” is added. 

Volunteers and interns 

The consultation also considered whether interns were adequately protected under the EqA and whether the EqA’s protections should be extended to volunteers. The government has ruled out changes in this regard on the basis that:  

  • Interns are already sufficiently protected by the EqA as they are likely to be considered “workers”.  
  • Extending protections to volunteers could create a disproportionate level of liability and difficulty for organisations which outweighs the benefit of the volunteering services provided. For instance, individuals helping out at one-off school events or charities.   

Next steps 

The above anticipated changes need a great deal of fleshing out. Crucially, it remains to be seen whether these new protections will be extended to other forms of harassment under the EqA.    

No timelines have been indicated and it is likely to be some time before any changes come into effect. We are still waiting on the legislation promised in 2019 in relation to the use of non-disclosure agreements (NDAs). This is another issue which the #MeToo movement shone a spotlight on.  

In the meantime, employers can start to refocus on the issue of sexual harassment as employees return to the workplace. Harassment can occur in many forms and employers should ensure that training and policies are up to date and consider how harassment can occur in a remote workforce.   

Employers can also review the EHRC’s technical guidance (published in 2020), on which the code is likely to be based. The guidance sets out the EHRC’s recommendations on steps employers should consider taking to prevent harassment. It calls for employers to be more inquisitive about what is going on in the workplace and recommended actions such as conducting risk assessments, carrying out regular feedback surveys and having nominated “guardians” who are trained to support a complainant through the process of making a complaint. When entering into third-party supplier contracts, employers could consider including contractual clauses regarding compliance with anti-harassment policies or requiring third parties to have given training to relevant staff.   

By Marie Hoolihan, associate at King & Spalding 

REUTERS | Kate Munsch

The Office for National Statistics has estimated that more than 1 million people in Britain have suffered or are currently suffering from “post-COVID syndrome”, commonly known as “Long COVID”. The National Institute for Health and Care Excellence (NICE), has defined post-COVID syndrome as “signs and symptoms that develop during or after an infection consistent with COVID-19, continue for more than 12 weeks and are not explained by an alternative diagnosis.” Long COVID represents the next great unknown when it comes to employers’ response to the COVID-19 pandemic and its impact on workforce management is potentially far-reaching. 

In recent guidance, Acas encourages employers to treat Long COVID like any other illness. However, that advice masks the fact that Long COVID is not like other serious illnesses regularly dealt with by HR professionals. Symptoms of Long COVID vary greatly, ranging from breathlessness or organ damage to depression or memory loss. There is still much debate in the medical literature concerning the causes of Long COVID, as well as, crucially, its prognosis. It will therefore be very difficult for employers to obtain clear medical evidence on which to base their decisions. The TUC has recently called for long COVID to be recognised as a disability and individuals with serious symptoms may well be disabled for the purposes of the Equality Act 2010, though, with virtually no evidence on the likely duration of symptoms (that is, whether the condition is likely to last for at least 12 months and therefore be “long term”), this is currently another unknown. A supportive (and prudent) employer however will err on the side of caution and will need to be thinking about appropriate adjustments for affected employees. Failure to make reasonable adjustments will put employers at risk of disability discrimination claims, and potentially other indirect discrimination claims based on the fact that certain groups sharing a particular characteristic may be at a higher risk of developing Long COVID. 

However, this may be easier said than done for employers. The uncertainty in the medical science makes it very difficult for employers to make informed decisions about the type of adjustments that may be appropriate to support employees suffering with Long COVID, or, with uncertain prognoses, about what adjustments the business can support over the indefinite term. This could potentially be very difficult for HR teams to manage, with costs (in financial and business terms) that may be difficult to estimate with any accuracy. 

There are some simple practical things that employers can begin to think about to prepare to support employees suffering Long COVID symptoms: 

  • Build your HR team’s and your managers’ knowledge. It is important that employees suffering from Long COVID are treated sensitively and supportively, and building understanding will help. The Faculty of Occupational Medicine of the Royal College of Physicians has released guidance on Long COVID for employers and managers. 
  • Maintain an open line of communication, and encourage employees to speak to managers or HR if they are struggling. Symptoms can vary significantly from one affected worker to another, and indeed from one day to the next. Therefore, it is important to have regular one-on-one check-ins with affected employees to understand their symptoms and their needs, and how you can support them to maintain their performance. 
  • Seek medical advice from occupational health. Although there are still many uncertainties in the medical community about Long COVID, particularly in relation to prognosis, an occupational health specialist may still be able to provide you with helpful advice as to what adjustments may help to support an employee with particular symptoms. 
  • Try to be flexible and innovative in the ways in which you provide adjustments. As discussed, Long COVID is an emerging issue and much of it is unknown. However, what is clear is that it will affect a lot of individuals, so, to remain competitive, employers will need to make efforts to retain key talent. 
  • Be wary of “COVID-fatigue” and factor this into your management strategy. In our experience dealing with long-term sickness cases, for example where employees are diagnosed with a condition like cancer, management are very supportive when first becoming aware of a concern, but can become less supportive where illnesses have been continuing for a long time. With what will potentially be a chronic condition, HR professionals should be working from the start to facilitate long-term solutions and ensure that managers and teams are able to adjust and support the individual over an indefinite time period. 
  • If it is not possible to support individuals with Long COVID, exercise caution when it comes to dismissal conversations. The same considerations will apply as in other capability dismissal situations. However, employers will need to be aware of the risk of a challenge on the basis of unreliable medical evidence, given the many unknowns with this condition. 
REUTERS | Glasses lying on papers

In circumstances that will be starkly familiar to those responsible for responding to claims brought by litigants in person, HHJ James Tayler has launched a scathing attack on an Employment Tribunal striking out a claim before the issues had been properly identified (Cox v Adecco UKEAT/0339/19/AT(v)). In doing so, the Employment Appeal Tribunal (EAT) has clarified the duties on respondents to assist a litigant in person to properly identify and clarify their claims. This raises a hurdle to be passed before applying to strike out complex claims brought by litigants in person which respondents must address very early on in any case in which this application might be made. 

The claimant’s claim 

The claimant’s claim was that he had been subjected to a detriment and dismissed for making protected disclosures. At an initial case management preliminary hearing, a schedule to the order set out the issues, although without identifying all of the information that the claimant needed to advance if his claim were to succeed.  

Each of the three respondents made applications for the claim to be struck out or for deposit orders, and a further preliminary hearing was listed to dispose of those applications. In advance of that preliminary hearing, the claimant was ordered to provide additional information in respect of the disclosures on which his claim was based.  

By the time the applications came to be considered by Employment Judge (EJ) Martin, she did not have a complete list of issues to work from. Instead, the claimant’s claim was, at that time, contained in a number of documents, including the claim form, additional information, a Scott schedule and draft amended particulars of claim. At the hearing, the onus was squarely placed on the claimant to identify his claim at the hearing, rather than by reference to the documents.  

EJ Martin decided that the claimant’s claims had no reasonable prospects of success and exercised her discretion to strike them out. The claimant, with no doubt considerable assistance from their Advocate, appealed to the EAT.  

The approach of the EAT 

HHJ James Tayler allowed the appeal, giving an authoritative status to the basic proposition that “it is important, wherever possible, to have properly identified the issues in a case before considering strike out”. 

After noting the well-known authorities relating to the circumstances in which it is appropriate to strike out a discrimination or whistleblowing claim, he also drew attention to the dicta in those authorities that encourage the tribunal to take an active role in assisting litigants in person to identify the issues in their claims. He emphasised that, even if the threshold for a claim to be struck out has been passed, an order to strike out a claim is nonetheless discretionary. Part of the exercise of that discretion “may involve consideration of whether an amendment should be permitted should the balance of justice in allowing or refusing the amendment permit if it would result in there being an arguable claim that the claimant should be permitted to advance”.

HHJ James Tayler emphasised the duty on respondents to assist the tribunal in identifying the documents in which the claim is set out, encouraging them to roll up their sleeves and identify, in reasonable detail, the claims and issues as a prerequisite of considering whether the claim has reasonable prospects of success. Respondents should: 

“..assist the tribunal to identify the documents, and key passages of the documents, in which the claim appears to be set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer, and take particular care if a litigant in person has applied the wrong legal label to a factual claim that, if properly pleaded, would be arguable.”  

This was backed by an express statement that failures to do so will not be looked on kindly by the EAT should the case reach that stage: “In applying for strike out, it is as well to take care in what you wish for, as you may get it, but then find that an appeal is being resisted with a losing hand.” 

Clearly seeking to avoid suggestion that the duties being imposed are entirely one-sided, HHJ James Tayler noted that litigants in person are also under responsibilities to explain their claims clearly, focus on their core claims, and appreciate that where additional information is requested, it is with the aim of clarifying, and where possible simplifying, the claim. However, respondents and tribunals were reminded that repeatedly asking for additional information and particularisation rarely assists a litigant in person to clarify the claim. 

Once those principles had been set out, the appeal itself was straightforwardly dealt with. Although EJ Martin had been in a difficult situation because the claims and issues had not been properly identified before the preliminary hearing at which she struck out the claimant’s claims, she then made her position more difficult by failing to properly identify the issues with reference to the various documents in which the claimant had attempted to bring his claim. Having taken that approach, she had failed to take into account relevant information set out in those documents. Among other substantive errors of law relating to the requirements for making a protected disclosure, the appeal was therefore allowed and the case remitted to a differently constituted Employment Tribunal. HHJ James Tayler identified those matters which that tribunal would need to consider to have properly identified the claims and issues before considering the respondents’ strike-out applications.  

Comment 

Although the basic proposition on which HHJ James Tayler’s decision is based is unarguable, the decision gives no tangible guidance to Employment Tribunals or respondents as to how to actually identify the issues in complex claims brought by litigants in person. Instead, the guidance appears to be limited to a suggestion that, by looking hard enough at all documents in which the claimant has provided details of their claim, the claims and issues will be sufficiently clear. Those representing respondents in cases against litigants in person will appreciate that as a best-case scenario which is often not borne out in practice.  

However, some guidance can be drawn out from the decision which may assist in ensuring that strike-out applications do not fall on this initial hurdle. A list of issues should be drafted at the first available opportunity, by reference to any documents in which the claimant provides details of their claim (even if an amendment is strictly required to bring these matters with the scope of the claim which has been formally brought). Any requests for further information should be as focused as possible, by reference to that list of issues.  

Ultimately, respondents are likely to be expected to show that they have complied with their duty to assist litigants in person in identifying their claims before any application for strike out is considered. Care should be taken to ensure that the building blocks for this reassurance are created in the initial response to the claim and any preliminary requests for further information. HHJ James Tayler’s judgment is likely to make Employment Tribunals more cautious about prematurely determining strike-out applications, and respondents would be well advised to ensure that they plan an appropriate course to show that the claim is as well clarified as it can be when these applications come to be determined. 

REUTERS | David Gray

Many employers, from factories to care homes to call centres, require workers to perform tasks overnight. Sometimes, however, the tasks arise so intermittently and unpredictably that an employer just needs someone to be on call, ready to perform a task when needed. When tasks are sufficiently infrequent, the employer may arrange for the worker to sleep for all or most of the night and provide suitable facilities for doing so. 

In Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8, the Supreme Court has confirmed that only the time when “sleep-in” workers are awake for the purpose of working will count for national minimum wage (‘NMW’) calculations. The line of case law which suggested otherwise, including British Nursing Association v Inland Revenue [2002] EWCA Civ 494, Scottbridge Construction Ltd v Wright2003 SC 520 and Burrow Down Support Services Ltd v Rossiter[2008] ICR 1172, is no longer to be regarded as authoritative. 

National Minimum Wage Regulations 2015 

As might be expected, hours which are spent actually working are always included in the NMW calculation.  

Additionally, under regulation 32 of the National Minimum Wage Regulations 2015 (SI 2015/621) (NMW Regulations 2015) (and its predecessor, regulation 15 of the NMW Regulations 1999) the calculation for time work also includes time when a worker is available, and required to be available, at or near a place of work for the purposes of working. However, this is subject to two exceptions: 

  • Time spent at home is not included, even if the worker is required to be there and to remain available for work. 
  • If the employer permits the worker to sleep during a shift, and provides suitable facilities for sleeping, then only the hours when the worker is awake for the purposes of working will count.  

Regulations 15/32 only apply when someone is not actually working. It is sometimes described as a “deeming” provision, in that it treats time when someone is merely required to be available for work as if it were time spent working. It follows that the exceptions for home working and sleeping time simply do not arise when someone is actually working. 

Mencap v Tomlinson-Blake 

Mrs Tomlinson-Blake was an experienced care worker who supported two men with substantial learning disabilities living in a privately owned property. Some of her shifts were sleep-in shifts from 10.00 pm to 7.00 am and she was provided with her own bedroom in the house. During her sleep-in shifts, she was required to remain at the house and intervene if she judged that her support was necessary, which the ET found had happened on six occasions in a 16-month period. She was positively expected to get a good night’s sleep.  

Traditionally, sleep-in care workers like Mrs Tomlinson-Blake have been paid an allowance for the whole shift, at below NMW rates, plus NMW rates for any time when they are actually called on to work. 

However, in a series of decisions from Burrow Down Support Services to Mencap v Tomlinson-Blake (reported as Focus Care Agency v Roberts [2017] ICR 1186), the EAT decided that some sleep-in workers were actually working throughout their shifts, not merely deemed to be working. These workers were not therefore covered by the exception for sleeping time under regulations 15/32 and were entitled to NMW rates even when sleeping.  

In finding that Mrs Tomlinson-Blake was working throughout her shift, the ET had taken into account: 

  • Mencap’s regulatory obligation to have someone on the premises. 
  • Mencap’s obligation under its contract with the council to have a carer present at a service user’s home. 
  • The fact that Mrs Tomlinson-Blake was constantly on call; even when asleep she had to be present and listening out, ready to judge whether intervention was required.  

In the EAT, Simler P identified in the authorities a “clear dichotomy” between “those cases where an employee is working merely by being present at the employer’s premises … whether or not provided with sleeping accommodation and those where the employee is provided with sleeping accommodation and is simply on-call” (Focus Care Agency, at paragraph 31). She decided that classifying a particular case as being on one side or the other required a multifactorial evaluation, with no single factor being determinative, and no exhaustive list of factors provided. 

The EAT upheld the finding of the ET based on this multifactorial evaluation. 

Supreme Court in Mencap v Tomlinson-Blake 

The Court of Appeal disagreed with the EAT, and the Supreme Court has now dismissed Mrs Tomlinson-Blake’s appeal.  

Lady Arden relied on the First Report of the Low Pay Commission (Cm 3976) (June 1998) to identify the objectives of the NMW Regulations 2015. The Low Pay Commission’s (LPC) starting point was that working time included all time which a worker had to spend at the employer’s place of work ready to be called on to work, even if no work was available. However, working time did not include time spent on call or on standby elsewhere.  

For the special case of workers who were sleeping at the employer’s premises while on call, the LPC recommended that a shift allowance should be agreed between workers and employers, but they would be entitled to NMW “for all times when they are awake and required to be available for work”. The LPC “plainly did not consider that a sleep-in worker who was sleeping could be said to be working …” (Mencap, at paragraph 46). Lady Arden held that the drafter of regulations 15/32 took the same view, since the exception for sleep-in provision appears in the context of availability for work rather than in the context of defining when a worker is working.  

Finally, Lady Arden noted that, to count as available for work under regulations 15/32, a person must be both awake and awake for the purposes of working; that is, hours when they are awake for their own purposes are not counted. 

On that basis, she agreed with the Court of Appeal that Mrs Tomlinson-Blake was entitled to the NMW only when she was awake for the purposes of working and not for the whole period of her shift. 

Implications for organisations and workers in the care sector 

This decision is particularly welcome to organisations in the care sector, which rely on sleep-in workers who are often on low pay. It is, of course, equally unwelcome to the care workers themselves, even more so after a year during which they have faced some of the most difficult circumstances created by the COVID-19 pandemic. 

However, it should be remembered there is still a line to be drawn between working under regulations 3/20, and being available for work under regulations 15/32. Lady Arden agreed with Underhill LJ that a worker whose tasks are intermittent may have facilities provided for sleeping, and be permitted to take a nap between tasks, and still be working throughout their shift for NMW purposes. As she noted, the sleep-in exception under regulations 15/32 only covers arrangements:  

“where the principal purpose and objective of the arrangement is that the employee will sleep at or near the place of work, and responding to any disturbance during the time allocated for sleep must be subsidiary to that purpose or objective.” (Mencap, at paragraph 57). 

Whether that is true for any particular worker will depend on the individual facts.  

REUTERS | A man rides on an escalator in central Seoul, South Korea, June 15, 2016. REUTERS/Kim Hong-Ji - RTX2GAPH

Most people would agree that bringing tribunal proceedings is a daunting step and not one to be taken lightly. But what about the serial or vexatious litigant? In one recent case, it came to light than a candidate had brought “at least 38 claims that are known about” alleging disability discrimination.   

Most of the claims appeared to be against recruitment consultants, the vast majority of which were dismissed following withdrawal of the claim by the claimant. In at least two of these cases, costs awards were made against the claimant for abusing the tribunal process. In one such case the judge noted:

“[The Claimant] was routinely making claims which were either dismissed or which he withdrew. It is not known if he settled any, but none went to a hearing. It does very much look as if he brought claims to see if he could get a payment in settlement, and then abandoned them. That is not a proper use of the tribunal process, and it is not a reason why potential employers should have to incur legal costs defending claims that a claimant does not intend to pursue.” 

Handling vexatious litigants 

Employers faced with that sort of applicant (effectively branded a vexatious litigant whose job application had no prospects of success due to lack of experience) would be on safe ground to refuse that candidate a job. But what if employers face a litigious candidate who had some relevant experience and had asked for reasonable adjustments as a disabled employee? That candidate might say that they had brought each of those cases with the intention of pursuing them to a hearing to demonstrate institutional discrimination in their extensive job search. Can an employer safely refuse to hire a serial litigant in these circumstances? 

The answer is no: bringing proceedings (or giving evidence) is a protected act under the  Equality Act 2010, provided the act relates to a protected characteristic and has been done in good faith. Employers who simply rule out employees because of prior discrimination claims may be opening themselves up to a victimisation claim.   

The fact that the candidate’s motivation may have included extracting a financial settlement from other prospective employers in bringing the claim is of little relevance.  The key question is was the claim brought honestly? If so, to deprive a candidate of a fair interview or a job will likely amount to victimisation. Ultimately, it is not relevant if the candidate has it wrong and 38 prior job applications were unsuccessful because they have a terrible employment track record rather than because they have a disability. If employer number 39 refuses to give them a job because they have alleged disability discrimination countless times, that is very likely to be an actionable and successful victimisation claim against employer number 39. 

Burden of proof  

The key issue here is why was the candidate refused the job by employer 39 and can number 39 prove it? If it was because the candidate has zero relevant experience, things are looking less risky for the prospective employer; the question is can the prospective employer demonstrate that reason? The burden of proof quickly shifts to the prospective employer in these circumstances and contemporaneous notes will be absolutely vital. 

Ultimately, what this goes to show is that before employers unleash their managers on the recruitment process, they should make sure they have had appropriate training and, in particular, have had diversity and inclusion (D&I) training. Understanding how to avoid victimising job candidates who have previously been involved in cases or supported former colleagues in claims around protected characteristics is vital. As is knowing how to run a fair recruitment process, make reasonable adjustments where necessary, and document the fair and justifiable reason for not taking a candidate further forward in the process.   

Potential employers need to be able to robustly defend themselves from serial or vexatious litigants who have zero intention of using the tribunal process properly. But, in doing so, do not expose your organisation to candidates like this job applicant who clearly took the opportunity to exploit the system.  

REUTERS |

For those employers which have been fortunate enough to avoid the need for compulsory redundancies, 2020 was a year that, in many industries, saw very little natural attrition in headcount. Employees were choosing to stay put, given the economic downturn. This can be an issue, as many employers assume a regular churn” of employees for budgeting purposes and particularly so in an up or out” environment. This comes alongside the challenges of managing performance during the pandemic and consequential remote working. 

The redundancy route  

As a means of managing headcount, redundancy is a very different proposition to performance management. Redundancy takes out roles, not poor performers.  

Redundancy can also (potentially) be expensive, with additional payments due to employees. Most importantly, a redundant position cannot be re-filled by someone who can do the job more effectively; the position has been eliminated and filling it immediately exposes an employer to an unfair dismissal claim on grounds that the redundancy was not genuine. 

Employers looking to manage attrition and to upgrade existing talent need to turn to proactive performance management. In preparing for the economic upturn, employers need to focus on this now to be in the best (and leanest) shape: fair and effective performance management doesn’t happen overnight and means considerable management-hours investment. However, retaining and growing the best mix of talent will no doubt be a defining feature of those companies which pull out of the pandemic most successfully. 

Restrain, retain or retrain  

The rules of performance management have now changed: observing and measuring performance is inevitably more difficult in an environment in which frequency of contact and physical supervision is limited. Employees’ domestic responsibilities (such as home schooling or caring for shielding or sick household members) are part of daily working life and, often most difficult, performance management is being conducted remotely, often intrusively in an employee’s own home. 

Set out below are my top five tips for dealing with the challenges of managing poor performance. 

Do not delay 

Poor performers are unlikely to get any better working remotely with an absence of management. If there is potential for turning performance around (or even if there isn’t) a hands-on and proactive performance plan needs implementing, immediately. Waiting for us all to get back to the office environment is not the answer. Engaging with the employees now is vital, as is providing direction and feedback (and keeping a record of it). Fair performance management takes months. Assuming we are all vaccinated and have some hope of an economic uptick by the autumn, employers want to be at fighting weight” by the end of summer. An average performance improvement plan (PIP) takes anywhere between three and six months. Start now. 

Be systematic 

Managing headcount and talent upgrades are intensive processes; every week is an opportunity for a check in, highlighting deficiencies and setting development goals. If there are genuine reasons for the drop-off in performance, engaging with the employee will reveal those and you can then move to supporting the employee as required. In performance management terms, every week is everything. 

Be firm but be kind 

Many people are struggling; from the loss of loved ones and serious mental health issues to a lack of WiFi or lack of a decent office chair. Make sure that you make room for an employee’s life” in your PIP. Your staff are your key asset; supporting an employee in a time of crisis is loyalty that a salary rise or a bonus often cannot compete with. The most difficult conversations can be done professionally, swiftly and compassionately. If you don’t know how to do them, script them and work with your HR professionals to prepare. Plan conversations carefully and bear in mind that drawing out these situations rarely helps either party. If an employee says they are stressed by the process, moving through it without delay can often be the most compassionate way of resolving a situation. 

Flexibility is a friend 

Being accompanied at a virtual meeting can be tricky. Be prepared to be flexible and, if an employee wants to be accompanied by a member of their household or social bubble, it may be better to err on the side of agreement. Be clear about the limits of the accompanying person’s role and don’t be afraid, as host” of the virtual meeting, to make use of the mute button. Difficult messages are being given and received directly into an employee’s own home. There is no opportunity to wind down” with colleagues, so flexibility of process to allow support can be important. 

Be clear in your messages 

An employee needs to be told there must be improvement if there is any hope of a successful PIP. I have seen too many meetings where messages are half given (and half received) because it is too difficult for the manager and employees are told to speak to HR”. It is uncomfortable telling an employee that the level at which they are performing is simply not good enough, but it is only fair. Do not fudge a disciplinary process and rely on redundancy as a no fault” dismissal. It may be simpler in the short term to tell an employee that their position has been eliminated, but the consequences are far more damaging. Any redundancy unnerves other staff, particularly at the moment, and it can have a very direct impact on retention of those you want to keep. There is also nothing more frustrating for those who are performing to see under-performers go unmanaged. 

Now is the time to focus on the performance of your workforce to be in the best shape possible for the second half of the year. Proactively assessing performance across your organisation gives you an opportunity to engage with your staff and shape your talent. 

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In the context of the ongoing COVID-19 pandemic, many employment practitioners are seeing an increase in instructions relating to redundancy processes. The first stage of the enquiry any employment tribunal would undertake into such a matter is to consider whether the dismissal was actually by reason of redundancy. This blog post addresses what is necessary to constitute a redundancy situation and considers in particular the recent guidance provided by the EAT in Berkeley Catering Ltd v Jackson UKEAT/0074/20 

Redundancy (as a potentially fair reason for dismissal) is defined in section 139 of the Employment Rights Act 1996 (ERA 1996). A dismissal wholly or mainly attributable to the fact that the requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish will be by reason of redundancy for the purposes of the ERA 1996 (section 139(1)(b)(i)).  

There are several principles that were well established before Berkeley Catering that we should have in mind before turning to the facts of that case. The first is that the tribunal is not permitted to investigate the commercial and economic reasons for the redundancy (see for example James W Cook & Co (Wivenhoe Ltd) v Tipper and others [1990] ICR 716). It is still open for employees to challenge whether there was actually a redundancy situation at the time of their dismissal, and the court in Tipper envisaged that the tribunal could consider “whether the closure of a business is in fact genuine”, but the scope of the tribunal’s investigation will be fairly limited. Where the claimant alleges that the redundancy situation was a sham or completely fabricated, one may see the question of whether there was a genuine redundancy situation” included on the tribunal’s list of issues. 

The second is that what is required by section 139 is a reduction in the requirements of the business for employees to carry out work of a particular kind. This requirement can be satisfied where the amount of work is not reduced but the number of employees required to do the work is, such as, for example, where an employer seeks to reduce costs by transferring the responsibilities of one employee to another and making the former redundant (see Safeway Stores plc v Burrell [1997] ICR 523).  

The facts in Berkeley paint an unattractive picture of the employer’s position. The employment tribunal judgment states that the owner of the company was cutting the claimant out of the business and undermining her as MD. He also frankly admitted that this was happening without her being informed” (paragraph 50). The employment tribunal also found that there was no evidence of a diminishing need for senior staff and no good evidence of a financial need to cut costs. Essentially, the owner of the company was taking over the role of another employee and deliberately undermining her to engineer a redundancy situation in which she could be dismissed without being able to successfully present a claim for unfair dismissal. Perhaps unsurprisingly, the employment tribunal upheld the employee’s claim and found that she had been unfairly dismissed.  

The EAT overturned the ET’s decision. Bourne J explained his conclusion as follows:  

the undermining of Mrs Jackson [the claimant] was not relevant to the question of whether a redundancy situation existed A redundancy situation under section 139(1)(b) either exists or it does not. It is open to an employer to organise its affairs so that its requirement for employees to carry out particular work diminishes. If that occurs, the motive of the employer is irrelevant to the question of whether the redundancy situation exists” (paragraph 20). 

Bourne J went on to note that, although there was a redundancy situation, that did not mean the dismissal was fair. The tribunal may still find that the redundancy situation was not actually the reason for the dismissal and that the redundancy “was or could have been a mere pretext for getting rid of an employee whom the employer wished to dismiss” (paragraph 22). He suggested that the employment tribunal in that case may have been distracted by the issue being phrased as whether there was a genuine” redundancy situation. On the one hand, the situation satisfied the requirements of section 139 of the ERA 1996 but, on the other hand, it was a redundancy situation that appeared to have been contrived by the owner of the claimant’s employer. It may be that the claimant would have been successful if she had argued that redundancy was not the actual reason for her dismissal, but that was not how the issue had been framed and was not included on the list of issues.  

Berkeley is particularly useful guidance for two particular reasons. First, Burrell sets out a clear three-stage test for redundancy cases:

  • Was the employee dismissed?
  • If so, had the requirements of the employer’s business for employees to carry out work of a particular kind ceased or diminished or were they expected to cease or diminish?
  • If so, was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2?

Berkeley is a clear reminder that practitioners should adhere closely to these three steps. In cases of alleged sham or fabricated redundancy situations, it is sometimes tempting to elide stages 2 and 3 and Berkeley shows that, even in egregious cases, that elision can be fatal to an employee’s claim.  

Second, Berkeley is an important reminder of the importance of carefully drafted lists of issues. Practitioners often use genuine redundancy situation”  as a shorthand for the more lengthy provisions at section 139 and for the three-stage test in Burrell. Berkeley serves as a general warning against the use of such heuristics when preparing lists of issues, and a specific warning against use of the catch-all term genuine redundancy situation”.

REUTERS | People walk at an office building at a business district in Tokyo, Japan, February 29, 2016. Japan's seasonally adjusted unemployment rate fell in January to 3.2 percent, data by the Ministry of Internal Affairs and Communications showed on Tuesday. Picture taken February 29, 2016. REUTERS/Yuya Shino TPX IMAGES OF THE DAY - RTS8O4Z

There are few who have been unaffected by the COVID-19 pandemic. Fewer still who wouldn’t wish to see our current restrictions lifted to enable a return to the freedom enjoyed before March 2020. 

These constraints have resulted in rising unemployment, closures of businesses, damage to physical and mental health, illness and frustration among many.  

The virus has had far more severe consequences. 

It is broadly accepted that vaccinations will play an important role in the easing of national restrictions and the gradual return to normal working life. Yet vaccination alone will not eradicate this virus from the population. 

Workplace requirement 

There are many reasons why workers may choose not to take a vaccine. These could include medical advice, religious or philosophical belief, pregnancy, disability, existing medication, previous exposure, wanting to retain autonomy over their medical choices or wanting to wait for more evidence of safety. The list is long. 

The government has made it clear that it has no plans to force anyone to take a vaccine. This does not however mean that an employer is necessarily breaking the law if they insist that an employee is vaccinated, in order to work for them. It is possible for an employer to make it a requirement.  

Where the risk of infection to others outweighs the contravention of freedom of choice on vaccination, an employer may be justified in mandating this approach. Examples of workplaces where this is more likely to be justified include the care sector, where the risk of spreading infection to vulnerable people is higher. The tourism industry and airlines may also deem it to be necessary. 

Where it is objectively reasonable to require vaccination before returning to work, an employer may lawfully refuse to allow a worker to work. If the employee has legitimate reasons for rejecting the offer of a vaccine, they may face suspension on medical grounds. If they do not, the suspension could be connected with disciplinary action for failing to follow a reasonable management instruction. 

Restricting an employee to alternative duties rather than suspension is also an option in these circumstances. This is the objectively more sensible and reasonable approach, provided it is operationally possible 

Pay during absence 

Statutory sick pay remains available, although it does not extend to those who are fit to work but are unable to because their employer requires them to have been vaccinated. 

The Coronavirus Job Retention Scheme remains operational until the end of April 2021, or longer if extended further. This is a short-term option but is unlikely to be of assistance several months from now, when vaccination becomes widely available for the working population and such requests to be vaccinated become feasible.  

If the employee is suspended on medical grounds, as their presence creates a health and safety risk, they are entitled to be paid in full for up to a maximum of 26 weeks.  

Suspension for failing to comply with a reasonable management instruction also requires the employee to be paid in full until the disciplinary procedure concludes. Such action should not be taken as a disciplinary sanction, but to ensure the safety of others at work. In extreme circumstances, an employer could consider the employee’s absence unauthorised and not pay them at all. 

It remains to be seen whether the government will introduce legislation or guidance on these issues. 

Alternative options 

Although requiring vaccination may be lawful in certain circumstances, it isn’t necessarily the best approach. The business will want to consider the precedent it wants to set, the risks of imposing a blanket policy and the impact on reputation and staff morale.  

Businesses continue to be required to risk assess their workplace and take steps to ensure that it is COVID secure. Measures include mobilising home working, ensuring social distancing and mandating face masks, among others. Keeping these restrictions in place could represent greater safety to the workforce than removing these measures in favour of mandatory vaccination.  

An argument that compulsory vaccination is proportionate to keep people safe may be undermined by both the medical science and the alternatives available to the employer to ensure the same, or greater, level of safety. 

Other employment rights 

In most employment contracts, preventing someone from coming to work risks leaving the employer in breach of that contract. If the employee resigns in response, or is dismissed, the risk of exposure to legal action is high. 

Requiring the disclosure of proof of vaccination is also not a straightforward issue. An employee’s medical information is special category data and there are many associated legal issues to factor in, not least rights governing privacy. Implementing a policy prematurely will inevitably leave certain categories of people facing disadvantages, creating a risk of indirect discrimination connected with age, sex or disability 

It would also not be good practice to dismiss, discipline or stop paying an employee who refuses to return to work with legitimate safety concerns.  

Unanswered questions  

There remain some unknowns in relation to the levels of protection against severe illness and transmission provided by the various vaccines. 

When a business implements a policy mandating a vaccine, it will need to think very carefully about the information it uses for justification. Most pertinently, if the vaccines do not reduce or prevent transmission of the virus, it is unlikely to be persuasive to suggest that a mandatory vaccine is proportionate in order to keep others safe. 

Conclusion 

While a blanket requirement for vaccination is possible for employers to implement, there are many circumstances which give rise to legitimate challenge and create genuine risks. There need to be tolerances and flexibility built into this approach and the starting point of any advice on this issue would be to encourage vaccination, educate on the benefits of vaccination, and support staff to access the vaccine, but not to make it an absolute requirement.

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One silver lining of the pandemic-ridden 2020 has been the much hoped-for vaccine for COVID-19. The UK’s Medicines and Healthcare products Regulatory Agency (MHRA) has approved three vaccines developed by Pfizer/BioNTech, Oxford/AstraZeneca and Moderna. The current priority for receiving the vaccine set by the Joint Committee on Vaccination and Immunisation (JCVI) is:  

  • All residents in a care home for older adults and their carers.  
  • All those 80 years of age and over and frontline health and social care workers.
  • All those 75 years of age and over.  
  • All those 70 years of age and over and clinically extremely vulnerable individuals. 

It may be some time before those outside of this group have the chance to receive the vaccine, depending on how quickly the roll-out programme can be implemented. The Health Secretary stated in a recent BBC interview that every adult will be offered a COVID-19 vaccine by autumn. Of course, this promise will depend not only on the speed of the roll-out, but also on the supply of the approved vaccines.  

Vaccine and employers  

Employers may wish to start thinking about the vaccine in the context of workplace and employee well-being. ACAS has taken the view that employers are not able to require employees to take the vaccine and should listen to concerns if employees refuse to take it. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action. The relevant factors are stated to be:  

  • Whether there is a vaccine policy in place.  
  • Whether the vaccine is necessary to do their job.  
  • Whether an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010. 

This blog will focus on the third aspect, more specifically whether a reason for refusing the vaccine can be protected on religion or belief grounds under the Equality Act 2010.  

Religion or belief grounds 

There may be medical reasons for refusing to take the vaccine, for example Public Health England advises that pregnant women or those who plan a pregnancy within three months of the first dose should not take the vaccine. There are also those who are advised not to take the vaccine because of a medical condition (such as an allergy).  

But some refusals are driven by religion or belief grounds. UK polls show that the proportion of British people willing to take the vaccine stands at 77%. This is high compared to France, where only 40% of people say they will get the vaccine. France is home to some of the more vocal anti-vaxxer movements, which have gained more prominence during the current pandemic. A consensus is emerging that the anti-vaxxer movement will negatively impact how quickly countries can fight back against the pandemic, made more acute in the light of the new strain which spreads more quickly than before.  

Can the anti-vaxxer belief be protected under the Equality Act 2010? The guidance in Grainger v Nicholson [2010] IRLR 4, which concerns a philosophical belief about climate change, stated the position as:  

  • The belief held must be genuinely held.  
  • It must be a belief, not an opinion or viewpoint based on the present state of information available.  
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour. 
  • It must attain a certain level of cogency, seriousness, cohesion and importance.  
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. 

Going back to the French example, according to the Institute for Strategic Dialogue (ISD), online disinformation about COVID-19 in France primarily takes the form of conspiracy theories. To the extent that the anti-vaxxer movement is rooted in these conspiracy theories, and based on analogous case law, it is unlikely that such a belief would be protected on “belief” grounds. Consider the case of Farrell v South Yorkshire Police Authority ET/2903805/10. The employment tribunal held that an employee’s beliefs that the 9/11 and 7/7 attacks were “false flag operations” authorised by the US and UK governments, and that the media is controlled by a global elite seeking a new world order, were not philosophical beliefs for discrimination purposes. The tribunal held that the employee’s beliefs were honestly held, related to weighty and substantial aspects of human life, and were compatible with human dignity, but they did not meet “even a bare minimum standard of coherence and cohesion”. The tribunal labelled the beliefs “absurd”.  

There are other reasons for refusal which may gain more traction in the employment tribunal. Following the recent case of Casamitjana v League Against Cruel Sports ET/3331129/18, which held that ethical veganism was a protected philosophical belief, vegans might object to vaccines that contain animal-based ingredients or have been tested on animals. According to the NHS, the approved vaccines do not contain any animal products or egg. However, it is an unavoidable reality that all vaccines currently are tested on animals and therefore it is impossible to have a vaccine that has been created without animal use. The definition of veganism (as written on The Vegan Society website) recognises that it is not always possible or practicable to avoid animal use. For a tribunal to take the view that refusal based on one’s veganism belief would not be such a big leap from the current position.  

Members of certain faiths may also object to being vaccinated on religious grounds on the basis that animal-related ingredients or embryonic tissue go into the vaccine, or because of how the vaccine has been tested or developed. However, according to the current NHS website on COVID-19 vaccines: “The approved COVID-19 vaccines do not contain any animal products or egg”. 

Proportionate means of achieving the legitimate aim?  

It would be extremely difficult for employers to require employees to take the vaccine (the reasons range from the Convention Rights concerns such as Article 8, discrimination risks as well as those relating to constructive dismissal). Putting this to one side, could such a requirement be objectively justified in relation to an indirect discrimination claim? An employer will need to show that there is a legitimate aim (a real business need) and that the provision, criterion or practice (PCP) is a proportionate means of achieving that aim (that is, it is reasonably necessary in order to achieve that aim, and there are no less discriminatory means available) 

Given the deadly nature of the pandemic and the urgent public health need to protect members of the public, including employees, a legitimate aim of protecting the health and safety of staff in the workplace could be established without difficulty. But employers face a potentially difficult hurdle on proportionality that other COVID-secure measures in the workplace, not to mention testing, provide a more proportionate and less discriminatory means of achieving that aim.