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
January 29, 2021

Can employees be prevented from attending work, or restricted in their duties, until they provide proof of vaccination and, if so, what are they entitled to be paid?

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.

REUTERS |
January 19, 2021

Can refusing to be vaccinated be protected on religion or belief grounds under the Equality Act 2010?

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.

REUTERS | Autumns colours are seen at a vineyard in Klosterneuburg, Austria, October 15, 2018. REUTERS/Heinz-Peter Bader - RC1580BF4F70
November 19, 2020

Missing the deadline for a response: what steps should a respondent take?

The pandemic has resulted in an increasing number of respondents missing the 28-day deadline to provide a response to a claim presented in the Employment Tribunal (ET), as required by rule 16(1) of the Employment Tribunals Rules of Procedure 2013 (ET Rules).  

Delays in the postal service, the closure of some workplaces and a significant proportion of the workforce working from home has meant that a number of claims served in the post have been received too late in the day or missed entirely. Moreover, a rapidly increasing backlog of claims being presented to ETs has resulted in a failure to serve claims on respondents, or has led to an expectation that a claim is unlikely to be forthcoming and thus overlooked. This article examines steps that a respondent ought to take to participate substantively in proceedings when the deadline for the response has been missed.  

If an employer becomes aware of an undefended claim, it is imperative that an application for an extension of time for the response is made, pursuant to rule 20(1) of the ET Rules. This is because any response which is served late will be rejected by the ET, unless an application for extension of time has already been made or accompanies the response.  

Moreover, if no response has been validly presented, an Employment Judge is entitled to take a number of steps in respect of the claim, which include issuing default judgment for liability and even remedy, pursuant to rule 21(2). In such circumstances, while a respondent would be entitled to notice of any hearings and the ET’s decision, it will only be allowed to participate in any further hearing to the extent permitted by the Employment Judge, pursuant to rule 21(3). That said, respondents are usually allowed to make written or oral representations on remedy if a default judgment for liability has been issued; it will only be an exceptional case that would justify the exclusion of the respondent (see Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842).  

An application for an extension of time must be in writing, copied to the claimant, set out the reason why the extension is sought and state whether a hearing is sought to determine the application. Assuming the deadline has passed, the application must be accompanied by a draft response or an explanation as to why it is not possible to attach a completed draft response. The claimant can submit written reasons to the ET explaining why the application is opposed, within seven days of receiving the application, pursuant to rule 20(2).  

In deciding the application, the ET will consider whether it is just and equitable to extend time for the presentation of the response (see Kwik Save Stores Ltd v Swain and others [1997] ICR 49, a case which concerned the 2004 ET Rules, but remains good law). The types of factors that the ET are likely to have regard to include:

  • The explanation supporting the application for an extension of time.
  • The merits of the defence.
  • The balance of prejudice.  

Under the just and equitable test, the ET will likely consider the promptness with which the respondent acted once it became aware of the undefended claim. This means that respondents ought to act quickly and proactively, even if their representatives have not yet had the opportunity to take detailed instructions from their client or are in possession of the barebone documents. In the light of the difficulties in making contact with ET staff, it could be unwise for respondents to wait for the ET to provide a copy of the claim and/or any correspondence, orders or judgments, in response to any such request. If necessary, a respondent should approach the claimant or their representative to request copies of the relevant documents.  

If the explanation for the application is not straightforward, or there is a significant delay in applying for an extension, a respondent should consider asking for the application to be determined at a hearing. A witness statement could then be provided from either the respondent or their representative, explaining the delay and attaching any supporting evidence.  

If a respondent has not provided a draft response with its application, it is suggested that the same should be provided as soon as possible or within 28 days of receiving notification of the undefended claim, or a copy of the claim, depending on the circumstances. An Employment Judge could then better understand the merits of the defence at any hearing to determine the application, if a substantive response has already been provided.   

Parties should be aware that, subject to confirmation in a practice direction, it may be possible for Employment Judges to delegate their function of deciding whether to grant an application for an extension of time under rule 20 to a legal officer, pursuant to regulation 10A(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended (2013 Regulations). However, parties will be able to apply for any decision made by a legal officer to be considered afresh by an Employment Judge, provided that an application is made within 14 days of the ET sending the notice of the decision, pursuant to regulation 10A(2) of the 2013 Regulations.  

If the decision is to allow an extension, any judgment issued under Rule 21 will be set aside, pursuant to rule 20(4). The respondent is then entitled to participate in the proceedings as if it had provided the response in time.  

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November 10, 2020

Miscarriage and the workplace: how should employers deal with pregnancy loss?

With around one in four pregnancies ending in miscarriage, it’s very likely that most of us will know someone who has been through this, and many of us, female or male, will have been affected ourselves. 

Common though it is, it is often a very distressing experience, both emotionally and physically, and often a lonely and confusing one, too. That’s why the Miscarriage Association offers a listening ear, support, information and guidance, responding to thousands of requests for help each year. 

Among the many questions people ask are those relating to work: “What should I tell them?”, “How much time can I take off?”, “Will I get paid?”, “Will it go on my record?”.

The results of our survey of over 600 people affected by miscarriage are pretty stark. Many employees don’t know their rights, managers aren’t sure of their responsibilities and employers rarely have policies in place to help either party. 

Almost half of women experiencing miscarriage were not told about or offered pregnancy-related leave, which is protected by law. As a result, many felt forced to return to work before they were ready. In some cases, it meant their sick record was wrongly impacted, with several later facing disciplinary actions. 

Sally told us: “I would drive to work and sit in the car sobbing because I couldn’t face going in. I eventually told my manager that I’d come back too soon and my mental health was suffering. 

“He stated that I had annual leave booked off soon for my wedding so couldn’t go off sick before then. Now I was back, it would count as two separate absences which ‘wouldn’t look good’.

“So I went in every day for three weeks and sat at my desk with physical shakes because my anxiety was so debilitating.”

Many others we surveyed told us they felt unable to talk to their managers about their loss; they were worried if their boss knew they were planning to start a family, they would not be considered for future opportunities or promotions. Some women even continued to work while physically losing their baby. 

An unsupportive environment affects organisations, too. More than a third of those we spoke to told us a lack of support on their return meant the standard of their work suffered, while one in ten ultimately ended up leaving their role. 

With no official guidance in place around miscarriage, even thoughtful and compassionate employers sometimes struggle to know how best to offer support. 

Faye told us: “I went into work having a miscarriage, because I thought that’s what you did. I went to see my manager and he said ‘I’m really impressed with how you’re dealing with it’ – but I wasn‘t dealing with it at all. When I returned to work I had to sign a sick form and it said I was off with a migraine, which really upset me.”

No doubt Faye’s manager was hoping to spare her further upset, but ultimately it caused the reverse. 

Over 75% of those we surveyed, including employers and managers, said they would welcome a specific miscarriage policy in the workplace. This is why the Miscarriage Association has launched a new campaign to encourage just that. 

Our new, free, Miscarriage and the Workplace resource hub offers: 

It also includes a policy template that can be quickly and easily adapted in line with other company policies. 

Supporting employees before, during and after pregnancy loss 

An unsupportive workplace can mean reduced productivity, lower standards of work, increased absence and even resignation. In contrast, thoughtful support and management could mean a quicker and more effective return to work, enhanced motivation and commitment to the company. 

Julia, who has experienced four miscarriages, told us: “Each time this happened to us my work asked me ‘how can we support you?’, and also made suggestions they thought might help, such as taking time off or seeking mental health support. 

“It wasn’t lip service – my manager would check in with me to see how I was doing and how I was coping being back. I was never made to feel as if taking time off was a problem, or that things should be back to normal straightaway. I feel very fortunate to work for a supportive company and especially under a manager I can talk to.”

Despite an estimated 250,000 pregnancies ending in miscarriage each year, we’re still not good at talking about it; even less so, it seems, in the workplace. 

Here are some tips on supporting employees before, during and after pregnancy loss: 

  • Create a supportive environment where employees can approach and speak to their line managers. 
  • Have a policy in place to help everyone. 
  • Be aware that time off for a miscarriage comes under pregnancy-protected leave. Make sure everyone knows this and it is applied. Taking time off for pregnancy loss must not affect someone’s sick record or be used against them for disciplinary or redundancy selection processes. 
  • Take your lead from the staff member; ask them what they need and really listen. Sometimes small things make the difference. 
  • Stay in touch but don’t pressure them to return to work. 
  • Send them a link to the Miscarriage Association’s workplace resource. 
  • Offer support to return to the workplace; again, ask what would help. Think about a phased return and any reasonable adjustments you might make. Do they do long shifts alone? Do they sit near a pregnant colleague? Might they like to change working patterns or sit elsewhere, if possible, for a while? 
  • You also might ask if the staff member would like their colleagues to know or not, and share this information if they would. 
  • Recognise that they may need ongoing medical appointments and make allowances. 

And finally, remember the Miscarriage Association is here to help, whatever your role at work. 

REUTERS |
October 7, 2020

Legal advice is privileged no matter where it’s from

In PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm), Moulder J confirmed that legal advice privilege covers communications with an in-house legal team, despite the fact that under Russian law in-house legal teams are not classified as advocates and therefore communication with in-house lawyers is not confidential. Where foreign lawyers are concerned, the courts will take a functional approach in determining whether communications attract legal advice privilege. The decision should provide reassurance to employers who rely on foreign legal teams for advice on employment matters.

Background

The second defendant applied for specific disclosure of correspondence between the claimant and its in-house legal team, which was based in Russia. The claimant resisted disclosure on the grounds that such communications were privileged.

The second defendant accepted that it is English law which is the lex fori as regards applications of privilege. However, they submitted that for legal advice privilege to apply to communications by a foreign adviser, that adviser must have an appropriate status as a matter of English law.

The second defendant argued that, as the jurisdiction in which the claimantʹs in-house legal team practised did not recognise their communications as privileged (the Russian concept of ʺadvocates secrecyʺ not extending to those not recognised as advocates), those lawyers did not have the appropriate status for their communications to be recognised as privileged as a matter of English law.

The decision

Moulder J reaffirmed that the policy underpinning legal advice privilege is that it is in the public interest that clients can obtain legal advice and that communications be kept confidential (paragraph 23). Legal advice privilege has therefore been extended to foreign lawyers, albeit without reference to the particular national standards, regulations, or rules relating to privilege which exist in the jurisdictions in which those foreign lawyers practise.

The second defendantʹs submission was found to have no basis in authority. The emphasis in previous decisions was that it is the function of the relationship and not the status of the lawyer which is relevant to determining whether their communications are capable of attracting privilege. This broad approach applied by English courts when extending privilege to foreign lawyers therefore did not require the court to consider them to be appropriately qualified. If it did, it would lead to uncertainty in the application of legal advice privilege and potentially raise issues of comity if the English courts were required to investigate and give a view on the nature of the qualifications and regulation of foreign lawyers.

There was thus no reason to depart from the ordinary English position that communications with in-house lawyers are equally capable of attracting privilege as those with independent solicitors and barristers. Moulder J held that ʺthe only requirement in order for legal advice privilege to attach is that they should be acting in the capacity or function of a lawyerʺ (paragraph 57). The communications in question were therefore privileged and the claimant succeeded in resisting their disclosure to the second defendant.

Functional approach reaffirmed

The roles of many employees, and the business of many employers who end up before the UK employment tribunals extend across multiple jurisdictions. Employees may liaise on a daily basis with colleagues from those other jurisdictions. It is a common occurrence for the employment tribunals to consider evidence compiled from work undertaken in those other jurisdictions as part of a claim concerning a UK-based employee‘s role.

The decision in PJSC Tatneft v Bogolyubov could just as easily have arisen as a result of an attempt by a claimant to argue that their employerʹs communications with an in-house legal team in another jurisdiction were not capable of being privileged because of some particular feature of the way in which the legal profession in that jurisdiction is regulated. For example, an employee may be alleged to have committed misconduct on a trip to another country, and their employer might take advice from its in-house legal team in that country regarding the severity of that conduct according to the law of the place where it occurred. The defendantʹs argument in this case could have been made in exactly the same way.

Moulder J helpfully reaffirms that there is no additional threshold required for privilege to attach to such communications. If a foreign adviser is functioning as a lawyer, then privilege will attach to their communications even if that would not be the case in the jurisdiction in which the adviser is based. Employers should therefore be reassured that they can rely on a consistent application of privilege within litigation in the UK, no matter where their advisers are located. The functional approach emphasised by Moulder J means that, if the employer receives legal advice from those individuals, then it will be privileged.

REUTERS |
October 1, 2020

How can employers increase diversity in the workplace?

“The fact that individuals from Black and Minority Ethnic (BME) backgrounds are less likely to be in work, and when in work, are less likely to be fulfilling their potential is wrong and must change.”

This is a powerful statement with which few would disagree. It is also consistent with other disadvantaged groups who, despite having protection against less favourable treatment, still find themselves facing more barriers than those with more privileged characteristics. 

It comes from the government in response to an independent review into issues affecting BME groups in the workplace. The tone of the response suggests commitment, determination and a call to action. We are, however, three years on from that review, carried out by Baroness McGregor-Smith in 2017 (the McGregor-Smith Review) and there have been remarkably few changes to the landscape.  

What is being done by government? 

Behind those strong words were a series of weak commitments. There was no green light to legislate on the mandatory publication of ethnicity data at work, simply the rather more passive proposition to work with businesses and support them to bring about change. 

There are organisations who have done a remarkable job in pressing the government to implement change, but progress, if allowed to develop without any real traction, is slow going. In the absence of government intervention, the emphasis is on businesses to make the difference that is needed.  

Barriers 

The barriers do not start in the workplace or even at entry level, but often appear with access to education, geographical location, community or family expectations and a lack of support networks. A person’s prospects can be shaped by cultural and social opportunities years before they enter the world of work, or even start school. 

Commercial benefits 

There are numerous benefits to increasing diversity in the workplace, including: 

  • Wider economics. Enabling BME individuals to fulfil their potential at work is estimated to be worth around £24 billion a year, while reducing the gender pay gap could increase GDP by around 5%.
  • Profits. A more diverse workforce is able to create more innovative products or services more productively than groups from similar demographics.
  • Attracting customers and employees. Increasing who you represent means expanding your reach and outlook and this can only be good for business.

Baroness McGregor-Smith is clear: “There is no reason why every organisation in the UK should not have a workforce that proportionately reflects the diversity of the communities in which they operate, at every level.”

How can it be done? 

The mission statements from Stonewall and Disability Rights UK are united in their objectives: to create a more inclusive community in which to live and work. This can be achieved through making simple changes:  

  • Recognition. Accept that there is a reason for not attracting diverse candidates and recognise that change is necessary.
  • Talk about diversity at work. Keep it on the agenda at all times, from procurement and recruitment to board-level strategy. Challenge the board to ask themselves why they look and think alike and why this might be holding the company back.
  • Collect data. To benchmark against local and regional statistics to understand whether you are representative of your area. Publishing the data keeps the business accountable.
  • Training. People inherently recruit and promote through their own, biased perspective. Train people to recognise how they unconsciously favour traits and similarities.
  • Set diversity targets. A business should understand how representative they are of their local community. Aspirational targets will keep employees motivated.
  • Recruitment. Use a diverse panel of decision-makers and adopt name-blind or education-blind recruitment methods to neutralise inherent prejudice. Focus on what a person brings to a team that is different, rather than someone who conforms. If you aren‘t attracting a variety of candidates, change how you are recruiting.
  • Reverse mentoring schemes. This allows those who are not disadvantaged to understand the lived experience. It is crucial in changing attitudes and bias, both consciously and unconsciously.
  • Role models and promotion. Identify a trusted diversity champion at senior level, and establish an inclusive leadership programme to bring through talent, irrespective of backgrounds and characteristics.
  • Transparency. Making pay, reward and progression transparent in a business forces a scrutiny of values from within and will help set the tone of the culture of development and achievement based on objective measures.
  • Accountability. Ensure that at every level, leaders and managers in the business have diversity embedded into their objectives. Change typically happens faster if it is mandated.

These principles are not a solution in isolation. It is necessary to consider a variety of measures to continuously improve and challenge progress, but provided the executive decision-makers ensure diversity and inclusion is always a priority, progress is inevitable. 

The time is now 

Change takes time, so setting diversity targets years ahead is not a passive way of implementing cultural change. The sooner a commitment is made to change the working culture, the sooner both businesses and the community in which they operate will benefit. 

Although one year on, the Scorecard report highlighted no significant improvement in many of the McGregor-Smith Review recommendations, the summer of 2020 has ignited a sweeping desire for change on a global and unprecedented scale.  

The murder of George Floyd in particular has triggered an irreversible change in attitudes. It has opened eyes and brought about a deep-rooted desire for justice, for inclusion and for an absolute recognition of the benefits of equality.  

This new momentum means that UK employers across all sectors have as good an opportunity as ever to bring about a more diverse and more inclusive society in which to thrive.  

REUTERS |
September 17, 2020

Covert recording in the workplace

There was a time when someone minded to covertly record a colleague would have needed to hide a recording device in a pot plant or place a hidden camera in an office. Nowadays, this kind of activity is much easier as a result of advancements in digital technology. Video conference services, for instance, enable meetings and chats with colleagues wherever they are based, but these interactions can also be surreptitiously recorded or intercepted by employers, other employees or third parties. It is even possible to install hidden cameras and software that turns on the webcam or microphone in a laptop without the user knowing. For those less–techy souls, the ubiquity of “smartphones” means that virtually everyone has a user-friendly, high-quality recording device in their pocket. As more people work from home during the COVID-19 pandemic, there is greater opportunity for individuals to engage in covert recording now that all communication is online rather than in person. However, they need to think carefully before doing so. Two recent features in IDS Employment Law Brief map out the legal problems that can arise, including infringements of the laws governing data protection, privacy and confidentiality. 

The first article focuses on the reasons why employers should refrain from covert recording of staff. Given the potential for significant fines by the Information Commissioner’s Office (ICO), employers need to be particularly wary of breaching data protection laws. As the ICO’s Data Protection Employment Practices Code explains, covert monitoring should only be used in exceptional circumstances for the prevention or detection of criminal activity or equivalent malpractice, and should normally be authorised by senior management. Even then, before embarking on covert monitoring, an employer needs to consider if it could collect the required information in a different way. In short, covert recording is pretty much off limits. It follows that managers, for example, should not covertly record routine meetings such as catch-ups with staff, grievance hearings and end-of-year performance reviews, and it would be advisable for employers to make clear in a workplace policy that covert recording by staff is forbidden unless authorised in advance.  

In addition to a fine by the ICO, an employer could be exposed to a civil claim for damages by the subject of the covert recording. In this regard, it should be borne in mind that others (be they colleagues or trade union representatives, for example) who are also recorded in the process, may have good cause for complaint if their rights have been infringed.  

The article also explains how the very act of covertly recording an employee could itself be enough to found other claims, such as an action for the tort of misuse of private information or a claim of unfair constructive dismissal. As with data protection, covert recording will be inappropriate (and often unlawful) where the necessary information can be obtained by alternative means. In deciding whether to uphold an employee’s unfair constructive dismissal claim, an employment tribunal will pay particular attention to Article 8 of the European Convention on Human Rights, weighing up the employer’s reason for covert recording against the employee’s right to privacy; staff will often have a reasonable expectation of privacy, and even more so now that large numbers of people are working at home.  

The second article considers the steps that an employer may need to take when it emerges that an employee has engaged in covert recording. It may surprise some that employers are not necessarily entitled to treat this kind of behaviour as gross misconduct justifying dismissal, as the appropriate response will depend on various factors, including the employee’s reasons for making the recording and whether the employer made clear in a policy its attitude towards covert recording. Furthermore, as the EAT intimated in Phoenix House Ltd v Stockman (No 2) [2019] IRLR 960, covert recording will not amount to misconduct at all where “pressing circumstances completely justified” it. Although, somewhat frustratingly, the EAT did not elaborate on what it had in mind by “pressing circumstances”. 

As well as dealing with the employee, the employer will have other concerns, in particular:  

  • Whether the recording reveals mistreatment or unlawful conduct that needs to be addressed. 
  • Whether it contains confidential information that needs to be protected. 
  • Whether the recording reveals a data protection or privacy breach and, if so, what action the employer should take to mitigate this.  

A particular worry for employers will be whether they could be held vicariously liable for the actions of an employee who engages in covert recording, even though it has no primary liability for the breach. This kind of liability could arise in respect of an employee who commits the tort of misuse of private information or who acts in breach of confidence as a result of carrying out covert recording. Employers also need to be aware of the possibility of vicarious liability for breaches of the data protection legislation, following the Supreme Court’s decision in Various claimants v WM Morrison Supermarkets plc [2020] ICR 874. There, the court confirmed that an employer can be so liable, giving the view that it makes no difference for the purposes of the doctrine of vicarious liability if an employee’s liability arises under statute instead of common law. However, it went on to hold that, on the facts, there was an insufficiently close connection between the breach and the employee’s employment. 

In the light of the decision in WM Morrison, it is feasible that an employer could be vicariously liable for data protection breaches if, for example, a line manager covertly recorded a meeting with an employee about performance issues. It is likely that a court would find that the line manager’s wrongdoing was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Employers should therefore take steps to curb covert recording, particularly where highly sensitive and personal information is at stake.  

The article concludes by examining the use of covert recordings in litigation by employees and employers, in particular, the principles governing whether or not they are admissible as evidence. This issue has generated considerable case law over the years and, as the article explains, covert recordings may be admissible even though the courts and employment tribunals generally take a “dim view” of them. Needless to say, human rights considerations can affect the decision as to whether a party can rely on this kind of evidence in legal proceedings. 

REUTERS |
September 10, 2020

Furlough fraud: the offences and sanctions

The furlough scheme 

The government introduced a number of schemes to protect individuals and businesses due to restrictions resulting from COVID-19. Various grants were made available for different types of business, including the self-employed. The most used and the most expensive scheme is the Coronavirus Job Retention Scheme (CJRS). This allows an employer to keep an employee on the payroll even if they have had no or, since 1 July, limited work to do because of COVID-19 (hence being “on furlough”). The employer can then apply for a grant to cover part of the regular wages for any time spent on furlough. The rules are complicated and have changed a number of times since implementation on 1 March 2020. 

However, the government believes that as much as £3.5 billion has been paid out in wrong or fraudulent claims. Below we explore what happens if you wrongly claim under the CJRS. Given the significant investment by the government, we expect that HMRC, which is responsible for administering the grants, will be relentless in pursuing those who have taken unfair advantage of the government‘s generosity and will deploy new investigation and enforcement powers recently introduced under the Finance Act 2020 (enacted on 22 July 2020) to do so. 

While we only deal with the CJRS, the ramifications are the same for most of the other COVID-19 support schemes or grants.

What if you have inadvertently claimed under the CJRS and received a COVID-19 support payment which you were not entitled to? 

Mistakes happen and HMRC understands that. So, if you have made an error in your claim or you are not planning to use the money provided to pay wages, tax, national insurance or pension contributions then, to avoid a penalty, you must notify HMRC by the latest of the following (referred to as the notification period): 

  • 90 days after the date you received the grant. 
  • 90 days after your circumstances changed resulting in you no longer being entitled to keep the grant. 
  • 20 October 2020. 

The new provisions confirm that CJRS payments are revenue receipts chargeable to either income tax or corporation tax in the hands of the employer and so the over–claimed amount must be repaid within “the relevant time period”. If you are a sole trader or a partner, this period ends on 31 January 2022. If you are a company, the relevant time period ends 12 months from the end of your accounting period. 

What if you do not repay it or fail to declare that you have been overpaid within the notification period? 

HMRC can recover in full the over–claimed amount by way of a tax assessment, which has to be repaid within 30 days (late payment penalties can be charged). HMRC may also charge you a penalty of up to 100% of the amount of the CJRS wrongly received as a punishment for not telling them about the over–claim within the notification period. Importantly, the law states that failure to tell HMRC of the overpayment within the notification period is deemed to be deliberate and concealed. This is the starting point when addressing the amount of the penalty.  

Note also that HMRC can seek repayment and penalties against individual partners of a partnership and company officers of insolvent companies.  

Criminal investigations 

HMRC has stated that its priority is to tackle deliberate non-compliance and criminal attacks on the system. In some cases, these acts will be considered too serious to just levy a penalty and only a criminal investigation will be appropriate (and indeed some arrests have already been carried out). 

What is furlough fraud? 

Examples of “furlough fraud” can include: 

  • Where furloughed employees are asked to do “a little bit of work on the side” to help the company out (conduct that was strictly forbidden by the rules before 1 July), or “helping out” with ancillary work to their mainstream role.  
  • Claims that have been made for individuals who no longer work for the company, or their return to work from maternity leave or sickness absence has been manipulated in a manner that is in breach of the applicable rules, specifically to benefit financially from the scheme.
  • Other red flags are where an employer has claimed furlough payments, without passing on all of the monies to the employee, or where an employer has claimed for furlough payments, but the employees concerned were not aware that the claims had been made and so continued to work as normal. 
  • Backdating claims. 

Moreover, it is anticipated that as the CJRS winds down towards the end of October and since greater flexibility was introduced in July, there is greater scope for “abuse” or erroneous use of the scheme. 

What are the criminal offences covering furlough fraud?  

There are a myriad of serious offences for which individuals could be investigated and prosecuted. These include: 

In addition, a corporate may be investigated for the strict liability offence of failing to prevent the facilitation of tax evasion. This is a relatively new offence introduced under the Criminal Finances Act 2017. Recent figures suggest a number of investigations, across various sectors, are underway.  

HMRC powers  

HMRC can use information and inspection powers to check a claim has not been overpaid and that a CJRS payment has been used to pay furloughed employee costs. 

It is also expecting to do spot checks on businesses and “whistleblowing” is encouraged. We know that HMRC has been inundated with reports of fraud in respect of this scheme so they are sitting on a lot of information. 

While HMRC can perform spot checks and compel the disclosure of information, they can also obtain account freezing orders while they carry out their investigations. 

They also have the power to arrest and interview individuals. 

What should employers be doing now? 

Whether erroneous claims were made as a result of a misunderstanding of the rules or deliberately, businesses currently have a narrow window to rectify matters, or risk facing serious consequences. It is undoubtedly time now to audit those furlough payments, and take advice where necessary, to minimise the far–reaching consequences of any claims that with the benefit of hindsight should not have been made. Turning a blind eye or hoping HMRC will not find out is foolhardy and a stance which can lead to a criminal conviction, imprisonment and a damaged reputation. 

Nicola Finnerty is a partner in Kingsley Napley LLP’s Criminal Litigation team.  

REUTERS | Corbis
August 5, 2020

VL and indirect discrimination

In his opinion in VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Case C-16/19) EU:C:2020:479, Advocate General Pitruzzella concludes that, where an employer treats two groups of disabled people differently on the basis of an apparently neutral criterion, there may be a breach of the principle of equal treatment. However, it is not clear that his approach (and in particular, his analysis of the case as indirect discrimination) stands up to scrutiny. The case provides a reminder of the care needed when dealing with comparators in discrimination claims. 

Facts

The Polish Labour Code creates an incentive to employ disabled people by imposing a levy on employers where disabled people make up less than 6% of their workforce. The closer the employer is to 6%, the lower the levy. Whether an employee counts as disabled is determined by whether they have provided a certificate attesting to their disability. 

VL was a psychologist employed by the Dr J Babiński Clinical Hospital. On 21 December 2011 she gave her employer a disability certificate. 

Following a staff meeting in late 2013, the hospital director decided to start paying an additional monthly allowance of around EUR60 to encourage staff to submit disability certificates. It was granted to disabled staff who handed in their certificate after the staff meeting. Disabled staff who had already provided a certificate, like VL, were not paid the allowance.  

The national employment inspectorate found that the criterion for paying the allowance was discriminatory, but the district court in Krakow disagreed. On VL‘s appeal the regional court referred the question to the ECJ for a preliminary ruling. 

Law

Under Article 2 of the Equal Treatment Framework Directive (2000/78/EC), so far as relevant: 

  • Direct discrimination occurs where one person is treated less favourably than another person in a comparable situation on the grounds of disability. 
  • Indirect discrimination occurs when “an apparently neutral provision, criterion or practice (PCP) would put persons having … a particular disability … at a particular disadvantage compared with other persons“ unless the PCP is justified.  

The Polish Labour Code contains similar provisions. 

Under the Equality Act 2010 (EqA 2010), A directly discriminates against B if, because of a protected characteristic, A treats B less favourably than A treats or would treat others (section 13(1)). 

A indirectly discriminates against B, a person with a protected characteristic, if: 

  • A applies a PCP to B. 
  • A applies (or would apply) that PCP to persons who do not share B‘s protected characteristic (section 19(2)(a)). 
  • The PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it (section 19(2)(b)). 
  • It puts B at that disadvantage (section 19(2)(c)). 
  • A cannot show that the PCP is a proportionate means of achieving a legitimate aim (section 19 (2)(d)). 
Scope of protection

AG Pitruzzella‘s reasoning in VL is not easy to disentangle. His first step is to consider the scope of protection under the Directive. He notes that the grounds on which discrimination is prohibited are to be interpreted strictly (limited to the protected characteristics listed in Article 1 of the Directive), but suggests that provisions governing both the persons who are to be protected, and the proper comparators for the purposes of establishing discrimination, should be interpreted less strictly.  

Thus the ECJ has already broadened the scope of protection to include not just those who are themselves disabled, but those who are associated with a disabled person (Coleman v Attridge Law and another [2008] (C-303/06) ECLI:EU:C:2008:415). Similarly, he says, although the comparison is ordinarily made with someone who does not have the protected characteristic, it is possible for a prohibited difference in treatment to occur within a group of disabled people. He continues: 

“Obviously, this does not mean that every difference in treatment between one disabled worker (or group of disabled workers) and another disabled worker (or group of disabled workers) should be treated as discrimination prohibited by the Directive … What is prohibited … is the favourable treatment, on grounds of disability, of one group of disabled workers to the detriment of another group of disabled workers.“ (Paragraph 44.) 

That is clearly correct, and to illustrate the idea AG Pitruzzella imagines an employer who treats disabled workers differently from one another according to the type or degree of disability each person has. 

Under the EqA 2010, that is captured because section 6(3)(a) provides that a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability. If, for instance, an employer treats a worker less favourably because her disability involves a mental rather than a physical impairment, the appropriate comparator is someone with the same abilities as her but who does not have her impairment (section 23, EqA 2010) (see also paragraph 3.29 of the EHRC Employment Statutory Code of Practice). That comparator may, however, have a physical impairment.  

Direct discrimination?

In VL‘s case, AG Pitruzzella says, we therefore have to investigate whether the difference in the way she was treated was related to disability “… regardless of whether the comparison is made with individuals within the group having the protected characteristic or with individuals outside that group“ (paragraph 45). 

Thus far, the analysis appears to be in terms of direct discrimination, and the point is the one made by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; that sometimes it is necessary to start by identifying the “reason why“ someone was treated as they were (paragraphs 8-12).  

In VL‘s case it might seem clear that the “reason why“ was the date on her certificate. That reason is not her disability. AG Pitruzzella agrees that it cannot be direct discrimination because there is “no direct connection between the employer‘s measure and the protected characteristic“ (paragraph 77). 

Indirect discrimination?

AG Pitruzzella does not stop there. His second step is to argue that the criterion for the award of the allowance was in fact “… the receipt of a new disability certificate such as would increase the number of disabled persons employed“ (paragraph 64); that is to say, beyond the number employed at the date of the staff meeting. Because disability is the necessary prerequisite for an employee to be able to obtain a disability certificate, he says, “the submission of such a certificate and the date on which it is submitted are inextricably linked to the protected characteristic“ (paragraph 78). Having already determined that it is not direct discrimination, he concludes that it is indirect discrimination. 

At least under the EqA 2010, however, indirect discrimination requires that people who share the claimant‘s protected characteristic are put at a particular disadvantage when compared with people who do not share it. That means VL would have to compare herself with people who are not disabled; and in that case, there would be no disadvantage, because non-disabled people do not receive the allowance.  

In fact, there is a problem with AG Pitruzzella‘s characterisation of the criterion. It may be true that the provision of a certificate is inextricably linked to disability, but the date on which it is provided is not, and it is the date (and only the date) which is the criterion.  

It is therefore not correct to say, as he does, that the criterion “places at a particular disadvantage … persons having a particular disability in comparison with other persons“ (paragraph 80). At VL‘s hospital, persons having a particular disability, or any disability, may be equally distributed either side of the cut-off date and there is no “particular disadvantage“ when they are compared with each other.  

The case is different from AG Pitruzzella‘s illustration, above, which was his reason for seeking to extend the comparators permitted under the Directive. That involved comparisons between people who were all disabled but who differed with respect to the “type or degree“ of their disability, and were treated differently as a result. 

In UK law, of course, there is another option. VL‘s case might be analysed as discrimination arising in consequence of disability under section 15 of the EqA 2010. That involves unfavourable treatment, rather than less favourable treatment, and so does not require a comparator. However, following Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, great care would need to be taken in characterising the “treatment“ so as to identify whether it really does amount to unfavourable treatment. 

REUTERS | Thomson Reuters
July 23, 2020

Quest for meaningful diversity: drawing the line between positive action and positive discrimination

The 2019 novel coronavirus disease (COVID-19) pandemic has been punctuated by one colossal movement around the world: Black Lives Matter. Naturally this has catapulted the issue of diversity to the front of mind of many employers. But just where does the line between legal obligation and discretion lie with employers on the issue of diversity? And how can employers legally go about making impactful changes to their diversity and inclusion practices? This article looks at the legal distinction between positive action (permitted under the Equality Act 2010 (EqA 2010)), and positive discrimination (which is unlawful).  

The potential benefits of positive action to employers are huge, including a dynamic and challenging workforce able to respond to changes, a better understanding of foreign and global markets, and a better understanding of the needs of a more diverse range of customers and clients both nationally and internationally.  

Positive action  

Positive action under the EqA 2010 enables employers to discriminate lawfully. There are two types: general positive action (section 158) and positive action in recruitment and promotion (section 159). Where persons with a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented, general positive action provisions under section 158 allow employers to take certain actions to enable or encourage those with the protected characteristic to overcome or minimise the disadvantage, meet their particular needs or encourage greater participation. Action taken by the employer must be proportionate to achieving the stated aims. Employers are not obliged to take positive action but can do so if the prescribed requirements are met. There are two qualifications to this:  

Positive action in recruitment and promotion under section 159 is allowed where all of the following are satisfied:  

  • A is as qualified as B to be recruited or promoted. 
  • The employer does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it. 
  • Taking the action is a proportionate means of achieving a legitimate aim. 

In other words, it allows positive action in relation to a “tie-breaker”, where an employer faced with two or more candidates of equal merit, to consider whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce.  

When does it become unlawful positive discrimination?  

The “tie-breaker” element is crucial in making sure that employers are lawfully implementing positive action, as shown in Furlong v Chief Constable of Cheshire Police ET/2405577/18. Here, the employer unsuccessfully relied on positive action by giving preference to candidates with under-represented protected characteristics (such as candidates who identified as LGBT, those from BME backgrounds and women) when interview scores indicated Mr Furlong, a heterosexual white male, to have done far better than candidates from the under-represented community. The tribunal held that if the candidates were recruited solely on the basis of scores given to them, then Mr Furlong would have been recruited. 

As an example, the following positive action taken by an employer would be lawful:  

Due to people from BME backgrounds being under-represented in a company, the employer decides to use the positive action provisions to advance a candidate from a BME background to the next round of recruitment where there were multiple people of equal merit. This is lawful under the EqA 2010 and acts as a defence to a discrimination claim by those from non-BME backgrounds for not being on the short-list. 

However, where there is a candidate with better qualifications than the person with a protected characteristic, or an employer has a policy of favouring groups with certain protected characteristics, actions taken to “level the playing field” would be unlawful positive discrimination:  

  • An employer offers a job to a woman as women are under-represented in the company’s workforce when there was a male candidate who was more qualified. This would be positive discrimination and is unlawful.  
  • A large employer, having found that overwhelming majority of its workforce are under the age of 35, sets a quota of 50% of new recruits to be over the age of 35 regardless of whether they are of equal merit to other applicants under the age of 35. This would be positive discrimination and would therefore be unlawful.  
What evidence do employers need to support positive action?  

For positive action to be lawful, employers must reasonably think that one of the statutory conditions is met, such as disadvantage, needs or low participation. How can employers illustrate this? According to the EHRC Employment Statutory Code of Practice (EHRC Code), “some indication or evidence will be required” but “it does not, however, need to be sophisticated statistical data or research”. It may simply involve reviewing the profiles of their workforce or making enquiries with other comparable employers in the local area or sector. It may even be a decision based on qualitative evidence such as consultation with workers and trade unions. 

Although “disadvantage” is not defined in the EqA 2010 the EHRC Code states it could include “exclusion, rejection, lack of opportunity, lack of choice and barriers to accessing employment opportunities”. In terms of “needs”, they are not required to be unique to those with that characteristic but may be different “because, disproportionately, compared to the needs of other groups, they are not being met or the need is of particular importance to that group”. Low participation may or may not be disproportionate. According to the EHRC Code, “the employer will need to have some reliable indication or evidence that participation is low compared with that of other groups or compared with the level of participation that could reasonably be expected for people from that protected group”.  

New diverse working culture post-COVID-19 

For businesses to stand out and gain competitive advantage over the competition in the aftermath of COVID-19, diversity will become an even more important tool and positive action can help employers achieve the desired level of diversity. To avoid falling into the trap of unlawful positive discrimination, employers will need to consider the appropriate provisions of the EqA 2010 (whether under section 159 for recruitment and promotion, or otherwise under section 158), make sure the requirements are met in terms of identifiable evidence, and properly maintain records after the event so that decisions taken can be explained with appropriate evidence. There is another angle to the diversity debate in the form of mandatory ethnicity pay gap reporting that is currently being debated in Parliament after a petition calling for its introduction passed 100,000 signatures. If enacted, it will further focus the minds of employers on the issue of diversity.