REUTERS | Women devotees pray after taking a holy dip in the Sangam, the confluence of three rivers, the Ganges, the Yamuna and the Saraswati during the Hindu festival of Sheetala Ashtami in the northern Indian city of Allahabad June 16, 2009. Sheetala Ashtami is celebrated in honour of Sheetala Mata or goddess of smallpox, and the devotees pray for longer lives for their sons during the festival. REUTERS/Jitendra Prakash (INDIA RELIGION SOCIETY)
REUTERS | Women devotees pray after taking a holy dip in the Sangam, the confluence of three rivers, the Ganges, the Yamuna and the Saraswati during the Hindu festival of Sheetala Ashtami in the northern Indian city of Allahabad June 16, 2009. Sheetala Ashtami is celebrated in honour of Sheetala Mata or goddess of smallpox, and the devotees pray for longer lives for their sons during the festival. REUTERS/Jitendra Prakash (INDIA RELIGION SOCIETY)

There has been a significant shift in individual and societal openness around sex and gender identity in recent years. The debate is complex and inevitably there are a range of views and opinions on the issues.  

Several recent employment tribunal cases have been brought by claimants who believe that a person cannot change their sex. This belief is generally referred to as “gender critical”. Employment Appeal Tribunal (EAT) decisions have concluded that this belief is capable of protection under the Equality Act 2010 (EqA) as a “philosophical belief“. 

Gender critical beliefs provide scope for conflict and disagreement in the workplace, as well as complications arising from conflict with other protected characteristics under the EqA, particularly gender reassignment, sex, sexual orientation, disability and religion.  

This poses a challenge for employers, who are responsible for preventing discrimination and harassment in the workplace and promoting diversity, equality and inclusion. Even the most well-intentioned employers can be subject to litigation if they fail to adequately balance the competing issues. Employers should consider the following points to navigate the challenges effectively.  

One protected characteristic cannot trump another  

There is no hierarchy of protected characteristics in the EqA. An employer should remember to revert to legal principles around discrimination and consider any specific guidance in place. It must not be swayed by its own subjective beliefs. 

Distinguish between conduct and beliefs  

Whether action taken was because of the claimant’s protected belief or the way in which that belief was manifested can be crucial to whether discrimination has or has not taken place. An employer is in a stronger position where it acts in response to a worker’s conduct in manifesting their views, but it is not always straightforward (or possible) to adequately separate that conduct from the beliefs themselves.  

In Forstater v CGD Europe and others ET/22200909/2019, the ET concluded that disassociation was only possible where the manifestation of a belief is inappropriate or where objection could reasonably be taken. As the claimant’s comments, while controversial and provocative, were not (on the whole) objectively offensive or unreasonable, but rather an expression of her views as part of a wider debate on the issues, her conduct and beliefs were intrinsically linked.  

In contrast, in Higgs v Farmor’s School ET/1401264/19, the ET found Ms Higgs’ Facebook posts were objectively homophobic and transphobic, resulting in a finding in her employer’s favour. 

Instil a culture of dignity and respect  

While healthy and respectful debate is a normal part of life, this does not give individuals carte blanche to say whatever they like. All workers should be treated with dignity and respect, and discriminatory behaviour should not be tolerated. However, sometimes employers and staff have to tolerate views that they do not agree with.  

It was relevant in Mackereth v DWP [2022] EAT 99 that the claimant was not put under any pressure to change his beliefs, nor was he interrogated about them, and his employer had actively tried to find a way to accommodate his beliefs.  

Use language carefully 

An employer should consider using gender-neutral drafting in workplace policies, procedures and other documents. Where reference to men or women is required, it should also consider updating definitions of those terms to include those who identify as such or are non-binary.  

An employer should not necessarily insist that staff declare their pronouns, instead leaving this to individual choice. 

Revisit social media policies 

An employer may benefit from revisiting its social media policies to ensure they provide guidance and sufficient coverage for workers sharing their views on social media, particularly on topics that could be controversial, discriminatory or in conflict with others’ rights.  

Social media is a common way for views to be manifested: Forstater, Bailey v Stonewall and others ET/2202172/2020 and Higgs all involved posts and debates on popular social media platforms. However, an outright ban on social media use is perhaps unfeasible. 

Understand and justify rationale  

Where risks of discrimination and conflict are high, an employer should think carefully when making policy or other decisions in the workplace. Even where policies apply to everyone, they may disadvantage people with one or more protected characteristics.  

This is not necessarily discriminatory unless the policy cannot be objectively justified as a proportionate means of achieving a legitimate aim. An employer who can clearly articulate its legitimate aims and demonstrate that its approach is proportionate with reference to alternatives is in a stronger position.  

This is demonstrated in Mackereth, where the EAT was satisfied that the employer’s pronoun policy:  

  • Had legitimate aims of ensuring transgender service users were treated with respect and in accordance with their identities, and of promoting equal opportunities.  
  • Was a proportionate means of achieving those legitimate aims.  

Implement regular training  

The mere existence of anti-discrimination policies is not sufficient for an employer to demonstrate that it is taking steps to avoid discrimination. An employer should actively bring policies to workers’ attention and regularly repeat equality, anti-harassment and unconscious bias training. 

Consider communal spaces, facilities and services 

An employer should ensure that all workers, visitors, clients or service users have access to facilities and services where they are comfortable, can feel respected and safe, and can be free from hostility. This may require employers to revisit their bathroom, shower and changing room accommodation, and their identification and security measures.  

Similarly, employers who employ or provide services to vulnerable people may need to think carefully about how to balance the needs of those service users with the rights of staff. In Mackereth, the vulnerability of transgender service users was relevant to the outcome of the claim.  

Similarly, where organisations provide services to other vulnerable groups (for example, victims of sexual abuse), the welfare of those service users may result in having to exclude employees of a particular sex or gender identity from working with them. 

REUTERS | A woman runs through Victoria Park at sunrise in Leicester, central England, December 30, 2014. REUTERS/Darren Staples (BRITAIN - Tags: ENVIRONMENT SOCIETY TPX IMAGES OF THE DAY) - RTR4JLUZ

There is no denying that the UK is submerged in a cost of living crisis, with Shelter reporting an increase of 45% (since April 2022) in renters being behind with, or consistently struggling to pay, their rent (an increase to almost 2.5 million renters). It is no surprise that many are turning to second (and even third) jobs to try and increase their income.  

Getting another income stream in itself may cause potential issues in terms of time (and lack of it for family and your loved ones) and increased tiredness, as well as the lack of any work-life balance, but some may see no other option than to take on another job. 

However, further problems may occur when your new income stream impacts your existing job, and not just because of your tiredness and lack of energy. 

Could your new income stream, taken on to help keep your head above water, actually put you in jeopardy of losing your main income? 

Possible implications of taking additional jobs 

As an employee, you will have both express and implied terms within your contract of employment that, if breached, could bring your employment to an immediate end and, in some cases, mean that you have to pay your employer. 

Implied terms include a duty of fidelity (as established in Faccenda Chicken Ltd v Fowler [1986] 3 WLR 288) which, in basic terms, means that the employee must act in good faith and not compete with their employer.  

It would make sense for you to take on another job in your skill set and in a similar industry to your main role, not least because you can capitalise on your expertise and experience. However, this could quite easily mean that you are competing with your existing employer and are therefore at risk of being dismissed for a breach of your contract. 

This implied term does go further, but here I have highlighted the ways in which it could be breached (maybe even innocently) by taking up a second job. 

Express terms are likely to be more obvious and employees should be more aware of them as they will be stated in their contract. 

I discuss below some of the most common express terms of an employment contract that may cause issues when taking on a second role, but the main one to look out for has to be an express clause stating that the employee cannot work for anyone else while employed by the employer (usually without their consent or approval). This is a common clause within employment contracts. This may seem obvious, but it is surprising how quickly you forget all the clauses you sign up to once you are in a job. How many of us actually go back and review our employment contracts regularly? 

Employment contracts, especially those for more senior roles, may also include a clause that states the employee must devote the whole of their time, attention and abilities to the business. Working for another employer, even if it is not a competing business, could breach this clause. If you are working for someone else, can you really be devoting your whole time and attention to your main employer? 

For some roles, employees may also have restrictive covenants (also known as post-termination restrictions) and these will restrict what they are able to do both during their employment and after their employment ends. These are likely to include clauses that prevent the employee from poaching staff and clients from their employer, but could cause the employee problems if they take on a second role that means they are dealing with their main employer’s clients or customers and suppliers, as these are likely to be protected by the restrictive covenants. A breach of these covenants can be very costly, both in defending any legal action and injunction but also in damages. This could lead to the employee losing their second job (through an injunction) as well as their main job and lead to them paying damages and legal fees (something that may be impossible when the very reason they have taken the second job is to help their financial situation). 

Ultimately, taking on that additional income may not be all that simple and could cause you to lose your main income and worsen your financial circumstances. 

REUTERS |

As an employment lawyer mainly practising in Scotland who is originally from Northern Ireland, I take a keen interest in how the procedure and the law differs across the legal systems of the UK and how devolution impacts the landscape.  Indeed, the separate legal systems and the doctrine of precedent can occasionally produce unusual results, which are challenging for those of us advising clients what the law actually is. At present, for example, the Court of Appeal has indicated that the Northern Irish Court of Appeal decision in Chief Constable of Police v Agnew[2019] NICA 32, [2019] IRLR 792 which affirmed that there did not need to be a limit on the gaps between deductions making up a series for the purposes of bringing deductions claims, should be preferred over the contrary Employment Appeal Tribunal (EAT) decision in Bear Scotland Ltd v Fulton[2015] IRLR 15, [2015] ICR 221,. Technically, however, it is the EAT decision in Bear Scotland which is binding on tribunals across Britain.  

Meanwhile, devolution of employment law remains high on the political agenda, particularly in Scotland. The Devolution (Employment) (Scotland) Bill, which seeks to amend the Scotland Act 1998 in order to grant legislative competence for employment matters to the Scottish Parliament, is due for its second reading on 3 February 2023.Further, devolution of employment tribunal functions is anticipated to occur in 2025.   It seems an apt time therefore to consider how different the procedure and the substantive laws actually are throughout the employment tribunals of Scotland and England & Wales. 

The procedure in the employment tribunals  

Although the legislation is identical, the employment tribunals operate separately in Scotland and England & Wales. There is one set of rules – the Employment Tribunal Rules of Procedure 2013 – which apply north and south of the border. In Scotland and England & Wales there are different presidents producing Presidential Guidance. This guidance deals with all manner of issues and clarifies what should be done in particular situations. Practitioners will recall during the pandemic the guidance which was issued instructing parties how to conduct the online Cloud Video Platform hearings. Other guidance responds to the particular requirements of that jurisdiction. Parties using tribunals in Wales, for example, have the right to use the Welsh language in the conduct of hearings in Wales and a Presidential Practice Direction was issued in 2020 to guide tribunals.  

One major difference in the jurisdictions is the use of witness statements to replace witness evidence given by examination-in-chief. These are much more commonly ordered in England & Wales, although the pandemic and the move to online hearings in Scotland certainly saw an increase in the use of witness statements. On 3 August 2022, the President of the Employment Tribunals (Scotland) issued a Practice Direction and Presidential Guidance on the use of witness statements in Scotland, including factors to consider when ordering witness statements. The Practice Direction reaffirms the presumption that oral evidence will generally be preferred over written evidence in most circumstances. In English & Welsh tribunals witnesses can be present in the tribunal and hear the witness evidence prior to giving their own evidence, whereas in Scottish tribunals this is not the recognised practice. Another notable difference is the greater likelihood in English & Welsh tribunals that a judge will issue an oral judgment without reserving judgment and sending a written judgment to the parties in due course. I find that when this happens in Scotland, it is more than likely issued by a judge who formerly practised in England. Another difference includes rules concerning disclosure of evidence (in Scotland there is no automatic duty to disclose documents which may adversely affect your own case).  

The law  

In employment law, the tribunals and courts of the separate legal systems of Scotland, Northern Ireland and England & Wales often deal with legislation which applies UK-wide. The fact that there are two major sources of employment law – the individual contracts of employment and the various statutory rights which apply to the various employment relationships – typifies the confusion. Typically, the contractual aspects of disputes are governed by the legal system’s common law which tend to vary, in particular between Scotland and the rest of the jurisdictions. Meanwhile statutory rights tend to apply UK-wide reflecting the various devolutionary arrangements which reserve employment law to the law-making powers of the Westminster Parliament. Nowadays, the European Union (Withdrawal Agreement) Act 2020, currently makes all EU law part of domestic law (retained EU law), which applies throughout the United Kingdom. 

Ultimately the Supreme Court as the final court of appeal for each jurisdiction will always have the last say and this generally creates a uniform approach to the interpretation of statute, provided of course that the particular disputes get that far. The Supreme Court routinely considers cases particular to the laws of each jurisdiction and the make-up of the court’s judges and their respective backgrounds makes them well placed to do so. Decisions of the Court of Session in Scotland and the Supreme Court are binding on employment tribunals. EAT decisions are also binding on tribunals regardless of where in the UK the EAT is sitting.  The EAT tends to follow the decisions of the higher courts regardless of geography; the stated position of the Scottish EAT is that it will only depart from an opinion of the Court of Appeal where it purely relates to a particular aspect of Scots law (Brown v Rentokil Ltd [1992] IRLR 302). Equally, the Court of Appeal has said it is a matter of “pragmatic good sense” that tribunals and the EAT in either jurisdiction will follow the decisions of the higher appeal court in the other jurisdiction (Caulfield and Ors v Marshalls Clay Products Ltd; Clarke v Frank Staddon Ltd. [2004] EWCA Civ 422).   

A recent case which came before the EAT sitting in Scotland – Ineos Infrastructure Grangemouth v Jones & Ors [2022] EAT 22  – has emphasised that, where the legislation applies north and south of the border, it is desirable for it to be interpreted uniformly. In this case, the Scottish EAT considered an argument from the employer that an offer of a pay rise made to staff which would have engaged the prohibition on such offers in s145B of the Trade Union and Labour Relations (Consolidation) Act 1992 was not, in Scots law, an offer at all and therefore did not engage the statute. In Scots law, a unilateral promise can be distinguished from an offer even in a bilateral situation like an employment relationship and can be binding and enforceable without acceptance. The EAT nevertheless found this argument to be misconceived; the purpose of the statutory provision was to protect rights enshrined in article 11 of the European Convention on Human Rights and these were the same both north and south of the border.  

The Court of Session has tended to not be as persuaded that uniformity is paramount.  The Inner House was unwilling to ignore the Scots law doctrine of mutuality of contract in the interests of there being a consistency of approach to the law of constructive dismissal in the application of s.95(1)(c) of the Employment Rights Act 1996 (McNeill v Aberdeen City Council (No.2) [2013] CSIH 102). Lord Drummond Young’s judgment referred to there being “no obvious reason why, in the absence of any express provision in the statute, section 95(1)(c) should be construed as referring to a rule of English law rather than Scots law”.  

His Lordship added that consistency of approach “does not seem a sufficient justification for a major inroad upon the Scots law of contract in a case that is otherwise governed by Scots law”.  

The trend 

In reality, despite some differences, uniformity is the watchword across the nations of the UK with the trend arguably pointing towards things becoming more similar, with the notable exception of Northern Ireland. All of this is likely to change in the future if employment law is devolved from the powers of the Westminster Parliament. It is evident from Northern Ireland that the devolution of employment law has resulted in a distinct divergence of both law and procedure. What direction this will take things in Wales and Scotland remains to be seen, but some indication has been apparent already. Agricultural workers in Scotland and Wales, like their Northern Irish counterparts, rely on more favourable provisions on annual leave and rest breaks because this limited aspect of employment law is devolved. Apprenticeships in Scotland are governed by the common law, rather than the statutory overlay found in England and Wales. Separate Fair Work Commissions in both nations exist. Those concerned about the disparate results this might produce might be reassured by considering that, whatever the future constitutional set up will lead to, the principle of judicial comity will apply and the tribunals and courts applying employment law will generally cohere even where the rulings are not strictly binding.

REUTERS | A grey squirrel looks out among spring daffodils at the National Botanic Gardens in Dublin, Ireland, March 23, 2021. REUTERS/Clodagh Kilcoyne - RC28HM92SJMK

POLONIUS: What do you read, my lord? 

HAMLET: Words, words, words. 

(Hamlet, Act 2, Scene 2) 

 

Neurodiversity Celebration Week took place between 21 and 27 March. The following week was Autism Acceptance Week, culminating in World Autism Awareness Day on 2 April. This means neurodiversity has featured heavily on social media recently.  

During Neurodiversity Celebration Week, I spent some time reflecting on my practice as an employment lawyer. Were there any areas of my work that were not particularly neurodiversity-friendly? Could I improve things for neurodiverse clients? Was it something to consider?  

At the time I had received a case file that included around 50 pages of policies on disciplinary, grievance, and harassment at work. The dispute involved a dyslexic member of staff. I perused the densely packed text. “Hardly dyslexia friendly,” I mused to myself, observing the irony.  

I tried to imagine being dyslexic and receiving all that text to read as a new employee. How would that make you feel? How would it affect your perception of that employer? 

What is neurodiversity? 

The term “neurodiversity” (or ND for short) was first coined by the social scientist Judy Singer in the 1990s. It refers to a difference in brain processing that can affect social interaction, learning, attention, sensory processing, and other aspects of interacting with the world and other people.  

It has become a collective term for conditions such as autism, ADHD, dyslexia, dyscalculia and dyspraxia. The word was an attempt to reframe the narrative away from the negative connotations that the conditions were pathological disorders needing to be remedied. Consider it as just another aspect of diversity. 

I received a diagnosis of autism a couple of years ago. It was a shock at the time. But that was due to my own perceptions of what autism meant, no doubt influenced by the movie Rain Man.

Visual thinking 

The American scientist Temple Grandin has written extensively about how her autism is an asset in her specialist field of designing facilities for livestock. One of her theories is that autistic people are more likely to be visual thinkers. She has even written a book entitled Visual Thinking, which describes the way in which she thinks, quite literally, in pictures.  

This concept of visual thinking has been commented on by a number of specialists as being a common experience across the ND community. Sir Richard Branson, who is dyslexic, has spoken about how he is able to “see” innovations and business opportunities. He has also written about the way dyslexia shaped his approach to developing products and services at Virgin by focusing on short, concise slogans that resonate immediately. Basically, dyslexia helps him cut out the waffle.

Written policies in the workplace 

Some estimates suggest 15% of adults are ND. That translates to one in seven employees. Potentially, a sizeable chunk of your client’s workforce could be alienated by the presence of a text-heavy staff handbook. And if those 15% are more likely to be visual thinkers, preferring diagrams and pictures, how effective is the traditional staff handbook for ensuring information is absorbed?  

As an employment lawyer, I realised that most workplace policies are presented as pages on pages of text. Usually they are typed as 10-point Arial or Times New Roman. Each policy laid out in paragraphs. Blocks of text, broken up only by headings and titles. 

But is there any legal or technical reason why a staff handbook must be formatted as pages of continuous text? I cannot think of any legal requirement for the contents of a staff handbook to be presented that way. So why do employment lawyers continue churning them out when requested?  

Is it convenience (I mean the lawyer’s convenience, not the client’s)? After all, what could be easier than accessing a precedent, replacing the square brackets with the name of the employer, and sending it to the client? And perhaps the client feels reassured. After all, if their lawyer has provided all those documents, it must be to satisfy a compliance obligation of some sort. 

Somewhat ironically, there is one particular section of the staff handbook that is always laid-out clearly in bullet point format, with lots of space for the text to breathe: the non-exhaustive list providing examples of gross misconduct that could constitute dismissal. Lawyers always get that bit right. 

Alternatives to text 

In 2018 I recall seeing a sample subject access request procedure in the form of an infographic. Two pages of boxes, icons, and signpost text explaining how to respond to a data request. It was fantastic. It communicated the necessary information in a clear and concise way. Surely that is the purpose of a workplace policy: to convey essential information that the worker needs to know. 

There might be circumstances where a text-heavy policy is required, which is fine. But if not, do lawyers have a responsibility to consider alternatives, such as using flowcharts, graphics or process maps? They are likely to be more inclusive towards the 15% of your client’s staff who are ND. Do we, as employment lawyers, ever mention this to a client? 

I might be wrong, but I suspect there is a fear that turning workplace procedures into infographics would appear unprofessional. Style over substance. A workplace policy is a legal matter which should not involve a graphic designer.  

It could also make the policy look childish. There is a counter to that: Steve Jobs (himself dyslexic) instructed his designers at Apple to make the iPad so easy to use that a small child could pick it up and start using it immediately. 

Consider the last time you bought a gadget or piece of tech like a smart-TV. Usually, it comes with some form of “quick start guide”. Is it ten pages of unbroken formatted text? More likely it is a series of numbered graphics and text boxes explaining how to set-up and use the device.  

There is a reason why they have been designed in that format. They are aiming to communicate essential information to a diverse range of people. Does that remind you of anything?  

REUTERS | A pile of one pound coins is seen, in central London June 17, 2008. British inflation rose in May to its highest since the Labour government took power in 1997, but expectations of higher interest rates ahead fell sharply because the Bank of England said the rate outlook was uncertain. REUTERS/Toby Melville (BRITAIN)

Vexatious claims hit the headlines last year after one claimant who was hit with a costs order for bringing yet another claim of discrimination against an unsuspecting employer went on to succeed in his appeal against the Employment Tribunal’s decision to strike out his claim. Despite previous tribunal judgments (against different employers) recording a strong suspicion that the claimant was making vexatious claims to see if he could get a settlement payment, the serial claimant won his claim for disability discrimination, after having brought at least 30 other similar claims which were usually withdrawn or struck out. 

Well, the ante was certainly upped by the Attorney General who recently turned the tide on a vexatious claimant in launching legal action against them. This was not a costs order, however, but an indefinite restriction of proceedings order (RPO). 

Indiscriminate discrimination claims 

According to the applications, the respondent, David Taheri, had made more than 40 claims in the Employment Tribunal over a period of ten years, all relating to unsuccessful applications for employment. His modus operandi, it claimed, saw him apply for a job and, once he was refused, launch legal actions against the potential employer on the basis of age, race or disability discrimination. Details and accusations were sketchy; he usually valued the claims between £25,000 and £40,000, but sought a nuisance settlement of a few hundred pounds, often with the threat of adverse publicity or regulatory referral against the solicitors acting for the employer. In some cases, he was also accused of harassing the employer by turning up at the workplace and angrily airing his grievance, writing repeatedly to demand settlement (or threatening to hold a press conference), and booking in fictitious appointments under different names. 

The Attorney General’s application for an RPO was made pursuant to section 33 of the Employment Tribunals Act 1996. The applicant asked the Employment Appeal Tribunal to make an RPO of indefinite duration against the respondent, on the basis that he had habitually and persistently, and without reasonable grounds, instituted vexatious proceedings before the Employment Tribunal. Mr Taheri resisted the application on the basis that it would violate his rights to a fair trial under the European Convention on Human Rights. 

Eady J found that the litigation in question was plainly habitual and persistent. Mr Taheri had issued at least 43 claims over a ten-year period. The judge did not derive any comfort from Mr Taheri’s submission that he had “only three” claims pending in the tribunals at present or that there had been a four-year gap in his pursuit of claims. 

In determining whether claims had been brought “without reasonable grounds”, it was noteworthy that not one of his claims had been successful at a full merits hearing and that many other claims had been struck out or withdrawn after deposit orders were made against him. Mr Taheri had “weaponised” the tribunal process by subjecting would-be employers to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to him. 

In conclusion, Eady J, allowed the application and was satisfied that the balance fell firmly in favour of making an RPO of indefinite duration: “That, it seems to me, is necessary for public protection against abusive claims and to ensure that the administration of justice is not impaired by the persistent pursuit of unmeritorious proceedings,” she added. 

Pump up the volume  

The case provides some interesting lessons. The sheer volume of cases (43 claims across ten years brought against potential employers who had refused to give him a job) shows a clear pattern of behaviour. While the RPO is, as the judge put it, a “filter rather than a barrier” to future claims, Mr Taheri is effectively banned indefinitely from starting court cases without permission. The RPO means that, without the leave of a judge from the Employment Appeals Tribunal, he cannot issue proceedings in the Employment Tribunal. 

Many employers in this present case sought to “buy off” the spurious claim for a small sum as a commercial decision rather than incur the legal fees of defending it. The EAT stressed that did not necessarily mean the claim had not been vexatious. Going via ACAS is a cost-effective settlement route but not one to be recommended on multiple occasions as it sets a terrible precedent, one relied on heavily by Mr Taheri who was able to extract nuisance settlement payments via ACAS, without even incurring the costs of his own solicitor to advise on and sign off a settlement agreement. 

Are there any other options? Consider applying for the case to be stuck out and, in the alternative, for a deposit order to be made as a condition of the case being pursued. In this case, Mr Taheri refused to pay a number of deposit orders made against him and so the proceedings were discontinued. If a claimant does make the deposit payment and the claim fails, the claimant will be treated as acting unreasonably in pursuing the claim and an award for costs may be made, including the payment of the deposit to the other party. Costs do not generally go in favour of the winning party in an Employment Tribunal, but an application for costs may be made. In a hopeless case that has been vexatiously brought, a tribunal may well be persuaded to make a costs award against the claimant. 

Don’t settle for more  

Having good housekeeping for those on an employer’s interview panel is a must for this sort of action and defending these claims generally. Make sure that the interview panel is up to date with their D&I training. Be clear about the importance of keeping notes: what to write and, more importantly, what not to write. In some cases, Mr Taheri’s claims were struck out or rejected where it was evident or noted that the decision not to hire him had been for some non-discriminatory reason (for example, because he did not have the relevant experience, had lied on his application form or failed to respond to text messages to arrange a work trial). Hiring decisions should be robustly made involving HR. 

In conclusion, an employer should not panic if they receive a strongly worded letter before action. The financial and potential reputational cost of a discrimination allegation is obviously a cause for concern, but undertake a calm, measured review into the claim and the options. Do not be intimidated into to a settlement.  

REUTERS |

Working from home has taken centre stage over the last two years. In many industry sectors, it has been necessitated by the pandemic and the restrictions on interaction and travel. It has also evolved to become the preferred way of working for vast numbers of office workers. 

It isn’t limited to office environments. In April 2020, 46.6% of people in employment did some work at home, primarily because of the pandemic (see Office for National Statistics: Coronavirus and homeworking in the UK: April 2020). Around one third of those working from home worked more hours than usual. Remote school teaching, unheard of before the summer of 2020, became widespread overnight. 

The benefits of this ability to work more flexibly were significant. It enabled businesses to continue to operate during national periods of lockdown and the increased use of technology allowed people to effectively stay connected to colleagues, customers, suppliers and networks. It means less time spent commuting and arguably greater productivity. 

The consequences of flexibility 

Has this agile new world of remote working presented a different, widespread problem for workers?  

Those that work from home are aided through advances in technology. There are so many ways to connect with colleagues; Teams, Skype, email, WhatsApp, phone calls, Facetime and various types of instant messaging, all of which are accessible on a mobile phone. Notifications signal receipt of messages and there is no need to have a laptop switched on. 

It has become difficult to escape from work.  

It becomes rather more sinister if you consider how some employees are monitored at home, through technology and various types of reporting.  

When at work, workers leave to go home. The boundaries are clear. When your place of work is your home and your hours are not tightly defined, these boundaries become almost impossible to determine.  

In many ways, this has adversely impacted workers’ mental health. The feeling of isolation, the lack of support, sometimes of purpose, has made remote working significantly detrimental for many. The pandemic has fast tracked us to an “always on” culture. 

Of course, this is not new for all workers, with long and anti-social hours being commonplace in some sectors. Where a business has requirements to respond to clients within tightly defined timescales, or clients know that they can demand fast responses and turnaround times because of the competition, the pressure is on to work longer and later and to always be accessible. 

Is there a need for legislation? 

“The right to disconnect” is a term as yet undefined by UK or EU law. The Working Time Regulations 1998 set out statutory limitations around working time and breaks. This was introduced in order to protect the health and safety of European workers. 

The European Convention on Human Rights also has a say in working time, at least indirectly. Article 8 of the Convention provides an enshrined right for a private and family life at home and Protocol 1, Article 1, confers a right on citizens to peaceful enjoyment of their property. There is also other health and safety legislation which is relevant to expectations over working time and the duty of care for the wellbeing of workers. Whether these are adequate is up for debate. 

In January 2017, France introduced legislation prohibiting employers from encroaching on their employees’ personal and family lives. In practice, this provided protection from dismissal, or other adverse treatment, for failing to respond to emails or calls during non-working time. There is a right to be paid extra for that time if they do respond. 

Many other European countries have followed, including Belgium, Italy, Spain, Ireland and most recently, Portugal. These have been decisions taken at a national level and Scotland has commenced consultation around the possibility of following suit. Westminster continues to consider whether to legislate around hybrid and flexible working and the limitations on contact outside of core, working hours are part of those considerations.  

It is difficult to envisage legislation that can be effective in providing adequately defined rules, yet with suitable flexibility for practical application among the diverse requirements of hybrid or remote workers and businesses. 

Are there better solutions? 

There is no doubt that there is technology which can assist to enforce these rights, if introduced. Applications that freeze access to emails or other methods of contact between set hours wouldn’t be difficult to implement. The risk though, is that this creates more problems than it solves. 

Burn out is real. Work related stress is present in perhaps every workplace in the UK, to a varying degree. Yet stress can be exacerbated by implementing rigid structures on working days. The success and evolution of flexible working is driven by the desire to have autonomy, not only over where workers work, but when and how they work. For working parents or carers to be told that they can’t do an hour in the evening, to allow them to take an hour to do the school run, will be too restrictive for many. 

There is a balance to be struck. Employers have a duty of care to their workers to control the working environment and limit the risks associated with an intrusion to their rest and relaxation time. This contrasts with a workforce looking for more agile arrangements and greater autonomy over their schedule. 

As is often the case, some sensible compromise is the most effective tonic. Allowing workers flexibility while encouraging them to strike an appropriate balance between work and family or home life is key. As is not taking punitive action against them if they don’t action an email at 7.00 pm or 7.00 am. 

The expectations are everything. How clear a business is on this and how those expectations are managed may be the most effective way to achieve a healthy balance between work and rest. 

REUTERS | Pedestrian cross the new diagonal crossing at Oxford Circus in London November 2, 2009. The design of the new £5 million ($8.2 million) pound crossing was inspired by the Shibuya crossing in Tokyo and allows pedestrians to cross diagonally. REUTERS/Stefan Wermuth (BRITAIN TRANSPORT CITYSCAPE SOCIETY IMAGES OF THE DAY)

The recent EAT case of Pitcher v Chancellor Masters And Scholars Of The University of Oxford (EA-2019-000638-RN; EA-2020-000128-RN) provides interesting commentary on two important issues for employment lawyers:  

The appeal involved two linked cases both of which dealt with the same retirement policy, but each of which came to the opposite conclusion as to whether it could be justified. What makes this EAT decision so striking and unusual is that the EAT upheld both of these apparently contradictory conclusions. 

Facts of the case

The first appeal related to Professor Pitcher, an Associate Professor of English Literature. At 67 he was compulsorily retired by operation of Oxford University’s “Employer Justified Retirement Age” (EJRA).  

The second appeal featured Professor Ewart, Associate Professor of Atomic and Laser Physics, who had been able initially to extend his retirement age by application for an exception, but whose second application was refused, under the EJRA provisions. 

The ETs in each case held that the EJRA had the following legitimate aims: 

  • Inter-generational fairness. 
  • Succession planning. 
  • Equality and diversity. 

Although it did not achieve those aims of itself, it facilitated other measures taken to those ends by ensuring that vacancy creation was not delayed and that recruitment into senior academic roles could progress; from a more diverse cohort. 

In Professor Pitcher’s case, the ET came to the conclusion that the EJRA could be justified by the University and that accordingly he had been fairly dismissed. In Professor Ewart’s case, to the contrary, the ET decided there was insufficient evidence that the EJRA really achieved the legitimate aims to a sufficient degree to outweigh the extreme severe discriminatory impact on him, and so found the dismissal unfair. 

Role of the EAT 

The EAT judgment, delivered by Eady J DBE, set out the law relating to its role and powers on appeal. From the relevant case law, it derived the following principles: 

  • Determination of whether or not discrimination can be objectively justified is an exercise which requires considerable insight and skill, and the EAT is entitled to carefully scrutinise whether the ET reached its decision by fairly assessing the evidence presented by the employer (Hardy & Hansons plc v Lax [2005] EWCA Civ 846). 
  • The EAT should, however, be slow to substitute its own judgment where the ET had been presented with a mass of evidence to assess, and what was required was that, as Lady Hale had said, “we must be able to detect an error of law” (Lord Chancellor v McCloud [2019] ICR 1489; Essop v Home Office [2017] UKSC 27). 
  • Ultimately where the issue on appeal is objective justification, the test for interference by the appellate tribunal is one of perversity. There must be an “overwhelming case … that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached” (British Airways plc v Starmer [2005] IRLR 863; Yeboah v Crofton [2002] IRLR 634 CA).
Law on justification for direct age discrimination 

The relevant legislation provides: 

(1)  A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” 

97.  Where the claim is one of direct age discrimination, however, sub-section 13(2) allows for a defence of justification:  

(2)  If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. 

(Section 13, Equality Act 2010.) 

Eady J distilled the relevant case law down to the following: 

  • There are two broad types of legitimate aim: general policy objectives that might include social objectives and “inter-generational fairness”, or even “dignity”: by avoiding disputes about competency for older employees; and particular objectives relating to the circumstances of the specific business in question (Seldon v Clarkson [2012] UKSC 16). 
  • The policy put in place to achieve these aims must however also be “appropriate and necessary” bearing in mind the gravity of the effect of the discrimination. The test of whether it can be justified is an objective one to be carried out by the ET without reference to the subjective assessment of the employer (Seldon; Hardy; Chief Constable of West Yorkshire Police v Homer [2012] UKSC 15). 
  • “Appropriate” means that the policy must be capable of actually achieving the legitimate aim (Seldon; Homer). 
  • “Necessity” involves a focus on the balancing act; whether there were less discriminatory means of achieving the legitimate aim (Hardy; Seldon). 
Conclusions of the EAT and commentary 

The EAT noted that the evidence in each of the two original ET cases had been presented slightly differently, and related to slightly different circumstances. In Professor Ewart’s case there had been evidence that the rate of vacancies created by the EJRA was trivial. By contrast, in the case of Professor Pitcher the ET accepted that the policy was only one part of a wider scheme of measures that, in combination, were “appropriately” effective at achieving the said aims. 

The EAT examined both cases to see how the law had been applied and concluded that it was properly taken into account in each. Ultimately, although different conclusions had been reached on proportionality, neither ET had actually erred in law. The nature of the proportionality assessment was such that two differently constituted tribunals, each directing itself correctly on the law, could properly come to different conclusions about the same policy. 

The task of the EAT was not to strive for a single “correct” answer, but to concentrate on the detection, or otherwise, of an error of law.  

This unusual outcome is a salutary reminder of the limits on the EAT when it comes to determinations of fact and objective justification. The EAT’s role is not to substitute its own view of the matter but to respect the fact that the ET had far more information at its disposal when it made the decision, unless that decision is shown to be based on an error of law. 

Finally, it is also a good pointer to all employers to review their retirement policies to ensure that the legitimate aims are not just stated but are being effectively achieved and evidenced. 

REUTERS | Pedestrians walk to work in downtown Los Angeles, California May 13, 2014. REUTERS/Mike Blake (UNITED STATES - Tags: CITYSCAPE BUSINESS EMPLOYMENT TPX IMAGES OF THE DAY) - RTR3OZX1

ESG (environmental, social and governance) is a drum that everyone is now rightly beating.  With COP26, sewage leaks and climate change ever-present in news headlines, we could be forgiven for thinking right now that it’s all about the “E”. Well, it isn’t. 

Now don’t get me wrong, the “E” is high priority, but an organisation’s social impact and approach to governance also needs to be high on the priority list as each element of ESG relies on the other in order to be truly effective. The five points below highlight just how important a role HR departments can play in an organisation’s ESG credentials. 

Working practices 

Working practices have a huge impact on an organisation’s social footprint. An organisation’s approach to issues such as diversity and inclusion, health and wellbeing, flexible working, family rights, annual leave and speaking up all leave an indelible mark on their employees, which is then taken back into the family, the community and society as a whole. Organisations’ reputations often speak for themselves. 

HR departments play a key role in ensuring that the right policies are in place to govern all working practices. They are there to provide advice on meeting not just legal obligations, but also on supporting the achievement of an organisation’s goals and ensuring that the organisation does “the right thing”. This means being able to challenge business decisions and playing an integral part in all board decisions. 

And of course, environmental matters should be built into all these policies and practices, too. 

Diversity and equality 

Every part of an organisation should be focused on the importance of diversity, inclusion and equality. HR will however be a key player in areas essential to ensuring diversity, inclusion and equality such as recruitment, promotion and pay, not only promoting diversity from within but also engaging with the local community in furthering social mobility. 

HR will also be able to ensure that the right processes are in place to enable wider engagement through building clear diversity and inclusion plans, setting targets and creating appropriate internal working groups and forums. 

Remuneration and incentives 

Let’s face it, we all know we should do more. However, HR and Reward teams can help with formulating the carrot to really help drive an organisation’s approach to ESG. ESG issues can be built into remuneration and incentive programmes and also appraisal systems to ensure that people are encouraged to do the right thing in the right way. 

Training 

None of these points matter of course unless the preaching is practised. Training (and proper training, not tick-box exercises) is fundamental to ensuring this all happens. HR will most likely be responsible for learning and development. It goes wider, though; what we learn at work we take into the wider world. Everything from resilience workshops through to technical skills increase an employee’s opportunity to contribute in the workplace and translate into wider societal gains. 

Data 

Employers hold a lot of data related to the points raised above. This data can be used constructively to identify risk, areas for improvement and help formulate plans to remediate them. Without this data, and HR teams to collate and provide it, ESG programmes will miss the mark. 

REUTERS |

The UK labour market is experiencing an unprecedented shortage of workers, causing supply chain chaos and economic uncertainty. Recruitment for both permanent and temporary jobs is more challenging than it has even been for some industry sectors and the haulage industry is perhaps where this has been most clearly visible. 

The Institute for Fiscal Studies (IFS) reports that the food and drink, haulage, care, warehouse and storage, construction, manufacturing and hotels have seen the most significant challenges since the re-opening of the economy following the national restrictions on business operations. 

Why has this happened? 

The two primary reasons are Brexit and the COVID-19 pandemic. These two seismic events have had a colossal impact on the UK economy. The pandemic caused national and international restrictions on trade and movement and at the same time, Brexit created restrictions on the availability of workers across the economy. These two events happening almost simultaneously has created a shock to the national and global economy. 

The rush to re-open post-pandemic has caused bottlenecks in supply chains for goods and services and the worker shortage that has arisen as a consequence, provides further frustration to the economic recovery.  

Brexit was always going to create challenges for those industry sectors that relied heavily on migrant workers, but the pandemic has undoubtedly compounded this significantly, making planning and mitigation all the more difficult.  

Many businesses have changed business models during the pandemic, including a significant shift to remote working. Those who returned from furlough in the autumn of 2021 needed reintegrating, refreshing and in some cases, upskilling upon their return from many months out of the workplace. Some have not returned, or have elected to change their priorities and work life balance, particularly those put off by working environments notorious for poor pay and conditions. 

How has this affected other parts of the economy? 

As well as directly through the supply chain, these gaps and strains have caused a ripple effect throughout the economy. There is reluctance to invest, as well as hesitation over budgeting and forecasting. Shortages means an increase in demand, which transfers into increase in costs.  

Nine million workers were furloughed at the peak of the pandemic which demonstrates the vulnerability of certain sectors, notably hospitality, tourism and close contact service environments. More than 50% of the total of the air passenger transport workforce was furloughed in 2020/2021 and there have been large scale redundancies throughout the last 18 months. 

The Chancellor has reported tax rises in the autumn budget and it is becoming evident to experts that the fiscal landscape is unlikely to recover as quickly as predicted in a post-pandemic, post-Brexit UK economy. 

What are the solutions? 

  1. Visas and work permits

While large scale migration neither causes, nor solves labour shortages, it can help with localised or temporary shortages. The granting of visas to international HGV applicants would ensure that the supply chain, particularly for key products such as food, is able to get moving. Expanding the Shortage Occupation List to enable priority work permits to be granted would also help, although nurses remain on that list and NHS England has reported in excess of 90,000 vacancies.  

  1. Improve pay and conditions

It has been widely reported that many HGV drivers received pay rises in the summer and autumn of 2021. Pay alone however, is not enough when the working environment is responsible for a high turnover of staff. Workers will be attracted by safe working environments, adequate breaks, greater flexibility and suitable facilities, which are essential to ensure that suitably skilled workers apply and remain in key jobs. 

  1. Recruit differently

By analysing the methods and channels of recruitment, employers can understand how they can appeal to a wider pool of applicants. Making use of apprenticeships and intern arrangements are alternatives and may come with government subsidies. Anyone with an appropriate drivers’ licence was written to in a recruitment drive for HGV drivers, which may seem a little desperate, but also provides an example of targeting potential applicants differently. 

  1. Training

The attributes existing workers have that are valuable, including knowledge of the company culture, loyalty and their skills and experiences, make them worth investing in. They may have transferrable skills to fill the gaps needed for operational recovery across the business. Providing for career development, skills and educational investment will help with retention of ambitious workers. 

  1. Patience

Recruitment bottlenecks are inevitable as all sectors and businesses actively recruit at the same time. This will take time, but is not a permanent barrier to finding suitable applicants to fill vacancies. 

  1. Working differently

By cutting out unnecessary tasks or touch points, businesses can find more efficient ways to deliver the same output with more limited resources. Investment in automation and greener technologies, or by outsourcing parts of an operation to agencies or companies who have a larger pool of resources, can provide both short and long term solutions to the current shortages. 

Is the end in sight? 

The landscape is improving. The number of employees on payroll is already back to pre-pandemic levels at just over 29 million. This is despite the number of reported vacancies being around 1 million in August 2021, rising 25% in the previous three months across all sectors. This suggests that employers are actively seeking to recruit and struggling to do so.  

Shortages of skills, particularly in low paid jobs, is more open to interpretation as to whether this is a shortage of skills, or of desire to do these jobs. It is arguable that pay and conditions are responsible for the shortages, rather than necessarily a shortage of personnel. This isn’t to say that there has been a dramatic shift of worker power, but the evolution of work represents greater choice for workers.  

There is no quick fix. The pandemic has given people a new perspective on flexibility and working remotely. It has changed habits and priorities and the pool from which to recruit has diminished post-Brexit. These events will have a long term, irreversible impact on the UK labour market and businesses will need to adapt if they are going to succeed in a newly shaped, global economy.

REUTERS |

Businesses are preparing for the new post-pandemic era where some form of return to office is very much front of mind. Although it would be a brave company to request a full-blown return to office five times a week so soon after the lifting of restrictions, we are seeing a much more proactive stance being taken where as much of “normal office life” as possible is being encouraged and implemented.

The pandemic has driven a wedge between the employee’s ideal working pattern and what the business demands of its employees. How long this wedge will continue remains to be seen, but for now this difference means only one thing: if staff do not like the new return to office rules, they will raise a flexible working request.

This might come in various forms, such as working at home for longer periods to varying the working hours or requests to work from home full time as they have done during most of the pandemic.

Is a day-one right a good idea?

Broadly, for any variation to the existing working pattern (whether as to time or location), the employee would need to make a flexible working request. A request can only be made by an employee (not consultants or agency workers) who has:

  • Been employed continuously for 26 weeks at the time of the request.
  • Not made a flexible working request in the preceding 12 months.

The request must also meet the prescribed requirements as set out under section 80F(2) of the Employment Rights Act 1996 (ERA 1996) and regulation 4 of the Flexible Working Regulations 2014 (SI 2014/1398).

If the current government consultation on flexible working becomes law, then the requirement to wait for six months before becoming eligible to apply will be removed. In the present climate, anyone applying for a new role may look to negotiate some form of flexible working (including, most popularly, home working for at least some of the week) as a condition of joining. This means employers are having to negotiate flexible working pre-employment, so a day-one right is not as dramatic as first envisaged.

What are the employer’s obligations?

If the employer intends to accept the flexible working request in its entirety, formal procedures become moot. However this is unlikely in many cases, which means it will need to follow the minimum procedural steps. The employer must:

  • Deal with the request in a reasonable manner.
  • Notify the employee of the decision within the decision period of three months.
  • Only refuse a request based on one or more of the statutory grounds.

(Section 80G(1)(b), ERA 1996.)

Requests should be dealt with in a reasonable manner, including meeting with the employee to discuss the request and allowing the employee to be accompanied to such meetings by a colleague or trade union representative.

Although appeal is not part of the statutory requirement, it is strongly advised that the employer provides an appeal procedure if rejecting the request. Allowing the employee to appeal and meeting with the employee to discuss the reason for the rejection will go towards the reasonableness requirement.

Match-up between the request and the company

The central argument consistently run by employees is that they have worked well during the pandemic, so why can this not carry on? The starting point is what the employer’s current policy is on returning to work. Since the lifting of restrictions on 19 July 2021, most employers have implemented hybrid measures where anything between 20% to 80% of the time is spent at home and the rest at work, depending on industry and sector.

The reality for most employers is that any further variation to their current policy will have to be dealt with strictly and consistently, so that flexible working does not run wild. To do this, employers will have to carefully balance the two factors: statutory grounds for refusal, on the one hand, and risk of inviting (primarily) a discrimination claim, on the other. (Failure to deal with the request itself can result in a compensation award of up to eight weeks’ pay by the employment tribunal.)

One of the core principles to draw out from case law is to avoid rejecting on technical grounds (for example, because the employee did not date the request), as doing so could invite other more serious claims (other than the failure to follow the statutory procedure) such as discrimination or constructive dismissal (or both). Requests on health grounds should also be considered carefully.

Whose side is the law on?

The current statutory regime for refusal (as well as the decision period) does give employers plenty of room for manoeuvre, but it is important to accurately record the factual bases for rejecting a request. What the employer wants to avoid is to allow the request on hearing an appeal because it did not properly investigate the facts. Bear in mind that until a decision is made either way, the employee is required to work in line with their pre-existing contractual provisions.

Another issue to consider is trial periods. There is no statutory obligation to offer a trial period, but the employee may argue that it was unlawful not to. If the employee requests a trial period but the employer decides otherwise, it is advisable to explain the reasons in the decision letter. If the employer can support its reasons with one of the statutory reasons for refusal, then all the better.