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Tribunal awards to increase

With effect from 6 April 2023, compensation awards and statutory redundancy payments in the Employment Tribunal will increase.

Pursuant to the Employment Rights (Increase of Limits) Order 2023:

There will be an increase to the cap on one week’s pay from £571 to £643;
The maximum compensatory award for unfair dismissal will rise from £93,878 to £105,707; and
The minimum basic award for certain unfair dismissals will increase from £6,959 to £7,836. The increase will affect dismissals regarding trade union membership, carrying out activities as an employee representative, for carrying out duties as an occupational pension scheme trustee and health and safety dismissals.

The increases will apply to cases involving unfair dismissal where the effective termination date falls on or after 6 April 2023. However, if the dismissal or relevant event occurred prior to 6 April 2023, the previous limits will apply, regardless of the date compensation is awarded.

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“Meltdowns” – temper, not disability

An Employment Tribunal (ET) has rejected a claim brought by an employee who claimed he had suffered discrimination arising from disability.

It was accepted that Mr McQueen, a registration officer employed by the General Optical Council, had conditions that amounted to disabilities under the Equality Act 2010. Such conditions included Dyslexia, Asperger’s Syndrome, left-sided hearing loss and neurodiversity. Due to his disabilities, Mr McQueen had undergone workplace assessments, which revealed that he would raise his voice and use inappropriate speech and tone when faced with a stressful situation. On two separate occasions, Mr McQueen had displayed aggressive outbursts, described by the ET as a “meltdown”.

In June 2017, Mr McQueen was disciplined on a performance issue. Subsequently, Mr McQueen brought claims against his employer in August 2018 and February 2019, stating that he had been subjected to unfavourable treatment because of something arising in consequence of disability.

After considering the medical evidence, the ET dismissed Mr McQueen’s claim. They noted that his mannerisms were habits and that his aggressive outbursts were due to his short temper and dislike of authority – not because of his disabilities.

Mr McQueen appealed, arguing that the disability did not need to be the sole or primary reason for the “something” that arises as a consequence of it; it need only be trivial.

The Employment Appeal Tribunal (EAT) dismissed the appeal but did note that the structuring of the ET’s decision was unusual, and the ET ought to have asked itself the following questions in order to structure its decision so that a reader can understand clearly what question is being asked and answered at each stage of the analysis:

What are the disabilities?
What are their effects?
What unfavourable treatment is alleged in time and proved?
Was that unfavourable treatment “because of” an effect or effects of the disabilities?

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The importance of flexible working

The Covid-19 pandemic significantly changed the world of work, and for many employees, this has resulted in the ability to work remotely and/or more flexibility. New research published by LinkedIn highlights the long-term effects of these changes, however it also demonstrates that employers are gradually beginning to ask their employees to work more frequently from the office.

The research and data gathered by LinkedIn shows that:

More than a third of UK workers would resign if they were no longer able to work from home.
Women in particular wish to have more workplace flexibility. 52% of the women surveyed said they had left or were considering leaving their role due to a lack of flexibility.
Within the last ten months, the number of job postings for remote roles decreased by 30%. Remote roles now represent only 11% of job postings.
49% of company leaders surveyed would prefer their employees to work from the office more frequently.

It appears that the conflict between employee desire for remote working and employers wanting more people back in the workplace will continue.

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The Retained EU Law Bill update

Following 5 days of scrutiny, the Retained EU Law (Revocation and Reform) Bill 2022-23 (the ‘Bill’) has completed its committee stage in the House of Lords.

During this 5-day period, the government made various amendments to the Bill, including the addition of a clause headed “Exceptions to sunset under section 1”. ”Sunset under section 1” refers to the clause which originally set out that any EU-derived secondary legislation will automatically cease to exist as of 1 January 2024. The new clause centralises all exceptions to the original sunset clause, which were scattered throughout the Bill and it adds two new exceptions, which are:

Any description of minor instruments specified in a statutory instrument (this removes the need to individually list large numbers of what might not be traditionally considered legislative instruments in order to preserve them); and
Transitional, transitory, or saving provisions – it is anticipated that this will avoid undoing or revoking retained EU law reform that has already been made, where aspects of the previous legislation were saved to support implementation of, or transition to, the new regime.

This is an evolving situation and we will keep you updated on its progress.

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Dismissal for distasteful LGBTQ+ sermon

An Employment Tribunal (ET) has rejected a claim brought by a school chaplain who claimed he had suffered religion or belief discrimination.

The claim was brought in the ET following a large number of complaints from the Respondent’s staff and school pupils regarding a sermon delivered by the chaplain, in which he advised pupils that they did not have to accept LGBT+ “ideologies” if it caused a conflict with their Christian beliefs and encouraged them to make up their own minds.

Following previous sermons on sexual orientation and gender identity, the chaplain had been instructed not to discuss these sensitive topics within the chapel as there was no possibility for discussion with the students. Dealing with them in chapel, with no opportunity for discussion or challenge, risked distress and psychological harm to vulnerable LGBT+ students coming to terms with their sexual identity.

The chaplain went against his employer’s instructions and delivered the sermon anyway, which resulted in the chaplain being dismissed for gross misconduct. Following an appeal against his dismissal, the chaplain was reinstated but was then later made redundant.

The chaplain subsequently issued claims of religion and belief discrimination, harassment, and unfair dismissal; however, these claims failed. The ET held that he had not been discriminated against because of his religion or belief, but because of his distasteful explanation of them. The Respondent had acted reasonably as the chaplain had acted in contradiction to his safeguarding duties and the school’s statutory duties to students.

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Labour’s action plan

In an attempt to support menopausal women in work, the Labour Party have vowed that if they are successful in the next election, they will require all large companies with over 250 employees to implement and publish a “menopause action plan”. The action plan, if implemented, will require employers to set out how they intend to support menopausal employees.

The 2021 Labour Force Survey found that menopausal workers make up 11% of all people in employment, and recent research from BUPA has found that nearly one million women had left employment as a direct result of their menopause symptoms and a lack of support from their employers.

In order to support menopausal individuals, employers could:

Create an internal support system – this could be laid out in a menopause policy, and could point employees to individuals or “champions” who are experienced and/or trained to support their individual needs or offer guidance;
Consider implementing reasonable adjustments, depending on the individual’s symptoms. For example, these could include the provision of cool air fans, regular breaks, access to cold water and breathable uniforms;
Ensure line managers and the HR department receive appropriate training;
Raise awareness to tackle the stigma; and
Consider flexible working, or if you have already implemented flexible working, consider extensions and/or exceptions to your policy.

Please feel free to contact the Employment Team on [email protected] for any assistance.

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New Guidance: Gender Pay Gap Reporting

New employer guidance has been published by the Government Equalities Office (‘GEO’). The guidance has been created with the aim of making gender pay gap reporting a simpler task with clearer instructions. It is also now easier to locate it all in one place on GOV.UK. While no factual changes have been made, duplicated information has been removed to streamline the guidance.

The guidance is now broken down into the following subheadings for user-ease:

Who needs to report;
When to report;
What to report;
Preparing data; and
Making you calculations.

These updates have been published ahead of the forthcoming reporting deadlines, which are 31 March 2023 for public-sector organisations with over 250 employees and 5 April 2023 for private companies with over 250 employees.

To view the guidance, please click here.

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Employee was dismissed and claim was out of time.

In a recent case, Cyxtera Technology UK Ltd had sent its employee, Mr Meaker a without prejudice letter on 5 February 2020 stating that his employment would mutually terminate on 7 February 2020 by reason of capability. Enclosed with this letter was a settlement agreement. Mr Meaker rejected the settlement offer and subsequently brought a claim for unfair dismissal. The tribunal dismissed the case on account of Mr Meaker presenting the claim out of time and did not grant an extension of time.

Mr Meaker appealed, arguing that his employment was terminated on 14 February 2020 (the date he received payment of his PILON and accrued untaken holidays), and he was therefore in time to bring his claim. The EAT held that the without prejudice letter sent to Mr Meaker on 5 February 2020 did amount to a dismissal as, amongst other reasons, it had not come out of the blue (termination had been discussed between Mr Meaker and the Respondent on 20 January 2020) and it clearly communicated when his termination would occur. In reviewing Mr Meaker’s argument, the EAT upheld the tribunal’s decision not to allow for an extension of time to present his claim as it was not reasonable for him to consider that his employment had not terminated on 7 February 2020.

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Government: menopause is not a protected characteristic

In July 2022, the Women and Equalities Committee (WEC) published a report which recommended that the Government take action to protect and encourage menopausal individuals at work. These calls were dismissed by the Government, who rejected several of the WEC’s recommendations in its response to their report in January 2023.

After reviewing the Government’s response, the WEC commented that:

The requirement for employers to produce menopause policies and to pilot menopause leave would have been inexpensive to implement and effective;
They are alarmed by the Government’s rejection to make menopause a protected characteristic given that the evidence provided clearly demonstrated that menopausal women are inadequately protected by the law; and
The Government’s conclusion – that allowing the menopause to become a protected characteristic would discriminate against men with long-term health conditions – was unfounded. The WEC specifically noted that menopause is not a form of long-term ill health but an inevitable part of all women’s life course.

The Government has however made some allowances, including making flexible working a day one right and allowing employees to make two flexible working requests within a 12-month period instead of one.

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Gender Pay Gap: Women Work for Free

The latest analysis from the Trades Union Congress (TUC) demonstrates that the current gender pay gap is 14.9%, resulting in women working an average of 54 days per year for free.

The TUC also observed that women working in finance and insurance experience a 31.2% pay gap – the equivalent of 114 days of unpaid work. and women in female-dominated fields (such as education and healthcare) receive (on average) less pay per hour than men. This is likely to be because they may be in part-time and/or less senior roles due to family responsibilities, as demonstrated by the TUC’s analysis that the pay gap widens once a woman gives birth.

Discussing the issue, the TUC General Secretary Paul Nowak said “Working women deserve equal pay. But at current rates of progress, it will take more than 20 years to close the gender pay gap”.

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Neurodiversity

13th – 19th March 2023 is neurodiversity celebration week, but just how much do you know about the term and its impact in the workplace?

The term ‘neurodiversity’ refers to the infinite range of differences in individual human brain function and behavioural traits, and the term was first used in the late 1900s by an autistic sociologist, Judy Singer.

An inclusive and neurodiverse workforce can be an advantage for employers, as it may lead to larger retention rates for supported employees and even higher levels of innovation and creativity.

With medical experts estimating that at least 15-20% of the UK population is neurodiverse, how can employers implement support for their neurodiverse employees? Here are a few suggestions:

Implement a neurominority policy;
Consider flexible working, or if you have already implemented flexible working, consider extensions and/or exceptions to your policy;
Make tailored changes to physical workspaces after conducting a workplace assessment with neurodiverse employees;
Offer quiet spaces, or if this is not possible, offer desk space in areas guaranteed to have fewer people walking by;
Provide noise-cancelling headphones;
Offer screen readers;
Ensure line managers and the HR department receive appropriate training;
Create an internal support system – this could be laid out in your neurominority policy, and could point neurodiverse employees to individuals who are trained to support their individual needs; and
Suggest an optional mentoring scheme.

Please feel free to contact the Employment Team on [email protected] for any assistance.

Latest News

Red Rag to a Red Bull

Red Bull has got beef with a Sardinian wine maker. Vineyard owner Mattia Muggittu caused the energy drink company to have a cow when he started selling his Boeli wine in bottles with a logo featuring two bulls.

The stakes are high as intellectual property lawyers acting for Red Bull allege that the Boeli label bares similarities to the trade mark on its energy drink cans, which depicts two bulls charging at each other inside a golden sun.

While Red Bull has a global turnover in excess of £10bn, Muggittu has only sold 2,000 bottles, but Red Bull may still want to milk him for all he is worth. The international sports drink company might, however, be on a hiding to nothing since Muggittu has been able to take the matter by the horns thanks to an outpouring of support, both locally and across the globe, encouraging him to plough on.

This dispute comes in the wake of another high profile case, where fashion designer Thom Browne earned his stripes by successfully defending a legal challenge from Adidas who alleged his designs infringed its iconic branding.

If you want to protect your branding and IP and avoid a costly intellectual property dispute, please contact Rhys ap Gwent at Morgan LaRoche Solicitors.

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The link between Covid-19 and the workplace

Following an inquest at Pontypridd Coroner’s Court, the deaths of two nurses who had contracted COVID-19 while at work has been recorded as ‘death by industrial disease’, indicating for the first time that a link has been recognised between the workplace and the virus.

The Health and Safety Executive reported that between 2021 to 2022, around 123,000 workers who had contracted COVID-19 believed that they had done so after being exposed to the virus while at work and that an additional 585,000 workers felt that the virus had caused or worsened their work-related illnesses.

Despite these figures, the prospect of more workers bringing successful claims remains distinct as anyone pursuing claims on behalf of workers exposed to the virus would have to prove that either the Public Health Guidance in force was negligent or that it had simply not been followed at work.

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Dismissal for long-term disability-related absence

In a recent case a disabled civil servant was dismissed for long term sickness absence. As he had been dismissed for capability, he was entitled to Civil Service Compensation Scheme (CSCS) payments.

The Employment Appeal Tribunal (EAT) held that the tribunal had erred when it found that the employer’s choice to reduce the CSCS payments was discriminatory (due to the employee’s substandard attitude while on sick leave). However, the EAT upheld the tribunal’s decision that the dismissal itself did not constitute discrimination arising from disability.

The EAT found that the employee’s dismissal was justified by the employer’s intention to achieve a transparent and fair sickness management regime and to maintain effective use of resources.

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Government consultation on Harpur Trust judgement

In July 2022, the Supreme Court handed down its judgment on Harpur Trust v Brazel. The Supreme Court dismissed the appeal by the Trust, confirming that part-year workers (those who work some weeks and not others but are employed throughout the year) are entitled to a minimum of 5.6 weeks of paid annual leave which cannot be prorated. Pay is calculated using a reference period (currently 52 weeks) to determine a worker’s average weekly pay, ignoring any weeks in which they did not receive any remuneration, and not by using the 12.07% basis.

The ruling impacts not only part-year workers, but also certain other irregular-hour workers. It has the effect that such workers may benefit from a proportionally higher holiday entitlement than a full-time worker and more than part-time workers with regular hours, even if they work the same total hours in the year.

The government has recognised the unintended anomalies created by the current wording of the Working Time Regulations 1998 and as such, launched a consultation on 12 January 2023, which will remain open for 8 weeks until 9 March 2023. It hopes to amend legislation to allow holiday entitlement to be pro-rated for part-year and irregular hours workers, so that annual leave is directly proportionate to the time they spend working.

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Managers: “flexible working helps productivity”

A recent survey has revealed that managers no longer stigmatise flexible working, believing it results in improved productivity – though long hours are still seen as essential for career progress. The survey, by the Equal Parenting Project, questioned 597 managers across the UK.

Managers appear to be more positive about flexible working than they have ever been, with three-quarters believing it increases productivity and 62.5% considering it boosts motivation. However, it was noted that managers are more positive about some forms of flexible work – especially flexitime and home working, which became more common during the pandemic – than others, including those that particularly benefit parents, such as job shares, part-time work and compressed hours.

Employers can address this disparity by promoting all types of flexible working and altering performance evaluation to “break down the flexible working stigma” that was prevalent before the pandemic. Policymakers are also urged to require employers to report on flexible working practices as part of their gender pay gap obligations, as well as making flexible working the default for employers and requiring them to make a case for why jobs cannot be performed flexibly.

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Fair to reopen disciplinary proceedings and dismiss (EAT)

The Employment Appeal Tribunal (EAT) has concluded that it was not unfair to dismiss an employee despite the disciplinary issues having already been addressed under previous disciplinary proceedings which had resulted in a final written warning. While it is rare to reopen concluded matters, there is no general rule against ‘double jeopardy’ and this case is an example of where it was deemed fair to revisit the issues.

The employee held a senior position in an NHS Hospital Trust and had responsibility for improving racial equality. She faced disciplinary proceedings after numerous allegations of bullying, harassment, and discrimination, and ultimately received a final written warning. However, in the meantime, a report by the Care Quality Commission concluded that bullying, harassment, and discrimination were “rife” in the organisation, and the Trust was placed into special measures and taken over by another Trust’s executive team. The new chief executive questioned the previous disciplinary findings and instigated the process which led to the employee’s dismissal on the basis that she was not objectively credible or accountable to lead on race issues.

The EAT found the dismissal fair. Employers should act with caution when considering whether to re-open a disciplinary case that has been concluded, however in the right circumstances this may be appropriate.

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Artistic licence?

Pablo Picasso famously said,

“Some painters turn the sun into a yellow spot, others turn a yellow spot into the sun”

Tesco and Lidl, however, have managed to turn a yellow spot into a bitter High Court battle.

To paint the picture, Lidl’s logo features a yellow circle edged in red on a square blue background, and has been in use in the United Kingdom since the 1980s. Two versions of this logo have been registered as UK trade marks. One version contains the word ‘Lidl’ in the middle of the circle, and the other version is comprised of the aforementioned shapes and colours, but with no text. This wordless version has been registered as a UK trade mark since 1995, but has never been used commercially.

Tesco usually has its marketing and promotional activities down to a fine art, and since September 2020, it has used a sign consisting of a yellow circle on a square blue background, with the words ‘CLUBCARD PRICES’ within the yellow circle.

It was also Picasso who said that “good artists copy, great artists steal” and this quotation could well have inspired Lidl to commence proceedings, alleging that Tesco’s use of the Clubcard sign is unlawful.

Intellectual property laws may seem pretty abstract to most, but lawyers acting for Lidl are confident that Tesco’s Clubcard promotional signs amount to infringement of a trademark, passing off, and infringement of copyright.

Lidl alleges that Tesco’s use of the Tesco Clubcard prices sign is intended to, and does, cause members of the public to call to mind Lidl’s business, suggesting that the prices of goods offered by Tesco for sale under or in connection with the sign were offered at the same prices, or lower prices, than could be obtained for the same or equivalent goods in Lidl stores. Tesco has made a counter claim that Lidl has registered the wordless trade mark in bad faith, and Tesco now seeks to invalidate that trade mark on the grounds of non-use. It would be interesting to canvass the opinion of shoppers.

With the costs incurred by the parties so far amounting to many millions, the losing party will no doubt enter a blue period of its own.

If you want to protect your trade mark and avoid a costly intellectual property dispute, please contact Rhys ap Gwent at Morgan LaRoche.

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Options for working parents during teachers’ strikes

The National Education Union (Cymru) has announced that teachers in Wales are set to strike over pay on four dates during February and March 2023. The first national strike will take place on 1 February and approximately 1,500 workplaces will be affected. The remaining three strikes are anticipated to take place on 14 February, 15 March and 16 March 2023.

So what options are available for working parents during these strikes?

An employee’s contractual arrangements may allow them to work flexibly. Review employment contracts/flexible working arrangements with employees to ascertain whether they are permitted to work from home. This may enable them to juggle their work around their caring responsibilities.

Subject to eligibility criteria, one being a requirement to have been continuously employed for at least a year, employees could also explore whether they can take unpaid parental leave. This form of statutory leave entitles eligible employees to 18 weeks’ unpaid leave per child for the purpose of caring for that child. However, the leave is to be taken in week blocks (not individual days), is limited to 4 weeks per year per child and 21 days’ notice must be given (unless agreed otherwise by the employer).

All employees irrespective of length of service, also have a statutory right to take a reasonable amount of time off to deal with an emergency involving a dependent. However, this form of unpaid leave is not suitable if the situation is known about beforehand. Therefore, if the dates of the strikes are publicised in advance, this type of leave will not be suitable and an employee may wish to consider unpaid parental leave instead (see above).

If employees do not want to see a dip in their pay, they may wish to consider using their accrued annual leave on the days that the strikes are due to take place.

Please do not hesitate to contact our Employment Team if you require any advice.

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Obligation to break the law under “Ethical Veganism” is not a protected belief

In Free Miles v The Royal Veterinary College an employment tribunal determined that a belief in ethical veganism that encompassed an obligation to contravene laws to ease the suffering of animals was not a philosophical belief under section of the Equality Act 2010.

Ms Free Miles (‘Ms Miles’) was employed by the Royal Veterinary College (‘RVC’) as a veterinary nurse. In 2019 she was arrested by police investigating alleged burglaries of farms and private residences in England by a splinter cell of the Animal Liberation Front. Ms Miles was later summarily dismissed by RVC for reasons including a suspected connection with an animal rights group that approved of law breaking and that she had herself been involved in trespassing and the theft/removal of animals from private property.

In response to her dismissal, Ms Miles brought a claim against RVC alleging direct and indirect philosophical belief discrimination (amongst other reasons she contended for unfair dismissal). She argued that her belief in ethical veganism included an obligation to break the law to reduce the suffering of animals. At the time of the hearing, Ms Miles had been charged with criminal offences of conspiracy in connection with animal rights activities.

The tribunal concluded that Ms Miles’ belief in ethical veganism would have been a protected philosophical belief under the EA 2010 if it had been limited to believing that humans should not eat, wear, use for sport, experiment on or profit from animals. Additionally, it stated it might also have reached the same judgment if the moral duty to take positive action to reduce or prevent the suffering of animals had been limited to lawful action, such as protests and demonstrations.

Nonetheless, Ms Miles’ beliefs included trespassing on the private property of others, removing their property and breaking the law. The tribunal considered that a belief to take such actions that are unlawful (whether contrary to civil or criminal law) did not satisfy the fifth element of the test as outlined in the case of Grainger Plc v Nicholson. As laws were made by democratically elected representatives they should be obeyed by all citizens and it was not for individuals to decide the laws they could obey and disobey. The discrimination claims therefore failed.