Employment legal update #51 | December 2021

Our Employment & HR team brings its monthly review of new legislation, guidance and case law.

News: 

The Statutory Sick Pay (Coronavirus) (Funding of Employers' Liabilities) (Closure) Regulations and the Statutory Sick Pay (Coronavirus) (Funding of Employers' Liabilities) (Northern Ireland) (Closure) Regulations 2021 (snappy title!) came into force on 30 September 2021. These Regulations close the COVID-19 SSP Rebate Scheme, whereby eligible employers could apply to HMRC for reimbursement of statutory sick pay (SSP) paid for sickness absence due to COVID-19. The scheme closed on 30 September 2021, after which employers reverted to being fully responsible for all SSP payments. COVID-19 related absences after 30 September 2021 are not eligible for a rebate. Employers have until 31 December 2021 to make any claims for eligible SSP costs incurred up to and including 30 September 2021.

Acas has published guidance to help employees and employers at CQC-registered care homes in England understand the vaccination rules. As well as guidance to employers regarding communicating with staff around the vaccines, it also covers consultation with trade union and employee representatives on the following:-

• Who is exempt.
• How checks will be undertaken to confirm vaccination status.
• How compliance with the UK GDPR will be ensured.
• Time off and pay for staff to get vaccinated and recover from any side effects.

The notes also cover the vaccination requirement extension to agency workers, contractors, volunteers, work experience students, job applicants and other visitors (such as medical staff, tradespersons and therapists). Also information on checking who is vaccinated and the information to record as well as how to deal with employees who refuse to be vaccinated, together with alternative suggestions for their employment before any decisions to dismiss.

On 9 September 2021, judicial review proceedings were issued challenging the mandatory vaccination requirement for all care home workers and anyone entering a care home, which came into force on 11 November 2021. The grounds are:-

• That the regulations are incompatible with laws prohibiting the enforcement of mandatory vaccines.
• They interfere with the public's right to "bodily integrity" and are severe, unnecessary and disproportionate.
• They will disproportionately impact women and those who identify as Black/Caribbean/Black British, in contravention of the European Convention on Human Rights.
• They are irrational and will lead to shortages in frontline and non-frontline care workers.
• Finally that the Health Secretary failed to consider the efficacy of alternatives to mandatory vaccination and failed to consider the vaccination rate of care homes or the impact of natural immunity.

Following the change in working practices as a result of the pandemic, the government has launched consultation proposing a number of reforms to the right for employees to request flexible working, which closes on 1 December 2021. They do not include an automatic right to request to work flexibly but instead contain measures which broaden the scope of the right while retaining the basic requirement for a discussion between employer and employee about balancing work and individual needs. The principal change proposed is that it would be a “day one” right, thus removing the minimum qualifying service period. Other considerations are: –

• Possibly making changes to the eight business reasons for refusing a request to work flexibly.
• Requiring the employer to suggest alternatives to the arrangement suggested by the employee.
• Changing the administrative process governing the right to request flexible working and specifically whether more than one statutory request could be made each year.
• Raising awareness of the existing right of employees to request a temporary flexible working arrangement.

The government has decided not to proceed with the proposal to introduce a requirement for large employers to publish their flexible working policies.

Following the Government consultation on tipping, gratuities, cover and service charges, which closed in June 2016 the Government has stated that it will introduce legislation to prevent employers making any deductions from tips received by their staff other than those required by tax law. The legislation will be included in the forthcoming Employment Bill, which will be brought forward when parliamentary time allows.

Commentary: 

Time limit for unlawful inducement is date terms are offered not imposed

The EAT case of Scottish Borders Housing Association Ltd v Caldwell and others has held that the time limit for bringing a claim of unlawful inducement runs from the date on which the new terms are initially offered to the employees, not the date on which, following consultation, the employer indicates that the terms will be imposed. Informing the employees of the intention to impose new terms on the employees who have refused them does not constitute an offer for the purposes of s.145B and C of the Trade Union Labour Relations (Consolidation) Act even though the offer could still be accepted.

Over a 2-year period the respondent negotiated, unsuccessfully, with unions to change terms and conditions. The respondent then arranged meetings with the employees to agree terms and conditions, and wrote letters to them dated 18 September 2019 setting out what these new terms would be. The employees were then issued with letters on 21 October 2019 enclosing the new terms and conditions and inviting them to accept, which the majority did. Those who did not were sent a further letter on 13 December advising them that the new terms would come into effect on 16 January 2020.

On 28 January 2020 those who did not accept the new terms issued employment tribunal claims asserting that the new terms were an unlawful inducement. The employment tribunal accepted that the claims were in time as the letter dated 13 December was a continuation of the communications and offer from the initial letter dated 18 September, because both letters dealt with the changes to terms and conditions and in both letters, the offer could have been accepted or rejected.

The employer appealed to the EAT, which accepted its arguments that the letter dated 13 December was not a contractual offer. Instead, the letter advised the employees that the terms and conditions previously offered would be imposed by a certain date if not accepted. An employer who states it will unilaterally impose terms cannot be said to be making a new offer in accordance with s.145B TULR(C)A. The EAT therefore held that the tribunal had been wrong to hold that the claims were within time because the claimants should have lodged their claims within 3 months of the offer of the new terms, which was 18 September. As such the appeal was allowed and the claims dismissed.

Unlawful inducement - again

In another case concerning unlawful inducement, but with different facts and one which was upheld, is the case of Kostal UK v Dunkley and ors, a Supreme Court decision that an employer’s direct pay offer to workers, bypassing stalled collective bargaining with the recognised trade union, constituted an unlawful inducement within the meaning of S.145B of the Trade Union and Labour Relations (Consolidation) Act 1992. The majority view was that the correct approach to the section was to ask whether, if the offer had not been made and accepted, would the workers’ terms of employment have been decided by a new collective agreement. If not, then the individual offer made by the employer cannot have caused the “prohibited result” under the section.

The section prohibits an employer from making offers to members of a recognised trade union where the only or principal purpose of doing so is to achieve a ‘prohibited result’, which is that some or all of their terms and conditions of employment will not be determined by a collective agreement negotiated by the union.

Unite is recognised by the respondent for collective bargaining purposes. The respondent offered, through the unions, pay increases and a Christmas bonus, together with some detrimental changes to contractual terms. The offer was rejected. When this happened, the employer wrote directly to all the employees offering the same package but warning them that if it was not accepted the Christmas bonus would be forfeited. The employer subsequently wrote to employees warning them that if agreement cannot be reach their contracts might be terminated but without any mention of possible re-engagement on new terms.

Employment tribunal claims were brought against the respondent on the grounds that each letter constituted an unlawful inducement contrary to S.145B TULR(C)A.

The tribunal upheld the claims in respect of both offers and the EAT (by a majority) dismissed the respondent’s appeal. The respondent then successfully appealed to the Court of Appeal, which held that the section is only engaged if the employer’s intention is that one or more employment terms will no longer be decided by collective agreement going forward. As such, the Court dismissed the union members’ claims.

They then appealed to the Supreme Court. Before the Court, both parties proposed interpretations of the relevant section. These were both rejected by the Supreme Court which, in allowing the appeal, considered that both parties wrongly focused solely on the content of the employer’s offer. It held that they should focus on the potential practical consequences of the employer’s conduct, considered in the round. Was there a causal connection between the presumed acceptance of the offers and the prohibited result specified in S.145B(2)? There will not be unless there is a real possibility that, had the offer not been made and accepted, the workers’ relevant terms of employment for the period would have been determined by a new collective agreement. If there is no such possibility, then any changes to terms and conditions which resulted from the offer would not be negotiated via collective agreement. What an employer cannot do is what the respondent did which was to make a direct offer to its workers, including union members, before the collective bargaining process has been exhausted.

COVID 19 – Tribunal discrimination and dismissal cases

Two employment tribunal decisions, while non-binding, provide useful guidance on the views that tribunals will take with regard to discrimination and dismissal involving Covid 19. One focuses on the view which might be taken of measures put in place to protect pregnant workers during the height of the pandemic and the other looks at how the dismissal of an employee for refusing to obey a management instruction because of pandemic -related risks might be considered to be automatically unfair.

In Prosser v Community Gateway Association Ltd, Ms Prosser was a zero hours worker who was pregnant. Her employer consider that she was clinically vulnerable and so sent her home at the outset of the pandemic. The employer undertook a risk assessment and implemented social distancing measures, which delayed her return to work. Aspects of her work which were deemed unsafe for her as a pregnant worker, such as night shifts, which involved lone working, and travelling unaccompanied to tenants’ homes providing physical support, were removed from her duties. While she was absent, she was paid "generously" and more than her contractual entitlement. By accident one payment was made late but this was not because of her pregnancy. However, she brought claims for discrimination and victimisation.

These were dismissed by a tribunal which considered that she had been treated appropriately in accordance with the available public health advice and relevant coronavirus regulations. The employer had carried out a proper risk assessment and its motive was to ensure she and her unborn baby were fully protected.

The case of Ham v Esl Bbsw Ltd concerned Mr Ham, who was employed in a cleaning service job. At the outset of the pandemic, when his manager was self-isolating with Covid symptoms (unvaccinated) he refused to deliver equipment to her home. He was dismissed for refusing to obey a reasonable management instruction. He brought a claim that he had been automatically unfairly dismissed for raising health and safety concerns.

The tribunal agreed. His refusal was at the outset of the pandemic when very little was known about coronavirus, nobody was vaccinated, and his concerns for himself and his family were fully justified. He had offered to take the equipment to another location where it could be securely stored but this was refused. The tribunal found that the reaction of dismissal was wholly inappropriate for someone who was raising genuine health and safety concerns and that it was inconceivable that someone instructed to go to the home of someone who was self-isolating along with her daughter would not be genuinely concerned as to the risks involved at a time when the pandemic was in its early stages and nobody knew or understood how serious the dangers were. The tribunal found he had taken legitimate steps to protect himself and his family and the dismissal was automatically unfair.

No right of appeal does not invalidate dismissal

In Gwynedd Council v Barratt and another, the Court of Appeal held that the lack of any appeal or review procedure against a dismissal for redundancy does not alone render the dismissal unfair. However, the right of appeal is one of the factors to be considered when determining the overall fairness of the dismissal.

Both claimants were teachers who were dismissed by reason of redundancy. They were refused a right of appeal and lodged claims for unfair dismissal. These were upheld. The respondent appealed on a number of grounds, one of which was that the tribunal was wrong to hold that there must be a requirement of "truly exceptional circumstances" to justify refusing the right of appeal.

The Court of Appeal dismissed the employer's appeal. It concluded that the tribunal's findings on overall fairness were not ameliorated by its test of "truly exceptional circumstances".

The decision confirms that where the original selection for redundancy is undertaken following a fair procedure, the lack of an appeal is not fatal to the employer's defence. It is one of the factors considered in determining whether, overall, the dismissal was for a fair reason and having followed a fair process.

Dismissal for criticising whistleblower not automatically unfair

In Kong v Gulf International Bank (UK Ltd), the claimant was the head of financial audit. She made several protected disclosures regarding her concerns in respect of new products, to the Head of Legal. During these disclosures she questioned the professional competence and integrity of the Head of Legal. It was accepted by both parties that these disclosures were protected. A heated exchange took place which resulted in her storming out and slamming the door. Subsequently the Head of Legal said she did not want to work with the claimant going forward and complained about her conduct to a number of senior people, as a result of which the claimant was dismissed. She brought a claim of automatic unfair dismissal and detriment for making a protected disclosure.

The detriment claim, based on the conduct of the Head of Legal towards the claimant, was found to be out of time; but would have succeeded had it been brought within time. However, the tribunal found that she was not automatically unfairly dismissed because of making protected disclosures. She had been dismissed because of the way in which she conducted herself towards her colleagues in the process of making those disclosures, and that colleagues did not want to work with her any more as a result. The termination letter made it clear that her dismissal was due to her conduct towards the Head of Legal.

The claimant appealed to the EAT on the basis that the Head of Legal had sought to have her dismissed because she had made the disclosures, and that her motivation should be attributed to the respondent in accordance with the decision in Royal Mail Group Ltd v Jhuti. However, the EAT held that the tribunal had come to the right conclusion, namely that the claimant had been dismissed, not for what she had said but the way in which she had conducted herself towards the Head of Legal in making the disclosures. The two matters were separable, and the dismissal was because of her conduct. Furthermore, the principle in Jhuti will only apply rarely and the criticism of the Head of Legal’s integrity rather than her legal awareness was not enough invoke this principle.

Standby time can be classed as working time - ECJ

An ECJ case, XR v Dopravní podnik hl m Prahy has looked at the issue of whether a firefighter’s daily rest breaks should have been classed as working time under the Working Time Directive because he was on standby during each break in case he had to return to his duties at short notice.

The firefighter was allowed to go to a canteen at times during his shift which was 200m from his workstation provided he was on standby to be picked up at 2 minutes notice if there was an emergency. The rest breaks were all unpaid, and he was only paid for them if they were interrupted by being called out. The basis for his claim was that the entirety of the standby time should be classed as working time because he was effectively on-call.

The Working Time Directive deals with health and safety of workers, not the calculation of remuneration. The ECJ therefore looked at whether the rest breaks provided for proper rest breaks or whether he was still effectively at the disposal of the employer to carry out his duties. Standby time must be classed as either working time or rest breaks and there is no in-between. Whether or not any work is actually carried out is irrelevant.

The ECJ referred to previous case law and held that a rest break during which a worker may be called back to work on 2 minutes' notice should be classified as "working time" under Article 2 of the Working Time Directive where the restrictions imposed on the worker during that break could significantly affect what that worker could do with their own time during the period. The unpredictability of whether the worker would be able to take their break without interruptions meant that they could not manage their time freely and would be likely to be on “permanent alert”. As such the entirety of the standby time should be counted as working time. The ECJ said that it was up to the national courts to look at the issue in context and assess the constraints placed on the worker during the standby time.

Courier driver is Worker for purposes of ERA

In Stuart Delivery Ltd v Augustine, the Court of Appeal has upheld an employment tribunal’s decision that a courier driver who had the right of substitution to ask another courier to undertake a delivery that he had agreed to carry out, worked under a contract for the personal performance of services, and as such was found to be a “limb b” worker under the ERA. The right of substitution was, in this particular case, narrow enough to be consistent with the obligation of personal performance.

• The respondent operated a technology platform whereby clients and couriers are connected via a mobile app. The couriers have the option of doing ad hoc or “slot” deliveries. Slot deliveries mean they must commit to a specific time and place. They were paid a minimum of £9 per hour. There is the flexibility to release a slot so that other couriers can pick it up but if they don’t, the original courier is obliged to complete the work. A courier may release a ‘slot’, making it available to other couriers, but if no one accepts, then the original courier remains liable for completing it.

The claimant filed various claims against the respondent, as a result of which the tribunal had to decide whether or not there was the obligation to personally perform services in line with the definition of “worker”.

The tribunal found that the facility to release the slot to another courier fell into the fifth category of substitution highlighted in the Pimlico Plumbers case, namely “a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent”. This was held to be consistent with the requirement for personal performance. Other couriers did have the right to withhold consent, whereupon the obligation to complete the slot fell back onto the original courier. Furthermore, the respondent was not found to be a client of any business which was run by the claimant. The EAT agreed and the respondent appealed to the Court of Appeal.

The appeal was dismissed. The Court of Appeal held that the limited right of the claimant to notify other couriers via the app that he wished to release a slot to other couriers if they wanted was not enough of a right of substitution to ameliorate his obligation to perform his work personally.