The result of the General Election (including the Queen’s Speech which followed it) and the impact of 31 January 2020 could both have serious implications for UK employment law. Will the promised improvements to family rights come into effect? To what extent will UK courts and tribunals be permitted to deviate from laws which have derived from EU Directives and decisions of the European Court of Justice? The calculation of holiday pay and the whole area of TUPE are two topics which come immediately to mind.
Intriguing though that may be, we practitioners must focus on the here and now. Normally I do not report Employment Tribunal decisions because they are not binding on other tribunals or courts. However, this month there have been two grass roots decisions of very considerable significance. I begin this Newsletter with those, both cases about which we will be hearing more in 2020 as they go through the appeal process.
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As we all know, when TUPE applies the employees employed in the undertaking changing hands transfer to the employment of the person who takes over. But who are ‘employees’ for this purpose?
The definition of employee in TUPE is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services”.
The conventional view, and advice, has been that means that TUPE is confined to employees only – that is those with dismissal rights and likely to be subject to PAYE (plus apprentices). However, if that is the case, why do the words ‘or otherwise’ appear in the definition, since we all know that an employee is someone engaged under a contract of service? On the other hand, those who are engaged under a ‘contract for services’ are explicitly not covered – doesn’t that rule out anyone who is not an employee?
Apparently not, according to the Employment Tribunal in Dewhurst v Revisecatch & City Sprint t/a Ecourier (ET2201909/18). TUPE does not just apply to employees, said the Judge, but also to workers, that category of person sitting somewhere between an employee and the genuinely self-employed (remember the Uber and Pimlico-Plumbers cases?). The words ‘or otherwise’, in the Judge’s view, brings workers under the ambit of TUPE. Presumably he concluded that their contracts were not ‘contracts for services’ but also some kind of different contract also occupying a middle zone.
A decision on this has been long-awaited, particularly owing to the lively case law about worker status in the gig economy. For those dealing with TUPE its implications are very significant. Whilst it is important to note that workers do not have the right to claim unfair dismissal, and so any workers dismissed as part of a TUPE transfer would not be able to make any such claim against either the transferor or the transferee, they would, for example, fall within the pre-transfer consultation process.
The case should be appealed. If it is not, expect another case to come through which takes this issue into the higher courts.
The Employment Tribunal decision Forstater v CGD Europe & ors (ET2200909/2019) received a fair amount of publicity recently and so it should have. The Dewhurst case (above) may be important in our world of HR and transactions, but Forstater goes to fundamental human rights questions of free speech. Are you sensing I have strong view on this one? Yes, I do.
Ms Forstater was employed by CGD under a fixed term contract. In a personal capacity she took part in a Twitter conversation about changes to the Gender Recognition Act in which she made various remarks about the respective rights of women and transgender people including comments to the effect that individuals who were born a certain sex would always remain that sex. Complaints were made by colleagues at CGD that these tweets were transphobic. Consequently, her contract was not renewed when it expired.
The expiry of a fixed term contract amounts to a dismissal in law, so she claimed that this amounted to discrimination on the grounds of her philosophical belief regarding transgenderism.
The Judge decided that she had a belief (rather than just an opinion) which was genuinely held and related to a weighty and substantial aspect of human life and behaviour. It was therefore capable of being protected under the Equality Act 2010. However, because the belief necessarily involved ‘misgendering’, the Judge held that it was therefore incompatible with human dignity and the fundamental rights of others. Accordingly, it did not qualify as a protected belief and so her dismissal was not discriminatory.
Please feel free to reflect on that what means for the rights you and the rest of us have to express our opinions, whether based on a religious or any other philosophical standpoint. The famous quote attributed to Voltaire but in fact written by his (female) biographer comes to mind: “I disapprove of what you say, but I will defend to the death your right to say it”. Do we now have to add “unless it upsets or offends me”?
In an interesting counterpoint to that decision, the European Court of Human Rights (ECHR) has held that there had been a violation of Article 10 of the European Convention on Human Rights when a bank dismissed an employee due to his involvement in a personal knowledge-sharing website.
Mr Herbai, an HR manager, was dismissed after the bank became aware of two blog posts he had written on HR strategy and tax rates. The website described him as an expert in HR management who worked at a large bank, without mentioning its name. However, the bank took the view that Mr Herbai's conduct had damaged its economic interests and that he had breached its confidentiality standards.
The ECHR found that the Hungarian courts had failed to carry out the requisite balancing exercise between Mr Herbai’s right to freedom of expression and the bank’s right to protect its legitimate business interests. Most significantly, it appeared to the ECHR that no attempt had been made by the bank to demonstrate how the speech could have adversely affected its interests, with the result that the sanction was too severe. (Herbai v Hungary 11608/15).
Ms Ward suffered from ME/chronic fatigue syndrome. It was common ground that she was disabled under the Equality Act 2010 and that her disability meant that she would have a higher than average sickness absence rate.
Initially, the employer applied an extended sickness absence trigger to her. Over a four-year period her absences were within those extended limits. However, after four years the extended trigger was withdrawn and the usual threshold which would trigger dismissal procedures for excess absence applied. Her absences exceeded those and she was eventually dismissed.
She claimed that the failure to continue to apply the extended trigger to her was a failure to make a reasonable adjustment and the Employment Appeal Tribunal (EAT) agreed. It held that a particular adjustment will not necessarily continue indefinitely to be appropriate and necessary, but an employer should be able to demonstrate some change in circumstance to show that this is the case. There was no such evidence here. (Northumberland Tyne & Wear NHS Foundation Trust v Ward UKEAT/0249/18).
Royal Mail Group Ltd v Jhuti (2019 UKSC55) has reached the Supreme Court and it is one of those cases where the courts keep disagreeing with each other, like a game of ping pong, thus satisfying us humble employment solicitors who find some questions difficult to give clear answers to.
The Supreme Court was asked to decide whether a dismissal was automatically unfair because the reason for it was that the employee had made a protected disclosure (i.e. blown the whistle). What was particular about this case was that the dismissing senior manager was not aware of the disclosure. The employee’s line manager was very aware of it – Ms Jhuti had raised with him her concerns about a colleague breaching the employer’s rules and regulatory requirements. The line manager, however, responded by engineering a performance improvement process designed to result in Ms Jhuit’s dismissal (which process incidentally drove Ms Jhuti into ill-health).
The Employment Tribunal and the Court of Appeal both held that the dismissal was fair for poor performance, because the motive of the dismissing manager was paramount. However, the EAT and then the Supreme Court, held that the reason operating in the mind of the manager who had engineered the dismissal could be imputed to the employer. The dismissal was held to be automatically unfair. The reason the line manager had engineered the dismissal was because the employee had made a protected disclosure.
The facts here are extreme and it may not always be the case that was is known by one person in a business is deemed known by everyone. But care will always be needed and questions must be asked here about the degree of enquiry made by the dismissing manager.
I know I said I do not normally report Employment Tribunal decisions but here is a third one this month. The case is more straightforward, but the reminder it provides useful.
Mr Sethi, a practising Sikh, was hoping to obtain work through EPS, a temporary work agency which worked with five star hotels, However, the agency operated a “no beards” policy, apparently for appearance reasons and in response to demands from its clients.
The Tribunal held that the policy was a provision, criterion or practice which placed Sikhs generally, and Mr Sethi in particular, at a disadvantage because of his religious requirements. It held that complying with clients’ demands was a legitimate aim of the agency, but that a blanket “no beards” policy was not a proportionate means of achieving that aim. The agency therefore indirectly discriminated against Mr Sethi when it refused to keep him on its books.
What the agency should have done was to ask their clients whether an exception could be made for a Sikh worker, or to seek work for him in hotels which did not have a “no beards” policy. (Sethi v Elements Personnel Services Ltd ET2300234/2018.)
So, finally for 2019, a tricky case in the area of discrimination and maternity.
Ms Geldart was a female police officer who claimed direct sex discrimination when her force refused to pay a London allowance in full during her maternity leave. The EAT had to decide whether or not she had to show that the force would have treated a male officer more favourably. Its answer was ‘No’.
The EAT considered that she was entitled to be paid the allowance while on maternity leave, under the terms set out in the Police Regulations 2003 and the failure to do so was a detriment contrary to section 39(2) of the Equality Act 2010.
The principle in Webb v EMO Air Cargo that a claimant who has been treated unfavourably on the ground of her pregnancy or maternity has been the victim of sex discrimination and does not need to, and indeed cannot, prove that a man would have been treated differently applied here, even though the Equality Act now makes specific provision for pregnancy and maternity discrimination.
(The Commissioner of the City of London Police v Geldart UKEAT/0032/19, 29 November 2019.)