ELiAction Monthly News: MAY
Welcome to May’s edition of the Employment Law in Action newsletter providing you with useful information regarding changes to employment legislation, best practice and latest case information.
On the 27th and 28th March, the Supreme Court heard Unison’s appeal against the decision of the Court of Appeal to reject the union’s appeals in its two judicial review applications, claiming that the fee charging system in the employment tribunal and employment appeal tribunal is unlawful. Judgment is awaited but the link below includes interesting video of the Supreme Court proceedings.
Caste in Great Britain and equality law: a public consultation
The government has published a consultation paper seeking views on whether legal protection against caste discrimination is best ensured by developing case law under the Equality Act 2010, or by making caste explicitly an aspect of race in the Act. The consultation addresses the issue of complexity in the definition of caste. It makes it clear that the Government does not aim to provide a definitive view, seemingly leaving this matter at least to case law. The consultation covers all fields of discrimination covered by the EqA 2010, including employment.
By way of background, Section 9 of The Equality Act 2010 deals with race and section 9 (5) provides that the government must amend that section “so as to provide for caste to be an aspect of race”. However, the case of Chandhok & Anor v Tirkey  UKEAT/0190/14/KN in December 2014 found that caste could conceivably fall under the current definition of race in certain circumstances where part of another protected characteristic (in that case ethnic origin).
The consultation runs for 16 weeks and closes on 18 July 2017.
Brexit- What businesses need to know
The government has published a Guidance for Businesses on the Great Repeal Bill. The widely publicised recent White Paper on The Great Repeal Bill made it clear that the Bill will:
- Repeal the European Communities Act.
- Convert directly applicable EU legislation into domestic UK law.
- Preserve the UK laws which have been made to implement obligations under EU Directives (e.g. the Equality Act).
- Create powers to correct laws (by means of Regulations) which would not operate appropriately when we leave the EU.
- On questions of interpretation of EU derived law, provide that historic CJEU case law be given the same precedent status in UK courts as decisions of the Supreme Court. This is partly directed at protecting worker’s rights where they have been extended by CJEU judgements.
Back in January, The House of Commons Petitions Committee and Women and Equalities Committee published a joint report on dress codes in the workplace. The report followed a petition ‘Make it illegal for a company to require women to wear high heels at work’ which attracted 152,420 signatures.
The Report included a statement that ‘Government must do more to promote understanding of the law on gender discrimination in the workplace among employees and employers alike. We recommend that the Government substantially increase the penalties available to employment tribunals to award against employers, including the financial penalties’.
The government response now published reports that the Government Equalities Office will be producing guidance on dress codes in the workplace as a specific response to the original petition and the issues it raises, expected in Summer 2017. However, the government has rejected any recommendations which would require legislative change, emphasising the sex discrimination protections already in place under the Equality Act.
Whistleblowing – duty to report
The Prescribed Persons (Reports on Disclosures of Information) Regulations 2017 (SI 507/2017) came into force on 1 April 2017, introducing a new duty on all prescribed persons under the whistleblowing legislation to produce an annual report on whistleblowing disclosures made to them by workers.
Prescribed persons are people and bodies that a worker can blow the whistle to, rather than their employer. A list is found here. The new Regulations set out what the report must cover (e.g. anonymised data on the number of qualifying disclosures and the action taken in respect of them).
In three cases heard at the same time (Focus Care Agency Ltd v Roberts UKEAT/0143/16/DM; Frudd v The Partington Group UKEAT/0244/16/DM; Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16/DM), the EAT considered whether three tribunals had rightly decided whether ‘sleep-in’ time counted as ‘time work’ for the purpose of the National Minimum Wage Regulations.
Working hours count for the purpose of calculating whether a worker is paid the NMW. However, there is an exception which applies in relation to a worker who by arrangement sleeps at or near a place of work. The exception provides that time during the hours he or she is permitted to sleep, shall only be treated as being time worked, when the worker is awake for the purpose of working.
There have been a number of cases where workers have been held to be entitled to NMW during sleeping hours, on the basis that the exception does not apply where the act of sleeping is ‘working’, i.e it is necessary first to look at what is and isn’t working time before considering the exception.
The EAT accepted that each case is likely to turn on the consideration of its own particular facts and it may be difficult or impossible to identify a bright line test that distinguishes between the cases where mere presence is working and those on the other side of the line.
Nevertheless, the EAT set out the following potentially relevant factors in determining whether a person is working by being present:
- The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do. For example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period and the worker is engaged to be present, that might indicate whether, and the extent to which, the worker is working by simply being present.
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.
- The degree of responsibility undertaken by the worker may be relevant. In Wray v JW Lees & Co (Brewers) Ltd , the EAT distinguished between the limited degree of responsibility in sleeping at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.
- The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.
In Gnahoua V Abellio London Limited, an employment tribunal has awarded nominal compensation of £2 for a breach of an employee’s right to be accompanied where the employee had not suffered any loss or detriment.
To take advantage of the statutory right to be accompanied by a fellow worker or trade union representative (e.g. at a disciplinary meeting), an employee must make a ‘reasonable request’. The Acas Code of Practice was amended in March 2015 (following Toal & Anor v GB Oils Ltd UKEAT/0569/12/LA), to make it clear that the ‘reasonableness’ requirement does not apply to the precise choice of companion; provided they fall within the statutory categories , the employer must agree to the worker’s request. Toal had also suggested that nominal compensation of £2 was an option for tribunals in cases where no loss had been suffered by the employee.
For a ‘no fault’ SOSR dismissal, is there a particularly high threshold for employers to make dismissal reasonable?
In Ssekisonge v Barts Health NHS Trust, the EAT held there was not. In this case, the Trust had dismissed a nurse after a disciplinary process, following concerns over her identity and her conduct. The EAT rejected the Claimant’s appeal against the ET’s finding that her dismissal was fair for a ‘substantial reason’ (SOSR), the principal reason for dismissal being that the Trust could not be certain of the Claimant’s identity and given her particular role, certainty as to her identity was essential.
In giving comment and advice in the newsletter, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views which you wish to discuss we would be pleased to assist you.
If you would like advice on how any of the above articles apply to your business, please contact one of the ELiAction team on 01494 817193 or info@ELiAction.com
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