Employment Review - July 2018

 

Welcome to the July edition of Freeths’ Employment Law Update

This month we take a look at dress code guidance issued for employers, the Government’s response to the Women and Equalities Committee’s “Fathers and the Workplace” report and the much publicised Pimilico Plumbers case concerning worker status. We also consider settled status for EEA nationals and family members, and recent cases concerning whether it is discriminatory to discipline an employee for taking 60 sick days in one year, what is capable of amounting to “trade union activities” and whether a dismissal for misconduct short of gross misconduct can be fair.

• • The Long awaited Dress Code Guidance

We review guidance recently published by the Government designed to help employers formulate a workplace dress code policy while avoiding discriminatory practices.

• • Response published on report into Fathers in the Workplace

In early 2018, the Women and Equalities Committee published its report “Fathers and the Workplace”, which included a number of recommendations about how to modernise the workplace for 21st century families. We analyse the Government’s recently issued response and consider what this may mean for family friendly rights in the workplace.

• • Supreme Court finds Pimlico plumber was a ‘worker’

In further news relevant to employment status, the Supreme Court has found a plumber engaged by Pimlico Plumbers under a self-employed contract was in fact a worker. The plumber is now entitled to proceed with claims for holiday pay, unlawful deduction from wages and protection from discrimination.

• • Is it disability discrimination to discipline an employee for taking 60 days’ sickness absence?

In this recent case the EAT considered whether an employment tribunal was correct in finding that a disciplinary warning, issued to an employee who had 60 days absence in 12 months, was discriminatory.

• • Dismissal with no prior warning is not automatically unfair if the misconduct falls short of gross misconduct

An employment tribunal’s finding, that a dismissal was automatically unfair because the misconduct fell short of gross misconduct and there were no prior warnings, has been overturned by the EAT. The Tribunal had formed a too restrictive view of “fairness” in accordance with the Employment Rights Act 1996.

• • Dismissal for using leaked confidential information relating to union members was automatically unfair

The Court of Appeal has found the limited use by a trade union official of leaked confidential information concerning trade union members amounted to “trade union activities”. This is an interesting case that gives guidance on the scope of what could be considered trade union activities, which will be relevant to employers and how they interact with their unionised workforces.

• • Applying for settled status for EEA nationals and family members

The Home Secretary published a statement of intent towards the end of June on the latest position on rights for European nationals to remain in the UK post Brexit. We summarise the steps that EEA nationals will need to take.

• • Autumn HR Seminar Series

Our next series of employment update seminars will focus on mental health in the workplace.

 

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The long awaited Dress Code Guidance

You may recall the story that generated a lot of media attention in 2015 of the employee, Nicola Thorp, who was sent home by her agency without pay for refusing to wear high heels. Ms Thorp was employed by outsourcing company Portico and was working as a receptionist at PwC's offices in London. On her first day she was told it was Portico's dress code for women to wear two to four inch heels. Ms Thorp subsequently started a petition, which was signed by over 150,000 people, calling for the Government to ban the requirement for women to wear high heels at work. This was followed up with a report by the House of Commons Petitions Committee and the Women and Equalities Committee which also made a number of recommendations to prevent female workers’ health and wellbeing being damaged by a requirement to wear high heels.

Last year, the government published its response to the Committee's report. Whilst it rejected the need for any legislative changes in this area (stating that the existing discrimination legislation is sufficient), it had emphasised its commitment to raising awareness of the issue and eradicating outdated attitudes and practices against women in the workplace, which included issuing new guidance during summer 2017 on workplace dress codes. Exactly one year behind schedule, the Government Equalities Office has published the long-awaited guidance, Dress codes and sex discrimination: what you need to know which can be accessed here. The guidance is rather brief, and sets out advice for employers on key considerations when formulating a workplace dress code policy.

It also contains examples of policy requirements that might be discriminatory – for example, it states that if a clothes shop expects staff, both male and female, to dress in a provocative or revealing fashion, whilst this might not amount to direct discrimination (since it imposes equivalent requirements on men and women), it could contribute to an environment in which employees may be vulnerable to unwanted sexual attention and harassment. Whilst the guidance feels like a ‘luke warm’ response to the Nicola Thorp saga, it does at least clarify the position on some topical issues, namely that flat shoes and trousers ought to be permitted regardless of gender. Also that religious symbols ought to be permitted unless they interfere with work, and that gender specific requirements are likely to be unlawful (such as the requirement to wear make-up, have manicured nails, wear hair in certain styles or to wear specific types of hosiery or skirts).

Response published on report into Fathers in the Workplace 

Around 285,000 couples are eligible every year for shared parental leave, but take-up "could be as low as 2%", the Department for Business said in February 2018. In view of the disappointing take up of shared parental leave, which had the aim of ensuring fathers were given the opportunity to share leave during their babies’ first year, a £1.5million campaign was kick started to better inform parents of their family-friendly rights. Following this campaign and the publicity surrounding the low take up of shared parental leave, the Women and Equalities Committee published a report, Fathers and the Workplace, which made a number of recommendations they said were intended to modernise workplace policies for 21^st Century families. They looked at doing this by making a number of improvements to fathers’ rights in the workplace. The Government has now published its response to this report, which is summarised below:

 

Antenatal appointments – The report stated that fathers who are employees should be entitled to paid time off to attend antenatal appointments as a day-one right. It went on to note that agency worker fathers should be entitled to unpaid time off to attend antenatal appointments as a day-one right, and to paid time off to attend antenatal appointments once they have been with the same company for 12 weeks. It was also recommended that the Government should consider whether the entitlement to attend two appointments is sufficiently supportive for parents of multiple babies or where other factors mean additional appointments are required. The Government did not accept this recommendation – they stated that they believe that the current statutory position strikes the right balance between allowing fathers time off for antenatal appointments and an employer’s need to balance all the various and other annual leave requirements in the context of running a business.

 

Paternity leave and pay – The report recommended that fathers who are employees should be eligible for two weeks paternity leave as a day-one right, similar to maternity leave. It also recommended that fathers who are agency workers should be eligible for paternity pay with the same eligibility requirements as agency worker mothers have for maternity pay. In addition to this, it stated that self-employed fathers should be eligible for a Paternity Allowance, similar to maternity allowance. Finally the report reiterated the recommendation of the predecessor Committee that two weeks paternity leave should be paid at 90% of earnings (capped), similar to maternity pay which is paid at for six weeks at 90% (uncapped). The Government stated that it was unlikely to follow the report’s recommendations, namely because a fundamental principle underlying maternity leave is that it is provided to enable women to physically recover from birth. There is a legal requirement for women to take a compulsory period of maternity leave immediately following the birth and that legal requirement is unique to mothers. This was the justification for there being a difference between maternity leave and pay and paternity leave and pay entitlements - mothers receive statutory maternity pay so that they are not disadvantaged by taking time off immediately before the birth of their child. For similar reasons, working mothers who do not qualify for statutory maternity pay are likely to be entitled to maternity allowance. However, the Government said it would seek more views on paternity leave and pay in a forthcoming Maternity and Paternity Rights Survey.

 

Shared parental leave and pay – The report recommend that, as part of its review of shared parental leave in 2018, the Government undertake an analysis of the costs and benefits of an alternative policy of 12 weeks paternal leave and pay to replace shared parental leave, which would include the following elements:

• Fathers and second parents would be eligible for this leave in their own right;
• it would not affect mothers’ existing entitlements to maternity leave and pay;
• The period of paternal leave would only be available to fathers in the first year after the child’s birth;
• It would be available both to employees and to agency workers; and
• It would be paid at 90 per cent of salary for the first four weeks (with a cap for higher earners), and the remaining eight weeks paid at statutory levels.

 

The Government said that further consultation was needed before they could accept the Committee's recommendation of an additional 12-week paternal leave entitlement (to be taken in the first year), which would replace the current shared parental leave system. It said that the current system was still "relatively new and has had little time to bed in".

 

Making ‘paternity’ a protected characteristic - To help drive the cultural change in the workplace, the Report recommended that the Government should consider the benefits of amending the protected characteristics in the Equality Act 2010 to add an additional characteristic of ‘paternity’, looking at what period such a characteristic would cover and to which groups of working fathers it would apply. The Government’s response to this was that it will monitor the results of the planned 2018 Maternity and Paternity Rights Survey carefully to gain a greater understanding of the experience of working fathers. In short, there has not been a great deal of movement forward following the Committee’s report. However, the Government appears to be committed to raising the profile of more flexible ways of working and ensuring that fathers have the option to take shared parental leave if they wish to do so. Arguably the issue of a more equal sharing of childcare responsibilities between men and women is cultural and the continued nagging assumption that childcare will fall upon a mother’s shoulders. It is questionable whether any changes in legislation will have a positive effect on fathers taking on a more active role in childcare until this cultural mind-set is shifted.

Supreme Court finds Pimlico plumber was a ‘worker’

Pimlico Plumbers engaged Mr Smith as a plumber for five and a half years and terminated the relationship four months after he suffered a heart attack. Mr Smith issued proceedings in the employment tribunal claiming unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay, unlawful deductions from wages and disability discrimination.

The Employment Tribunal found Mr Smith was a worker and not an employee. In coming to this decision it considered the contractual documents amongst other things which confirmed Mr Smith:

• was an independent contractor, VAT registered, submitted invoices and filed tax returns on the basis he was self employed;
• was under no obligation to accept work, and Pimlico plumbers were not obliged to offer him any work (although there was a separate provision stating that Mr Smith should complete a minimum of 40 hours a week);
• had to drive a branded van and wear a branded uniform;
• had to provide his own materials and tools;
• bore a significant proportion of the commercial risk – for example, if a customer failed to pay he would not get paid and he had to provide liability insurance;
• was subject to restrictive covenants;
• was not subject to an express right to substitute and in practice the Tribunal found plumbers could swap assignments between themselves; and
• was allowed to use external contractors for specialist jobs where he did not have the necessary skills and he obtained prior consent.

 

Pimlico Plumbers unsuccessfully appealed to the EAT and Court of Appeal arguing that Mr Smith was genuinely self-employed. The Supreme Court dismissed the appeal and focused on two key issues:

1. Mr Smith was obliged to carry out the work personally because of:

• the numerous references in the contractual documentation which implied personal performance eg “your skills” and “you will be competent to provide the work;” and
• the right to send a substitute was regarded as so being so insignificant it was not worthy of recognition in Mr Smith’s contract.

2. The Tribunal had correctly analysed the facts in deciding that the Pimlico Plumbers were not acting as Mr Smith’s client or customer. This was because of the “severe terms” of Mr Smith’s contract which included onerous restrictive covenants and he was subject to tight controls which was not consistent with client and customer relationship.

 

Whilst this case grabbed the headlines, it does not lay down any new principles of law around worker status. Cases will continue to be argued on their own facts and the reality of the working arrangements will be of key importance rather than the contractual label that is applied. This is highlighted further by the Tribunal’s decision on 26 June 2018 in which 65 Hermes couriers were deemed workers and not self-employed. It is likely that Hermes will appeal this decision. At the end of June it was also reported that fifty Deliveroo drivers had settled their case in which they claimed they had been unlawfully denied rights including national minimum wage and holiday pay and will each take a share of a six figure sum. The hearing was due to take place this month. The Independent Workers Union of Great Britain was recently granted the right to challenge the Central Arbitration Committee's decision last year that the workers should be classed as self-employed and hopes to see riders reclassified as workers. Unsurprisingly, worker status will continue to be a hot topic in the months ahead. We await the Government’s consultation on employment status and the Uber appeal which is due to be heard 30 October 2018.Continue watching this space!

Is it disability discrimination to discipline an employee for taking 60 days’ sickness absence? 

The Employment Appeal Tribunal in DL Insurance Limited v O’Connor looked at this issue. The Claimant in this case had a disability which had resulted in her taking high levels of sickness absence over a number of years. Her employer had adopted a cautious approach to this issue and had generally treated her with sensitivity – for example, they permitted her to have a much longer period of sickness absence than the terms of their sickness absence policy would have allowed. However, in 2016, it was considered appropriate to issue the Claimant with  a written warning for the 60 days’ absence she had had in the previous 12 months. This warning also had the effect of stopping her contractual sick pay for future absences. The Claimant complained to the Employment Tribunal that the issuing of a written warning amounted to discrimination arising from a disability, under section 15 of the Equality Act 2010. The case centred on objective justification – was the issuing of a warning a proportionate means of achieving a legitimate aim, in this case ensuring adequate attendance levels and seeking to improve the Claimant’s attendance.

The Employment Tribunal in the first instance found that it was not a proportionate means of achieving these aims and on appeal, the Employment Appeal Tribunal agreed. The key area was regarding how the issuing of the warning would assist the employer with their legitimate aims and they were unable to provide an explanation as to how it would assist. It was highlighted that the disciplining manager should have spoken to the Claimant’s line manager about the possible impact the absences were having on the business. There had also been failings in respect of failing to refer the Claimant to occupational health. In view of this, the Company had failed to show that the issuing of a warning was proportionate in the circumstances. Despite having a significant absence history, the issuing of a written warning in this case was nevertheless found to be discrimination arising from a disability because it was not a proportionate means of achieving a legitimate aim. It highlights the need to consider each case carefully and reflect in detail on what the Company’s legitimate aim is and whether the issuing of a warning and/or dismissal is proportionate in the circumstances.

A dismissal with no prior warning is not automatically unfair if the misconduct falls short of “gross” misconduct

In Quintiles Commercial UK Ltd v Barongo, the Employment Appeal Tribunal decided that the Employment Tribunal was wrong to unduly restrict its assessment of the fairness of the dismissal under section 98(4) of the Employment Rights Act 1996 (ERA 1996). This was as a result of making an assumption that there is a general rule that a dismissal for conduct falling short of “gross” misconduct will be unfair if it’s given for a first offence. Mr Barongo was dismissed for gross misconduct for failing to complete two mandatory training courses by the deadline set by Quintiles. The decision was downgraded to “serious” misconduct on appeal internally but the dismissal still applied. The Employment Tribunal decided that this was unfair on the basis that prior warnings ought to have been given as this was “serious” rather than “gross” misconduct. The EAT allowed Quintiles’ appeal and stated that section 98(4) ERA 1996 did not make this prescription. It was held that the Employment Tribunal failed to correctly deal with the question of fairness and had instead substituted its view on the appropriate sanction for that of Quintiles. Whilst this decision potentially opens the door for employers to argue that a dismissal for a first offence is fair in the absence of gross misconduct, employers should tread carefully as the EAT admitted that “it may be that in most cases an Employment Tribunal  will find that a dismissal in such circumstances falls outside the band of reasonable responses”. The key point is that Employment Tribunals must follow the correct process – consideration of the entire circumstances of the case, including the ACAS code and the disciplinary procedure, is essential.

Dismissal for using leaked confidential information relating to union members was automatically unfair

In Morris v Metrolink RATP DEV Ltd the Court of Appeal has upheld the decision of an Employment Tribunal which found the limited use of leaked confidential information, relating to union members, fell within the definition of “trade union activities” as per s.152 (1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. The result was that a union representative’s dismissal for having done so was automatically unfair.Mr Morris received a photograph, anonymously taken of a manager’s diary, which appeared to show adverse comments about Metrolink employees who were union members and who had been subject to a redundancy consultation. It was understood that the manager in question would not be involved in the consultation. Mr Morris, in his capacity as a union representative, raised a collective grievance to HR on behalf of the affected employees referring to the photograph of the manager’s diary. Metrolink commenced disciplinary proceedings against Mr Morris and ultimately found that the storing of the photograph and referring to it in the grievance was inappropriate use of confidential information and dismissed Mr Morris as a result.

In upholding the tribunal’s original decision, the Court of Appeal found Mr Morris’s use of the confidential information in the particular circumstances amounted to trade union activities and therefore his dismissal for the same was automatically unfair. While accepting the information was confidential and had been obtained without the manager’s consent, the use was limited and had only been disclosed to Metrolink. The information was relevant to the union members and tended to show irregularities with the redundancy consultation. This is an interesting case which shows the wide scope of what can amount to trade union activities. Ultimately, it will depend on the facts of each case. While employers should not shy away from tackling disciplinary matters involving trade union members, it is important to be mindful of drawing a distinction between genuine misconduct and something that could amount to trade union activities.

How to apply for settled status for EEA nationals and family members

The draft withdrawal agreement setting out provisions for the legal status of European nationals following our departure from the European Union confirmed that those who had completed a period of 5 years residence in the United Kingdom would be able to apply for settled status (indefinite leave to remain). Those who had not yet completed a five year period would be able to apply for pre-settled status which would lead to settled status (indefinite leave to remain). Pre-settled status and settled status (indefinite leave to remain) includes the right to live in the UK, work, study and access public funds and services. The Home Office proposes that the application route for settled (indefinite leave to remain) and pre-settled status will open towards the end of this year.

In the statement of intent published on 21 June 2018, the Home Secretary, Sajid Javid MP has confirmed as follows: “To obtain settled status EU citizens will generally need simply to have lived continuously in the UK for five years. This means for example that stay-at-home parents, retired people and students can all be eligible. Those with less than five years’ continuous residence will be granted pre-settled status and be able to apply for settled status once they reach the five-year point.”

The Home Office have now revealed details of how the application process will work. They have confirmed that those applying under the scheme will need to prove their identity, prove residence in the UK for the required period of time and declare they have no serious criminal convictions. The Home Office intend to use HMRC and DWP records to confirm residence and employment in the UK. People will not need to provide substantial evidence of residence. Where the automated checks of HMRC and DWP data do not confirm that the applicant has been continuously resident in the UK, they will be able to upload alternative evidence of having completed the relevant 5 year qualifying period. If evidence is needed, the Home Office have confirmed that they will apply flexibility to the documentary requirements.

They intend to provide an online application process which will be accessible through smartphones, tablets, PCs and laptops. They will provide a smartphone app. which will read the chip in biometric documents, such as passports. This will enable applicants to retain their ID during the application process. Applicants will be able to upload documents and upload a passport style photograph image of themselves as part of the process of confirming their identity. Alternatively applicants will be able to post their documents securely to the Home Office. The Home Office state that support will be offered to vulnerable applicants or those with no access to the online process.

It is proposed that the fee will be £65 for an adult application and £32.50 for a child under 16. There will be no fee for those who already have a document certifying permanent residence. From April 2019, there will be no fee for those applying for settled status who already hold pre-settled status. Evidence of settled or pre-settled status will be given to EU nationals in digital form. No physical document will be issued to them. Non-EU family members will be issued with a biometric residence permit. The Home Office have emphasised that caseworkers are looking to grant applications rather than refuse and caseworkers will work with applicants to give them every opportunity to remedy any deficiencies or omissions in the application. This marks a welcome change in Home Office policy. The scheme will open at the end of 2018. Applications will be voluntary until June 2021, at which applications for pre-settled or settled status (indefinite leave to remain) will become mandatory.

Autumn HR seminar series

Our next series of employment update seminars will focus on mental health in the workplace. This free legal update will cover the practical steps you should take when faced with employees suffering from mental health issues to guard against the risk of discrimination claims, including:

• Understanding mental health as a disability
• Duty of care
• Reasonable adjustments
• Managing absence
• Medical evidence and GDPR
• Dismissals

 

We will also give our usual update on recent cases and developments in employment law. Click here to find out more and register your place!