Employment Law Review - January 2020

Welcome to our January Employment Law Update.We kick off the New Year with some advice on how to deal with dishonest job applications, a case which found 'gender critical' views are not protected philosophical beliefs, proposed changes to Employment Law covered in the Queen's speech and a comment on the EU Withdrawal Bill.

• Dishonest CVs on the rise
• Philosophical belief discrimination
• National Minimum Wage Increases
• The Queen's Speech - Proposed Changes to Employment Law
• The New European Union Withdrawal Bill

Dishonest CVs on the rise

 

A recent survey by Alexander Mann Solutions (AMS) found that 1 in 5 CVs from across the world include some form of fabricated or untruthful information. According to the data produced, candidates are most likely to alter their dates of employment, as well as inflate job titles and list false skills or qualifications. This research follows a previous study by the Risk Advisory Group, which found that 80% of the 5,000 CVs assessed contained false information.

Role of the Recruiter

While there have been promising technological advancements in CV fraud detection, the importance of the role of recruiter should not be overlooked. The AMS survey showed that 53% of the time, recruiters detect fraudulent CVs during the interview stage, 49% during background checks and 41% during phone screenings. Companies then must remain vigilant as, ultimately, the detection of fraud will continue to depend on a recruiter's skills and capabilities, rather than on tools or technologies.

To avoid such circumstances, employers are advised not to rely on the information in CVs and instead to carry out checks, on their own or via third party organisations, for all short-listed candidates. Be sure to request academic transcripts or certificates relating to relevant qualifications, and contact previous employers.

Advice for Employers

If you discover that one of your employees has secured a job by lying several options are available to you, should you wish to take action.Offers of employment are typically made pending certain checks being carried out (for example, the right to work in the UK, the taking of satisfactory references), and most new employees will be subject to a probation period of usually 3 to 6 months. If you discover that an employee has falsified their qualifications or experience during this initial period, or for up to 2 years from the commencement of employment, dismissal should be quite simple and straightforward. It may be more complicated if they have been engaged for a longer period of time before the discovery is made, when a formal dismissal process should be followed.

Breach of Contract

If an employee continues to work for you without revealing the truth, then they are in breach of the duty of trust and confidence implicit in every employment contract. In such cases, an employer can dismiss the employee immediately, without notice or compensation, however the breach must reasonably be considered sufficiently serious to justify such action. Following a fair process is essential, allowing the employee to respond to the allegations and produce evidence if relevant. Failure to do so may leave the organisation open to a claim of unfair dismissal.

Misrepresentation

Misrepresentation occurs if an employer is wrongfully misled into a contract of employment based on inaccurate statement(s) of fact - but only if these statements were a material factor in convincing the employer to offer the candidate the job, e.g. if an applicant falsely claims to have a professional qualification required for the role. In these cases, the employer may be entitled to compensation (including the cost of a replacement, recruitment agency fees and any training costs incurred), although pursuing these through the legal system will obviously incur further costs and time that may not be easily recovered.

Good practice

Check claims made on CVs, especially those that you rely on when making any offer of employment. Not only will this save time and expense should things not work out, but may also save possible embarrassment later.  In a world where social media records are easily accessible, taking time to review a CV against a LinkedIn profile can be a good place to start, but always make sure you have the right person in your sights.

Philosophical belief discrimination

Ethical Veganism

It's Veganuary and you may have seen the excitable press this month around 'ethical veganism' being presented in the case of Casamitjana v The League Against Cruel Sports as a protected characteristic under the Equality Act 2010. But before you stop the bacon sandwiches at breakfast meetings, it's important to understand that vegan workers may not (yet) have the protection they may now expect. Like the case of Forstater v CGD Europe & others (below), this is only a first tier employment tribunal decision and the protection afforded to the Claimant under the Equality Act was conceded without challenge by the Respondent. Like all claims which test the boundaries of what is protected as a philosophical belief, they are determined by their own unique set of facts and this means that the implications of the findings are limited in their reach. In this case, Mr Casamitjana is particularly committed to his veganism, so much so that he will walk rather than take the bus or drive to avoid accidental crashes with insects or birds. This clearly goes beyond swapping out your usual semi-skimmed for oat milk every January. It is for each Claimant to prove their beliefs and their individual case. It's unlikely that this time around the question will find itself before a higher court and so this case will not create a binding precedent.

Gender Critical views

In another case, the London Central Employment Tribunal has found that 'gender critical' views are not protected philosophical beliefs.In the case of in Forstater v CGD Europe & others, the Claimant, a Visiting Fellow providing consultancy services to the Respondent, contends that the relationship came to an end and/or the Respondent refused to continue it because she expressed opinions that sex is immutable, regardless of a person's stated gender identity or gender expression. The Claimant argued that she suffered direct discrimination as a result of these views.

In a series of tweets in 2018, the Claimant expressed concerns regarding changes to the Gender Recognition Act 2004 (“GRA”) which would permit people to self-identify their gender. Furthermore, the Claimant made numerous remarks about the non-binary gender identity of Credit Suisse senior director, Pips/Philip Bunce.In early October 2018, some staff of the Respondent raised concerns about the Claimant's tweets, alleging that they were transphobic. This was put to the Claimant who, denying the allegation, stated that “[she] would of course respect anyone's self-definition of their gender identity in any social and professional context.”

The Claimant's last contract with the Respondent ended on 31 December 2018.

In her evidence, the Claimant made clear that she considers there to be only two sexes, male and female, and that there are no circumstances whatsoever in which a person can change from one sex to another or to being of neither sex, even if a person has a Gender Recognition Certificate. The Claimant focused on the inheritance of genetic material and chromosomal analysis.In their judgement, the Tribunal found that the Claimant genuinely held such beliefs, that those beliefs were substantial aspects of human life and behaviour, and that, since such beliefs have a scientific basis, they achieve a level of cogency and cohesion. However, the Tribunal took the view that the Claimant's opinions did not qualify as a philosophical belief under Section 10 of Equality Act 2010 as the beliefs did not satisfy 'the Grainger Criteria' (Grainger plc v Nicholson 2010), specifically that said beliefs involved “misgendering” and were therefore incompatible with human dignity and the fundamental rights of others.

National Minimum Wage Increases

The legal minimum hourly rate that a worker can be paid, known as the National Minimum Wage (or National Living Wage for workers aged 25 and over) will increase for all workers from 1 April 2020 as follows:

• Workers aged 25 and above - from £8.21 to £8.72 per hour
• Workers aged 21 to 24-years-old - from £7.70 to £8.20 per hour
• For 18 to 20-year-olds -  from £6.15 to £6.45 per hour
• For under-18s - from £4.35 to £4.55 per hour
• For apprentices - from £3.90 to £4.15 per hour

The Queen's Speech - Proposed Changes to Employment Law

In the Queen's Speech, which was delivered on 19 December 2019 following the previous week's general election, the government put forward a new Employment Bill which seeks to introduce a number of changes to employment law in the UK:

• A single enforcement body As was announced as part of the Good Work Plan, the government is proposing to put in place a single labour market enforcement agency to help workers to understand and enforce their rights.
• Tips to go to workers in full Legislation has been proposed which would require by law that employers pass on all tips and service charges to workers and ensure that they are distributed on a fair and transparent basis.
• Right to request a predictable contract The government has proposed that workers should be able to request predictable hours after completing 26 weeks' service, which would assist those workers on zero hours or unstable contracts.
• Extending redundancy protection for new mothers Currently a woman on maternity leave has additional protection in a redundancy situation, in that she must be offered any suitable alternative vacancy ahead of others at risk of redundancy. The government is proposing to extend this protection to start from the point the employee notifies her employer of her pregnancy, until 6 months after the end of her maternity leave.
• Extended leave for neonatal care The government have proposed to provide extended leave to parents caring for premature or sick babies. No detail has been provided yet as to how long the leave would be or whether it would be paid or unpaid.
• A week's leave for unpaid carers As the Conservative party set out in its election manifesto, the government is proposing to provide workers who are unpaid carers an additional week's leave. It is not clear whether this would be paid or unpaid.
• Making flexible working the default position Currently employees has the right to request flexible working after completing 26 weeks' service. The government is proposing to change this position and to instead make flexible working the default position for employees, unless the employer has good reason not to allow this.

These are currently only proposals and legislation would need to be approved by Parliament before being brought into law.

The New European Union Withdrawal Bill

Following the re-opening of Parliament, the European Union (Withdrawal Agreement) Bill (“Withdrawal Bill”) has been re-introduced with some changes.In the previous version the Withdrawal Bill included provisions to safeguard existing EU-derived workers' rights by obliging the government to consult unions and employers' organisations and issue, if appropriate, a “non-regression statement” to any future employment bills. However, these provisions have been removed from the new version of the Withdrawal Bill.

The new Withdrawal Bill also seeks to amend the position on existing EU case law by giving the government the power to specify in regulations that certain lower courts and tribunals would not be bound by European Court of Justice cases or existing domestic case law on EU-derived rights, as is the current position.It appears likely that a number of changes affecting employers are likely to be implemented in the near future. As and when any changes are confirmed, these will be reported in future additions of Freeths' employment law bulletin.