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Employment Law Review - November 2020

Welcome to our November Employment Law update.

This month we look at recent Employment Tribunal decisions on the issue of gender fluidity, an important EAT decision on the time limit for bringing a whistleblowing claim and some welcome guidance from the ICO on Data Subject Access Requests. We also bring you up to speed with details of the public sector exit pay cap and new immigration rules coming into effect on 1 December 2020. Lastly, it wouldn't be 2020 without Coronavirus updates.

Furlough extension

The Coronavirus Job Retention Scheme (Furlough Scheme) has been extended until 31 March 2021 for all parts of the UK. Both full and flexible furlough options are available and employees who have been made redundant after 23 September 2020 may be rehired and furloughed. Furlough agreements made retrospectively will be valid, but these must be in place no later than 13 November 2020 to be relied on for a claim under the extended Furlough Scheme. Keep up to date with all the latest Coronavirus developments on our Coronavirus Exchange.

 Christian belief that gender cannot be fluid protected under the Equality Act

In a recent case, the Bristol Employment Tribunal decided that a Christian employee's beliefs that gender cannot be fluid, and that someone cannot change their biological sex or gender were worthy of respect and protection under the Equality Act. Mrs Higgs, a Christian, was employed by Farmor's School as a pastoral administrator. The school's head teacher received a complaint about Mrs Higgs' Facebook posts, which stated her views on the teaching in schools of same-sex relationships and gender being a matter of choice. Mrs Higgs believed that gender could not be fluid and that someone cannot change their biological sex or gender. Following an investigation and disciplinary process, Mrs Higgs was dismissed for gross misconduct and for breaching the school's policies on discrimination and use of social media. She bought claims of direct discrimination and harassment on the basis that her philosophical beliefs had resulted in her mistreatment.The Employment Tribunal stated that the belief that sex and gender are 'set at birth' is worthy of protection and whilst it may be upsetting to some people, if freedom of speech and Articles 9 and 10 of the European Convention on Human Rights applied only to only to expressions of belief that would upset no-one, they would be worthless. However, the Tribunal went on to conclude that Mrs Higgs had not been directly discriminated or harassed because of those beliefs.The decision in Higgs v Farmor's School sees a change in direction from two previous cases (Forstater and Mckereth). In these cases, it was decided that the Christian belief that a person cannot choose their gender was incompatible with human dignity and conflicted with the fundamental rights of others, therefore was not a protected philosophical belief under the Equality Act. It is worth noting that these cases that have been appealed to the EAT so are awaiting a binding view on this issue. Back to the top.

£180,000 awarded to gender fluid employee following discrimination at work

Last month we covered the case of Ms Taylor, a gender fluid engineer who was afforded protection from discrimination in the workplace under the Equality Act. October saw the remedy hearing, in which Ms Taylor was awarded £180,000 in compensation for the direct discrimination, harassment and victimisation she suffered during her time at Jaguar Land Rover (JLR). A stark reminder to employers that compensation for discriminatory acts is uncapped.The amount of compensation was agreed by both parties and does not include Ms Taylor's costs application which will be heard separately in January 2021. The Employment Tribunal also made a statutory recommendation that JLR's Board of Directors read the judgment in the case and discuss the written reasons for the judgment at a Board Meeting by March 2021.JLR has since apologised to Ms Taylor for the experiences she endured during her employment and has stated that it will learn from this case, using the outcome to inform its diversity and inclusion strategy. Following agreement between the parties, the Tribunal also ordered that JLR appoint a Diversity and Inclusion Champion, commission an impartial investigation into diversity and inclusion across the business, annually report on progress in the diversity and inclusion field and for such report to be made available to employees, members of the public and Ms Taylor.

 When does time start running to bring a whistleblowing claim?

In a recent case the Employment Appeal Tribunal (EAT) confirmed that the imposition of a new contract would not be a 'continuing act' extending over a period for the purposes of bringing a whistleblowing detriment claim; it is a 'one off' event with continuing consequences. The EAT also considered that the ACAS Code of Practice on Disciplinary and Grievance Procedures (Code) can be relevant to whistleblowing complaints that amount to a grievance. An employee or worker who makes a protected disclosure has the right not to suffer a detriment or to be dismissed for making that protected disclosure. Employment Tribunal claims related to whistleblowing must be submitted within three months of the detrimental act or dismissal.Mr Ikejiaku was employed by the British Institute of Technology (BIT) as a Senior Lecturer. He made protected disclosures in October 2015 and 12 July 2017. In October 2015 he contacted the HMRC about BIT's failure to pay employment taxes and as a result, in March 2016, was given a revised contract to reflect the fact he was self-employed. On 12 July 2017 he raised concerns after being told to give pass marks to students who had been copying from each other in test scripts. On 13 July 2017 Mr Ikejiaku was dismissed allegedly on the basis that BIT needed to reduce teaching staff.Mr Ikejiaku bought a claim for automatic unfair dismissal on the basis of his July 2017 protected disclosure. He also bought a claim that he was subject to a continuing detriment from March 2016 (introduction of a new contract) after making a protected disclosure in October 2015. Mr Ikejiaku also applied for an uplift to compensation on the basis that BIT failed to follow the Code.Mr Ikejiaku's claim for automatic unfair dismissal succeeded. Mr Ikejiaku's detriment claim was out of time. The detriment (introduction of a new contract) occurred in March 2016 and was not a continuing act which extended over a period ending with Mr Ikejiaku's dismissal. Time to bring a detriment claim started to run from March 2016 and it was reasonably practicable for Mr Ikejiaku to have presented his claim in time. An uplift to compensation was also refused on the basis that the Code did not apply to dismissals on the grounds of a protected disclosure. Mr Ikejiaku appealed to the EAT.The EAT upheld the Tribunal's decision on time limits for bringing a detriment claim. Regarding the Code, the EAT stated the Discipline section had no application given the absence of culpable conduct alleged against an employee but considered that a protected disclosure may constitute a Grievance within the Code's definition of 'concerns, problems or complaints that employees raise with their employers'.As we see whistleblowing complaints in the workplace increase, this is an important case for employers to be aware of. It confirms important time limits and reminds employers not to overlook the Grievance section of the Code when handling whistleblowing complaints. Back to the top

 New guidance on Data Subject Access Requests for employers

Guidance has been published by the ICO offering clarification on various aspects of Data Subject Access Requests (DSAR). As DSARs become more commonplace in employment litigation, this additional clarity is welcome. The guidance addresses three key areas:

  1. What amounts to a 'manifestly excessive' DSAR? The ICO advises employers to assess whether the response required is proportionate when balanced with the burden or costs involved; the employer should consider the context of the request, the nature of information requested and the potential damage to the employee if the DSAR is not complied with.
  2. Charging a 'reasonable fee' for dealing with manifestly excessive, unfounded or repeat DSARs. The ICO states that a reasonable fee may include administrative time and cost (e.g. photocopying, printing and postage) and can include time spent communicating with the employee.
  3. Stopping the clock for clarification of DSARs. The ICO's position is that if a clarification is genuinely required, the 30 day time limit for compliance with DSARs may be stopped and restarted while organisations are waiting for an individual to provide clarification.

£95,000 cap on exit pay for public sector employees

The Restriction of Public Sector Exit Payments Regulations 2020 (Regulations) came into force on 4 November 2020 introducing a cap of £95,000 on the total pre-tax value of public sector exit payments. The cap will apply to the value of exit payments made to the vast majority of public sector employees. If an exit occurs on or after 4 November 2020 then the cap will apply, even if the terms were agreed beforehand. For public sector employers that have planned exits, or have exit discussions currently in progress, the timing of this cap creates uncertainty.The £95,000 cap will include redundancy payments, pension strain costs, severance or ex gratia sums, payments under an ACAS negotiated settlement, payments in the form of shares or share options and payments in lieu of notice that exceed one-quarter of the individual's annual salary. Payments specifically excluded from the cap are those in respect of death in service or as a result of incapacity, payments in lieu of notice not exceeding one-quarter of the individual's salary, payments in compliance with a court or tribunal award and payment in lieu of accrued but untaken holiday.The Regulations do provide for the cap to be relaxed in certain exceptional circumstances, for example there is a mandatory exemption where the obligation to make the exit payment arises as a result of a TUPE transfer or in cases of discrimination or whistleblowing. The final Treasury direction and guidance were published on 30 October 2020 and clarify the scope of the exemptions and exclusions.

 New immigration Rules for 2021

The Statement of Changes to the Immigration Rules were published on 22 October 2020. The changes are a substantial overhaul of the current system with many of the changes take effect from 1 December 2020. The Rules introduce a new Skilled Worker route which opens on 1 December 2020 and replaces Tier 2 of the Points Based System. The new system will apply to the recruitment of European nationals arriving in the UK on or after 1 January 2021, as well as all other overseas nationals. For more information on the new Skilled Worker route or advice relating to the impact of the upcoming changes to the immigration rules on your business, please contact our Business Immigration team.Back to the top

 

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.