Employment Law Bulletin July 2022

• Women and Equalities Committee – The Need for Menopause to be a Protected Characteristic
• New Legislation for Agency Workers and Damages Awards Against Unions
• UK Supreme Court Success for Part-Time Teacher on Holiday Pay
• Tesco v USDAW & Others
• Belief Discrimination

Welcome to July's Employment news briefing, providing a summary of some of the recent employment judgements and updates.

If you have any questions about any of the topics covered, or would like to discuss anything with our Employment team, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

 

 

 

Women and Equalities Committee – The Need for Menopause to be a Protected Characteristic

At the end of July, the Women and Equalities Committee published a report ‘Menopause and the workplace’. Whilst the report was not exactly supportive of mandatory menopause policies, it does emphasise the need for employers to get on board with good practice and procedure and noted the risk of discrimination claims and reputational damage.
Suggested solutions in the report include practical adjustments, additional flexibility and a greater understanding of menopause.

The report also notes that the current law does not protect menopausal women and the group called on the government to commence section 14 of the Equality Act 2010 to allow dual discrimination claims and to consult within six month on making menopause a protected characteristic. It is disappointing; however, that the government has indeed already confirmed that it does not intend to change the Equality Act.

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New Legislation for Agency Workers and Damages Awards Against Unions

21 July 2022 saw the introduction of both the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699) and also the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852).

The Liability of Trade Unions Order increases the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. From 21 July 2022, the limits are now as follows:-

• Less than 5000 members: £40,000 (previously £10,000)
• 5,000 to 24,999 members: £200,000 (previously £50,000)
• 25,000 to 99,999 members: £500,000 (previously £125,000)
• 100,000 members or more: £1,000,000 (;previously £250,000)

The new agency worker Regulations revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319), which had previously prevented an employment business from supplying temporary workers to perform the duties of those that were normally performed by a worker who is on strike or taking part in industrial action. Employers are now no longer restricted from engaging such temporary workers in these circumstances.

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UK Supreme Court Success for Part-Time Teacher on Holiday Pay

A part-time music teacher has been pursuing a claim since 2017, when it began at the Employment Tribunal and has recently found its way to the Supreme Court. She was finally successful when the Supreme Court confirmed the rights of part-year and zero hour contract workers being entitled to the full 5.6 weeks’ statutory paid holiday under the Working Time Regulations 1998. The Supreme Court rejected the argument that such holiday entitlement should be reduced on a pro-rata basis.

This judgment gives clarity on calculating holiday pay for those in a similar working position, on zero-hour contracts. It is also a welcome decision for those workers who do not have a traditional model i.e. term-time workers at schools and universities.

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Tesco v USDAW & Others

A recent case has overturned the High Court’s decision regarding a decision granting a permanent injunction against dismissal to Tesco staff.

In 2007 Tesco offered warehouse staff a relocation package with a permanent pay premium that was agreed to be outside the general scope of collective bargaining. This was “guaranteed for life” for these employees, subject to dismissal etc.

In 2021, Tesco sought to buy-out this retained pay and subsequently sought to dismiss and re-engage those staff who objected to such. The High Court found an implied term that prevented any dismissal that removed retained pay. The High Court additionally granted a permanent injunction against dismissal.

The Court of Appeal, however, recently overturned the High Court’s decision. The proposed implied term that was discussed by the High Court was inconsistent with the general right in the contract to dismiss. In terms of the permanent injunction granted by the High Court, the Appeal Court knew of no cases where a private sector employer had been injuncted against dismissal for an indefinite period. In any case, the injunction’s terms were not clear.

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Belief Discrimination

In the recent case of Mackereth v DWP & Anr it was held that it is not unlawful discrimination to require a Christian doctor to use individuals’ preferred pronouns on the grounds of belief.

The Claimant carried out disability assessments and was required to refer to transgender users of such service by their preferred pronoun. He objected to such due to his Christian beliefs. The Claimant later resigned, as his employer could not find any way to accommodate his objection to such. He brought proceedings against his employer, claiming that he was subject to direct and indirect discrimination, as well as harassment, in relation to his particular beliefs.

His complaints were rejected by the tribunal, and by the employment appeal tribunal. The case failed on the facts. The employer had tried to accommodate the Claimant’s beliefs before taking action. The DWP’s aims were to ensure transgender service users were treated with respect and without discrimination and to promote equal opportunities.

Therefore, the measures taken by the employer were proportionate and necessary in the circumstances.

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