Employment Law Bulletin: November 2022

• OTHER DEVELOPMENTS
• IN THE PIPELINE
• LEGISLATION AND REGULATION
• CASES

Welcome to November'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

 

 

OTHER DEVELOPMENTS

National Living Wage increase

• In response to the recommendations made by the Low Pay Commission earlier this year, in the Autumn statement on 17 November 2022, the government announced increased National Living Wage and National Minimum Wage rates.
o From 1 April 2023:
 National Living Wage (applying to workers 23 and over) will increase from £9.50 to £10.42 p/h.
 National Minimum Wage will increase to £5.28 (apprentices and 16-17 y/o), £7.49 (18-20 y/o) and £10.18 (21-22 y/o)

Disability pay gap reporting

• The Trades Union Congress wrote to the government in early November calling for urgent action to address the increasing disability pay gap. TUC suggests that non-disabled workers now earn on average 17.2% more than disabled workers, an increase from 16.5% identified in 2021.
• TUC’s proposals to address the gap include an introduction of mandatory disability pay gap reporting for employers with over 50 employees and an accompanying duty on employers to produce action plans that identify the steps they will take to address gaps identified.

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IN THE PIPELINE

Government backing for two private members bills

• Carer’s Leave Bill – if passed, will introduce a new entitlement of one week’s unpaid leave per year for employees who are providing or arranging care for dependant with long-term needs. Eligible employees would be entitled to this leave from day one of employment.
• Pregnancy and Maternity (Redundancy Protection) Bill – if passed, would give the Business Secretary the power to make regulations about redundancy during or after pregnancy and after a period of maternity, adoption or shared parental leave. Under the current rules, employers must offer suitable alternative vacancies to workers who are at risk of redundancy while on maternity, adoption or shared parental leave, where they exist. The government detailed its intention to introduce new regulations to extend this obligation to apply to workers from when they tell their employer they are pregnancy up until 18 months after the birth.

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LEGISLATION AND REGULATION

Proposed Amendments to the Retained EU Law (Revocation and Reform) Bill

• Opposition parties, including Labour and the SNP have tabled amendments to the Bill during a committee debate in the House of Commons.
• As it stands, the Bill will automatically repeal any retained EU law so that it expires on 31 December 2023, unless specific legislations is introduced to retain it or a government minister extends the deemed repeal date.
• The SNP and Labour put forward over 60 amendments, including a proposal to extend the expiration of EU law to 2026, and to retain key workers’ rights including annual leave and maternity rights.
• On 8th November, Labour MP Stella Creasy discussed the question of a “sunrise clause instead of a subset clause” which would ensure that all EU law would remain, unless or until specifically amended or repealed.

Employment Tribunal Procedural Rules

• Responsibility for the Employment Tribunal Rules of Procedure 2013 will shortly be passing from the Department for Business, Energy and Industry Strategy to the independent Tribunal Procedure Committee.

Exclusivity clause ban extended

• The ban on exclusivity clauses in employment contracts will soon cover low-income workers, as well as zero-hours workers.
• Exclusivity clauses are contractual clauses which prevent an employee from taking on work with another employer, or from doing so without consent. New regulations will see this ban extended to cover a wide range of contracts including notably where the minimum guaranteed weekly income is on or below the Lower Earnings Limit (£123 p/w).
• This change should offer lower paid workers the opportunity to increase their income and provide employers with a wider pool of candidates. The change will come into force on 5 December 2022.

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CASES

Morgan v Buckinghamshire Council
https://www.gov.uk/employment-appeal-tribunal-decisions/ms-m-morgan-v-buckinghamshire-council-2022-eat-160

The issue: did the fact that the Claimant’s conduct was influenced by her disability, of itself, prevent the tribunal from concluding the objective justification was made out in a s.15 claim for discrimination arising from disability?

The Claimant was employed as a supervising social worker. She is disabled due to various conditions, notably autism. She was dismissed for her conduct having given gifts to a child for whom she was responsible without the authority of her manager and because of the inappropriate content of a case note she had written.

The tribunal found the Claimant had not been unfairly dismissed. The Claimant appealed. The Employment Appeal Tribunal dismissed the appeal finding that the tribunal had found the Counsel had reasonably concluded the Claimant had breached professional boundaries and knew that she had done so. The tribunal had not inferred the Claimants refusal to provide consent for an occupational health assessment to be additional conduct nor by its decision did it wrongly penalise the Claimant for her autism, but had merely taken account how those issues had featured in the case.

 

Hilco Capital Ltd v Harrington
https://www.gov.uk/employment-appeal-tribunal-decisions/hilco-capital-ltd-v-denise-harrington-2022-eat-156

The issue: if an unfairly dismissed whistle-blower does not apply for any jobs before a remedy hearing because of concerns she will be stigmatised by future employers, is it a reasonable failure to mitigate losses?

At the remedy hearing, the tribunal did not reduce the compensatory award for an unreasonable failure to mitigate losses, accepting the Claimant’s concerns that job-seeking was pointless as she would be stigmatised by future employers as a whistle-blower.

Mindful that such cases are ultimately fact-sensitive, the Employment Appeal Tribunal applied principles from Abbey National plc v Chagger holding that the tribunal was wrong to simply accept the Claimant’s concerns without evidence to support them. The Claimant’s failure to look or apply for any jobs at all meant that the Respondent had discharged the initial burden on it to show an unreasonable failure to mitigate loss. The tribunal then had to decide if, in light of any explanations put forward by the Claimant and its own findings, that failure to apply or jobs was an unreasonable failure to mitigate loss. The case was remitted to the tribunal for further consideration.

Hilaire v Luton Borough Council
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-j-hilaire-v-luton-borough-council-2022-eat-166

The issue: could requiring a disabled employee to attend a redundancy selection interview amount to a substantial disadvantage?

Yes, held the EAT. The tribunal found that the relevant provision, criterion or practice applied by the Respondent was that of requiring the Claimant to attend an interview. The tribunal then concluded that this PCP did not place him at a disadvantage as he could have engaged with the process if he had wanted to do so, but he chose not to attend as he believed managers were conspiring to dismiss him.

The Employment Appeal Tribunal held that the tribunal applied the wrong test when considering the disadvantage; it had approached the matter on a binary basis by considering whether the Claimant was capable of attending and not considering whether it was more difficult for the Claimant to attend because of his disability. From the tribunal’s findings, the Claimant had problems with memory and concentration and with social interaction. It was obvious that such problems would, at the least, hinder effective participation in the interview, when compared with persons who were not disabled.

However, the tribunal had still been entitled to dismiss the claim on the basis that the PCP did not cause the disadvantage, as it was the Claimant’s loss of confidence in the Council that prevented him from attending the interview.

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