Insights Worked up, your monthly employment law lowdown – November 2021

With the clocks going back and the days growing shorter, we can’t think of anything better than reading our November edition of Worked Up during these long winter evenings.

For those who missed Rishi Sunak posing with the iconic red box, pay rises are on the horizon as the National Living Wage is set to increase to £9.50 from April 2022. While we were happy to hear that Doncaster Town Centre is levelling up, we also took note of the significant budget increase for upskilling and reskilling the UK workforce – perhaps the government has also been paying attention to its own BEIS guidance on the need to retrain staff as AI begins to displace low wage employees?

Also, in other Parliamentary news, the government has blocked the fire and re-hire bill so it would seem that the practice of terminating and re-engaging staff (often used as a way of pushing through changes to employment terms) is here to stay for the foreseeable future.

In this month’s edition, we cover whether menopause can qualify as a disability under the Equality Act, examine sponsored worker routes for creative workers, consider the impact of AI in the workplace, look at bullying and harassment policies in the film, television and gaming industries, wet out toes on the thorny issue of mental health in the workplace and the ponder the unpredictability of tribunal decisions in the context of age discrimination cases.

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Rooney v Leicester City Council [2021] 10 WLUK 69

While the days of women being seen and not heard are (hopefully) behind us, menopause is arguably still a taboo subject in the workplace. Menopausal women are currently the fastest-growing working demographic and, as their representation has increased, so has their challenge to the silence surrounding the experience of working during menopause.

The recent EAT decision in Rooney v Leicester City Council, handed down just ahead of World Menopause Day on 18 October 2021, is perhaps a summation of this challenge. Mrs Rooney, a childcare social worker for Leicester City Council, brought several claims against her former employer, including a disability discrimination claim on the basis that her menopause constituted a disability pursuant to the Equality Act. In her claim, Mrs Rooney cited symptoms such as anxiety, hot flushes, fatigue, and joint pain that left her occasionally bed-bound and struggling to cope. In the first instance, the tribunal held that Mrs Rooney’s menopause did not amount to a disability and that any physical symptoms were not physical impairments that were long-standing or had a substantial effect on her ability to carry out day-to-day activities.

On appeal, the EAT held that the tribunal had erred in this respect as Mrs Rooney had indeed provided evidence that her physical symptoms were ongoing for over twelve months and did have a significant impact on her day-to-day activities. Further criticism was levied at the tribunal for their focus on what Mrs Rooney could do rather than what she could not, which goes against previously established case law in this area. The EAT held that, on the facts, Mrs Rooney’s menopause amounted to a disability given its severity over a substantial period of time. It should be noted, however, that while Mrs Rooney’s menopause was considered to be a disability, this case does rest on its facts and menopause, in itself, will likely not always be considered a disability.

With a brighter spotlight being shone on menopausal issues and their potentially substantial impact on a large number of employees, the time to consider your approach to menopausal issues may be fast approaching. If you are considering introducing a menopause policy, require appropriate training for line managers, HR or wellbeing champions, or are dealing with a menopausal issue with specific employees and need guidance, please do get in touch.

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As the breakneck pace of change in UK immigration law continues unabated, last month saw a further re-branding of the short-term creative worker visa route. This is now called the “Temporary Work – Creative Worker route” and changes to the Immigration Rules have brought a degree of clarity by placing the rules for creative workers in their own section for the first time, separate to those for sporting workers. The reference to “Tier 5” has now been dropped.

Sponsors of crew and performers in the film and tv sector will be familiar with the codes of practice for creative workers. These provide a number of exemptions from the normal requirements to have regard to the resident labour market before a migrant worker is engaged. A sponsor doesn’t need to show they have advertised the vacancy to the resident workforce and been unable to find a suitable recruit if, for example, the role to be sponsored is a senior creative grade, is required for production continuity, or the individual has highly specialist skills (amongst a few other exemptions). There are other codes for creative sectors such as dance, theatre, or the fashion industry.

It is worth noting though that the rules permit sponsors to bypass the code of practice if the role to be sponsored is in recognised shortage. Currently this includes several roles relevant to film and tv production; namely “Arts officers, producers and directors”, which encompasses “Film editor, Production assistant, Studio manager and Television producer”.

Post-Brexit the sponsored work routes have an increased significance, since EU nationals will now generally require permission to work in the UK. The creative worker route is one option, however it is worth flagging that the ‘Skilled Worker’ route may be relevant for longer engagements, or even the ‘Global Talent’ route for particularly lauded workers.

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Pitcher v Chancellor, Masters and Scholars of the University of Oxford [2021] 9 WLUK 293 (27 September 2021).)

While lawyers are often the first to advise clients about the unpredictable nature of tribunals, the EAT’s recent decision to dismiss two conjoined appeals concerning unfair dismissal and age discrimination demonstrate that this advice is not just old hat.

The cases both concerned whether the employer justified retirement age (EJRA) of Oxford University and St John’s College was discriminatory. In the first case, an employment tribunal found the retirement dismissal fair and that the EJRA was justified. Conversely, in the second case, the direct age discrimination and unfair dismissal claims were upheld as the EJRA was not objectively justified. Why the difference of opinion? It seems to come down to the presentation of evidence. Different evidence was presented at both tribunals in relation to the detriment suffered to those whom the EJRA applied and one tribunal had the benefit of quantifiable evidence on the impact of the EJRA on staff vacancies which assisted the Respondent’s case.

These opposing decisions at tribunal level give weight to the importance of obtaining evidence, where possible, on the impact of a policy on the achievement of a legitimate aim. This is particularly important in relation to age discrimination as concerns of discrimination of those aged 50+ have been on the rise, particularly in the context of recruitment (given that the job market has been flourishing after several economic dry seasons). In a recent survey, 52% of job seekers over 50 believed that their age had a negative impact on their job prospects. As the economy has begun to recover and recruitment processes begin anew, employers need to be careful to avoid discrimination at both recruitment and retirement level, unless it can be objectively justified and is in pursuit of a well-evidenced legitimate aim.

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Stott v Ralli Ltd [2021] 6 WLUK 684

In the recent case of Stott v Ralli Ltd, the claimant suffered from anxiety and depression and was dismissed for poor performance after several months of employment. At the time of her dismissal, her employer was unaware of her condition and was only informed of her mental health problems after she raised a grievance following her dismissal. The EAT upheld the tribunal’s decision that the dismissal for poor performance was not an act of discrimination arising out of the Claimant’s mental health impairment.

On the evidence, the EAT held that her employer did not have actual or constructive knowledge of the Claimant’s mental health issues at the time of her dismissal. The EAT further held that the employer’s subsequent knowledge of the Claimant’s mental health issues at the time of her post-dismissal grievance was not relevant to the Claimant’s case. While in the context of an unfair dismissal claim the dismissal would include the process encompassing the appeal stage and outcome, the EAT confirmed that this was not an approach that should be taken for disability claims. Separate consideration was required for whether the decision to dismiss was discriminatory and whether the decision on an appeal was discriminatory as they are distinct propositions that should be raised separately.

So, is ignorance bliss and should employers avoid learning more about employees who they suspect may be suffering from mental health issues? It will very much depend on the facts but we’d advise some caution here as there is no automatic safe haven from not being informed explicitly of a particular condition an employee is suffering from. If employers suspect that an employee may be struggling due to mental health issues, there may be grounds to establish constructive knowledge. Of course, getting the most out of staff will also mean supporting them, which may include providing effective mental health support where appropriate.

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Dealing with harassment remains at the top of the priority list as leaders in film and TV push to stomp out unacceptable behaviours across the industry. According to Deadline, leading broadcasters have put productions to task and requested that producers have a suitable bullying and harassment policy in place before giving the green light on production. While some productions may (understandably) focus on addressing bullying and harassment on set, employees working from home may be just as vulnerable. In a recent survey by the Fawcett Society, 23% of women said sexual harassment increased or escalated while working from home during Covid. It is, therefore, important that any policies concerning respect in the workplace are suitable for both at home and in-person working models.

Having a suitable bullying and harassment policy in place is not just limited to small and silver screens. Recent sexual harassment claims in the video games industry have led to employee walkouts as well as the resignation of CEOs, senior executives and HR staff, with matters becoming especially uncomfortable for some of the largest game publishers. The growing concerns over bullying, harassment and inequality are reflected in this year’s IGDA Developer Satisfaction Survey, which shows an all-time low for perceived inequality in the games industry and a lack of appropriate policies in place for dealing with respect at work issues.

While maintaining a safe and healthy working environment is important to many of our clients, updating and implementing bullying and harassment guidelines can be an overwhelming task. We have advised a number of our clients on appropriate policies to promote respect in the workplace and diversity, equality and inclusion to ensure that their policies remain apt for the changing work landscape.

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With robotic production levels in China at an all-time high and companies significantly stepping up investment in automation and AI, a workplace filled with T-8000s, Replicants and Robocops may not be far away. While we await a Westworld-esque future, many companies with a high physical proximity work area have already deployed AI and automation in their warehouses, call centres and manufacturing plants.

In a recently published BEIS report, there is evidence to suggest significant displacement for workers in the lower wage brackets as AI and automated processes replace administrative and physical labour. Some of the big hitters in the digital market, like Amazon and IBM, have started the process of retraining their employees to improve their technological, emotional and social skills. The gradual incorporation of AI technology can also be seen in pre-production as assistive technology and recommendation algorithms are being used to cast actors and scout locations.

So, will managing AI within the business be a job for HR or IT? Arguably both! While IT may assist with the tech, AI’s augmentation of the recruitment, redundancy and people management will need a capable steer from HR. The interplay between man and machine in the workplace may give rise to new (and interesting, from our perspective) employment law issues. Discrimination issues arising from automated decision making in redundancy processes and recruitment may be potential problems of the near future, while identifying where workers need to be potentially retrained and redeployed within the business may be a question for the now.

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