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

With spooky season fast approaching, trick or treat yourself to our latest edition of Worked Up!

While we seem to be lurching from one national crisis to another (although surely we all prefer an empty petrol station to a bout of Covid), there are many reasons to be buoyant from an employment perspective. Redundancy rates have fallen by 90% since their peak in June 2020, unemployment rates continue to fall, furlough is done and dusted (famous last words?) and there is genuine optimism from employers regarding the future of work in a post-pandemic world. Encouragingly, the drive to foster a diverse workplace also seems to be at the top of many an agenda with CIPD calls for mandatory ethnicity pay gap reporting for large employers and widespread reports of businesses beginning to focus on social mobility issues as well as their more traditional diversity goals.

In this month’s edition, we touch on compliance with DSAR requests during employment tribunal proceedings, sick pay policies for unvaccinated workers and the right to appeal during redundancy processes. We also examine the government’s recent consultation on flexible working and whether it goes far enough to bring real change in this area.

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While Covid may have forced many of us to consider our workplace a little differently, the Government’s recent consultation on flexible working shows that there may still be some way to go before we truly embrace a world of unbridled work flexibility, remote working, holograms and parlour walls.

The consultation itself sets out five proposals for reshaping the existing framework on flexible working. These include making flexible working a day one right, changing the administrative process on the right to request flexible working, raising awareness on the right to request a temporary flexible working arrangement, requiring employers to suggest alternatives to flexible working arrangements and lastly (and perhaps most importantly) making changes to the eight business reasons for refusing a request to work flexibly (which essentially allow an employer to reject a request for pretty much any reason).

While these proposals may seem progressive on paper, they are arguably quite timid and implementation may actually have little effect on the current right to flexible working. Widening the scope of the right to make flexible working a universal day one right for employees and allowing employees to make more than one statutory request per year would be a welcome change but, these changes will only prove meaningful if employers’ discretion to reject flexible working requests is limited.

That said, in this consultation, the Government clearly recognises that flexible working will not be brought about through legislative change alone. It is the change in work culture and employer/employee mindset that will be more likely to bring about real reform in this area. At the very least, it’s great that we are set to have a debate about something so crucial to many of us.

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With the closing of the SSP Rebate Scheme at the end of last month, employers may want to start considering their approach to sickness payment for unvaccinated staff forced to self-isolate. Supermarket giant Morrisons has already taken steps in this area, as it has announced that, as of 1 October, it is no longer paying full sick pay for pinged staff who have chosen not to be vaccinated.

In some ways, this is not a surprising decision from Morrisons. Where an employer has a large number of staff, the costs of sick pay for those who are forced to self-isolate can quickly add up. While there has been no guidance from government or the courts on whether such a sickness policy could potentially be discriminatory, it’s possible such a policy may indirectly discriminate against those with certain protected characteristics (namely disability, religious or philosophical belief and/or age) as we have covered in previous updates.

Indirect discrimination claims related to such policies are likely to face an uphill struggle. Nevertheless, any policy must be carefully drafted. We will continue to closely monitor developments in this space in the coming months.

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Gwynedd County Council v Barratt and another [2021] EWCA Civ 1322

The right to appeal a dismissal is often regarded as being synonymous with a fair process. But the question of whether or not an appeal is required for a fair redundancy is frequently misunderstood. This issue was the key point in contention in the case of Gwynedd Council v Barratt.

In this case, the claimants were two teachers who were dismissed by reason of a redundancy. During the redundancy process, there was no consultation and no right to appeal. The ET held that the teachers had been unfairly dismissed as the redundancy procedure was determined to be unfair. The EAT subsequently dismissed the Council’s appeal, a decision that has now been upheld by the Court of Appeal.

On the facts of this particular case, it was held that the Council’s decision fell outside the range of reasonable responses. However, in making its decision, the Court of Appeal emphasised that whether or not there was an appeal is only one of the many factors considered when determining the overall fairness of the redundancy process and that the absence of an appeal is not fatal to the employer’s defence.

While the employer lost this case, it was not because they had failed to offer an appeal. The case is therefore helpful confirmation that appeals are not required for a fair redundancy. Even so, appeals can prove useful in some redundancy situations, particularly if the consultation or selection process has not been dealt with fairly so it’s good practice to be flexible and open to appeals in some scenarios.

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Kong v Gulf International Bank (UK) Ltd [2021] EA-2020-000357-JOJ and EA-2020-000438-JOJ (10 September 2021

This case demonstrated that an employment tribunal will rarely attribute the motives of anyone but the decision-maker to the employer when determining the reason for dismissal in an unfair dismissal claim (narrowing the scope of what has been known as the ‘Jhuti’ principle).

In this case the Claimant, Ms Kong, and her superior, Ms Harding, had a disagreement where Ms Harding felt that the Claimant called her professional integrity into question. She subsequently raised the matter with HR, giving the impression that she could no longer work with the Claimant. The company’s Head of HR and CEO considered and formed the view that the Claimant should be dismissed. The Claimant later brought a claim for unfair dismissal.

The EAT observed that, unlike in Jhuti, this case was not an exception to the general rule that only the decision makers motivation is attributable to the employer. The EAT found that the company’s decision makers were not sufficiently manipulated by Ms Harding and were not solely reliant on Ms Harding’s oral account when making their decision. Accordingly, this case did not warrant an extension of the Jhuti principle.

It’s helpful to know that the Jhuti principle is limited and there must be a more active and demonstrable level of manipulation by someone in the hierarchy of responsibility above the claimant for Jhuti to apply.

In terms of practical advice and regardless of this decision, we recommend that you remain vigilant during dismissals. Ensure that the person making the dismissal decision was not involved in the circumstances leading up to the dismissal and that there is appropriate documentation on the reason for dismissal.

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Data Subject Access Requests – a phase that commonly elicits terror from even the most sophisticated and well-resourced employer – are not part and parcel of most employment litigation. If you couple the pressure of meeting DSAR deadlines with the stresses of an employment tribunal process, you have a recipe for potential GDPR non-compliance.

ICO’s recent enforcement notice to First Choice Selection Services (First Choice) demonstrates the importance of compliance with GDPR even during employment tribunal proceedings. First Choice failed to respond to a DSAR from a data subject who was simultaneously making an employment tribunal claim. First Choice claimed that it did not respond to the DSAR as it would only release information to the data subject upon the instruction of the tribunal. However, the tribunal confirmed to the data subject that it had no jurisdiction to deal with matters relating to data protection requests.

The ICO’s notice requires First Choice to properly respond to the DSAR and to make changes to its internal systems, procedures and policies to ensure it identifies and responds to any future requests. This serves as a reminder to employers that disclosure as part of an employment tribunal claim is a different regime to disclosure of personal data under a data subject access request. Employers should have appropriate processes in place to recognise and respond to such requests to avoid reputational damage as well as potential fines regardless of any ongoing litigation.

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