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

Welcome to the September edition of Worked Up!

With temperatures on the rise again, it’s almost as if there is still some life in summer. Yet with holidays drawing to a close, the schools returning and many businesses kicking off their new hybrid working policies, there is certainly the feel that we are starting a new dawn.

Covid is sadly still a very real presence in our lives and there remains trepidation about the winter to come. But despite all that, it’s hard not to feel optimistic.  From an HR and employment law perspective, it’s exciting to see discussions shift to new ways of working rather than focus on the worry of how to avoid disruption and keep people safe (although these points will of course remain relevant for some time to come).

In this edition, we touch on the topical issue of hybrid working mentioned above, take a moment again to consider the viability of vaccination policies (something many of our clients have been speaking to us about recently) and examine the proposed new duty on employers to prevent sexual harassment. We also consider recent case law on workplace dress codes, constructive dismissal and whether a requirement that an actor not be visibly pregnant could be justified as a genuine occupational requirement.

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While furlough was the talk of the town in 2020 (the scheme alas concludes at the end of this month), “hybrid working” looks set to be this year’s buzzword. Many businesses are reported to be moving to a “hybrid” model whereby staff will spend some time working from home and some time working in the office.

ACAS has published guidance on hybrid working which is available here. The guidance provides an overview of points to be aware of when considering hybrid working but it doesn’t address in detail the key practical issues you may face when implementing a hybrid working policy. For example, the increased data security risks if individuals are transporting materials between the office and their home, the difficulty in managing poor performers (and the potential need to require them to return to the office full-time) and the need to retain flexibility in order to be able to require employees to attend additional meetings/training sessions where needed.

If you are considering introducing a hybrid working policy, it’s crucial to ensure that this is drafted appropriately to cover off the risk areas and to provide enough flexibility to address potentially unforeseen issues that may arise in this area.

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We reported on the potential introduction of “no jab no job” policies in our March edition of Worked Up (available here). Fast forward 6 months and with almost 80% of the UK population fully vaccinated (i.e. two jabs of one of the recognised Covid vaccines) and everyone over the age of 16 in the UK now able to book a vaccine, it’s not surprising more and more clients are actively considering the introduction of a formal vaccination policy for their business.

The key risk in introducing these policies is how you will deal with staff who haven’t been vaccinated or who don’t wish to reveal their vaccination status. Exceptions could be made for those who are medically exempt from the vaccine but there are many other individuals who may have chosen not to receive the vaccine for a variety of different reasons, for example, as a result of their beliefs or as a result of a medical condition which does not strictly mean they can’t be vaccinated (e.g. an anxiety disorder).

If you are imposing a blanket “no jab no job” policy you could be at risk of an indirect discrimination claim if a potential staff member has a protected characteristic (such as a disability or a religious/philosophical belief) which is related to why they have not been vaccinated. Such claims can be defended on the basis that the policy was objectively justified, but to make out such a defence you would need to demonstrate you had a good reason for the policy and that there wasn’t a less discriminatory way of achieving your aim.

It’s also important to remember that an individual’s vaccine status will constitute special category personal data. Therefore, if you will be requesting confirmation/evidence of this, you will need to ensure that you satisfy one of the relevant conditions for processing such data (in addition to the general lawful basis) and are suitably transparent in terms of the processing (for example, ensuring your privacy notice sets out why you are collecting the data, the basis on which it will be processed and for how long it will be retained).

We have been advising a number of clients on their vaccination policies so if you would like to discuss this further please do let us know.

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In its response to the consultation on sexual harassment in the workplace, the Government has stated that it intends to introduce a new duty requiring employers to prevent sexual harassment in their workplace. It has also noted that it will look closely at extending the time limit for bringing harassment claims in an Employment Tribunal from 3 months to 6 months.

There’s little further detail available at this stage and, as with most things from Whitehall, no set implementation date for the new duty. The response simply states that the actions which require legislative changes will be introduced as soon as parliamentary time allows.

What seems clear though is that there is the real prospect of some meaningful change in this area. Bullying and harassment in the workplace is nothing new but that doesn’t mean that action shouldn’t be taken now to try and stamp it out. Fortunately, it’s an area that many of our clients are keen to tackle proactively, particularly given the widespread and high profile reports of harassment over the last few years in the media and interactive entertainment sectors. We therefore look forward to the Government fleshing out its proposals a bit more here and will update you once we know more.

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Kinlay v Bronte Film and Television Ltd ET/2200251/2020

Although a first instance decision, given the facts, this case will no doubt be of interest to our Film and TV clients.

The claimant was an actor who had previously played a minor role in a TV detective series. She was in discussions about reprising that role in a later series, where she would have a slightly larger though still fairly minor part (appearing in only three scenes). After the production company became aware that the actor was in the early stages of pregnancy, it decided not to re-cast her and replaced her with another actor.

The claimant brought a claim of pregnancy discrimination and the production company admitted that it had not cast the claimant because of her pregnancy but sought to argue that it was a genuine occupational requirement that the actor performing the role would not be visibly pregnant.

Under the Equality Act 2010, an employer will not discriminate by applying a requirement to have a particular protected characteristic if it is able to show that having regard to the nature or context of the work: (a) it is an occupational requirement; (b) the application of the requirement is a proportionate means of achieving a legitimate aim; and (c) the person to whom the employer applies the requirement does not meet it (or the employer has reasonable grounds for not being satisfied that they meet it).

The dispute in the case focused on the question of ‘proportionate means’ with the Tribunal ultimately rejecting the production company’s arguments and finding that: (1) it would have been possible to conceal the pregnancy without an unacceptable constraint on the director’s vision; (2) the risk of the actor being unwell was minimal given the timing of the filming; (3) any continuity issues could have been mitigated; (4) there were multiple ways to avoid the need for post-production visual editing and that if any post-production work was required the cost would not be disproportionate; and (5) the insurance position was not sufficiently prohibitive to mean that it was reasonably necessary to cast someone else.

While this decision is understandably fact specific, it’s notable that the Tribunal did not directly address whether a requirement that a woman not be pregnant (or as in this case, not be visibly pregnant) is potentially covered under the genuine occupational requirement exemption. The exemption itself refers to a requirement to have a particular protected characteristic and specifically sets out instances where this can be read as not having the protected characteristic, which notably does not include cases of pregnancy.

Ideally this case will be appealed so we have the benefit of an appellate decision on the point (and one that will hopefully address the question noted above).  However, in the meantime, production companies should continue to tread carefully when dealing with pregnant cast or crew.

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IX v WABE eV and MH Müller Handels GmbH v MJ (Joined Cases C 804/18 and C 341/19)

The European Court of Justice was asked to make a preliminary ruling in relation to two separate cases which involved employees who had been instructed not to wear Islamic headscarves at work. One employer had a rule which prohibited conspicuous, large-sized political, philosophical or religious signs in the workplace while the other had a rule which prohibited the wearing of any visible political, philosophical or religious signs.

The ECJ held that an internal rule prohibiting workers from wearing any visible political, philosophical or religious signs does not constitute direct discrimination on the grounds of religion or belief, provided that the rule is applied in a general and undifferentiated manner. However, the ECJ noted that a rule limited to conspicuous, large-sized signs of political, philosophical or religious beliefs may constitute direct discrimination where the sign is inextricably linked to a particular religion or belief and both rules may constitute indirect discrimination if they cannot be justified.

The ECJ held that indirect discrimination could be justified by an employer’s desire to pursue a policy of political, philosophical or religious neutrality with regard to its customers or users, provided that: (1) the policy meets a genuine need on the part of the employer; (2) the policy is applied in a consistent and systematic manner; and (3) the prohibition is limited to what is strictly necessary. The ECJ found that a ban on the wearing of signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality could only be justified if the prohibition covered all visible forms of expression and that a prohibition limited to conspicuous, large-sized signs, would, as mentioned above, be liable to constitute direct discrimination which cannot be justified.

This case highlights the risks associated with imposing dress codes and the factors that may need to be considered in order to defend any potential indirect discrimination claims.

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Driscoll (née Cobbing) v V&P Global Ltd and anor EA-2020-000876-LA

In this case, the Employment Appeal Tribunal departed from one of its earlier decisions and held that where an employee resigns in response to repudiatory conduct which includes unlawful harassment, the employee’s constructive dismissal is itself capable of constituting “unwanted conduct” and therefore potentially an act of harassment.

While this may seem like a technicality, it could lead to further claims as it means that employees who aren’t able to bring ordinary unfair dismissal claims (as they have less than two years’ service) may be able to bring harassment claims if they can show that their resignation was prompted by an act of unlawful harassment.

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Drawing this bumper edition to a close, we are pleased to bring you all some good news. The “temporary” changes to right to work checks which allow employers to carry out the checks over video calls and using scanned documents rather than originals are now set to continue until 5 April 2022.

The adjusted measures were originally introduced on 30 March 2020 and were due to come to an end on 31 August 2021, having previously been extended from 21 June 2021. The date is said to have been deferred due to the positive feedback received about the ability to conduct checks remotely. In fact, it looks like remote checks (in some form) may be here to stay as the Home Office has stated that it intends to introduce a new digital solution which will enable checks to continue to be conducted remotely.

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