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HRizon March/April 2021 hilldickinson.com
In the In the European Court of Justice
When will time spent ‘on-call’ amount to working time? Working time: does the minimum daily rest period apply
The European Court of Justice (ECJ) has recently across multiple employment contracts? Yes, held the
considered whether a worker, who is ‘on-call’ and required European Court of Justice (ECJ), where a worker has
to work if called upon to do so, should be regarded as several employment contracts with the same employer, the
being engaged in working time throughout the whole of minimum daily rest period provided for by the Working
the standby period. Time Directive (WTD) applies to those contracts taken as a
whole and not to each of those contracts taken separately.
A Slovenian employee, DJ, worked as a specialist
The case involved Romanian workers employed under
technician at two television transmission centres (centres)
several employment contracts with the same employer.
located in remote mountainous locations. It was necessary
The combined effect of those contracts meant that the
for DJ to stay within the vicinity of the centres because of
worker’s daily rest period was less than the minimum set
the nature of his work, the significant distance between the
down by the WTD. The ECJ held that it is not possible to
centres and his home, and occasional difficulties accessing
meet the requirements of the WTD if the entitlement to a
the centres caused by adverse weather due to their
daily rest period is considered separately for each contract
mountainous location. DJ spent some time on standby,
between a worker and the same employer. If that were
during which he was not obliged to remain at the centre
permitted, the hours constituting rest periods under one
but had to be contactable by telephone and to be able to
contract could constitute working time under another
return to work within one hour. Due to the remote location
contract. Since the same period cannot be simultaneously
of the centres, the employer provided DJ and his colleague
classified as both working time and a rest period, it follows
with onsite accommodation. The remote location also
that where there are multiple employment contracts
meant that DJ and his colleague had limited opportunities
between a worker and their employer they must be
for leisure activities within the vicinity. DJ brought a claim
considered together when establishing whether a period
in the Slovenian domestic courts arguing that the entire
described as daily rest occurs in a period that does
period should be treated as working time, irrespective
not constitute working time. The WTD’s objective is to
of whether he had been called out to perform work. The
guarantee better protection of the safety and health of
claim was referred to the ECJ for a declaration. The ECJ
workers by providing them with minimum rest periods.
held that time spent on standby, during which the worker
Questions referred to the ECJ on the interpretation of
must remain contactable by telephone and must be able
the minimum daily rest period provisions where a worker
to return to the workplace within a limited amount of time,
has employment contracts with several employers were
while being able, but not required, to stay in workplace
EMPLOYMENT
inadmissible in this case, but it seems likely that the same
service accommodation provided by the employer, does
principles would apply.
not in its entirety amount to working time.
Brexit: Although courts and tribunals are not bound by
The national court must decide how much of the period
ECJ decisions made after the end of the Brexit transition
of standby is working time. Relevant factors include the
period, they may have regard to decisions, in so far as they
consequences of the requirement to respond to call-
are relevant to any matter before the court or tribunal.
outs within a specified amount of time, and the average
(Academia de Studii Economice din Bucureşti [2021]
frequency of work activity during the standby period. If,
EUECJ C-585/19).
taken together, those factors mean that the constraints
Welcome to our March HRizon employment imposed on that worker during that standby period affect,
objectively and very significantly, the worker’s ability to
newsletter. We consider important decisions freely manage his leisure time and pursue his own leisure
interests, then this may render the time ‘working time’.
regarding the rights of ‘on-call’ and ‘sleep-in’ However, the limited nature of the worker’s opportunities
to pursue leisure activities within the immediate vicinity
workers, and equal pay comparators. We also look of the workplace, due purely to its remote location, as
opposed to constraints imposed by the employer, is
at the first two covid-related tribunal decisions, and irrelevant.
Brexit: As this decision was given after Brexit, courts and
highlight other recent employment law cases and HR tribunals may still have regard to it so far as it is relevant
to any matter before the court or tribunal eg when
news from the last month. interpreting the Working Time Regulations 1998. (DJ -v-
Radiotelevizija Slovenija (Case C-344/19) EU:C:2021:182)
hilldickinson.com
In the Supreme Court In the Court of Appeal
Should ‘sleep-in’ workers be paid the National Minimum Can female supermarket workers compare themselves Trade unions: is the statutory bar on recognition
Wage for the entirety of their shift? This question, which has to male comparators working at the supermarket’s applications being made by a rival trade union, where
been the subject of a long-running dispute for many years distribution depot? To bring an equal pay claim, the there is already voluntary recognition agreement,
now, has recently been answered by the Supreme Court. claimant must name a real life comparator of the opposite incompatible with the right to freedom of association?
sex; this cannot be a hypothetical comparator. If the There is a statutory bar, which means that a trade union
Two men with autism and substantial learning disabilities
comparator is based at another establishment, common cannot apply to the Central Arbitration Committee (CAC)
required 24-hour support. Their team of support workers
terms must apply at both establishments. for statutory recognition if there is already an existing
were organised into day and night shifts. The night shift was
recognition agreement with another union.
a ‘sleep-in’ shift, meaning that suitable sleeping facilities The Supreme Court has recently considered whether
were provided so the care workers could sleep. No specific female supermarket workers can compare themselves The Court of Appeal has recently considered whether this
work tasks needed to be completed during a sleep-in shift, to male comparators working at the supermarket’s statutory bar is incompatible with the right to freedom
but the care worker had to remain onsite and intervene if distribution depot. Around 35,000 equal pay claims were of association (art 11 European Convention on Human
necessary (in real terms this need rarely arose). One of the brought by Asda’s mainly female supermarket workers, Rights). The Independent Workers’ Union of Great Britain
care workers, TB, claimed that she should have been paid who claimed that they carried out work of equal value (IWGB) represents various workers working at various
National Minimum Wage (NMW) for the entirety of the with higher paid mainly male distribution depot workers. sites of a university. The IWGB applied to the CAC to be
sleep-in shifts. TB’s claim was upheld by the employment Asda sought to dismiss the claims on the basis that the recognised for collective bargaining purposes by both the
tribunal, and later by the Employment Appeal Tribunal claimants could not use the comparators they had chosen, worker’s employer and the university. The CAC held that
(EAT). The Court of Appeal upheld the employer’s appeal but the employment tribunal dismissed this application. both recognition applications were inadmissible because
and held that TB was only entitled to receive NMW for the Asda’s appeals in the EAT and Court of Appeal were of pre-existing voluntary recognition agreements with
rare times during which she was required to be awake to unsuccessful, so it appealed to the Supreme Court. Unison. Further, the CAC held that the application against
respond to an emergency or perform a specific work task the university was inadmissible because it was not the
Asda’s appeal was unanimously dismissed by the Supreme
during the night. TB further appealed. The Supreme Court employer of the workers in question (they were employed
Court, which held that the retail claimants are able to
unanimously dismissed TB’s appeal and held that, under by a service provider). The IWGB sought judicial review
compare themselves to the distribution depot workers for
the National Minimum Wage Act 1998, the government of the CAC’s decision arguing, among other things, that
the purposes of their equal pay claims. The Supreme Court
was bound to accept the recommendations of the Low Pay the statutory bar was incompatible with the workers’ right
held that the employment tribunal had made some errors
Commission (LPC) on various matters. The LPC’s first report to freedom of association. The High Court dismissed its
in its approach, specifically because it had performed
recommended that, unless they are awake for the purposes judicial review application, so the IWGB appealed to the
a line-by-line comparison of the specific terms and
of actually performing work, ‘sleep-in’ workers should not Court of Appeal. By the time of the hearing, the relevant
conditions of employment of the distribution employees
receive the NMW, but should instead receive an allowance workers had TUPE transferred back into the university’s
versus the retail employees. The correct approach is to
agreed with their employer. The government accepted the employment. This meant that the sole remaining issue was
look at the surrounding facts and circumstances, and
recommendation when it enacted the sleep-in exception whether the statutory bar was incompatible with the right
make a broad comparison asking whether the terms were
(regulation 32). Under the sleep-in exception, the worker to freedom of association. The Court of Appeal held that
substantially the same at the distribution depots and at the
must be awake ‘for the purposes of working’ to be entitled the statutory bar was not incompatible with the workers’
supermarkets.
to the NMW. It is necessary to look at the arrangements right to freedom of association (art 11). When it introduced
between the employer and the worker to see what the In any event, applying the approach known as the ‘North the relevant trade union recognition legislation, parliament
worker is required to do within the hours of the sleep-in hypothetical’ (which asks whether the existing terms and had made a policy choice to encourage voluntary
shift. If the worker is allowed to sleep for the duration, and conditions would apply, assuming that the comparator collective agreements and to promote stability of collective
is only required to respond to emergencies, the worker is was employed to do his present job in the claimants’ bargaining, rather than to enable competing claims for
not entitled to receive the NMW for any hours they spend establishment). The Supreme Court held that it does not recognition by rival independent unions. (R (Independent
sleeping. However, any time that the worker is responding have to be ‘feasible’ for the comparator group to be able to Workers Union of Great Britain) -v- Secretary of State for
to an emergency, or otherwise performing work tasks, is carry out their role at the claimants’ establishment; it could Business, Energy and Industrial Strategy and others [2021]
working time for which the NMW must be paid. For the have been envisioned that a depot was situated next to the EWCA Civ 260)
purposes of calculating NMW entitlement, the frequency retail store at the claimants’ establishment. The claimants
of the worker being called out to respond to emergencies had succeeded before the tribunal in demonstrating
during the night is irrelevant to the question of whether they that the depot workers would have been employed on
are working. substantially the same terms if they had been employed on
the same site as the supermarket. The female supermarket
Comment: However, employers with sleep-in workers should
workers can validly compare their terms to those enjoyed
consider whether they are ‘working’ for the purposes of
by the male distribution employees, and their equal pay
working time rights, and one factor which can be relevant
claims based on the roles being of equal value can now
to that question is the frequency of call-outs (see our report
proceed. (Asda Stores Ltd -v- Brierley and others [2021]
of the DJ -v- Radiotelevizija Slovenija case above). (Royal
UKSC 10)
Mencap Society -v- Tomlinson-Blake [2021] UKSC 8)
hilldickinson.com
In the Employment Appeal Tribunal TUPE: Does an ECJ ruling on transfers to multiple
transferees apply to service provision change transfers?
TUPE: Can a tribunal order that a transferee (which is
not a party to the claim) must re-engage an employee
Is it sex discrimination to pay a man on shared parental
leave less than a woman on statutory adoption leave? No,
Was an employee fairly dismissed for setting up a In 2020, the European Court of Justice (ECJ) held that, in who ought to have automatically transferred to its held the EAT, upholding the ET’s decision and dismissing
camera to record his private office without permission? a TUPE transfer involving a split of a transferor’s economic employment? The EAT has recently considered whether the employee’s appeal. A male employee, P, alleged
Gross misconduct is a potentially fair reason to dismiss activities to multiple transferees, an employee can transfer a tribunal correctly dealt with remedy for a TUPE-related that his employer’s shared parental leave (SPL) policy
an employee without notice, provided dismissal falls to more than one transferee in proportion to the tasks they dismissal, when it ordered that a transferring employee amounted to direct discrimination on the grounds of sex,
within the range of reasonable responses to the alleged perform (Govaerts). However, the Govaerts decision related should be re-engaged by a legal entity which was not a as a man on SPL would receive less pay than a woman
wrongdoing. The Employment Appeal Tribunal (EAT) has to a business transfer, and there was some uncertainty party to the proceedings. on statutory adoption leave (SAL). After P’s claim was
recently considered if an employee, A, had been fairly about whether the principle extended to service provision dismissed by the ET, he appealed to the EAT. Dismissing
dismissed for setting up a covert camera to secretly record N was a partner in a GP practice, which provided GP
change transfers. The EAT recently considered this issue. P’s appeal, the EAT held that the underlying purpose of
in his private office. services under a contract with the local health board. After
The background is that a single contractor was contracted SPL and SAL is materially different. SPL is aimed at the
the GP practice dissolved, the health board temporarily
A and his father sold their jointly owned family business to replace kitchens in a local authority’s social housing facilitation of childcare and giving parents greater choice,
took over running the services itself and the employment
to NPL in January 2014. As part of the commercial deal, between 2012 and 2017, two teams of workers were whereas the purpose of SAL includes matters such as
contracts of the medical practice’s staff transferred to
A and his father became directors, minority shareholders assigned to work exclusively on this contract. When the encouraging the formation of a parental bond and the
the health board under TUPE. However, as N was not
and employees of NPL. Another member of A’s family local authority retendered the work, it split the work along taking of steps to prepare and maintain a safe environment
an employee, he was not one of the staff automatically
also worked for NPL. After relations began to sour geographical lines into two separate contracts, awarded for the child. Further, SPL and SAL operate in materially
transferred. Instead, N signed a fixed-term employment
between the various directors, all three family members to two new contractors. The new contractors did not different ways as to the taking of the period(s) of leave.
contract with the health board and continued to provide
were suspended, pending a disciplinary investigation. take on all of the original contractor’s employees. At a The EAT held that the ET had been right to determine that
the GP services. The health board later awarded the
A set up a web-enabled camera in his private locked preliminary hearing, the employment tribunal held that a woman on SAL was not an appropriate comparator for a
contract to a different GP practice (LP) and all of the
office during his suspension, because he was concerned there had been a service provision change TUPE transfer. man on SPL. The correct comparator was a woman on SPL.
practice’s staff, except for N, transferred from the health
that someone had secretly accessed the room to use his The tribunal allocated employees to each of the new Since a woman on SPL would have received the same pay
board to LP. The health board did not intend for N to
computer. An investigation and disciplinary process was contractors according to which team they were in pre- as a man on SPL under the employer’s policy, there was no
transfer to LP, and gave N notice to terminate his fixed-
conducted, which resulted in the dismissal of all three transfer. The new contractors both appealed to the EAT; sex discrimination. (Price -v- Powys County Council [2021]
term contract the day before the transfer. N brought a
family members. Among other factors, the surveillance they accepted that there had been a service provision UKEAT/0133)
claim against the health board, arguing that he ought to
that A had set up in his private office was relied upon to change transfer, but argued that the tribunal had erred in
have transferred and that his dismissal was automatically Is a worker entitled to carry over the right to payment
justify his gross misconduct dismissal. As a result of their the allocation of the transferring employees. The EAT held
unfair under TUPE. The health board conceded that N’s for unpaid annual leave previously taken? In 2017, the
termination, A and his father were also stripped of their that the Govaerts principle can apply in the context of a
dismissal was unfair (as he had more than two years’ European Court of Justice (ECJ) ruled that: (a) a worker
directorships in NPL. A’s unfair dismissal claim was upheld service provision change TUPE transfer (as well as to a
service by other means). At the remedy hearing, the is entitled to be paid on termination for any periods of
by the employment tribunal on the basis that dismissal fell business transfer). Strictly speaking the ECJ’s decision in
employment tribunal ordered that (a) LP should re-engage annual leave that have accrued during employment if they
outside the band of reasonable responses. NPL appealed. Govaerts was binding only regarding business transfers,
N; and that (b) the health board should pay N the arrears have been discouraged from taking that leave because it
The EAT held that the tribunal had been entitled to reject but the EAT considered that it would be undesirable for
of pay due between his dismissal and his re-engagement. would have been unpaid; and (b) there was no limit on the
NPL’s assertion that A had breached the law by installing the consequences of a TUPE transfer to depend on the
The EAT upheld the health board’s appeal. The tribunal amount of leave that could be carried over in this type of
a camera in his office, without its permission. A was a type of transfer. In practical terms, this means that if there
had erred in the way it had dealt with remedy. Firstly, once case because an employer that does not allow workers
director and shareholder, not just an ordinary employee, is a TUPE transfer to multiple transferees, a transferring
it had found that N had been subject to a TUPE transfer, to take paid leave must bear the consequences (King -v-
and in that light his actions could be perceived as being to full-time contract of employment can be split between
the automatic transfer principle meant that any liability Sash Window Workshop Ltd and another). The EAT has
protect the business from a snooper in his private office. the different transferees into a number of part-time
for N’s dismissal had passed to LP. Secondly, the tribunal recently upheld an ET’s decision that this does not mean
It was necessary to balance the right to privacy against contracts. The EAT has returned the case to the tribunal
had been wrong to make an order requiring that LP, who that a worker has a right to carry over payment for annual
A’s desire to protect his confidential information, and for it to consider the application of Govaerts to each of the
was not a party to N’s claim, should re-engage him. A leave where the worker was permitted to take leave that
there was only a very small risk that individuals would claimants. (McTear Contracts Ltd -v- Bennett & Ors [2021]
fresh employment tribunal will now reconsider remedy was unpaid. The ECJ’s judgment in King does not apply
be caught on camera entering A’s private locked office. UKEAT 0023_19_2502)
and N can apply to join LP as a respondent to the claim. to leave that was taken, albeit on an unpaid basis because
However, the claim has been sent to a fresh tribunal, which (Greater Glasgow Health Board -v- Neilson [2021] UKEAT at the relevant time the worker’s employer did not accept
will reconsider whether NPL was entitled to dismiss A for 0013_20_1602) that he or she was a ‘worker’ entitled to paid holidays. In
failing to follow a management instruction. The case is a any event, the claim was bought out of time, because it
reminder to employers to set out clear rules about covert was presented more than three months after the date
workplace recording/surveillance within the contract/ of the most recent failure to pay holiday pay. Despite
relevant policies, so that employees are clear about what is the contract saying the worker was self-employed, there
and is not permitted. (Northbay Pelagic Ltd -v- Anderson was no real impediment to them making inquiries about
[2021] UKEAT 00029_18_2801) their true status and seeking legal advice. In non-binding
comments, the EAT president proposed additional wording
which could be added to the WTR to allow a worker to
carry over untaken leave where they are prevented from
taking holiday due to their employer’s refusal to pay them
for it, and to enforce that right in the employment tribunal.
(Smith -v- Pimlico Plumbers [2021] UKEAT 0211_19_1703)
In the Employment Tribunals: If an employee refuses to attend work due to COVID-19 related health and safety concerns,
will their dismissal be automatically unfair?
Was an employee fairly dismissed for failure to wear a Following a disciplinary process, K was dismissed. The
facemask on client site? K worked as a HGV driver for a dismissing officer found that K had deliberately refused to The dismissal of an employee for specified health and R issued an unfair dismissal claim. He did not have the
food distribution company. His role involved him driving comply with a health and safety instruction, that this was safety reasons is automatically unfair (s100 ERA 1996). requisite two years’ service for ordinary unfair dismissal,
to client sites to collect raw food product and deliver it a serious breach aggravated by K’s lack of remorse. He This includes where the reason (or principal reason) for but argued his dismissal was automatically unfair as he
to their customers. Most of his depot’s work came from considered that K’s misconduct and lack of remorse were dismissal is that, in circumstances of danger, which the had been dismissed for refusing to attend the workplace
Tate & Lyle’s (TL) Thames Refinery site. The employer more important factors that the TL site ban. Even if the site employee reasonably believed to be serious and imminent: due to his concerns about the imminent danger to health
made plain in their staff handbook that maintaining good ban had been lifted, he would not have trusted K not to act (a) they left (or proposed to leave), or (while the danger and safety due to COVID-19. The ET dismissed R’s claim
relations with its customers, and complying with the similarly in future, potentially endangering the employer’s persisted) refused to return to their place of work or any and held that his dismissal was fair in the circumstances.
PPE rules of customers while on their sites, was of the good relationship with other customers. K’s unfair dismissal dangerous part of their place of work; and/or (b) they The ET held that R did not have a reasonable belief of
utmost importance for drivers. As part of their response claim was dismissed by the ET, and his dismissal held to took (or proposed to take) appropriate steps to protect serious and imminent danger in the workplace. Instead,
to the coronavirus pandemic, TL introduced a rule that be fair. The employer reasonably believed K was guilty of themselves or other persons from the danger. R’s evidence that he had barely been outside his home
everyone on their premises/site (whether staff or visitors) misconduct, had conducted a reasonable investigation in during the pandemic, showed that he had a generalised
Leeds employment tribunal recently considered a claim
must wear a facemask at all times. As this was intended the circumstances, and there were reasonable grounds fear that there was danger in wider society. Further, even if
brought under these provisions in the context of health
to be a temporary measure, the rule had not yet been to conclude that K had committed misconduct. The R did believe the danger was work-related, that belief was
and safety fears arising from the COVID-19 pandemic. The
incorporated into the TL site rules (given to visiting disciplinary procedure the employer followed had been unreasonable given the safety measures the employer had
employee, R, worked as a laser operator. The first national
drivers). However, the rule had been communicated with fair. Although some employers may have given K a final put in place to reduce the risk of COVID-19 transmission in
‘lockdown’ was announced on 23 March 2020, but as R’s
TL staff, and the security gate had been given a supply of written warning, K’s dismissal fell within the range of the workplace.
role could not be performed from home, he continued to
masks and been instructed to inform all visiting drivers of reasonable responses given: (a) the importance to the attend work until the 27 March. On 29 March, R texted his Comment: These cases are often very fact sensitive, but
the rule and to provide them with a facemask to wear. K employer’s business of maintaining good relationships boss to say he had no alternative but to stay off work until the employer here was able to demonstrate that it had
arrived at TL’s site shortly after the rule commenced and with its suppliers and customers; (b) the fact K’s continued the lockdown had eased because his child had sickle cell conducted risk assessments and implemented changes in
was given a facemask by the security gate and told he insistence that he had done nothing wrong had caused the and was vulnerable to the virus. He then produced a self- the workplace to reduce COVID-19 transmission. Doing so,
needed to wear it at all times. K was spotted by TL staff in dismissing officer to lose confidence in K’s future conduct; isolation note for the period 28 March to 3 April. R never and communicating this with staff, can go a long way to
the cab of his HGV—with the window open—not wearing and (c) a further relevant factor was that it was not feasible returned to work and there was no contact between R and dispelling their fears, and that can in turn make it difficult
a facemask. The TL staff asked K to put his facemask on. for K to continue in his contractual role due to the TL site his employer until 24 April when he texted his boss to say for them to form the requisite belief in a serious and
An argument ensued during which K ranted to the TL staff ban. (Kubilius -v- Kent Foods Limited [2021], East London that he understood he had been dismissed and requesting imminent health and safety risk. (Rodgers -v- Leeds Laser
that he had not been told he needed to wear the mask in ET 3201960/2020) his P45. Cutting Limited, Leeds ET 1803829/2020)
his cab and that the law did not require him to wear one.
As a result, TL emailed the employer reporting the incident
and placing K on a site ban. The site ban meant K could no
longer attend any of TL’s sites. It was not possible for K to
work at the Basildon depot without working on the TL site
(as most of the work came from there), and there were no
alternative vacancies at the employer’s other sites that did
not involve work with TL.
hilldickinson.com
New legislation
In the news
Did the use of an unadjusted Bradford Factor score
in an absence-management process amount to
disability discrimination? Many employers have absence Health and safety legislative protection to be extended
management policies or procedures that use a system of to workers: In 2020 the High Court held that the UK had
‘trigger points’ to highlight problematic attendance. One failed to properly implement the EU Health and Safety
such system, which was once very popular but has since Framework Directive by limiting protection from detriment Modern slavery statements, Discrimination compensation TUC survey of workplace
waned in popularity, is the Bradford Factor (BF), the basic on health and safety grounds under section 44 of the new online registry: - new Vento bands: safety representatives:
premise is that regular short absences are worse than one Employment Rights Act 1996 (ERA 1996) to employees
A large commercial organisation (with Compensation for injury to feelings The Trades Union Congress (TUC) has
longer absence. Exeter employment tribunal has recently (see November’s HRizon). The government has now
a total turnover of over £36 million in discrimination claims is awarded published the results of its biennial
considered whether the use of an unadjusted BF score in laid amending legislation before parliament. Subject to
p.a.) must publish a modern slavery according to three range bands (the survey of over 2100 workplace
an absence management process amounted to disability parliamentary approval, the legislative order will come into
statement each year on its website, Vento bands). The presidents of the safety representatives. The report
discrimination. A police detective, M, has a disability force on 31 May 2021 and will:
confirming what action it has taken employment tribunals in England & has revealed that workers are being
that causes frequent absences (these amounted to 179 • amend the ERA 1996, to extend to workers the protection to ensure that its business and supply Wales and in Scotland have updated placed at risk by employers who are
days absence over four years). The employer used an of section 44(1)(d) and (e) not to be subjected to a chains do not involve slave labour. the Vento bands, for claims presented failing to meet Covid-secure rules
attendance management framework that used a BF score detriment on health and safety grounds; and Further, many smaller businesses may to the employment tribunal on or and properly consult about risk
to trigger absence management procedures. However, no be contractually obliged to produce after 6 April 2021: assessments. In summary:
• make corresponding amendments to the remedies and
adjustment was made to M’s BF score due to her disability- a modern slavery statement, or may
enforcement provisions of the ERA 1996. • lower band: £900 to £9,100 • Employers have a legal obligation to
related absences; she was given a BF score calculated in choose to do so voluntarily.
exactly the same way as a non-disabled person. This meant (Draft: The Employment Rights Act 1996 (Protection from • middle band: £9,100 to £27,400 consult with safety representatives,
that M’s BF score was too high, so the force triggered Detriment in Health and Safety Cases) (Amendment) A 2019 independent review found yet 34% of representatives said
• upper band: £27,400 to £45,600; and
absence management procedures and various action Order 2021) that there were issues with the that neither they, nor other safety
plans were put in place to manage M’s attendance. Against current regime for publishing modern • exceptional cases: over £45,600 representatives, were consulted
National Minimum Wage record keeping requirements
occupational health advice, M’s line manager insisted on increase to six years: New regulations came into force on 1 slavery reports and recommended about COVID-19 risk assessments;
including fitness training and officer safety training in that modern slavery reports should • Only 31% of representatives believe
April 2021, which extend the period from three to six years,
also be published on a government-
Public sector
these action plans. He also made upsetting comments to for which an employer must keep records sufficient to that social distancing rules and
M about her weight, telling her to take more responsibility run website (akin to the government apprenticeship targets: physical barriers between colleagues
establish that it is paying a worker at a rate at least equal
over her diet, including to stop drinking fizzy drinks, and to the applicable NMW rate. This extension will also apply portal for gender pay gap reports). Public bodies with 250 or more in the workplace were being
told M that her colleagues would have more respect for to any records made before 1 April 2021, for the purposes Pending legislative change, the Home staff in England are required to implemented by their employer all of
M if she tried to slim down. In fact, M’s weight gain was a of recording compliance with NMW rates. (The National Office has launched a voluntary public meet an apprenticeship target. The the time. This reduced to 29% when
side effect of the medication M took in connection with her Minimum Wage (Amendment) Regulations 2021) registry of modern slavery statements, initial target was for an average of asked about appropriate distancing
disability and her line manager had repeatedly been told and is encouraging organisations at least 2.3% of their staff to be new measures between employees and
this previously. Upholding certain aspects of M’s disability to upload their modern slavery apprentices over the period of 1 April customers/clients/patients;
discrimination claims, the employment tribunal held that: statements to it. 2017 to 31 March 2021. The same • 40% of representatives said that
a) the force had failed to make reasonable adjustments target has been extended for a further adequate PPE was either not always
to M’s attendance management targets to consider year (1 April 2021 to 31 March 2022). provided or not provided at all to
her disability and ought to provide M with a bespoke workers;
attendance target, taking her disability into account and • 65% of representatives have had
set in conjunction with occupational health; Data protection - ICO seeks to respond to growing numbers of
b) the force had subjected M to unfavourable treatment feedback on its plans to mental health concerns since the
when her line manager placed action points relating to update its anonymisation pandemic began; and
achieving job related fitness training and officer safety and pseudonymisation • When asked to list the top five work
training in an action plan, when occupational health had hazard concerns, 70% cited stress
repeatedly said that these targets were unachievable;
guidance:
as a workplace hazard, followed
and The Information Commissioner’s by bullying and harassment (48%),
c) M’s line manager harassed her when he made Office (ICO) has outlined its plans overwork (35%), harassment/
humiliating comments to M about her weight and diet; to update its anonymisation and violence/verbal abuse (31%) and
ignoring the fact he had been told that her weight pseudonymisation guidance and slips/trips/falls (30%).
gain was a side effect of her medication. (Moth -v- The is seeking initial feedback prior to
Note: ET level decisions are merely of persuasive starting formal consultations and
Chief Constable of Devon and Cornwall, Exeter ET,
value, and are not binding upon future ETs, but can publishing refreshed guidance.
1403414/2019)
provide a useful indicator of how certain issues are Feedback can be submitted via:
currently being deal with in the ET. anonymisation@ico.org.uk.
hilldickinson.com
Muslim Council of
The Muslim Council of Britain has recently published a detailed report
on Islamophobia, a type of unlawful racism. The report makes numerous
recommendations for tackling workplace discrimination against Muslims
Britain Report -
and designed to help employers to promote inclusive workplaces.
Recommendations: tackling Making adaptations to working
Islamophobia at work practices to be more inclusive
Defining
The report recognises that many Muslims face The report also highlights that some common workplace
Islamophobia and that this is often underreported. In practices can be very alienating for Muslim staff, and
summary, to tackle Islamophobia in the workplace, the suggests simple adaptations designed to foster a more
report recommends that employers: inclusive working environment.
Islamophobia
• Revise their employee relations policies and procedures In summary, the report recommends that workplaces
to include specific reference to Islamophobia should:
• Revise any ethnic diversity and inclusion protocol and • Have a range of activities designed to increase the
strategy to be conducive to a faith-friendly organisational chance of appealing to everyone, dedicated to building
culture. rapport between staff from different backgrounds.
• Ensure that the relevant staff reviewing the policies have Muslim staff may not socialise in pubs, for example, so
undergone faith and race based training and/or consult offer alternative social events that will accommodate for
with an employee relations or HR specialist in the event this.
that there is not one employed already) • Be aware of cultural differences around handshaking and
• Establish an open-door policy, whereby employees are direct eye contact. Placing of a hand on heart (instead of
encouraged to engage dedicated employee relations or a handshake between genders) in greeting or a Muslim
HR staff without hesitation. man lowering his gaze when interacting with a women,
• Encourage an employee-centric resolution to complaints, are practiced in many Muslim communities and seen as
where the employees can work collaboratively with line highly respectful acts.
managers and/or leadership figures to determine next • Take into consideration how dress codes and uniforms
steps in the pursuit of resolution. can incorporate headscarves and provide hair nets or
• Mandate unconscious and conscious bias training for masks if there are health and safety concerns regarding
leadership, and line managers involved in the recruitment men’s beards.
process, career progression and succession planning. • Look into the possibility of establishing a simple flexitime
• Promote an organisational culture subject to ‘bottom- system that would allow for prayers to be offered (eg
line up’ and hierarchical interaction, fostering a culture allowing an early start on a Friday to allow a longer lunch
of dialogue and exchange between organisational break for prayers).
leadership and employees, with a particular focus on • Discuss Ramadan with Muslim staff ahead of time to gain
encouraging employees from minority communities to an understanding of their routines and explore simple
take part. adaptations to the working hours.
• Look into including halal and/or kosher food (as it is also
permissible for Muslims to eat) and vegetarian dishes in
canteens or whenever food or snacks are provided for
staff.
• Look at how staff can take annual leave to celebrate
the Eid al-Fitr and Eid al-Adha festivals and to perform
pilgrimages such as Umrah or Hajj.
The full report, which runs to over 150 pages, can be found here.
Emma Ahmed,
Legal Director (PSL),
Commercial Employment - Liverpool
Meet
What is your favourite book? If you would like to know more about us, or any other
services we provide please visit our website or contact:
The Five People You Meet in Heaven Jeff Middleton
the
by Mitch Albom Partner (Manchester)
+44 (0)161 817 7260
jeff.middleton@hilldickinson.com
Kerstie Skeaping
Partner (Liverpool)
Where’s your favourite +44 (0)151 600 8498
team
place in the world to visit? kerstie.skeaping@hilldickinson.com
James Williams
Partner (London)
+44 (0)20 7280 9245
That’s a tough one as somewhere hot to just james.williams@hilldickinson.com
chill out I love Kefalonia, but I’m a big fan of
Michael Wright
city breaks and exploring new places and my Partner and head of Health Employment North
favourite spot so far has been Reykjavik in (Manchester)
Iceland. Reykjavik has a lovely city, thermal +44 (0)161 817 7266
swimming pools, national parks and ice caves. michael.wright2@hilldickinson.com
I haven’t managed to see the northern lights Amy Millson
yet so I’m definitely planning a return trip Legal Director (Leeds)
once we can start travelling again. +44 (0)113 487 7969
amy.millson@hilldickinson.com
Luke Green
Partner and head of education/schools
(Liverpool)
+44 (0)151 600 8791
Suzanne Mainwaring luke.green@hilldickinson.com
Senior Associate, Commercial Employment What are your favourite/least
Liverpool favourite foods?
Who is your favourite
As boring as it sounds, buttered toast with a
Who inspires you? good cup of tea is my go to comfort food.
superhero?
I hate lamb with a passion and can’t even
bear to have it cooked in the house as I can’t Spiderman, but it could be due to indoctrination
My Nan always inspired me, despite dealing with That said I’m not sure she always treated us
deal with the smell. Unfortunately, it’s also as he’s also my son’s favourite. Through no fault
some very difficult times she was always came all equally as I very clearly recall her telling my
my son’s favourite food, luckily for him he of my own I think I’ve actually reached a point
through and was the centre of the family. My older cousins that when taking a girl out they
has grandparents more than willing to cook where my specialist subject on Mastermind
Nan also felt strongly that there was nothing I should be a gentlemen and pay for everything,
it at his whim! could be all things Marvel.
couldn’t do, as the only girl, that my brother or while on the other hand I was told I should
cousins could do and as a consequence taught always pay my own way. I’m pretty sure I lost out
me that if I was willing to work hard I could on that one!
achieve anything I set my mind to.
My Nan actually bought me my law books when
I started university and I was devastated when
she passed away before I completed my law
degree so didn’t get to see me graduate.
This newsletter has been prepared for general information purposes only, it is not legal advice and is not to be acted upon as such. It is
accurate at the time of publication, but may not remain current thereafter. Specific legal advice should be taken as and when required.
hilldickinson.com
About Hill Dickinson Hill Dickinson LLP is a leading and award-winning international commercial law firm with more than 850 people including 185 partners and legal directors. The firm delivers advice and strategic guidance spanning the full legal spectrum, from non-contentious advisory and transactional work, to all forms of commercial litigation. The firm acts as a trusted adviser to businesses, organisations and individuals within a wide range of specialist market sectors. hilldickinson.com hilldickinson.com Liverpool Manchester London Leeds Piraeus Singapore Monaco Hong Kong
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