Ending the “sick-note culture”

Posted on April 22, 2024 by Darren Newman

The Prime Minister gave a speech on Friday proposing to tackle our “sick note culture”. Probably the most significant proposals made were to do with the wider issue of benefits for those were economically inactive because of long-term ill-health. Those issues fall outside my expertise, but the PM also talked about the use of fit notes in the context of employment and that is something I have views on. 

I was interested to see that according to the Mail, doctors are about to “lose the power to hand out sick notes”.  The idea that doctors have the ‘power’ to issue fit notes made me smile. Most doctors would think of it as a chore rather than a power. If I were to lose the power to do the washing up, I wouldn’t be too upset about it. 

By the way, I don’t blame the press for talking about sick notes rather than fit notes. Sick notes were renamed fit notes in 2010 for reasons we will get into – but I’ve never really got used to the new name and it still sounds strange to me. But there does seem to be some misunderstanding out there over what a sick note / fit note actually is. The Telegraph told us: 

Sick notes, which were rebranded as “fit notes” in a previous reform, are waivers signed by GPs and other doctors that give someone the right not to go into work.

That is very wide of the mark. A fit note does not give an employee the right not to go into work. It does not, for example, protect an employee from dismissal for poor attendance. 

A fit note’s specific legal function is to act as evidence of an employee’s unfitness for work. An employer is entitled to require medical evidence when an employee is claiming Statutory Sick Pay (SSP) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (as amended) set out the form that the fit note takes. If a valid fit note is produced then the requirement for medical evidence has been met and the employee will be entitled to be paid SSP at the princely rate of £116.75 per week.

Of course many employers pay more than the SSP minimum and will use the fit note as a key part of their absence management process. In this context there is a genuine and long-standing concern that a fit note is simply too easy to obtain and that some doctors regard work as a hazard from which employees should be protected whenever possible.  The rebranding of “sick notes” to “fit notes” was intended to address this problem and shift the emphasis from what employees cannot do to to what they can do. 

So the modern fit note amounts to advice directed to the employee under which the doctor ticks one of two boxes. The first box says “you are not fit for work” and the second box says “you may be fit for work taking account of the following advice” There is then a section where the doctor can add some specific advice about matters such as a phased return to work or a change in working hours or duties.

In his speech on Friday Rishi Sunak was concerned that this second box was not being used. He said: 

“11 million of these Fit Notes were issued last year alone.  But what proportion were signed “maybe fit for work”? 6 per cent. 

That’s right – a staggering 94 per cent of those signed off sick were simply written off as “not fit for work.””

His solution is to “test ..shifting the responsibility for assessment from GP and giving it to specialist work and health professionals who have the dedicated time to provide an objective assessment of someone’s ability to work and the tailored support they need to do so.”

There is certainly something to be said in cases of long-term sickness for seeking the advice of specialists who know about the workplace and can suggest ways in which an employer can get an employee back to work. This is what an occupational health service does and many employers use such services to help them manage long-term sickness absence. It is not something that GPs are trained in and that might be one reason why the second box on a fit note is so rarely ticked.

Back in 2014 the Government tried to address this issue by providing an occupational health service for all employers to use. I was sceptical about its benefits at the time and indeed it was scrapped in 2018 due to a lack of take up. It appears, however, that the Prime Minister wants to have another go and  “design a new system where people have easy and rapid access to specialised work and health support to help them back to work from the very first Fit Note conversation.” 

But in 2014 the offering was occupational health advice that was in addition to the medical evidence that was provided by the fit note. In his speech, the Prime Minister appears to be suggesting that employees would have to use the new service as a means of obtaining a fit note – that doctors would no longer be the ones providing them.  

The idea that that employees should have to go to this new service from the “very first fit note conversation” is just absurd. Would someone who has flu have to use this service? What about someone recovering from surgery? Of the 11 million fit notes issued in a year many if not most will be for straightforward forms of ill-health or injury that require medical treatment and a period of rest and recuperation away from work. There is surely no way the Government are going to require employees to go and use a separate service to certify their unfitness for work in those circumstances. 

And of course, many people who are off sick will still need to see a doctor because they are, well, sick. They may be receiving medication or other treatment and the doctor might also give them advice about staying away from work simply as part of their medical care. What happens if the advice given by this new service – perhaps withholding a fit note – contradicts the medical advice given by a doctor? It just isn’t a workable proposal. 

Apart from anything else it all seems rather pricey. Who is going to pay for a service of ‘specialist work and health professionals’ to issue 11 million fit notes a year? If employers want help in finding ways to get their employees back into work after a period of sickness or injury then a wide range of occupational health services are available and I don’t see why that should be paid for with taxpayer money. 

My idea for reform is rather more straightforward. Let’s just get rid of fit notes altogether and let employers manage and fund their own absence management processes. Why should it be a function of the NHS to determine whether or not an employee is entitled to sick pay?  In fact, while we’re on the subject, why not scrap SSP as well? The Regulations surrounding it are hideously complicated – reflecting the fact that it was initially designed as a social social security payment administered by employers. We could just replace it with a straightforward entitlement to a minimum level of contractual sick pay.

Employers may worry that without fit notes employees will be free to fake illness in order to stay away from work. But under the current system how many deliberate malingerers are thwarted by a vigilant GP who spots their ruse and – in the ten minutes allotted for their appointment – explains why a fit note will not be issued? The reality is that for most employees, obtaining a fit note is just a formality – so what is the point of it? Perhaps we should free up doctors to advise and treat their patients rather than complete paperwork for the benefit of employers. If employers need information about an employee’s medical position then it should be up to them to organise that using a provider who will be able to make a proper job of it.

One certain way of ending the fit note culture is to scrap the benighted things altogether.

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Will Labour Ban Zero-Hours Contracts?

Posted on March 25, 2024 by Darren Newman

(UPDATED)

I’m spending an increasing amount of my time looking towards the next Labour Government and what it will mean for employment law. If the polls are right, it is going to be an exciting time to be an employment lawyer!

The main source for Labour’s policy on workers’ rights is ‘A New Deal for Working People’ a policy document launched by Deputy Leader Angela Rayner at the 2021 Labour Party Conference. It is significant that Angel Rayner continues to lead on this policy even though it would normally come within the brief of the shadow business secretary, Jonathan Reynolds. These proposals are a central part of Labour’s policy platform and we need to take them seriously.

In this post I want to concentrate on zero-hours contracts. Recent research from the Work Foundation has found that 1.1 million people in the UK are employed on zero-hours contracts and that almost three quarters of them experienced contractual and financial insecurity and a lack of access to basic employment rights. The report rejects the suggestion that zero-hours contracts provide welcome flexibility for both employers and workers and recommends that they should only be permitted where employees actively choose them.

Labour has been pledged to do something about zero-hours contracts for almost a decade.

  • In 2015 the Party’s manifesto said that “Labour will ban exploitative zero-hours contracts. Those who work regular hours for more than 12 weeks will have a right to a regular contract.”
  • The 2017 manifesto – the first with Jeremy Corbyn as leader – said that Labour would “ban zero hours contracts – so that every worker gets a guaranteed number of hours each week.” It went on to say “As well as legislating against zero hours contracts, there are many more workers on short hours contracts (some only guaranteed a few hours per week), but who regularly work far more. We will strengthen the law so that those who work regular hours for more than 12 weeks will have a right to a regular contract”
  • Then in 2019, the manifesto pledged Labour to “Banning zero-hour contracts and strengthening the law so that those who work regular hours for more than 12 weeks will have a right to a regular contract, reflecting those hours”. 

So it is no surprise that in “A New Deal for Working People” we get this: 

Labour will ban zero hours contracts and contracts without a minimum number of guaranteed hours. We will also ensure anyone working regular hours for twelve weeks or more will gain a right to a regular contract to reflect those hours normally worked

It really couldn’t be much clearer. Labour’s long-standing policy is to ban contracts that do not have a minimum, guaranteed number of hours. Allied to that – but distinct from it – is a policy to ensure that those working regular hours over 12 weeks will have a right to a regular contract reflecting the hours that they have normally been working. 

Well maybe.

On 19 March Rachel Reeves delivered the Mais Lecture at the Bayes Business School. This is a prestigious event and she would have known that her words would be scrutinised carefully. Here is what she said about zero-hours contracts: 

We will ban exploitative zero hours contracts, by giving all workers the right to a contract that reflects the number of hours they regularly work, based on a twelve-week reference period.

Note that the proposal is to ban zero-hour contracts “by giving” workers a right to a contract reflecting the hours they normally work. The suggestion here is that the right to a regular contract where regular hours have been worked for 12 weeks is not a separate right in addition to the ban on zero-hours contracts, it is the method by which the ban on “exploitative” zero-hours contracts is to be accomplished. Is that right? If this had just been said casually in an interview I wouldn’t have attached any importance to it. This isn’t Rachel Reeves’ policy area and I wouldn’t expect her to be word perfect on what the policy is. But surely the wording of the Mais lecture was carefully checked with those whose policy areas were referred to? 

Over the weekend Analise Dodds MP was interviewed on Sky News and it was suggested that Rachel Reeves had not made it clear that zero-hours contract would be banned. She said this in reply:

Well we are going to ban them, and I can set out the detail of that if it is of interest. We’ve said that there should be an assessment period to understand the pattern of people’s hours and then ensure that people’s contracts reflect that.

So that actually seems to back up Rachel Reeves’ suggestion that the policy is to ensure that workers have a contract that guarantees the working pattern that they regularly work and that this is how the ban on zero-hours contracts will be achieved. With two senior front-benchers making the same point is it possible that some sort of policy shift is taking place here? Is Labour going to subsume the ban on zero hours contracts into some wider right to have a contract that reflects the hours that an employee has been working over an “assessment period”?  I’d be keen to hear what Angela Rayner has to say about that.

I’ve always been sceptical of a policy to ban zero-hours contracts. It is all very well saying that workers should have guaranteed working hours – but what is the minimum number of hours that will be guaranteed? If I guarantee you one hour a week then you may no longer be on a zero-hours contract, but your work is hardly less precarious than if there were no guaranteed hours at all. What would the guaranteed minimum be? 8 hours? 16? Perhaps as the reality of Government grows closer, Labour is thinking about what a ban on zero-hours contracts actually means. 

As it happens, however, I’m no more impressed by the policy of giving workers a right to a regular contract if they are, in practice, working regular hours. In the first place it strikes me that it is the workers who are not working regular hours who need the most protection. But there is also a risk that telling employers that if they give workers regular hours for 12 weeks then they will have to make that practice permanent, simply creates an incentive for employers to ensure that work stays irregular and unpredictable. I just don’t see how a policy that looks at a worker’s average hours over a 12 week period and then enshrines that average in the contract could be at all workable.

My suggestion would be to beef up the Workers (Predictable Terms and Conditions) Act 2023. That Act gives workers on unpredictable hours a right to request a regular work pattern. As currently drafted it is of almost no practical use because employers will still be able to refuse any request for a predictable work pattern as long as the decision is genuinely based on a business reason. There is no requirement for the refusal to be a reasonable one. But the Act could easily be amended to require employers to refuse requests only where there is a compelling business case for doing so. That would ensure that most workers could not be restricted to zero-hours contracts if they did not wish to be.

That could not quite be said to be a ban on zero-hours contracts – although perhaps Labour could say that it was “ending the practice of exploitative zero-hours contracts” which sounds almost the same.  Whatever the ultimate solution, Labour needs to think about how to convert slogans into legislation that actually works. Perhaps what Rachel Reeves said is part of that process. 

On the other hand, it might have been a typo.

UPDATE: 1 April (seriously)

In this post I asked what Angela Rayner would make of the comments made by Rachel Reeves and Analise Dodds. Well on 28 March Left Foot Forward published an interview with the Deputy Leader where she denied that there was to be any slow down in the rolling out of new employment laws under Labour. But here is what she said about Zero-hours contracts:

“What we won’t have is people working regular hours who are given a zero hour contract and no security, we’re calling time on that and I think most people recognise that and can see that you can’t get a mortgage, you can’t plan for your future, you can’t get credit if you’ve not got a contract that doesn’t give you any hours, it’s completely insecure’.

[Update to thee update: ~~Richard Dunstan (@wonkypolicywonk) has pointed out that this interview was quoting Angela Rayner speaking on the Today programme. He gives the full context of the comments here]

That does rather suggest that the ban on zero hours contracts will only apply to those working regular hours. this can’t just be a case of politicians speaking off the cuff and getting the details of two policies mixed up. There really has been a change.

This morning’s Times seems to confirm the shift in Labour’s thinking. In an article looking at the whole sweep of Labour’s employment law proposals we find this paragraph:

Labour has also promised to ban exploitative zero-hour contracts. This will not be an outright ban on all zero-hour contracts, recognising that some people appreciate the flexibility, but will take the form of putting a duty on employers to provide a contract based on the hours people have worked for the preceding 12 weeks.

I think the position is now as clear as it is going to be before the publication of the election manifesto. Labour will not ban zero hours contracts as such. Instead there will be some sort of law that will require employers to formalise working patterns that have been observed in practice so that the workers have some assurance that those hours will be continued in the future. I don’t quite see how a law like that would work without simply encouraging employers to keep working patterns as irregular and unpredictable as possible – but these are details that will have to be worked out when Labour is in Government.

I wonder which policy will be given this sort of treatment next. Fire and rehire perhaps?

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Religious discrimination and “The Color Purple”

Posted on March 7, 2024 by Darren Newman

The EAT has just handed down a decision in the case of Omooba v (1) Michael Garrett Associates Ltd (2) Leicester Theatre Trust and I am worried about its implications. It seems to suggest that an employer can legitimately cave in to a social media campaign and dismiss an employee with controversial views – even if those views are protected by the Equality Act. They just have to make sure that it is the controversy that prompts the dismissal rather than the views themselves. Can that be right?

Ms Omooba is an actor and in 2019 she was given the leading role of Celie in the Leicester Curve’s production of “The Color Purple” – a musical based on the 1982 novel by Alice Walker. Soon after her casting was announced however a social media storm blew up over a Facebook post from some years earlier where she had expressed her religious beliefs about the sinfulness of same sex relationships. Integral to the role she was due to play was her character’s growing sexual relationship with another female character and this led to allegations of hypocrisy on her part. Ms Omooba refused to retract her Facebook post or issue a statement that distanced herself from it. Eventually the theatre decided that the outcry was so great that the viability of the whole production was under threat. Facing the prospect of demonstrations outside the theatre, and the real risk of a boycott from theatre-goers offended by casting someone with her views in what amounted to a lesbian role, they decided to withdraw the part from her and terminate her contract. What is more, her agents also dropped her – worried that other clients would leave them if Ms Omooba remained on the books.

Given Ms Omooba’s strongly held – and deeply sincere – beliefs about homosexuality, you might wonder why she was so keen to play the role of someone in a lesbian relationship. The rather suprising answer is that she hadn’t read the script. She had seen the film, of course, but that rather played down any suggestions of a physical relationship. Ms Omooba believed that there were different ways in which the character of Celie could be played and it did not register with her that the production she was a part of would require her to play someone in a sexual relationship with another woman.

Not only had Ms Omooba not read the script before being offered the part, she had not read the script before launching a claim for religious discrimination against both the theatre company and her agent. She did not get around to reading the script until shortly before the Tribunal hearing. When she was cross-examined she admitted that in fact she would not have been comfortable playing the part as it was written and so would have dropped out of the production.

It is difficult, when thinking about this case, to put out of your mind the fact that Ms Omooba is complaining about the withdrawal of a role that she would – once she realised what was involved – have refused to play. That fact certainly tends to diminish the sympathy that one might otherwise feel for her position. But this does not mean that she was not discriminated against. The EAT found that the Tribunal had been entitled to find that she was still subjected to a detriment when the part was withdrawn – having the part taken away from her was still an upsetting experience. The fact that she would have inevitably dropped out soon afterwards would merely limit her entitlement to compensation.

The “Reason Why”

In a direct discrimination claim the key question is why the claimant has been treated in the way complained of. So why did the theatre company withdraw the part from Ms Omooba and why did her agent refuse to keep her on its books? If the answer is “because of her religious belief” – even if that is only part of the reason – then that will be direct discrimination. There is no defence of justification. The question is not whether it was reasonable to withdraw the part or take her off the books. What matters is whether either decision was made because of her beliefs.

We also have to look at religion and belief discrimination through the prism of Article 9 of the European Convention on Human Rights. This means that Ms Omooba’s belief will be taken to include the manifestation of that belief in her Facebook post – unless there was something in the way she expressed herself “to which objection could reasonably be taken” (I wrote about this issue here). In this case, Ms Omooba’s Facebook post was a straightforward expression of her religious belief. It was made long before the role in The Color Purple came up and there is no suggestion that anyone could object to the manner in which she was expressing – or “manifesting” – her beliefs. It follows that if Ms Omooba had been treated less favourably because of her Facebook post, then that would amount to direct discrimination on the grounds of her religious beliefs.

But the Tribunal found that the reason the theatre company withdrew the part from her was not her religious beliefs – or her expression of them – but the need to protect the commercial viability of the production:

“… while the situation would not have arisen but for the expression of her belief, it was the effect of the adverse publicity from its retweet, without modification or explanation, on the cohesion of the cast, the audience’s reception, the reputation of the producers and “the good standing and commercial success” of the production, that were the reasons why she was dismissed. The centrality of authentic depiction of a lesbian role was a key part of the factual matrix. It was not necessary that she should be a lesbian, but it was important that she was not perceived by audience and company as hostile to lesbians. The decision to terminate was made to deal with the dysfunctional situation that arose from the context and circumstances of the public retweeting. The religious belief itself was not the reason why the theatre decided this. It was the commercial and artistic reality of the cluster of factors that it would not succeed.”

ET Decision, Para 107 (quoted by EAT at para 49)

As for the decision of her agent to stop representing her:

“On the evidence he terminated the contract because he thought a continued association would damage the business. The contract was not terminated because of her religious belief, but because in his mind the publicity storm about her part in The Color Purple threatened the agency’s survival.”

ET Decision, Para 112 (quoted by EAT at para 53)

So the Tribunal drew a distinction between Ms Omooba’s beliefs and the controversy that flowed from her beliefs becoming public. Was that a valid distinction?

The EAT held that it was. The President of the EAT said:

looking behind the explanations provided by the respondents (as the ET carefully did), the operative reasons (the commercial reality facing the theatre; the threat to the agency’s survival) were not informed by, or dependent upon, the claimant’s belief: faced with a similar reality or threat arising from an equivalent social media storm, but relating to an entirely different belief, the ET was plainly satisfied that the decisions would have been the same.

EAT para 156

The social media storm of course was entirely concerned with Ms Omooba’s beliefs. But the EAT held that this did not mean that the decision makers in the theatre company and the agency were acting because of those beliefs. That argument, said the EAT, “confuses reason with context”(para 158). The Tribunal had expressly found that Ms Omooba’s beliefs – or even the way in which she expressed them – were not the reason for the treatment she complained of. That was a conclusion they were entitled to reach.

This isn’t about justification. Ms Omooba didn’t lose her case because the reasons for terminating her contract were compelling or because the threat to the production was so severe. Those facts merely helped the Tribunal reach its conclusion that the dismissal really was because of the social media storm and not because of her beliefs. If an employer can persuade a Tribunal that it genuinely dismissed an employee because of external pressure then it seems that that will be enough. Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.

The EAT’s reasoning on this issue seems logical but I am left feeling rather uncomfortable with it. The facts of the case make it easy to feel that Ms Omooba’s claims lack merit – if only she had read the script before the audition this whole situation could have been avoided! But can we really allow an employer to rely on a ‘social media storm’ as a reason for dismissal if it clear that the storm is entirely based on an employee’s protected characteristic? What sort of incentive does that create?

Separating Motive from Reason

In Higgs v Farmor’s School Ms Higgs was dismissed following a complaint made about Facebook posts she had made which expressed her religious beliefs about same sex relationships and trans rights. The Tribunal found that the reason for dismissal was not her religious beliefs but the employer’s concern that her Facebook posts might lead parents to think that she held homophobic or transphobic views. The EAT held that this distinction could not stand. If the Facebook posts were a manifestation of the employee’s religious beliefs then a careful balance had to be struck in determining whether or not the employer could interfere with her Article 9 rights in order to protect the rights of others.

The difference between the cases of Higgs and Omooba – both decided by the same EAT judge – seems to be that in Omooba the Tribunal found that the reason for the treatment was the reaction to the Facebook posts rather than the Facebook posts themselves. The motivation was to save the show; the reason for the treatment was the social media storm. In Higgs on the other hand it was clear that the reason for the dismissal was the employee’s Facebook posts. The employer’s motivation was to avoid a backlash from parents, but that did not alter the fact that the reason for dismissal was the employee’s expression of her religious beliefs on Facebook.

Does that feel like a satisfying distinction? I’m not sure it does. Reason and motive are not so easy to separate. Suppose the theatre company had spotted Ms Omooba’s Facebook post before it had been seen by others and withdrew the part because it foresaw the social media storm that it would cause. You could then argue that the reason for withdrawing the part would have been the Facebook post itself and the underlying motivation was to avoid the hostile reaction it would cause. Suppose in Higgs the employer had done nothing until there was an actual campaign from parents objecting to her continued employment? Might it then have persuaded the Tribunal that the reason for the dismissal was the pressure from parents and that the Facebook posts were merely “context”? Does it all come down to timing?

I very much doubt that the EAT decision in Omooba will be the last word on this issue. Higgs is off to the Court of Appeal and I wouldn’t be surprised if Omooba follows. Ultimately we need a Supreme Court decision on exactly how discrimination based on religion or belief interacts with Article 9. A definitive answer may still be a year or two away and in the meantime employers are going to continue to struggle with the question of how to deal with employees whose deeply held beliefs create controversy or cause tension in the workplace. I don’t envy them that task.

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Is the Menopause a disability?

Posted on February 22, 2024 by Darren Newman

The front page of the Times on Thursday carried the headline:

Respect the menopause or be sued for disability discrimination, firms told

Employers could be sued for disability discrimination if they fail to make “reasonable adjustments” for menopausal women such as allowing them to work from home or lowering the temperature in the office, the equalities watchdog has said.

After an eventful Wednesday in the House of Commons I was a little surprised that this story merited front-page treatment. In the employment law world this has been an issue that has been discussed for some time – what has changed? How dramatic is the intervention from the Equality Commission?

Not much and not very as it turns out.

The newly published Equality Commission guidance on the menopause says:

If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, these symptoms could be considered a disability. 

Well yes. I agree with that. A disability is defined in S.6 of the Equality Act as a physical or mental impairment which has a ‘substantial and long term adverse effect’ on someone’s ‘ability to carry out normal day to day activities’. So what the Equality Commission is saying here is that menopause will amount to a disability – if it meets the definition of disability. Almost anything could amount to a disability if it meets the definition (there are actually some interesting exceptions in the Meaning of Disability Regulations including pyromania and exhibitionism but we needn’t go there). A stubbed toe could amount to a disability if it turns out to have a long term and substantial effect on the victim’s ability to carry out normal day to day activities.

I’m not getting at the Equality Commission here. There is increasing awareness of the issues that women going through menopause may encounter in the workplace and guidance on how best employers should engage with those issues is to be welcomed. But useful guidance from the Equality Commission on handling a potentially tricky issue does not normally get the front page treatment, even on a quiet news day.

I was heartened to read that the article is not the sort of ‘woke nonsense’ rant that we would expect from the Daily Telegraph. It seems to be a fair and accurate account of the guidance that has been issued. One clue to the approach the Times takes is that it is welcomed in particular by Mariella Frostrup, Times Radio presenter and Chair of Menopause Mandate. This is obviously an issue that many people at the Times feel strongly about – so good for them.

In terms of case law, a good analysis of menopause in the context of disability is given by the recent Employment Tribunal decision in Chan v Stanstead Airport Ltd In a detailed analysis Employment Judge park held that the claimant was disabled as a result of the symptoms of the menopause, explaining:

The menopause is not in itself an impairment. It is a normal stage in a woman’s life. However, women can experience a wide range of symptoms when going through the peri-menopause and menopause. The severity of those symptoms varies and in some case the impact may be such that the woman meets the definition of being disabled under the Equality Act 2010.

The Judge concludes:

Based on my findings of fact the menopause symptoms did have a substantial adverse effect on the claimant’s ability to carry out normal day to activities at times between July 2017 and when she was dismissed. Some of the symptoms were a lack of concentration, memory loss and fatigue. As a result of these the claimant forgot information that she usually was able to recall easily. She also found it difficult to concentrate on reading, which included being unable to read a book. As described by the claimant, these effects are more than minor or trivial. The claimant needed to set up systems to help her remember everyday information that she usually recalled without difficulty. She was unable to read a whole book for several years, having previously done so regularly.

In that case stress and anxiety were a key feature of the symptoms the employee was complaining about and the Tribunal found that they should be treated as being symptoms of the menopause. Viewing the impact of the symptoms as a whole the conclusion was that the claimant was disabled.

As the Employment Judge made clear, however, all cases need to be assessed individually. There is no assumption that a woman experiencing the menopause will be regarded as disabled. Indeed employers need to be careful not to make any assumptions about how women will react to the menopause. It would obviously be sex discrimination to treat women in their forties or fifties as though they are likely to suffer from fatigue or be unable to concentrate.

Oh – and if anyone wants to argue that because this involves two protected characteristics – sex and age – a discrimination claim is somehow more difficult should read this.

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Indirect discrimination – squandering our Brexit freedoms?

Posted on February 19, 2024 by Darren Newman

The Sunday Telegraph reports concern among Tory MPs that Rishi Sunak is “squandering Brexit Freedoms by approving more EU rules”. The headline refers to new Regulations amending the Equality Act 2010. With its usual calm understatement when dealing with discrimination law the Telegraph says:

New regulations, driven through Parliament without fanfare, “gold-plate” judgments by the European Court of Justice (ECJ) and create a “carte blanche” for companies to be sued for “unlimited damages”, Conservative MPs have warned.

The changes amount to a significant expansion of New Labour’s Equality Act, which Mr Sunak once claimed had “allowed every kind of woke nonsense to permeate public life” and “must stop”.

Now before looking at what the new Regulations actually do can I first of all whinge about the phrase “New Labour’s Equality Act”? There is a distressing tendency among journalists and politicians of both the right and left to talk of discrimination law as if it was invented by Harriet Harman in 2010. In fact the Equality Act 2010 mainly reorganised and consolidated laws that were already in place, with many of the key provisions dating back to the 1970s. There were some new rules of course, but I suspect that most of the people who complain about the pernicious effects of the Act (looking at you Jacob) could not actually tell you what they were. And of course, anyone who refers to the “Equalities Act” loses all right to comment on the issue.

These new Regulations come about as a result of the Retained EU Law (Revocation and Reform) Act 2023 which remove the interpretive effects of EU Law. Previously UK courts, when interpreting domestic law, would accord supremacy to any EU Law that it was designed to implement. As Catherine Barnard pointed out on the platform formerly known as Twitter, the Retained EU Law Act included the power to issue Regulations that restate laws derived from the EU and that is what the new Regulations do. It is a little rich for MPs to quibble about the lack of Parliamentary scrutiny that such Regulations receive when that lack of scrutiny was a key part of the Act that they were so keen to see passed.

What the Regulations do in broad terms is to codify principles of discrimination law that have been settled by the European Court of Justice but which were never actually written into domestic legislation. The provision that draws particular criticism is the new right for ‘anyone’ to claim indirect discrimination. The Telegraph says:

One of the additions to the Equality Act allows people to sue for “indirect discrimination” if they find themselves subject to the “same disadvantage” as, for example, gay people or members of particular religions, even if the claimants themselves are not gay or religious.

This is indeed an interesting change which is now found in Section 19A of the Equality Act.

Indirect Discrimination

Indirect discrimination covers situation where an employer has a practice or a policy (the technical term is a “provision criterion or practice” often referred to as a “PCP”) which it applies equally regardless of any protected characteristic individuals may have but which causes people who share a protracted characteristic a “particular disadvantage”. Think of a job advert specifying that applicants must be at least six foot tall. On average, men are more likely than women to meet that requirement so women are placed at a particular disadvantage by it. There are of course many women who are six foot tall and many men who aren’t – but it is the overall statistical impact that counts. I freely admit that I am assuming this difference for the sake of coming up with a clear example and have not researched it. Please don’t correct me If I’ve got this wrong.

So under S.19 of the Equality Act a woman who is less than six foot tall would be able to claim indirect discrimination as she suffers the same disadvantage as those with which she shares the protected characteristic of sex. The employer could defend the claim by arguing that the height requirement was a “proportionate means of achieving a legitimate aim”. But this is a high bar for an employer to clear and it’s difficult to think of a justification for that sort of requirement – which is perhaps one reason why we never see it in job advertisements (the police dropped minimum height requirements in the early 90s)

The new rule – S.19A – is that someone can claim indirect discrimination even if they do not share the protected characteristic of the disadvantaged group. So in my example a man who is less than six foot tall would be able to claim indirect discrimination even though it is women who are most likely to be disadvantaged. Or to take a real-life example you could think of a test that employees have to pass in order to be promoted. If statistics show that one racial group is disadvantaged by that test – and the employer can’t show that it is a proportionate means of achieving a legitimate aim – then under S,19A anyone who failed the test could claim indirect race discrimination whatever their own particular ethnic background might be.

Bulgarian Electricity Meters

The new section derives from a 2015 decision of the European Court of Justice concerned with the placement of Bulgarian electricity meters. In CHEZ Razpredelenie Bulgaria AD v Komisai Za Zashtita to Diskriminatsia (we tend to just call it the CHEZ case) a grocer complained that her local electricity company placed electricity meters in her district on concrete pylons at a height of six or seven feet. In other districts they were placed at head height and were easier to read. This placed her at a disadvantage because it was harder for her to check her electricity consumption.

She argued that the practice amounted to race discrimination. She claimed that the electricity company only placed meters at a height in areas with larger Roma populations. Lying behind the decision was a prejudiced view that Roma people were more likely to try to interfere with the meters if they were easily accessible. She herself however was not part of the Roma community. The European Court of Justice did not decide the issue but in the guidance it gave to the Bulgarian courts it said:

In that regard, the Court’s case law, already recalled in paragraph 42 of the present judgment, under which the scope of Directive 2000/43 cannot, in the light of its objective and the nature of the rights which it seeks to safeguard, be defined restrictively, is, in this instance, such as to justify the interpretation that the principle of equal treatment to which that Directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds

I was never much of a fan of the prose style of the European Court of Justice.

What this rather heavy paragraph seems to be saying is that what makes an act discriminatory is not the identity of the person claiming discrimination, but the act itself. We are used to this principle in the case of direct discrimination – less favourable treatment “because of a protected characteristic”. If an employer refuses to promote an employee because her husband is Black then that would be direct race discrimination whatever her ethnic identity might be. The less favourable treatment is because of race. It does not need to be because of the individual employee’s race.

But in the paragraph above the Court seemed to be talking about both direct and indirect discrimination. It spoke of people who suffer “less favourable treatment or a particular disadvantage” and the latter phrase is very much something we associate with indirect discrimination. The case itself was brought as a direct discrimination claim but the Court accepted that even if the electricity company was not motivated by race, the placing of electricity meters at a height in areas with a large Roma population was capable of amounting to indirect discrimination. It did not suggest that since the individual bringing the claim was not Roma herself, an indirect discrimination claim would not be open to her.

Applying CHEZ to the Equality Act

There is no authoritative interpretation of just what CHEZ meant and what its impact on the interpretation of the Equality Act should be. You could certainly argue that the Court was not seeking to make any definitive statement about who could claim indirect discrimination. But CHEZ has been considered by some Employment Tribunals as significant. In Follows v Nationwide Building Society the Tribunal found that an employee who made redundant because of her status as a homeworker was indirectly discriminated against because she was caring for a disabled parent. The Tribunal held that Chez meant that indirect discrimination could be claimed by people who were “associated with” those who shared a protected characteristic – disability in this case – even if they did not have that characteristic themselves.

It is probably this case that prompted this paragraph from the Telegraph:

Lawyers believe the laws could, for example, allow workers who care for disabled family members to sue firms for “indirect discrimination” on grounds of disability if they are barred from working from home.

I’m not sure which lawyers believe that, because the reasoning in Follows is clearly wrong. CHEZ has nothing to do with being “associated” with people. The point of the case was that the placing of the meters was potentially unlawful because it was indirectly discriminatory against people who were Roma, not people who were associated with them. If it was unlawful, then there was no reason why the practice should not challenged by anyone was was affected by it irrespective of whether or not they were Roma themselves. The individual’s relationship with people who were Roma was neither here nor there.

The reasoning in Fellows was rejected by a Tribunal in Rollett v British Airways plc. However Employment Judge Anstis did go on to accept that CHEZ meant that indirect discrimination claims could be brought by people who were not part of the group that was subject to the “particular disadvantage”:

Given that, I must read s19 of the Equality Act without the requirement for the claimant to share the protected characteristic of the disadvantaged group. CHEZ-type associative discrimination is unlawful. The tribunal has jurisdiction to consider indirect discrimination claims under section 19 of the Equality Act 2010 where there is a PCP applied by an employer that puts people with a particular protected characteristic at a disadvantage. The claimant in such a case must also suffer that disadvantage but it is not necessary for them to have the same protected characteristic as the disadvantaged group. Of course, it remains the case that the respondent may then justify the PCP as a proportionate means of achieving a legitimate aim.

That seems like sound reasoning to me – but it is only a Tribunal decision. There is no higher authority requiring Tribunals to interpret the Equality Act in line with what the European Court of justice said in CHEZ. With the new S19A, however, there is no need for one. It is now written into the Equality Act that if something an employer does amounts to indirect discrimination then any employee who is disadvantaged by that can bring a claim. So – to give another example – a man refused flexible working options can now claim indirect discrimination provided he can show that the employer’s approach to the issue places (or would place) women at a particular disadvantage.

I am a bit surprised to see the Government carving this new right into the stone of the Equality Act. But ultimately employers should already be avoiding doing things that amount to indirect discrimination – so I don’t think S.19A requires them to do anything new. If the pool of potential claimants has increased somewhat then that should not make the sky fall in. Frankly, if I were a Tory MP there would be other things that I’d be worried about.

Posted in BREXIT, Equality Act, Indirect discrimination, Uncategorized | Tagged , , , | Leave a comment

Labour’s plans for discrimination law

Posted on February 4, 2024 by Darren Newman

(Please note: I wrote this on a Sunday night just after seeing the Guardian’s report. I reserve the right to amend it in the clear light of day when I’ve had a chance to think a bit more and see what it is that Labour actually announces on Monday)

I think I’m going to spend a good part of this year looking at Labour’s plans for employment law should it win the next general election. There are a lot of proposals that have been made – some modest and some radical; some workable and others rather less so. But we (probably) have plenty of time to look at them over the course of the year.

But I was a bit taken aback by the Guardian headline tonight: “Labour plans to extend equal pay rights to black, Asian and minority ethnic staff”. I have to say my heart sank.

The story opens:

“A Labour government would extend the full right to equal pay that now exists for women to black, Asian and minority ethnic (BAME) workers for the first time under radical plans for a draft race equality act seen by the Guardian.”

I mean – why? Is Labour under the impression that paying people less because of their race is currently legal?

One of the anomalies of discrimination law – that should perhaps have been corrected when the Equality Act 2010 was introduced – is the separate treatment of contractual terms when it comes to sex discrimination. For complaints about pay (or any other contractual terms) women (or men) have to bring an equal pay claim rather than a more straightforward discrimination claim. This means finding an actual comparator – rather than a hypothetical one – employed on “equal work”. We have decades of case law on what equal work means and it is not a straightforward question. Equal pay is an all or nothing claim. Your work is either equal or it isn’t. If your job is worth 80% of that of your chosen comparator then you lose. It doesn’t matter if the comparator’s pay is more than twice what you are earning. No matter how disproportionate the differential, the fact that the two jobs are not equal defeats the claim.

It is true that in an equal pay claim there is no need to prove discrimination – but that doesn’t matter much in practice. In reality, the employer will usually defend the claim by putting forward a ‘material factor’ defence. That just means there needs to be a reason for the difference in pay. If the reason is genuine then the question is whether it is discriminatory – either directly or indirectly. Most equal pay cases eventually boil down to the question of whether the pay is discriminatory. If the claim is won the claimant can get up to six years’ back-pay and there is no award for injury to feelings.

Suppose – under current law – an employer discriminates on the grounds of race when it comes to pay? Just as in an equal pay claim the question will boil down to whether the difference in pay is due to direct or indirect discrimination – but there will be no need to find a real-life comparator and the Tribunal could take into account a disproportionate difference in pay between two technically unequal roles. if the claim succeeds there is no cap on compensation and an award will be made for injury to feelings.

The Guardian says:

“The change, which would also cover disabled people, would mean that equal pay claims on the basis of ethnicity and disability were treated the same as those made by women who, under the existing law, have more stringent protections.”

I don’t think they do have more stringent protections. It is not at all clear that an equal pay claim is better than a discrimination claim. It is however undoubtedly more complex. Just try having a read of chapter 3 of Part V of the Equality Act – go on, I dare you!

I can see the point of merging discrimination and equal pay across the board, but that doesn’t seem to be the proposal here. They seem to want to keep the distinction between equal pay and discrimination – but make more people subject to it. I really thank that’s a bad idea.

Dual Discrimination

Oh and there’s more:

“The proposals, which the party will announce on Monday, would enact protections against “dual discrimination”, where people face prejudice because of a combination of protected characteristics, that were originally in the Equality Act brought in by Harriet Harman in 2010.”

A black woman who faces sexism and racism or a Muslim woman abused for wearing a headscarf, for example, would be able to bring one discrimination claim, rather than one for each protected characteristic.

Labour said this would have broader benefits for different groups of people, including women experiencing discrimination during the menopause, as well as easing backlogs in the tribunals system.”

This is just silly. Absolute nonsense on stilts.

Section 14 of the Equality Act is a bit embarrassing really. It has never been brought into force but it says that it is direct discrimination to treat somebody less favourably because of a combination of two protected characteristics. So if I treat you less favourably because you are a black woman then that would be discrimination.

But we don’t need S.14 to tell us that. It is already direct discrimination to treat somebody less favourably because they are a black woman – or a white man, or an older gay person, or a Muslim woman. Of course it is – how could anybody think otherwise?

Does anybody suppose that if a Muslim woman were to be refused employment the employer could defend a religious discrimination claim by saying “oh no, its only Muslim women we object to, Muslim men are fine”? That would be the wrong comparator. If a Muslim woman is treated less favourably than a non-Muslim woman would be treated then that will be direct religious discrimination. Just think about it. If, when choosing between two women, the employer would choose the one that is not a Muslim then OF COURSE that is religious discrimination. It will also be direct sex discrimination if a Muslim man would have been recruited. This isn’t difficult. Dual discrimination is not a problem. There has never been a case where it has been a problem.

The idea that a claimant in these circumstances has to bring two separate Tribunal claims is gloriously wrongheaded. There is only one act of discrimination and only one claim even if it can be expressed in two different ways. As for the point about easing the backlog – bless them – this is not going to replace the need for some proper investment in our courts and tribunal system so I hope nobody has been building Labour’s hopes up about that.

There are all sorts of things that a new Government could do to tackle structural racial inequalities in our society. In the employment sphere ethnic pay gap reporting seems an inevitable development (I’m sceptical but that’s another story). I’d also be in favour of having a good look at the Equality Act and seeing what we can do to improve it. But these two proposals show a worrying lack of understanding of how discrimination law works. I hope that what we have from the Guardian is just a garbled report of some initial ideas that will be refined and improved as the time that Labour forms a government (presumably) draws closer.

This is going to be an interesting year.

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Simplifying the rules on annual leave?

Posted on November 21, 2023 by Darren Newman

On 8 November the Government published The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 (catchy title). Among other minor measures these make amendments to the right to annual leave and holiday pay in the Working Time Regulations 1998. Amendments are needed by the end of the year because the change in the status of EU law brought about by the Retained EU Law Act would otherwise leave considerable uncertainty about how the Regulations would work. The Government also wanted to address the perceived problems caused by The Supreme Court decision in Harpur Trust v Brazel which concerns the holiday pay of term-time only workers. 

These Regulations are only in draft form, but they are not being released as part of a consultation – in fact they are the response to two separate consultations (here and here) that took place earlier this year. 

The point is, the draft Regs are not a ‘work in progress’ they are intended to be ready to go and are about to be laid before Parliament. The Explanatory Memorandum accompanying the draft says that one aim of the measure is “Simplifying annual leave and holiday pay calculations under the WTR” and that:  

“The aim of these changes is to minimise unnecessary bureaucracy for businesses (and so make compliance easier) without reducing workers’ overall level of entitlement and protection.”

Para 7.9

The idea that these Regulations simplify the current regime is just laughable. I’ve spent the past week with a wet towel over my head trying to make sense of them. 

Where to begin? 

I’m not going to explain the Regulations as a whole – it would take far too long. Explaining how these Regulations work (or don’t) is probably going to be one of my main activities for the coming year and each part of the Regulations throws up its own issues. In this post I want to look at one new category of worker that the Regulations create. 

The new category is that of ‘irregular hours worker’ and their holiday entitlement under the new Regulations is changing. For holiday years starting on or after 1 April 2024 (!) they are no longer entitled to the four weeks’ annual leave and 1.6 weeks’ additional leave that workers with regular hours will get. 

So as a starting point it is obviously important to know who counts as an ‘irregular hours worker’ and who doesn’t. The new Regulations give us a definition:

a worker is an irregular hours worker, in relation to a leave year, if the number of paid hours that they will work in each pay period during the term of their contract in that year is, under the terms of their contract, wholly or mostly variable 

New Reg 15F(1)(a) WTR 1998

What does ‘mostly variable’ mean?

If a worker always works at least 30 hours a week but then always works between 1 and 10 hours overtime are their paid hours mostly variable? In most weeks their paid hours vary, but most of their paid hours do not vary. Where is the dividing line? Note as well that it is the terms of the contract that matter here rather than the actual hours that are worked. If a worker has a zero hours contract they will be an irregular hours worker even if in practice they consistently work a 40-hour week. 

I have trouble picturing the meeting where civil servants came up with the phrase ‘mostly variable’ and decided that it was clear enough and didn’t need any further definition. How does a phrase like that make it into the final draft? 

But this isn’t my main problem with irregular hours workers.

My main problem is the way in which we calculate the holiday entitlement and holiday pay for an irregular hours worker. Under the old regime we know that they would be entitled to 5.6 weeks’ leave – because everyone was. We would say that over the course of the year there must be 5.6 weeks’ when the worker is not required to work, but still gets paid as normal. We would then get into the question of how we work out a week’s pay and we would see that it is made up of an average of their earnings in the previous 52 working weeks. It’s not necessarily straightforward, but it sort of works. 

Under the new Regulations irregular hours workers are no longer entitled to 5.6 weeks’ leave. Regulation 13 (four weeks annual leave) and Regulation 13A (1.6 weeks’ additional leave) will no longer apply to them in relation to leave years starting on or after 1 April 2024. Instead, their annual leave will be calculated in accordance with a new Regulation – 15B. 

Under Regulation 15B there is no fixed entitlement to annual leave. Rather, the worker ‘accrues’ annual leave over the course of the leave year.

According to new Reg 15B(3)(b) they accrue annual leave:

On the last day of each pay period at the rate of 12.07% of the number of hours that they have worked during that pay period 

If you’re new to this, the figure of 12.07% may seem unusually specific. Here is where it comes from.

If there are 52 weeks in a year, and all workers are entitled to 5.6 weeks’ leave then that means they will be working for 46.4 weeks. 12.07% of 46.4 is 5.6, so if an employee is paid an additional 12.07% on top of what they have earned over 46.4 weeks they will have been paid an additional 5.6 week’s leave. And if a worker works for 46.4 weeks, then the idea is that 12.07% of the hours that they have worked will average out at an additional 5.6 weeks’ of work. So the intention behind accruing leave at the rate of 12.07% is that the holiday entitlement overall will stay the same. The only difference is that instead of 5.6 weeks being the fixed entitlement in each holiday year it has to be accrued as the holiday year progresses. 

But there is a problem with this.

If the holiday year starts on 1 April and the worker has no holiday entitlement to carry over from the previous holiday year (that is a whole other thing) then the worker starts with no holiday entitlement in the current year. It has to be earned.

Reg 15B makes it clear that the leave accrues on the last day of each pay period. Take an employee who on average has been working a 40-hour week and is paid monthly. At the end of each month they will accrue 19 hours of holiday. If their leave year runs from the start of April, that would mean that on the last day of March they will accrue their final instalment of 19 hours of leave. When are they supposed to take that? They have no right to it before it is accrued and they have no right to carry it over into the next holiday year. Do they just lose it as soon as they accrue it? It baffles me that the Regulations do not address this rather obvious point. 

Here’s another problem. 

It is clear (I think) that the holiday entitlement of an irregular hours worker is measured in hours. It accrues at the rate of 12.07% of the number of hours that have been worked in the pay period. So if an irregular hours worker works 60 hours in a week then they will accrue 7.2 hours of leave. After 10 weeks they will be entitled to 72 hours of leave. Suppose at that stage they want to take a week off. 

How many hours is that? 

Common sense might tell you it is 60 hours, but there is nothing in the Regulations to say that. And I’ve used an example where the working week is, in practice, stable and predictable. For most real-world irregular hours workers that will not be the case. How can a worker take a period of annual leave – whether a day, a week or a fortnight – measured in hours when under their contract the amount of hours they are required to work is ‘mostly variable’? 

What Regulation 15B does tell us is that the maximum amount of leave that can be accrued for an irregular hours worker is 28 days (Reg 15B(4)). How many hours would that be? Again there is no way to tell. 

If we can’t work out the physical time that they can take off, can we at least work out how they are paid? Regulation 16 of the 1998 Regulations covers holiday pay and Reg 16(1) is amended by these new Regs to make it clear that any period of leave taken under Reg 15B must be paid at the rate of a week’s pay for each week of leave. So it appears that we are back in the realm of measuring holiday pay by the week. 

Or are we? The new Regulations insert Reg 16(1A) which talks about calculating the hourly rate of pay in respect of which a worker under Reg 15B should be paid. This is the only mention of an hourly rate in the whole Regulations. Does this mean that an irregular hours worker’s holiday pay also has to be worked out in hours? The Regulations don’t actually say that but I don’t see why else you would need to work out an hourly rate. 

You might think that the hourly rate of the worker is straightforward? Heavens no!

Reg 16(1A) gives us a formula to work out the hourly rate. We start with working out what a week’s pay is for that worker and we then divide that figure by the average number of hours worked by the worker in each week used to calculate that figure. 

So the hourly rate is not the hourly rate the worker enjoys now, but the hourly rate they have been paid on average over the previous 52 weeks. If, in that period, our worker was given a pay rise then this will drag the average hourly rate over the preceding 52 weeks to below the current hourly rate. 

To an extent this has always been a problem since the 52-week reference period was introduced in 2020. But under the current regime we don’t use a 52-week reference period to work out an hourly rate – only the total amount of a week’s pay for a worker who is taking holiday in blocks of a week or a proportion of a week. There are swings and roundabouts. A lower hourly rate may result in a lower figure for a week’s pay, but working additional hours will result in a higher figure. For our irregular hours worker however, we are working out their hourly rate of pay – even though that is clearly expressed in his contract – by looking back over the preceding 52 weeks irrespective of whether the rate of pay changed in that time.

There are ways to work around some of these problems. The Regulations allow employers to pay rolled-up holiday pay to irregular hours workers which could bypass a lot of the issues I have set out. But that is no excuse for whoever drafted these Regulations. If Government is going to create a new category of worker, the least we can expect is that:

  • The new category is clearly defined
  • The amount of holiday they are entitled to in any holiday year is clear enough for them to understand how much holiday they are using up when they take a week off 
  • The method for accruing their holiday gives them a fair opportunity to take the holiday they have accrued
  • When they take holiday they are not penalised by being paid at a rate below their current hourly rate

As far as I can tell, the draft Regulations that have been presented fail on each of these points. They do not simplify the law – they complicate it. I look at this sort of thing for a living – I actually enjoy it. If I am struggling to make sense of these Regulations then how on earth are people with proper jobs to do going to understand what the new rules are?

These new Regulations are not good enough and need to be amended before they are laid before Parliament. 

Of course, I may have missed something. If anyone knows of a paragraph buried somewhere in these Regulations that I have not seen and which solves all of the problems I have identified, or even if I’ve just misread a paragraph, then please let me know. I would be genuinely delighted if it all suddenly made sense!

I’m going back under my wet towel now.

Posted in Working Time and Annual leave | Tagged , , , | 4 Comments

Sacked for your beliefs? A balancing act for Tribunals.

Posted on October 11, 2023 by Darren Newman

One of the issues I talk about a lot with clients is the extent to which employees with beliefs that might conflict with the values of the employer need to be accommodated – and how employers should deal with potential tensions arising from differing belief systems among employees. 

On social media I try to stay away from these debates, particularly in relation to transgender rights. I stay away not because the issue is unimportant but because the debate on social media is so polarising and, frankly, exhausting. It is easy to get locked into interminable discussions that seem to turn on rather obscure points of terminology that arouse intense feelings on both sides. Use the wrong phrase and it feels like you get shouted at by strangers for days on end. 

But over the weekend I found myself in an interesting Twitter discussion about an employment law question to do with the rights of someone who is ‘gender critical’ (I’m not falling into the trap of trying to define that – google it if you like) and whether they could be compelled by their employer to refer to a colleague as a woman when they believed that colleague to be a man. I asked for a specific scenario and promised to give a proper legal analysis of how I thought such a case would go. 

Here is the scenario I was given: 

“A person is told they *must* refer to a male colleague as “she/her” and they say no. They say they will use names where possible. They are dismissed and are suing for belief discrimination. They haven’t said anything else to the colleague and haven’t “misgendered” them. They have simply refused to submit to compelled speech.”

In this post I’m going to pick apart the legal issues and look at how discrimination law would currently approach such a case.

Protected beliefs 

I am going to assume that the employee’s refusal stems from beliefs that can be called ‘gender-critical’ and that following the case of Forstater v CGD Europe, those beliefs would count as philosophical beliefs under the Equality Act. It is worth bearing in mind, however, that it is quite possible for someone to refuse to comply with this sort of instruction in the absence of any clear philosophical beliefs. They may refuse out of spite or prejudice in which case their actions would certainly not be protected. 

I am also going to assume that this person has less than two years’ service and cannot claim unfair dismissal. So the question is not whether the employer has behaved reasonably in dismissing the employee. The only question is whether the dismissal amounts to discrimination.

Direct Discrimination

In a direct discrimination case (I’m leaving indirect discrimination out of the equation here) what must be shown is that the dismissal amounts to less favourable treatment “because of a protected characteristic” – the protected characteristic in this case being the employee’s belief. 

So the question is we ask is: why has the employee been dismissed? If the dismissal is because of the protected characteristic, then discrimination is established. If there is some other reason (good or bad) and the protected characteristic plays no part in the decision then there is no direct discrimination. 

The employer might start off by arguing that the employee has not been dismissed because of their beliefs at all. It is the employee’s conduct that they are concerned with. The reason for the dismissal is the employee’s refusal to obey their instructions to refer to a colleague using their preferred pronouns. Anybody who behaved that way would be treated just the same irrespective of whether their behaviour was prompted by their beliefs or simply a lack of consideration. 

I have some sympathy with this approach but it seems that this is not the right analysis. This is because the Equality Act has to be interpreted in order to give effect to the rights guaranteed by the European Convention on Human Rights. Article 9 of the Convention guarantees freedom of religion and belief and specifically says that everyone has the right to “manifest” their belief in “in worship, teaching practice and observance”

Manifesting a belief 

To understand the next step in the argument we need to look at what it means to ‘manifest’ a belief. The case that tells us what manifesting means is Eweida v UK – the case of the British Airways employee who claimed the right to wear a visible silver cross in breach of the employer’s dress code. When looking at the question of what manifesting meant, the Court said this:

In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

para 82

This means that for our employee’s behaviour to amount to a manifestation of their beliefs it does not have to be an obligation imposed by those beliefs, but it does have to have an intimate link with them. There must be a ‘sufficient close and direct’ link between the conduct in question and the underlying belief. 

This is a question of fact for the Tribunal to decide, but I would think that an employee refusing to act in a way that is inconsistent with their beliefs is almost certainly a manifestation of those beliefs. 

Objectionable manifestations

The reason we need to decide this point is that to decide whether our example amounts to direct discrimination we have to ask whether the employer could reasonably object to the way in which the employee manifested their belief. 

We get this from the Court of Appeal decision in Page v NHS Trust Development Authority which concerned a Trust Director who repeatedly gave interviews about his views – derived from his Christian beliefs – about same sex relationships.  Lord Justice Underhill said

In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself. 

para 68

I think the law has taken a wrong turn here. Concepts of reasonableness and justification belong in the realm of indirect rather than direct discrimination. I think the Court of Appeal in Page was overstating the strength of the case law from the EAT (the key cases to look at are Wasteney v East London NHS and Grace v Places for Children) But we are where we are. 

Following Page then, the question to be asked is whether our employee’s conduct was a manifestation of their belief “to which objection could justifiably be taken”. If it is then the dismissal was because of the conduct and not the belief. If objection could not justifiably be taken to the employee’s behaviour then the dismissal was because of the belief and the dismissal will amount to direct discrimination. 

So can the employer reasonably object to an employee refusing to use the preferred pronouns of a trans colleague?

Which side are you on?

At this point I suspect my readership divides. Those who instinctively support the employee will say that no objection could justifiably be taken to them referring to a colleague by reference to their biological sex. Those on the other side will say that of course an employer can object to an employee refusing to obey an instruction designed to be inclusive towards trans colleagues. 

But how will a Tribunal approach this, given that they cannot take sides in that debate? (anyone whose instinctive response is “it’s not a debate!” go back three places and miss a turn)

Article 9(2)

A recent case that attempts to answer the question is Higgs v Farmor’s School. The EAT was considering the case of an employee dismissed from a school because of Facebook posts – based on her Christian beliefs – criticising education on issues such as same sex relationships and trans rights.  Having found that the Tribunal had taken the wrong approach, the EAT sent the case back with guidance about how the issue needed to be tackled. 

The EAT relied on Article 9(2) of the Convention. Having set out the freedom to manifest beliefs in Art 9(1), Article 9(2) says that:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

So Article 9 does envisage some limitation on the right to manifest a belief – but only if it is “prescribed by law” and “necessary in a democratic society” to protect the rights and freedoms of others (to pick the grounds most relevant to the case we are considering case)

In Higgs the EAT said  “there can be nothing objectionable about a manifestation of a belief… that would not justify its limitation or restriction under [Article 9(2)]”. (Decision para 82). In other words, you can only object to the manifestation of a belief if it would be permissible to restrict it under Article 9(2).

A Balancing Act

This is important – and rather smart. The EAT has given some objective basis to the otherwise subjective question as to whether objection can reasonably be taken to something. In doing so they have set the bar quite high. It is not good enough that some people would object to what the individual is doing – it is not even good enough if most people would strongly object. What we have to ask is whether restricting the employee’s manifestation of their belief was ‘prescribed by law’ and “necessary” to protect the rights and freedoms of others.

The immediate issue that might occur to you is whether you can say that what the employer has done is ‘prescribed by law’. There is certainly no law that requires employers to dismiss people who refuse to use the pronouns that the employer thinks they should use. But as the EAT points out the phrase is wider than that:

It is well established that “law” in this sense has an extended meaning, requiring that the impugned measure should have some basis in domestic law and be accessible to the person concerned, who must be able to foresee its consequences, and compatible with the rule of law.

para 51

I would take from this that if the employer gave a clear instruction to the employee and was acting in accordance with its own policies on equality and diversity, that would probably be enough. Let’s take that box as being ticked as I think a Tribunal would be keen to gloss over this question and move to the next one.

The next question is whether the instruction given by the employer is necessary in a democratic society to protect the rights of others. The EAT in Higgs made it clear that this required a balancing exercise between the interference with the fundamental rights of the employee and the rights and freedoms of others. It seems that here it is the employer’s actions we must look at rather than what the employee was being asked to do. We have to look at the employer’s decision to dismiss the employee and weigh up its reasons for acting that way.

So why is the employer insisting on employees using the preferred pronouns of trans colleagues to the extent that it dismisses those who don’t comply? The argument, presumably would be that gender reassignment is a protected characteristic and that the employer is obliged to ensure that trans employees are accepted and treated with respect. There is no question that it is upsetting for a trans woman to be referred to using male pronouns and the employer is seeking to protect them from the distress that the employee’s behaviour is likely to cause. 

That is, I think, a reasonable objective for an employer to have. The question is whether it is a sufficient reason to justify dismissal.

My view is that it is not – and that the dismissal of the employee in the circumstances given would amount to direct discrimination. 

The first reason is that the EAT in Higgs emphasised that the starting point needed to be a recognition of the ‘essential nature’ of the right of freedom of belief (para 83). We have to accept that the expression of a belief may be protected even if that causes offence to others – and that any attempt to restrict the manifestation of a belief will only be justified in limited circumstances. In the example given, the employee’s behaviour is not overt. There is no abuse directed at a fellow employee and the employee is attempting to refer to the colleague without resorting to pronouns at all when possible. While some might find this conduct offensive, the extent to which it intrudes on the rights of others is limited and the price imposed on the employee – dismissal – is high. 

Different circumstances might lead to a different conclusion. I am given a scenario where an employee, in conversations with colleagues, seeks to avoid using the preferred pronouns of another colleague. The answer might be different if, for example, that employee was speaking to a client and constantly referred to a trans colleague as ‘he’. It would certainly be different if the employee refused to refer to customers or service users using their preferred pronouns (see Mackereth v DWP). 

It all just depends…

One of the problems with this issue is that many people approach it with a passionate intensity where the right answer just appears to them to be glaringly obvious. You may feel that – obviously – an employee should be free to refer to a trans woman as a man because that reflects the biological reality. You may feel that – obviously – a refusal to respect the gender of a trans woman equates to a denial of their whole identity and is necessarily a form of unlawful harassment. But when we are looking at discrimination case we have to accept that the law may protect people we fundamentally disagree with. A Tribunal cannot (or at least should not) just pick a side, it must strike a balance between competing rights. 

There is of course an artificiality in scenarios as straightforward as the one I have been looking at. In any real case the Tribunal would have actual incidents to look at and a whole context of the detail and tone of what was said and done. As the EAT said in Higgs, these cases are very ‘fact-sensitive’. Different scenarios would have different outcomes. In employment law that is often the most we can say.

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Qualifying for Unfair Dismissal

Posted on September 5, 2023 by Darren Newman

The right not to be unfairly dismissed is absolutely central to UK employment law – and the question of who qualifies for that right is something of a political football. Put simply, how long should an employee have to work for an employer before the employer should be required to act reasonably in choosing to dismiss? At the moment, that period is two full years. 

It is worth being clear about what this means – because this is often glossed over. An employee who has been continuously employed for less than two years can be dismissed – provided the employer gives notice – on a whim and for no good reason at all.  The employee can claim discrimination if the reason for dismissal is a protected characteristic (race, sex, religion etc) or because of something arising from a disability. There are also some grounds for dismissal which will always be regarded as unfair and which do not require a qualifying period (whistleblowing, trade union membership, asserting a statutory right and more). But those exceptional cases aside, the employer does not have to justify a decision to dismiss an employee with less than two years’ service. The employer might suspect the employee of misconduct without any evidence, or wrongly blame the employee for a mistake. Frankly the employer just might not like the way the employee sips their coffee. Inside two years, the employee has no right to complain no matter how unfair the decision to dismiss is. The qualifying period for unfair dismissal is a licence for an employer to act wholly unreasonably. 

Two years does seem quite a long time for an employee to have to wait for the right to be treated fairly – and the qualifying period has not always been so long. While it was 104 weeks when the right not to be unfairly dismissed was introduced in the Industrial Relations Act 1971, the incoming Labour Government reduced it to 26 weeks when it came to power in 1974. The Conservatives returned in 1979 and increased the qualifying period to one year in 1980 and then to two years in 1985. It remained that way until the New Labour Government of 1997 reduced the period to one year. Then, when the Conservative led coalition began in 2010, the qualifying period was put back up to two years.

Spot any patterns here? Conservatives go for a longer qualifying period and Labour favours a shorter one – and that has been the pattern for half a century. 

But with a general election due in the next year, and Labour currently looking likely to form the next Government, the question is whether – this time – they might abolish the qualifying period altogether. That is certainly current Labour Party Policy. The policy paper “A New Deal for Working People” says that Labour will ‘end this arbitrary system and scrap qualifying time for basic rights such as unfair dismissal’. Whether that policy will make it into the manifesto remains to be seen and there is some suggestion that Labour might be rowing back slightly from this position. Back in August, the Financial Times reported that Labour would still allow employees to be dismissed during a proper probationary period. 

Unfair Dismissal was first proposed as a right by the Royal Commission on Trade Unions and Employers Associations 1965-1968 (The Donovan Commission). They considered whether there was a need for a qualifying period of two years as there was for the recently introduced right to a redundancy payment. They concluded:

“We see no justification however for limiting protection form unfair dismissal to those with at least two years’ service, since the fact that he has been dismissed after a short period of employment could in some circumstances have a serious effect on an employee’s future prospects. When the terms under which an employee was engaged provide for a probationary period of service this is a factor of which due account must be taken”

Donovan Commission, para 555, page 149

I think that is rather well put and stands the test of time. If your CV shows that you worked for an employer for just a few months before moving on, then that will not generally look good. You may also have left secure employment on the promise of the new job and to have it unreasonably taken away from you is no less upsetting or unjust simply because you have been in the role for less than two years. And if we did abolish the qualifying period, then Tribunals would develop case law that set out a fair way to deal with employees who fail their probationary period. 

But while that case law developed there would be considerable uncertainty about what employers were expected to do. The Government could set out a fair way to manage probation in legislation, but in reality that would just lead to uncertainty about how the new rules would be interpreted. It is also a change that would require primary legislation – an Act of Parliament – taking up precious parliamentary time. 

I suspect that what will happen in the end is that the Government will set a six-month qualifying period. That change only requires a Statutory Instrument and can be done quickly and with little fuss. Indeed, one of the reasons that a change in the qualifying period takes place so predictably when there is a change in Government is that the change is quick and easy to make. Since most probationary periods are six months long anyway, I suspect a new Government would rather make the simple change quickly rather than take longer to do something more complicated. 

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The Strikes (Minimum Service Levels) Bill

Posted on January 11, 2023 by Darren Newman

Last autumn the Government introduced the Transport Strikes (Minimum Service Levels) Bill. That Bill never even made it as far as its first debate in the Commons because yesterday it was replaced by the Strikes (Minimum Service Levels) Bill. Can you spot the difference?

The first Bill applied to ‘specified transport services’ (without actually specifying them), but the new Bill is much wider. As well as transport, it also applies to health services, fire and rescue, education, the decommissioning of nuclear installations (and management of radioactive waste and spent fuel) and border security.

What does the Bill do? It gives the Secretary of State at BEIS the power to issue regulations specifying minimum service levels that will apply in the event of a strike taking place in any one of those sectors. An employer facing a strike covered by those regulations can then give a ‘work notice’ to the union identifying the employees that it needs in order to meet the service levels required. When a work notice is given the union must then take all reasonable steps to ‘ensure that all members of the union who are identified in the work notice comply with the notice’. If it fails to do so, then the strike is unlawful.

This Bill is less complex than the Transport Strikes Bill it is replacing. The Transport Strikes Bill had provisions allowing employers and unions to agree minimum service levels – with the Central Arbitration Committee required to step in and make a determination if no agreement was reached. The Secretary of State could issue regulations, but these would not apply if there was an agreement or a CAC determination.

In the new Bill, all that has gone. The Secretary of State has to consult before issuing Regulations and the implication is that he may not feel the need to do so in relation to services where an agreement is in place – but the power to make the Regulations is not limited.

The Secretary of State can issue Regulations relating to minimum levels of service but there are no criteria or guiding principles setting out how that minimum level of service is to be determined.  The Bill refers to minimum – as opposed to minimal – service levels. There is nothing whatsoever in the Bill that indicates what a minimum service level will be.

While the Government has been emphasising the need for minimum safety levels to be in place when there are strikes affecting key public services, there is no mention of safety anywhere in the Bill. I suspect that there would be some public sympathy for a rule that some level of emergency service should still be maintained when ambulance workers or firefighters go on strike. I’m not sure how volatile industrial relations in the world of decommissioning nuclear power plants is, but I can get behind the idea that a strike that led to an actual meltdown would be undesirable. Nothing in the Bill itself, however, limits the restriction on the right to strike to these emergency situations. The fact that the Bill also covers education makes it clear that the Government is thinking about more than public safety when it comes to limiting industrial action.

So regulations could be made in relation to teachers’ strikes aimed at making sure that schools retain a skeleton staff so that vulnerable children are taken care of. But they could also go much further than that – for example, preventing any interference with GCSE assessments or even the cancellation of classes. Similarly there is nothing to stop the Secretary of State from preventing any transport strikes that interfere with rush hour or result in any hospital appointments being cancelled.

This is bad lawmaking. The Government is granting itself sweeping powers while claiming that it only intends to use them for a limited purpose. This allows it to sidestep any debate about how the tension between the right to strike and impact that strikes have on public services should be navigated. The Bill has yet to be debated and there are many opportunities to amend it as it progresses through its Parliamentary stages. Surely a key issue that needs to be addressed is the criteria that will be used when setting out minimum service levels. The Bill currently gives a blank cheque to the Secretary of State and I don’t see how that can be sustainable.

Posted in Industrial action, trade unions | Tagged , , , | 1 Comment