The Future of Agency Workers

Posted on July 8, 2024 by Darren Newman

Labour’s manifesto promised that the new Government  will introduce legislation on employment law within 100 days. I’m not sure if the clock is ticking yet. Did they mean 100 days from the election or 100 days from the King’s Speech on 17 July? Let’s just say the deadline is around the end of October and not worry too much about counting the days.

In this post I want to look at an area that I don’t think has been fully addressed in Labour’s key policy document on employment law – Labour’s Plan to Make Work Pay. That is the issue of agency workers. 

An agency worker is someone in a triangular employment relationship. An end user hires an agency to provide them with a worker on a temporary basis. The worker has no direct contract with the end user but does have a contract with the agency. Agency workers have specific rights under, for example,  the Working Time Regulations and the Agency Worker Regulations. They also enjoy a range of other rights including protection from discrimination and harassment and entitlement to the National Minimum Wage. In most cases, however, they are not employees and so do not have protection against unfair dismissal. They are usually engaged by the agency on the basis that they may be offered work with various clients, but there is no obligation on the agency to find them an assignment. So if an end user no longer wants them, they can find themselves with no work to do and no right to be paid anything even though they remain ‘on the books’.

With some exceptions, agency workers are not employees. The triangular nature of their work (their work is controlled by the end user, but they are paid by the agency) means that neither their relationship with the end user nor the agency is one of employer-employee. The case law has wobbled on this issue in the past but for a good few years now this has been the accepted position. Even agency workers who have been engaged on the same assignment for months or years will not gain employment status as a result, provided the arrangement with the agency is genuine and not a sham.

So what happens to agency workers under Labour’s plans? Curiously, ‘Labour’s Plan to Make Work Pay’ only mentions them once – in the context of repealing the Regulations introduced when Boris Johnson was Prime Minister that allowed them to be used to replace strikers. Since the High Court ruled that those Regulations were unlawful however, I don’t think that policy makes much sense. The Regulations have already been ‘quashed’ (very pleasing word). The last Government was consulting on having them reintroduced but clearly that will not now happen. 

But the position of agency workers will certainly be affected by the proposals that the Government is committed to making. For example, one of the first things the Government is likely to do is abolish the qualifying period for unfair dismissal (this can be done by Regulation so there is not need to wait for an Act of Parliament to make the change). That will certainly make some employers feel more nervous about recruiting untested new staff. One response employers might have is to hire someone as an agency worker first and confirm them as an employee when they are confident that they will be a good fit. If it doesn’t work out, they can end the assignment after 6 months or so and the agency worker will not be able to claim unfair dismissal. Would that work?

Well, the Government is also proposing to move to a ‘single status of worker’. So that would imply that agency workers – unless there was an exception carved out for them – would qualify for the same rights as everyone else and would be able to claim unfair dismissal after all. 

But who would they claim against? They do not have a contract with the end user – they have a contract with the agency. So it is difficult to see how the ending of an agency work assignment could count as a dismissal by the end user. Would they have been dismissed by the agency? Well the agency would presumably say they have not been dismissed at all. Their contract with the agency is still in place. – they just don’t have an assignment for them at the moment and they can stay on the books until one comes up. 

But the Government is also pledging to ban ‘exploitative zero hours contracts’ – would that include situations like this one? Workers would be entitled to a contract based on the average of their previous 12 weeks of work. Would that apply to agency workers? How could it? It’s all very tricky.

None of this is a criticism of the manifesto. The proposals that Labour made were actually very detailed and precise by the standards of political parties setting out their policies before an election. But as the Government translates its political policies into actual legislation, these issues will need to be considered and dealt with.  This is just one area among many where a lot of work will have to be done in working out the detail. Given the timetable Labour set itself, and the sheer scale of what else is being proposed, they will have to move quickly. 

Over the past 14 years we have become used to modest incremental changes in employment law being introduced at a snail’s pace. The 2019 Conservative manifesto promised to introduce carer’s leave and all that amounted to was one week of unpaid leave that was eventually introduced four years later. Frankly it’s been a dull few years as far as employment law goes. I just can’t emphasise enough that things are about to change. 

Strap in. 

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Labour’s Plans for Employment Law – Other Stuff

Posted on June 12, 2024 by Darren Newman

I’ve now written three posts setting out Labour’s plans for employment law set out in its document “Labour’s Plans to Make Work Pay”. I’ve looked at trade union law, individual employment rights and equality and family-related issues. Ahead of the manifesto publication tomorrow (and I’m very much assuming that we won’t see any backtracking on what Labour is proposing) I wanted to round off the series with proposals that I overlooked or which didn’t easily fit into one of those three posts, but which are still important from an employment law perspective.

So what did I miss?

Third-party harassment

In my post looking at Labour’s equality law proposals I missed its position on third-party harassment. This is where an employee is subjected to harassment at work by someone other than a fellow employee – such as a customer, client or member of the public. The current position (and this has fluctuated over the years) is that an employer is not liable for harassment of its employees carried out by third parties. The current government supported a private members bill which became the Worker Protection (Amendment of Equality Act 2010) Act 2023 which initially extended liability for third-party harassment unless the employer had taken all reasonable steps to prevent it. But following back-bench opposition the Bill was watered down in the House of Lords and that provision was removed. Labour say they will “require employers to create an maintain workplaces and working conditions free from harassment, including by third parties”. I take that to mean that some form of liability for third-party harassment will be imposed – although you could also read that sentence as merely referring to an extension of the 2023 Act’s duty to take reasonable steps to prevent sexual harassment. We shall see.

Minimum wage

The introduction of the National Minimum Wage in the first term of Tony Blair’s administration has to count as Labour’s most successful employment law reform. It was initially opposed by the Conservatives, but by the time David Cameron became Prime Minister it was simply accepted as an established feature of work in the UK. 

One way in which Labour ensured the wide acceptance of the minimum wage was the creation of the Low Pay Commission which was tasked with making recommendations as to what the level of the minimum wage should be. It makes those recommendations based on the remit given to it by the Government. So at first Labour was very cautious about the level of the minimum wage and the remit stressed the importance of setting the NMW at a level that did not threaten jobs. It was George Osborne as Chancellor who changed the remit to ask the Commission to move towards a rate based on median earnings and in 2019 the remit was set so that workers aged 21 or over should enjoy a Minimum Wage of two thirds of median earnings by 2024, taking into account economic conditions.

Labour proposes to change the remit so that “alongside media wages and economic conditions, the minimum wage will for the first time reflect the need for pay to take into account the cost of living”. This is obviously aimed at moving the rate of the minimum wage closer to the “Real Living Wage” set by the Living Wage Foundation. It has to be said that the gap between the Minimum Wage for those 21 and over (currently £11.44) is not too far short of the real living wage – at least outside London – of £12. So this change does not seem very dramatic. Whether the remit would survive an economic shock leading to a significant rise in the cost of living and a return of high inflation is of course another matter. 

A change to the Low Pay Commission’s remit does not require legislation so it can be implemented very easily. Labour also proposes however to “remove the discriminatory age bands to ensure that every adult worker benefits”. There are currently three minimum wage rates. Those aged 16-17 are entitled to £6.40 per hour, those aged 18-20 get £8.60 and for those aged 21 and over the rate is £11.44. So presumably Labour could paln to keep the 16-17 year old rate, but abolish the rate for 18-20 year olds. That is an easy step to take and can be done by Regulation. It is not clear from the document whether the Apprentice rate of £6.40 will remain given that many of those on apprenticeships are 18 or over. 

Labour also says that they will ban unpaid internships “except when they are part of an education or training course”. I’m not sure what that law would look like. If interns are doing work for the employer – if they are ‘workers – then they are likely to be entitled to the minimum wage in any event. Defining what an internship actually is – and distinguishing it from a work experience placement – might prove tricky. 

Adult social care

The Labour Party manifesto for 2017 promised to “roll out sectoral collective bargaining”. What that meant was that  collective agreements reached at a sectoral level (for example, in the chemical industry or the retail sector) would automatically apply to all employers operating within that sector. That is a system common in Europe but radically different from the UK approach which is to allow individual employers to make their own arrangements for pay – either with or without input from unions.

In ‘Labour’s Plans to Make Work Pay’ the Labour Party does not abandon this aim altogether – stressing the importance of collective bargaining in in helping companies and workers ‘adapt to the new world of work’. But its specific policy proposal is to start with a “Fair Pay Agreement” in the adult social care sector.  The idea would be that a new negotiating body would be set up for the sector and that agreements reached through that body would then be applied to the individual employers within it. When this is up and working Labour will then look at seeing what other sectors would benefit from the same approach. 

From a legal point of view this is quite straightforward. The idea that minimum terms and conditions would apply in particular sectors was a feature of UK employment law for much of the Twentieth Century up until the final abolition of wages councils under the Thatcher governments.  Adult social care seems a good sector to start with because it is easy to define – being regulated by the Care Quality Commission – and is characterised by low pay and a large number of small employers with little scope for union recognition at a company level. Setting up the system and reaching an agreement seems to be the key challenge and I cannot see any prospect that Labour would be in a position to roll out the arrangement to other sectors within its first term. If the idea catches on, however, it could herald a serious shift in our system of industrial relations.

Enforcement

Everyone seems to agree that employment law should have a ‘single enforcement body’ – it was even pledged in the 2019 Conservative manifesto (page 39). Labour proposes to st up a body “to enforce workers’ rights, including strong powers to inspect workplaces and take action against exploitation”. Labour says that it will have “ the powers it needs to undertake targeted and proactive enforcement work and bring civil proceedings upholding employment rights”. The crucal question here is what resources this body will have. If it is to conduct workplace inspections, how many inspectors will it be able to employ? How many cases will it be able to bring and what rights will it be able to enforce? Will it be limited to minimum wage violations or will it also be able to enforce rest breaks and holiday entitlement? Unlike other employment-law proposals Labour is making, this has direct public spending implications. I will not get too excited about this new body until I see how big its budget is. 

Procurement

Labour pledges to bring about the ‘biggest wave of insourcing of public services in a generation’. This is not really an employment law measure and public sector procurement is a subject all of its own. However, Labour will reintroduce the ‘two tier’ code of practice that was scrapped by the Coalition Government in 2010. The Code was aimed at closing what was seen as a loophole in the TUPE protection that governed services that were contracted out to the private sector. Employees who were transferred would have their terms and conditions protected, but if new employees were recruited who had not been employed prior to TUPE the employer was free to pay them less than the transferred staff. Over time this would erode the pay and conditions of employees in contracted out services and so a Code of Practice was introduced requiring public bodies to insist that contractors did not employ people to work ‘alongside’ those who had transferred across on less favourable terms and conditions. It was frankly a rather vague requirement – we never quite figured out what ‘alongside’ meant – and not easily enforced.  Labour say they will ‘strengthen’ the Code rather than just reintroduce it, so it will be interesting to see what that means.

Enough to be going on with?

I think I’ll stop there. There are other bits and pieces that I haven’t gone into and Im sure I’ve missed out proposals that will turn out to be quite important. 

The point is this: there is a lot of new employment law coming our way. Unless the polls are wrong to such an extent that the whole polling industry will be plunged into an existential crisis, the next five years will see fundamental changes to the relationship between employers, workers and trade unions. Personally, I would be surprised if Labour managed to get through everything set out in their policy document in five years. So one of the things I will be watching for in the manifesto is whether it gives any clues as to how they will prioritise the work. Out of the 40 or so specific measures that they have committed to, what are they key things that they will move on in the first year? 

My guess – and I have no inside knowledge on this – is that a Trade Union Bill repealing the Trade Union Act 2016 and the Strike (Minimum Service Levels) Act 2023 could be introduced really quite quickly. The proposals on union recognition and industrial action are quite complex and would take some time to develop, but perhaps the Bill would create regulation-making powers so that they could be addressed separately?  Meanwhile the Government could start consulting on issues like zero-hours contracts and fire and rehire while they worked up some specific proposals. Abolishing the qualifying period for unfair dismissal can be done by Regulation – but introducing specific provisions on probation periods would have to be done in an Act of Parliament wand would take up Parliamentary time.

The last about Government was elected on 1 May 1997. The National Minimum Wage Act received Royal Assent on 31 July 1998. The statutory union recognition procedure and most other individual employment rights such as the right to be accompanied and protection against dismissal for striking workers were introduced by the Employment Relations Act 1999 which was given Royal Assent in July of that year – more than two years after the election. This sort of thing takes time – it would be a huge mistake to get fixated on getting things done inside the first 100 days or other such arbitrary timetable.

In any event, I should try not to get ahead of myself. No votes have been cast yet. But while the press might talk about Labour’s ‘watered down’ proposals on workers’ rights, I think those of us who work in this area need to appreciate the scale of the change that is (probably) about to come – albeit not as quickly as some would like.

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Labour’s Plans for Equality Law

Posted on June 4, 2024 by Darren Newman

Labour’s policy document published at the beginning of the election campaign – “Labour’s Plan to Make Work Pay” –  has so much detail in it that I have already written about it in two posts. The first looked at trade union law and the second looked at individual employment rights. In this post I’m going to look at Labour’s proposals for amending the Equality Act and a series of other measures that loosely fall within the category of ‘family-friendly’ rights.

First something that it appears Labour is no longer proposing. I have previously written about two proposals Labour had made to extend the Equality Act provisions on equal pay to the protected characteristics of race and disability and to enact S.14 of the Act which deals with ‘dual discrimination’. Both proposals were, in my view, very bad ideas and it is worth noting that neither are mentioned in this new document. I hope they have now been dropped and we can all carry on like that never happened.

As for what they are proposing, I’ll deal with each topic in the order in which it appears in the Labour document.

Flexible working

Labour was responsible for the introduction of the right to request flexible working in the Employment Act 2002. It has proved to be a popular right and has been significantly extended under subsequent Conservative governments. The most recent extensions of the right – making it a ‘day one’ entitlement and reforming the procedure for making a request – came into force at the beginning of April this year. 

Labour proposes to bolster the right still further by “making flexible working the default from day one for all workers, except where it is not reasonably feasible”. That word ‘default’ is carefully chosen.  In 2019 the Conservative manifesto said 

We will encourage flexible working and consult on making it the default unless employers have good reasons not to. 

The recent changes that we have seen were clearly intended to meet that commitment – but it is very hard to argue that the minor procedural amendments that were made by the Employment Relations (Flexible Working) Act 2023 amount to making flexible working the ‘default’ option.  

The central issue with the right to request flexible working is that although the employer can only refuse the request for business reasons, the law requires the employer to be sincere rather than reasonable. As long as the reason given is genuinely the reason for refusal and as long as any facts cited by the employer are true, there is no room for arguing that the decision itself is an unreasonable one. Labour’s proposal seems much more explicit that the right will be reformed to introduce this element of reasonableness to the process, making it harder for an employer to refuse requests and easier for employees to succeed in their claim. 

Maternity discrimination

It is automatically unfair (as well as discriminatory) to dismiss an employee because she is pregnant. Labour proposes to make it “unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances”. Ignoring the bad writing (six months after her return, the woman will no longer be pregnant) what is this proposal getting at?

Article 10 of the EU Pregnant Workers Directive says that member states (I know we aren’t one, but bear with me) must prohibit the dismissal of workers from the beginning of their pregnancy to the end of their maternity leave “save in exceptional cases not connected with their condition”. It was sometimes argued in employment law circles that UK law did not really implement this requirement because pregnant employees had no special protection against dismissal provided they were not dismissed because of their pregnancy. There was of course a duty to offer suitable alternative work (when available) to an otherwise redundant employee on maternity leave, but no protection against redundancy per se. 

As it happens the European Court of Justice ruled in 2018 that Article 10 was concerned with dismissals for reasons connected with pregnancy and did not prohibit, for example, a redundancy that was in no way related to the employee’s condition. Nevertheless, the idea that a pregnant employee’s protection against dismissal was insufficient under the current law has taken root. Labour’s proposal is to allow the dismissal of pregnant (and newly returned) employees in ‘specific’ circumstances but does not specify what those circumstances would be and there is no suggestion that they would need to be exceptional. I suspect that what this will turn into is a requirement for employers to demonstrate the dismissal of such an employee is genuinely for a reason that is nothing to do with pregnancy or maternity. Since employers should, if they have any sense, already be incredibly careful about dismissing employees in these circumstances, I don’t think a change along these lines should cause too much difficulty.

Bereavement leave

Labour pledges that it will introduce the “right to bereavement leave for all workers”. We don’t get any more details about that. Currently there is a right to parental bereavement leave which is two weeks of unpaid leave for parents who suffer the death of a child so perhaps Labour simply intends to widen the right to cover the loss of any close relative.  The introduction of a right to unpaid bereavement leave would not have much of an impact as few people are in a position to take it – and in the context of bereavement, employees with no right to paid leave are often signed off sick for a period in any event. We will have to wait and see whether there is any paid element to the leave that Labour introduces. 

Equal pay

Of all the proposals Labour is making, this is potentially one of the most significant:

Labour will put in measures to ensure that outsourcing of services can no longer be used by employers to avoid paying equal pay

What does that mean? Older readers may remember the equal pay crisis that swept local government in the noughties, the ramifications of which are still being felt today (ask anyone in Birmingham). Those cases would typically involve employees in female dominated occupations such as school catering assistants or office cleaners claiming equal pay with male dominated occupations such as maintenance workers. One issue that determined the extent to which an individual council was ‘hit’ by such claims as the extent to which it had contracted out its services to the private sector. This is because to claim equal pay you must be in the ‘same employment’ as your comparator – or at the very least there must be an employer who is the ‘single source’ of the difference in pay and in a position to eliminate it. 

So if a council had outsourced its school catering assistants or cleaners to a firm like Rentokil or Compass, those employees would not be able to bring claims because their pay was determined by their employer rather than the council. On the other hand, councils that ran their own services remained vulnerable. As a result we were more likely to see large scale equal pay claims in Labour run councils that had resisted contracting out rather than Conservative councils that revelled in it. Is Labour going to change the Equality Act so that an employee in a contracted-out service can claim equal pay with workers directly employed by her employer’s client? That is how I read their proposal and if that is right, it is a very big deal.  

Public-sector duties

The reason the Equality Act is called the Equality Act is that one of the key measures it was intended to introduce was a duty on public bodies to have regard to the desirability of exercising their functions “in a way that is designed to reduce the inequalities of outcome that result from socio-economic disadvantage’. However, the Act was only passed in the wash-up before the 2010 General Election and the new coalition Government, not being a fan of this measure, did not bring it into force. While the duty does now apply in Scotland and Wales – it is not yet in force in England. Labour proposes to bring it in.

I’m not terribly excited about that – I’m not a big fan of the public sector equality duties. They strike me as something of a tick box exercise. They may be useful in seeking the judicial review of decisions you don’t like, but I’m not convinced that they really do that much to eliminate discrimination or promote equality.

Nevertheless Labour reaffirms its commitment to the existing public sector equality duty – a duty on public authorities to have ‘due regard’ to the need to eliminate unlawful discrimination. Given that, there is one thing not mentioned in Labour’s document that I think will be worth watching. Under the Equality Act the Secretary of State has the power to impose specific duties on public bodies to help them further their general duty to promote equality. Again this fell to be implemented by the new Government in 2010 and the specific duties imposed by the then minister for Women and Equality Theresa May were, to say the least, modest. But a Government that actually believed in the duties would be able to put this power to much more extensive use. Could we see specific equality targets being set for the public sector?

Pay gap reporting

I have often said that my nightmare for employment law is that it eventually turns into a series of rights to request things and duties to report things. I’ve also been sceptical in the past about the duty on large employers to report their gender pay gap. Labour proposes to add a duty on employers to publish ‘action plans’ on how they will close their gender pay gaps – which is odd, because having a gender pay gap isn’t illegal so there is no duty to actually seek to close it. 

Labour also proposes to introduce new duties for large companies to report their ethnicity and disability pay gaps. This will cause all sorts of problems. The issue of ethnicity pay gap reporting was consulted on under Theresa May’s administration and the consultation document very fairly set out the many reasons why this is a more difficult duty to implement than gender pay gap reporting. Let’s see how a Labour Government (if there is one – should I keep saying that?) gets to grips with the issues.

Menopause

How employers support employees going through the menopause is increasingly talked about in HR and employment law circles (I wrote about the issue of disability and the menopause here). Labour would introduce a duty on employers with more than 250 employees to produce menopause action plans “setting out how they will support employees through the menopause, much like gender pay gap action plans”.  Another duty to produce a report on something – I’m not a fan. 

Time limits

One proposed reform that will apply to all Tribunal claims – but which feels particularly relevant in the case of discrimination – is to increase the time limit for bringing an employment tribunal claim from three months to six months. This should be welcomed. A three-month time limit is absurdly short. A six-month time limit still gives employees little opportunity to resolve matters internally or gather evidence that might indicate that they have a claim before committing themselves, but it would undoubtedly be an improvement

…still not finished. 

This is my third post and I still haven’t covered everything Labour is proposing for employment law. I think one more ‘mop up’ post should do it. I can’t stress enough that the sheer volume of what Labour is means that implementing it all in one go is just not an option. In fact, I would be really surprised if they managed to legislate for everything they have promised to do in employment law within a first term. A key question for the next two to three years is what issues will Labour prioritise? I hear that the manifesto is due on 13 June – perhaps that will give us a clue?

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Labour’s Plans for Employment Rights

Posted on May 30, 2024 by Darren Newman

In my last post I looked at the new measures Labour is proposing in the field of trade union law. In this post I am going to look at individual employment rights, with proposals on discrimination and family-based rights coming next.

It is the proposals on individual rights that have attracted the most press scrutiny – and frankly it is the area where I think civil servants will have their work cut out for them to come up with coherent legislation that will achieve the policy goals that Labour is setting out. So in this area it is important to look not just at what Labour says it is going to do, but also think about what they may actually end up doing given the difficulties that some of their proposals might encounter. 

I’m going to take their proposals in the order they are given in their latest policy document “Labour’s plans to make work pay”.

Zero hours contracts

So this is a tricky one. In a recent post I suggested that Labour’s policy was shifting on this issue and that does seem to be confirmed by the new document. Here is what Labour says it policy now is:

Labour will end ‘one sided’ flexibility and ensure all jobs provide a baseline level of security and predictability, banning exploitative zero hours contracts and ensuring everyone has the right to have a contract that reflects the number of hours they regularly work, based on a twelve-week reference period

There is a lot to unpack there. But note the work that the word ‘exploitative’ is doing in that paragraph. You could, if you wanted to, read that to mean that zero hours contracts are exploitative and so Labour will ban them. But I think in context what is really meant is that Labour will seek to ban those zero hours contracts that are exploitative. Non exploitative zero hours contracts will remain lawful. 

How do we tell the difference between exploitative and non-exploitative zero hours contracts? Perhaps the clue is in the reference to ‘one sided’ flexibility. That refers to a situation where the employer does not guarantee that any hours will be provided but the worker is obliged to be available for any work that is offered. That situation would strike most people as unfair. Back in 2016 I wrote about the “availability provision” that was introduced in New Zealand. Perhaps Labour is thinking about introducing something similar here?

The idea of basing a worker’s guaranteed hours on their working pattern over a twelve week reference period strikes me as fraught with difficulty. Will that be a rolling requirement? Will employers have to keep adjusting contracts for employees to reflect their most recent working patterns? The document talks about having the ‘right’ to such a contract. Does that mean it will be based on some sort of right to request – perhaps using the right to request predictable hours created by the Workers (Predictable Terms and Conditions) Act 2023? Presumably there will be exceptions where there are good reasons why the work done in the previous 12 weeks will no longer be available? And how do you prevent employers from taking care to ensure that workers are not given regular hours in order to avoid having to formalise that working pattern in a contract? Could the new right just create an incentive to keep a worker’s hours as unpredictable as possible?

I don’t expect all of these questions to be answered in a general election campaign. The new document commits a Labour Government to a full process of consultation on the details and implementation of its proposals. Here is just one area where there will be a lot of work to do in coming up with workable – and meaningful – legislation.

Fire and rehire

Here is another area where it is easy to set out a policy, but much harder to frame workable legislation that achieves it. Here is Labour’s position:

Labour will end the scourges of ‘fire and rehire’ and ‘fire and replace’ that leave working people at the mercy of bullying threats. We will reform the law to provide effective remedies against abuse and replace the inadequate statutory code brought in by the Government, with a strengthened code of practice. Ending fire and rehire means workers can be safe in the knowledge that terms and conditions negotiated in good faith can’t be ripped up under threat of dismissal.

Hand on heart, I’m not sure I understand what is being proposed here. The Code of Practice being referred to (which will come into force during the election campaign) is indeed pretty tame. A stronger code stressing that dismissal for refusing to agree new terms and conditions would only be fair when the business is at genuine risk if the changes are not made and all other alternatives have been explored would be one way of shifting the dial and making it harder for employers to justify going down that route. Some time ago Alan Bogg of University of Bristol wrote about how a policy aimed at ending fire and rehire could be translated into legislation. It’s a really good explanation of the legal options available.

My problem with the proposal is that unless you also make it harder to make employees redundant, I don’t see how you can ban “fire and rehire” without creating an incentive for employers to go down the redundancy route. The real problem here is that the ‘range of reasonable responses’ test makes it difficult for Tribunals to rule that business decisions made by employers are unreasonable with the result that unfair dismissal has effectively become a law about how an employee is dismissed rather than why (discuss). Without fundamentally changing the way in which Tribunals decide whether or not all dismissals are fair or unfair I think it is difficult to come up with a coherent set of proposals focussing purely on fire and rehire. Obviously this is something we are going to come back to (if the polls are right). 

Day one rights

This has been a theme of Labour’s employment law policy for some time. Here is what they say: 

Our New Deal will include basic individual rights for day one for all workers, ending the current arbitrary system that leaves workers waiting up to two years to access basic rights of protection against unfair dismissal, parental leave and sick pay.

That is a very badly written paragraph which on a first reading makes it sound like Labour aims to protect workers against sick pay. What it means, however, is that the qualifying period for unfair dismissal and parental leave will be abolished. There isn’t a qualifying period for Statutory Sick Pay but Labour says elsewhere that they will remove the three day ‘waiting period’ before SSP is payable. 

There is currently a one year qualifying period for parental leave. It is quite a complex right giving parents a right to take up to 18 weeks’ leave – at the rate of no more than four weeks’ a year – for each child over the course of their childhood. But since the leave is unpaid, there is relatively little take up. I doubt many people will get excited about the removal of the qualifying period. 

As for unfair dismissal however, the abolition of the qualifying period will be a huge deal. I wrote about Labour’s proposal in September last year and took the view that eventually Labour would settle on a six-month qualifying period. I don’t think that is still an option for them – they are clearly committed to scrapping the qualifying period altogether. 

The abolition of the qualifying period for unfair dismissal can be done quickly with just a statutory instrument. But Labour does seem to want to add provisions into the Act around probationary periods. They say that they “will ensure” that employers can operate fair and transparent probationary periods which suggests that they won’t simply be leaving it to Tribunals to work out when it is fair to dismiss an employee for failing to pass probation. Exactly how those provisions are drafted and the extent to which the employer will have to justify a decision not to confirm an employee in post will be one of the key issues that employers will want to be consulted on by a new Labour Government. 

Single status of worker

Labour says that it will “move towards” a single status of worker and “transition towards a simpler two-part framework” that distinguishes between those in employment and those who are genuinely self-employed. This would be a huge structural change to the way in which employment law works and there is a clear suggestion here that Labour is in no hurry to move this forward. I think it ultimately makes sense to have a law under which everyone who is ’employed’ has the same rights. But that would make the boundary between those who are employed and those who are not particularly important. If everyone who currently counts as a ‘worker’ had the right to claim unfair dismissal and redundancy, would that affect how Tribunal’s view arrangements that were finely balanced? It would also seem very odd if workers who now qualified for full employment rights continued to be taxed as self employed. On balance I doubt this will form part of Labour’s first big bill on employment rights – but it is clearly an issue that we will return to at some point. Let’s just park this idea for now. 

Overview

While Labour’s proposals on trade unions and industrial relations – though controversial – seem largely straightforward to me, their policies on individual employment rights will need a lot of work before they can reach the statute book. “This new document “Labour’s Plan to Make Work Pay” emphasises their commitment to engaging with all stakeholders in consultation before finalising their proposals, and this will take time. I suspect that what we might see is a Bill dealing with trade union issues brought forward quite quickly in the first session of Parliament while other issues are deferred to later. There is surely too much being proposed here for the Business Department (whatever it is called under a Labour Government) to get it all through in one go. If Labour is elected I think we will be looking at employment law changes spread out across their first term.

We still aren’t done. In my next post I’ll look at what labour is proposing in relation to discrimination law and family-related rights. 

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Labour’s Plans for Trade Union Law

Posted on May 27, 2024 by Darren Newman

I refuse to believe that Sharon Graham, General Secretary of the Unite the union is genuinely unhappy about Labour’s plans for employment law. An updated plan was published by the Labour party on Friday and she was reported as saying that it had “more holes than Swiss cheese” and that it was in danger of becoming a “bad bosses charter”.  If she genuinely thinks that then this is a bizarre reaction to the most union-friendly manifesto for employment law that has ever been put forward by a party that is actually expected to win an election.  

Press attention seems to have focussed on the caveats that have been asserted around the proposal to ban “fire and rehire”. It is true that I struggle to make sense of what is actually being proposed in this area. I would also agree that the proposal on zero hours contracts has clearly been watered down (I discussed this recently). But it would be a mistake to concentrate too much on these proposals and ignore the other measures (more than 30 of them) that a Labour government would bring forward. 

In this post I want to focus purely on the area of trade union rights, industrial action and union recognition. What Labour has committed itself to doing in this area would transform the industrial relations landscape in Great Britain. 

The overall thrust of the policy is to reverse what is described as the Tories’ “scorched earth” approach to industrial relations and introduce a new regime based on “good faith negotiation and bargaining” ushering in “a new partnership of cooperation between trade unions, employers and Government”. What will that mean in practice? Well strap in. 

Union access to the workplace

One issue for unions seeking to organise and recruit new members, is gaining access to workplaces where they have yet to be recognised. A Labour government would “act to ensure that union members and workers are able to access a union at work through a regulated and responsible route where there is support within the workplace”. Exactly what that would look like in terms of legislation is not clear – perhaps it is something that the Central Arbitration Committee would be able to order when there was some support for the union but not enough to trigger full recognition. But significantly “Labour will introduce rights for trade unions to access workplaces in a regulated and responsible manner, for recruitment and organising purposes”. Employers will also be placed under a duty to inform staff of their right to join a trade union. This will be something that will have to be included in the written statement of terms and conditions that must be given to all workers.   

Labour then says that it will “enable employees to collectively raise grievances about conduct in their place of work, to Acas”. That’s a bit odd. Acas doesn’t handle grievances from anyone. The document goes on to say “this will be in line with the existing code for individual grievances” which must be a reference to the Code of Practice on Disciplinary and Grievance Procedures. Under that code, of course, the grievance is raised with – and determined by – the employer. Acas isn’t involved. Something has got a bit mixed up here, but I wonder if what lies behind it is a proposal for the right to be accompanied to be extended to collective rather than just individual grievances. Currently, S.10 of the Employment Relations Act 1999 gives individual workers the right to be accompanied by a trade union official at a grievance hearing. When that right was introduced, unions were frustrated that the right was confined to individual rather than collective grievances. If Labour now contemplates requiring employers to hear grievances raised by groups of workers, accompanied by union officials, then that could be really significant. 

These measures on their own would amount to a significant package of new rights for unions and their members – but there is more. 

Industrial action

Labour will repeal the Trade Union Act 2016. This was the act that introduced turnout requirements for industrial action ballots and increased the notice that trade unions had to give of any industrial action from one week to two. It also placed a six-month time limit on the validity of strike ballots, introduced additional requirements on the wording of the ballot paper and placed additional restrictions on picketing. All of these will go. 

The Strikes (Minimum Service Levels) Act 2023 will also be repealed. It’s difficult to argue against this because that Act has proved to be hopelessly unworkable. All the same, If I were a union, I’d be glad to see the back of it. 

Before taking industrial action, unions have to conduct a ballot of their members. That ballot must be fully postal – which means that the ballot paper must be posted to each individual member who then has to complete the ballot paper and return it by post. For younger readers the “post” is a process by which actual pieces of paper are carried between two people by a company called Post Office Ltd – who you may have read about in the news recently [correction – as pointed out in the comments, it is actually the Royal Mail that handles the post, but the point remains]. You have to pay for each piece of post you send, so organising large-scale strike ballots is a costly undertaking.

Labour proposes to scrap the need for a postal ballot and replace it with a system of “modern, secure, electronic balloting and workplace ballots”. This is a very big deal. Postal ballots are time consuming and expensive. Switching to electronic and workplace ballots will make it much easier to organise industrial action. 

The proposal does not come out of the blue. The Trade Union Act 2016 provided for an independent review of the feasibility of electronic ballots and that resulted (in December 2017)) in the Knight Review. Its conclusions were that the world was not yet ready for electronic ballots but that the Government should consider a pilot scheme. The Government, however, never got around to responding. Of course, doubts about the fairness and security of electronic ballots did not stop the Conservative party from using electronic voting to choose Boris Johnson and Liz Truss to be Prime Minister, so it is a little bit hard to argue that it is wrong to use a similar system to allow council workers to decide on an overtime ban.

Union recognition

We still aren’t finished. Labour is also proposing changes to the statutory scheme for union recognition – removing some of the compromises it made when it first introduced the scheme in the Employment Relations Act 1999. Gaining union recognition under the scheme means demonstrating that recognition is supported by a majority of the workers in the relevant bargaining unit. Currently the Central Arbitration Committee may only accept a recognition request as valid if it considers that the majority of workers in the bargaining unit would be likely to favour recognition. This is a decision that must be made before any ballot is organised and Labour proposes to scrap this requirement – making it much easier for a union to obtain a recognition ballot. 

In a recognition ballot the current rule is that recognition will be awarded only if it supported by a majority of those voting in the ballot and at least 40 per cent of those entitled to vote. Labour will abolish this threshold requirement and provide for recognition to be awarded where there is a simple majority of those voting. Overall Labour will make it easier for unions to win recognition from a reluctant employer. 

Transforming employment law

If I were a trade union leader I would be absolutely delighted with these proposals. They are a million miles away from anything that a Conservative government would do and suggestions that there is no real difference between Labour and Conservative are – in the field of employment law at least – very wide of the mark. 

The measures I have outlined in this post would make for a pretty chunky Trade Union Bill. But they are only one aspect of what Labour is proposing. In my next post I plan to look at their plans for individual employment rights. Then I will round off with an assessment of their proposals for discrimination law. I can’t stress enough that the sum total of what Labour is proposing is transformational. Sharon Graham must realise that. Perhaps she is only pretending to be cross in order to help persuade the business lobby that Labour’s proposals have been significantly watered down. If she was jumping up and down with glee, that might not play well in the Daily Mail. 

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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.

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