Quarterly Legal HR Newsletter – May 2023
Acas publishes new advice on workplace stress management and guidance on reasonable adjustments for mental health.
Following a recent survey, Acas has issued fresh guidance on managing stress at work. One-third of employees do not believe their workplace has a suitable stress-management policy and 63% feel under pressure from the rising cost of living.
The Acas advice sets out the many causes of workplace stress, such as too many or conflicting demands, poor working conditions, lack of control, lack of support, bullying, insufficient training, lack of role clarity, low trust, or organisational change. Personal circumstances including bereavement, divorce, menopause, caring responsibilities, poor health, or financial worries may also affect employees’ wellbeing. The advice notes that, although employees do not have to tell their employer about personal problems, their employer may be able to support them, for example, by referring them to an employee assistance programme (EAP), granting time off, or agreeing to temporarily adjust hours and/or expectations.
The guidance recommends that employers look out for signs of workplace stress and proactively ask open-ended questions to see how people are feeling. If an employee is absent because of stress, an employer should stay connected and offer support.
A policy on mental health and stress, ensures a positive work environment, as does conducting risk assessments and staff surveys. Employees should be encouraged to raise concerns and managers need to have appropriate training. Initiatives to create a positive culture may include promoting work-life balance, providing an EAP, or training on stress management techniques. Employees must also practice self-care by increasing their own awareness of what causes them stress, taking regular breaks, speaking to their employer about any causes of stress, and taking advantage of any support offered.
In addition, Acas has also published workplace guidance on making reasonable adjustments for mental health. The information covers what reasonable adjustments for mental health are, requesting reasonable adjustments for mental health and responding to requests, managing employees with reasonable adjustments for mental health, and reviewing policies with mental health in mind.
Crucially, the guidance states that even though employers are only legally obliged to make reasonable adjustments if they know (or could reasonably be expected to know) that a disability exists, reasonable adjustments should be made even if there is no disability (for example, an employee has been signed off on sick leave due to stress). This will increase the chances of the employee staying in employment, reduce absences, and help with staff retention. It also contributes to a positive workplace culture.
Employees are advised to talk to their employer if they need a reasonable adjustment. There are suggestions for how to prepare for the meeting along with guidance for employers on how to respond to a request and how to talk with an employee about their mental health. If any reasonable adjustments are agreed, a trial period and monitoring is recommended, bearing in mind that mental health problems can be long-lasting, and people’s needs often change over time.
Establishment of an employment relationship upheld.
In Red, White and Green Ltd v HMRC [2023] UKUT 00083 (TCC), the Upper Tribunal (UT) upheld the First-Tier Tribunal’s (FTT) decision that IR35 applied to a presenter providing services through his own company to ITV, despite his other work as a TV and radio presenter, which fell under an independent contractor status.
The UT relied on the Court of Appeal decision in HMRC v Atholl Productions Ltd [2022] EWCA Civ 501 which provided authority for the proposition that a person can be engaged under several contracts of (part-time) employment and be self-employed for other jobs. In addition, the FTT was entitled to consider the extent to which the presenter relied on his income from ITV.
The UT concluded that the FTT had properly considered the issue of how much control the presenter had over their work and its findings, in particular that it would be “career suicide” for the presenter to disagree with key ITV decisions, and the requirement to carry out promotional work, evidenced that ITV exercised significant control.
Supreme Court clarifies vicarious liability two-stage test.
In Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15, the Supreme Court continued its trend of limiting the widening of the scope of vicarious liability.
Mrs B and her husband attended services of the Barry Congregation of Jehovah’s Witnesses and became close friends with Mr S and his wife. Mr S was a church “elder”. Mrs B regarded Mr S as her best friend. Mr S began to abuse alcohol and became depressed. Mrs B and her husband supported him and his wife. Mr S became overly affectionate with Mrs B, hugging, kissing, and flirting with her.
Mrs B was so concerned about Mr S’s behaviour that she suggested to Mrs S that they spoke to Mr S’s father, who was also an elder. Without Mr S’s knowledge they did so, and Mr S’s father explained that Mr S was suffering from depression and needed love and support. He requested that Mr and Mrs B provide Mr S with extra support. It was accepted at trial that, had it not been for Mr S’s status as an elder and the instruction from his father, another elder, the friendship would have ended at that time.
At a subsequent meeting of the couples, Mr S raped Mrs B. Mr S was convicted in the criminal court. Mrs B brought a claim for damages for personal injury against the Watch Tower and Bible Tract Society of Pennsylvania and the Trustees of the Barry Congregation. She argued that the Defendants were vicariously liable for the rape (via the tort of trespass to the person) committed by Mr S. The Watch Tower Bible and Tract Society of Pennsylvania undertook to satisfy any judgment against the Trustees of the Barry Congregation.
The High Court and the Court of Appeal upheld her claim, finding that the Trustees of the Barry Congregation were vicariously liable for the rape. However, the Supreme Court overturned these decisions.
Bringing together principles derived from the recent Supreme Court cases of Barclays Bank Plc v Various Claimants and WM Morrison Supermarkets Plc v Various Claimants, the Supreme Court in the instant case reiterated the two-stage test for vicarious liability:
- Is whether the relationship between the parties was one of employment or akin to employment? In non-employment relationships, the Court must meticulously consider whether the facts of the relationship are similar or different to that of employment, for example, is money being exchanged in return for work, how much control does the Defendant have over the Claimant’s work, and is there a hierarchy of seniority between the parties?
- Was the wrongful conduct so closely connected with acts that the Defendant was authorised to do that it could fairly and properly be regarded as being committed whilst acting in the course of employment or quasi-employment?
Looking at the instant case, the Court ruled that Watch Tower Bible and Tract Society of Pennsylvania had a Branch Office in Britain, which was established under the Companies Act 1984 and was registered as a charity. The ecclesiastical Britain Branch Office appointed and removed elders in Britain. At all relevant times, the Barry Congregation was an unincorporated association, of which the Trustees of the Barry Congregation were elders. The Supreme Court determined that the ecclesiastical Britain Branch Office was the body that was most obviously the “quasi-employer”. However, as it was a branch of, and therefore acting on behalf of, the Watch Tower Bible and Tract Society of Pennsylvania, the Court concluded that this latter body was the correct defendant for the purposes of vicarious liability. It was referred to by the Supreme Court as the “Jehovah’s Witness organisation”.
Referring to the two-stage test for vicarious liability, the Supreme Court agreed with the Court of Appeal and the High Court that there was a relationship akin to employment between the Jehovah’s Witness organisation and Mr S in his role as an elder. Regarding the second stage of the test, the Court had to ask itself “was the rape committed by Mr S so closely connected to the acts the Jehovah’s Witness organisation had authorised Mr S to do, that it could be fairly and correctly regarded as committed whilst Mr S was acting in his quasi-employment position as a church elder”? This part of the test was not satisfied for several reasons, including:
- The rape happened in Mr S’s home, not whilst he was taking part in any employment activities.
- Mr S was not exercising control over Mrs B because of his position as an elder. Mrs B went into the back room (where the rape occurred) because of her close friendship with Mr S and she was seeking to provide emotional support to him.
- Although the rape was a horrific act, it could not be classed as the same as ongoing and planned child grooming.
Finally, the Supreme Court made it clear that simply because the Jehovah’s Witness organisation had more money available than Mr B to pay a compensation award, this did not justify expanding the doctrine of vicarious liability beyond its present boundaries.
Family worker exemption upheld.
In Thukalil and another v Puthenveettil and another [2023] EAT 47, the EAT upheld a tribunal decision disapplying the “family worker exemption” in regulation 2(2) of the National Minimum Wage Regulations 1999 (NMW).
The general right to receive the NMW is set out in the National Minimum Wage Act (NMWA) 1998, which provides that “a person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage” (section 1(1), NMWA 1998).
Workers who reside in their employer’s family home, are treated as part of the family (in that they share leisure activities and household tasks) and are not charged for food and board do not qualify for the NMW (referred to as the “exemption”). However, because of concerns around abuse of the exemption to be paid the NMW in relation to migrant domestic workers, there are confirmed plans to remove the exemption but at the time of writing Parliament had not yet addressed the issue.
The facts of Thukalil and another v Puthenveettil and another were as follows: Ms Puthenveettil, the Claimant, travelled to the UK from India in July 2005. Upon arrival, she was employed by a husband and wife as a live-in domestic worker in their London home. She was paid between £110-£120 per week, a far lower rate than what she would be entitled to if she were being paid the NMW. She resigned in 2013 and brought, among other claims, an unauthorised deduction from wages claims in the Employment Tribunal. She sought to be paid the level owed to workers under the NMWA 1998.
Section 19 of the Equality Act 2010 provides for indirect discrimination, revolving around the principles of ‘provision, criterion, or practice’ (‘PCP’) that appears neutral but in practice discriminates against a group of people. Ms Puthenveettil argued that the exemption was discriminatory as it prevented a group of workers (i.e., foreign live-in domestic workers) who were mostly women, from receiving the NMW. Furthermore, she claimed the exemption contravened Article 157 of the Treaty on the Functioning of the European Union (‘TFEU’), which states that “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”. Alternatively, she argued that even if Article 157 TFEU was irrelevant, the exemption violated the general principle of non-discrimination that was enshrined in EU law.
On 14 December 2020, the Employment Tribunal gave its judgment. It ruled that:
- Most workers caught by the NMW family law exemption were female.
- The exemption could not be justified on the grounds that it was a proportionate measure to achieve a legitimate aim.
- Because the events that led to the claim predated the Brexit transition period, Ms Puthenveettil could rely on her EU Treaty rights and general EU law.
- The exemption was not compatible with EU rights. Before disapplying a domestic law, the Courts are obliged to try and interpret it in a way that is compatible with EU rights, and this could not be achieved when analysing the exemption.
- Therefore, because member states consent to the principle that EU laws take precedent over domestic laws when they join the EU, the Employment Tribunal was required to disapply the exemption.
The Employment Appeal Tribunal agreed with the lower Tribunal’s findings. Given that we are now over two years on from the end of the Brexit transition period, it is likely that this will be one of the last employment law cases to successfully argue the dominancy of EU general rights and Treaty rights.
The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.
YOUR OUTSOURCED HUMAN RESOURCES DEPARTMENT.
For further information on any of the HR subjects we provide, please click the heading below:
