Quarterly Employment Law Newsletter – Q4 2022
In this legal HR newsletter, we discuss:
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UK Government launches new online service to help employers support disabled employees
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Changes in right to work from 1st October 2022
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EAT rules a redundancy consultation is not meaningful if it occurs following a selection criteria that inevitably led to a pool of one employee.
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Acas publishes new guidance on employee suspensions
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Gender inequality persists in certain industries
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The ET rules that supporting a football club does not amount to a philosophical belief within the meaning of section 10(2) of the Equality Act 2020.
UK Government launches new online service to help employers support disabled employees
Small businesses with employees affected by disability or health conditions will receive extra assistance with the government announcing a £6.4 million investment to help employers support employees with disabilities and health conditions. A percentage of the funds are being used to create an online service where employers can access information about supporting and managing employees with disabilities and health conditions.
The online service is free and is aimed at smaller organisations that do not have the benefit of an HR team. The project aims to encourage small businesses to increase the inclusiveness of their workforces.
An early test version of the Support with Employee Health and Disability service is currently active and will be updated and developed over the next three years. An online survey is open for businesses and disability groups to offer feedback that will be used to inform the development of the site.
You can read more about the service here.
Changes in right to work checks from 1 October 2022
From 1 October 2022, employers must conduct right to work checks in one of the following three ways:
- Online
- Manually
- Using an Identity Service Provider
The method used by an employer will depend on the immigration status of the employee.
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Immigration Status |
Checking Method |
|
Biometric Residence Permit (BRP), Biometric Residence Card (BRC) and Frontier Worker Permit holders
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Online |
| Those with e-visas (for example, EU Settled Status, EU Pre-settled Status, or those who applied for UK immigration permission using the UK Immigration: ID Check app)
|
Online |
| Those not eligible for online checks (for example, valid British and Irish passport holders)
|
Manual or using an Identity Service Provider. |
Source: Thompson Reuters
From 30 September 2022, employers will no longer be able to conduct checks over video call or accept scans or photographs of documents (the original will need to be examined).
To ensure compliance with the new right to work checks, employers should:
- Decide whether it is worth using an Identity Service Provider. This decision will be based on the number of international employees working for the organisation and the rate of staff turnover.
- Draw up policies and procedures for line managers and HR personnel to follow when making manual or online right to work checks and detail which method should be used in any particular circumstance.
It is imperative to conduct right to work checks correctly as the maximum civil penalty for each individual who does not have the right to work is £20,000.
EAT rules a redundancy consultation is not meaningful if it occurs following a selection criterion that inevitably led to a pool of one employee
On 13 October 2022, the Employment Appeal Tribunal (EAT) stated the Employment Tribunal made a mistake when it concluded that the dismissal of a nurse by redundancy was fair. The employer-based their selection criteria solely on the fact that the appellant’s fixed-term contract had ended before that of her colleague, meaning that the redundancy selection pool only included the appellant. No redundancy consultation had taken place before the selection decision, instead it was conducted after the fact.
The EAT confirmed that consultation is a fundamental aspect of a fair redundancy procedure, and this applies equally to individual as well as collective redundancy situations. The consultation procedure is not a tick-box exercise, therefore, it must take place at a time when the employee has a realistic chance of affecting the outcome. In situations where the selection process basically confirms who will be dismissed, consultation should take place before the selection is made.
Acas publishes new guidance on employee suspensions
Acas has published new guidance to help employers who are considering suspending a staff member during an investigation. The guidance covers deciding whether to suspend someone, the suspension process, supporting an employee’s mental health, and pay and holiday rules during the suspension.
The guidance recommends that suspension should only be used when there is no reasonable alternative. This is because of the stress caused to employees and their colleagues and the risk that suspending an employee could breach their employment contract.
Suggested alternatives to suspension include:
- Changing shifts, site, or working from home.
- Collaborating with different customers or away from customers.
- Stopping working with certain systems, tools, or on specific tasks.
Employers should make clear to a suspended worker that the suspension does not mean that a conclusion has been reached concerning any allegations of wrongdoing. It is also vital to ensure the suspension is kept as short as possible, and that the employee receives full pay and benefits.
Gender inequality persists in certain industries
A report looking into gender equality in the workplace has confirmed that nearly three-quarters of women in the construction, education, healthcare, and technology sectors have dealt with or witnessed inappropriate behaviour or comments by their male colleagues.
Six thousand workers were surveyed, and the findings showed:
- 72% of women had witnessed or been subjected to inappropriate behaviour or comments from male colleagues.
- Only 18% of women surveyed had never experienced discrimination.
- 7% of women reported having been passed over for promotion due to perceived gender discrimination.
- Just under 10% said they had been offered a less significant role because they were a woman.
- Almost three-quarters of those surveyed (73%) felt that employers were not taking enough proactive steps to support female staff during menopause.
- The majority of women respondents did not believe that after having a baby, they could return to work in a senior role on a part-time basis.
Across all sectors, respondents felt there needed to be more female role models and mentors.
The highly detailed report ends with several recommendations employees can implement to improve workplace equality and diversity.
The ET rules that supporting a football club does not amount to a philosophical belief within the meaning of the Equality Act 2010.
The Employment Tribunal has held at a preliminary hearing that supporting Rangers Football Club (Rangers) does not amount to a protected philosophical belief within the meaning of section 10(2) of the Equality Act 2010 (EqA 2010).
The case concerned an employee who had been an avid supporter of the Rangers for over four decades. He never missed a match and most of his discretionary income was spent on supporting the team. As far as he was concerned, supporting the Rangers was a way of life and identical to a religious person’s dedication to attending church.
In rejecting the employee’s argument, the Tribunal referenced the explanatory notes of the EqA 2010 which specifically stated that adherence to a football team would not be a belief capable of protection. The definition of ‘support’ (being ‘actively interested in and concerned for the success of’ a particular sports team) contrasted with the definition of ‘belief’ (being ‘an acceptance that something exists or is true, especially one without proof’). The employee’s support for Rangers was akin to support for a political party, which case law had made clear does not constitute a protected philosophical belief.
When considering whether the claimant’s passion qualified as a philosophical belief, the court considered the five criteria set out in Grainger Plc v Nicholson [2010] 2 All E.R. 253, [2009] 11 WLUK 14, namely:
- Was the belief genuinely held?
- Did the claimant hold a belief and not an opinion or viewpoint based on the present state of information available?
- Was the belief as to a weighty and substantial aspect of human life and behaviour?
- Did the belief attain a certain level of cogency, seriousness, cohesion, and importance?
- Was the belief worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others?
The Tribunal stated that supporting a football club was a lifestyle choice and did not affect humanity as a whole or represent a belief that was a weighty part of human life. The only common factor that linked football club supporters was the desire for their team to do well. Therefore, the activity lacked the required characteristics of cogency, cohesion, and importance to be classed as a philosophical belief
Worker Protection Bill passes its second reading stage in the House of Commons
The Worker Protection Bill provides that employers are liable for third-party sexual harassment. If passed, it will provide better protection to workers in the hospitality, retail, and leisure sectors.
At present, employers are not liable for the actions of third parties such as customers or suppliers when it comes to sexual harassment allegations.
The Bill was introduced following a 2018 House of Commons Women and Equalities Select Committee’s inquiry which criticised the lack of protection concerning sexual harassment and recommended that legislation be introduced to impose new employer liabilities for third-party harassment and general duties to prevent harassment that could be enforceable by the Equality and Human Rights Commission.
Although the Bill has passed through its second reading there is no guarantee that it will be enacted as it is a Private Members Bill introduced by Liberal Democrat MP Wera Hobhouse. This will come as a relief to businesses with large supply chains as if it does become law it will significantly increase employer liability and risk.
