September 2024 Employment Law Newsletter | Consensus HR – Herts, Beds
Welcome to our latest September 2024 Employment Law Newsletter | Consensus HR – Herts, Beds. In this newsletter, we focus on:
- Labour proposes the right to a four-day week
- Indirect discrimination equals the same disadvantage
Labour proposes the right to a four-day week
The news media has been delighting in striking fear into the hearts of employers by claiming that Labour plans to introduce the right for employees to demand a four-day week. The truth is that as part of its proposed new employment law changes, employees will be allowed to request to work compressed hours over four days to allow for three days off.
Speaking on LBC Radio, Education Minister Baroness Jacqui Smith said that compressing work hours and offering flexible working is “actually good for productivity”, enabling people to attain a better work-life balance, spend more time with their family and friends, and encourage more people into the workplace.
In its Election Manifesto, the Labour Government said it will also look at:
- Day-one rights — protections, sick pay and parental leave available from day one
- ‘Right to switch off’ — a new code of practice agreed with employees
- Banning fire and rehire
- Banning zero-hour contracts
- Protections for new mothers
- Creation of a Fair Work Agency
Businesses across the UK were invited to participate in a new trial of a four-day working week in the autumn. This follows the major success of a six-month pilot in 2022, which saw many benefits in employee wellbeing, and 56 of the 61 participating companies planning to switch to a four-day work week permanently.
In R (Karmakar) v Royal College of GPs [2024] EWHC 2211 (Admin), the High Court ruled that the Royal College of GPs behaved unreasonably by not offering a disabled candidate the right to repeat an applied knowledge test.
Dr Karmaker was a trainee GP. She sat the Royal College’s applied knowledge test three times and failed. She was subsequently diagnosed with a neurodiverse cognitive profile. She sat the test a fourth time and still failed despite getting a better result.
The Royal College’s policy only allowed four attempts at passing the test but granted Dr Karmaker a fifth try. Again, she failed, but only by a small margin. She asked the Royal College to disregard her first three attempts at taking the test as know reasonable adjustments for her disability were provided. The Royal College refused. Dr Karmaker applied for Judicial Review of the refusal decision, arguing it was an unlawful fettering (rigidly obeying rules or policies created by the organisation itself) following the Royal College’s discretion, irrational, amounted to indirect discrimination, and was in breach of the public sector equality duty (PSED), and the duty to make reasonable adjustments set out in the Equality Act 2010.
The High Court stuck out the claim of unlawful fettering of discretion on the grounds that it did not apply to discretion not created by statute. It also found the Royal College did not breach the Equality Act 2010. However, the Court concluded it was irrational to give candidates who knew they had a disability extra time over several attempts at the test, but not to offer the same to those who discovered a disability later.
Indirect discrimination equals the same disadvantage
In British Airways plc v Rollett and others and Minister for Women and Equalities (Intervener) [2024] EAT 131, due to a restructuring exercise, British Airways cabin crew based at Heathrow Airport had their schedules altered. The Claimants submitted to the Tribunal that the scheduling changes put at a disadvantage:
- Employees (predominantly non-British nationals) who lived abroad and commuted to Heathrow, and
- Employees (predominantly women) with caring responsibilities.
Some of the Claimants did not share the same protected characteristics (of being non-British, or women) but argued they suffered the same disadvantage as those who did. For example, a British national who lived in France, and a male employee with caring responsibilities.
At the first hearing, the Employment Tribunal (ET) concluded it could hear the indirect discrimination claims. This jurisdiction was based on the European Court of Justice case CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (Case C-83/14) EU:C:2015:480 in which the Court held that a Claimant can establish indirect discrimination even if they do not share the protected characteristic of the disadvantaged group. All they have to show is that they suffered the same disadvantage as the disadvantaged group.
British Airways appealed the ET’s decision. The Employment Appeal Tribunal (EAT) dismissed the appeal, stating that the ET had not made a mistake when it concluded it had jurisdiction to hear the indirect discrimination claims.
It is important to note that the decision on whether British Airways actually discriminated against the Claimants has not yet been made. But employers should be aware that
from 1 January 2024, a new section was inserted into the Equality Act 2010. Section 19A provides that Claimants without the protected characteristic of the disadvantaged group can bring indirect discrimination claims provided they experience the same disadvantage. Section 19A brings the CHEZ decision into UK law.
This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.
