UK: UK - CABLE: Current Awareness Bulletin (Update)

Last Updated: 22 November 2017
Article by Nick Dent

Clyde & Co's UK employment team brings you CABLE, a bulletin keeping you up to date with recent legal developments.

Trade union membership

Employment Appeal Tribunal clarifies the protection afforded to job applicants on account of their union membership and activities

A former employee, who was a member of the pilots' union BALPA, made two applications for a role as a pilot with his previous employer, but was unsuccessful. During his previous employment with that employer, the individual had advocated that the union might have a role in representing the interests of pilots in the workplace. This led to a heated exchange with the employer's Executive Chairman. The union subsequently obtained a declaration of Union recognition from the Central Arbitration Committee, but there were issues in its relationship with the employer over subsequent years.

The EAT rejected the employer's argument that the tribunal had given too broad a meaning to "trade union membership" when it decided that the employee had been unlawfully refused employment because of his trade union membership. The EAT found that trade union membership in this context, does not just mean being a member of a union (e.g. simply carrying a union card), but also protects individuals from being refused employment because of their involvement in trade union activities that are incidental to trade union membership, such as seeking to be represented by the union in the workplace.

This case is also significant because the EAT confirmed that if a tribunal is satisfied that the person making the decision not to employ someone did so for a prohibited reason, the employer cannot rely on the fact that others in the business would have reached the same decision for other legitimate reasons to avoid liability.

Jet2.com Ltd v Mr J Denby

PRACTICAL POINT

This decision clarifies that the protection afforded to job applicants from being refused employment because of their trade union membership, may be wide enough to protect them from being refused employment because of their activities related to their membership. Where an employer turns down a job application made by trade union member, it is important that they can explain the reasons for their decision and demonstrate that it is not because of the job applicant's union membership or any related activities.

Whistleblowing dismissals

The employer is not liable where the dismissing manager was not aware of the protected disclosures

An employee made a protected disclosure to her line manager. Her line manager, motivated by that protected disclosure, deliberately misled another manager into believing the employee was a poor performer and that manager dismissed the employee for poor performance. The dismissing manager genuinely believed the employee was a poor performer and was not aware of the protected disclosure. The employee brought claims of automatic unfair dismissal and detrimental treatment on grounds of whistleblowing.

The Court of Appeal found that the dismissal was fair. The Court confirmed that in relation to whistleblowing dismissals, only the knowledge and mental processes of the decision maker are relevant in considering whether the dismissal was automatically unfair. The Court also stressed that the right not to be unfairly dismissed (whether for whistleblowing or any other reason) depends on there being unfairness on the part of the employer; unfair or even unlawful conduct on the part of individual managers is immaterial unless it can properly be attributed to the employer.

The Court noted that the employee may be entitled to compensation as her claim of detrimental treatment by her line manager, for which the employer was vicariously liable, was upheld by the employment tribunal and it will be for the court dealing with remedy to decide what compensation she can recover.

Royal Mail Ltd v Kamaljeet Jhuti

PRACTICAL POINT

Even though an employer may not be liable for a whistleblowing dismissal where the decision maker had a fair reason to dismiss which was not related to a protected disclosure but had been misled by someone else as to that reason, they may still be found vicariously liable for detrimental treatment of one employee by another because of that disclosure (if the claim included a detriment claim or can be amended to include one). The Court did note in this case that, in some circumstances where the dismissal has been manipulated by someone else, the employer may still be found liable for a whistleblowing unfair dismissal if the person misleading the decision manager is very senior (e.g. the CEO) or has some responsibility for the investigation.

Pregnancy and maternity leave

Employers' obligations to mothers who wish to breastfeed on return from maternity leave

The recent case from the European Court of Justice, Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social, concerned a sex discrimination claim brought by a nurse who worked in the A&E department of a Spanish hospital. The nurse's employer had conducted a risk assessment for her as a breastfeeding worker, concluding that her work was "risk-free" but without giving any substantial explanation as to why this was the case. The nurse raised concerns regarding certain aspects of her working conditions and the effects that these may have on her breastfeeding. Her request to change her working pattern for her to continue breastfeeding was turned down. She claimed that the risk assessment did not comply with European law, in particular the EU Directive prescribing measures to improve health and safety for pregnant and breastfeeding workers which requires employers to undertake a risk assessment.

The European Court decided that, where a breastfeeding mother can show that a risk assessment was defective or not done, the worker concerned is deprived of the protection they should receive under the Directive. Accordingly, such failure must be regarded as less favourable treatment of a woman related to pregnancy or maternity leave and consequently constitutes direct discrimination on the grounds of sex. It would then be for the employer to prove that the risk assessment had been conducted in accordance with the requirements of the Directive and that there had, therefore, been no discrimination. Importantly, this includes an assessment of the specific risks arising from each worker's particular role and working conditions.

Elda Otero Ramos v Servicio Galego de Saúde, Instituto Nacional de la Seguridad Social

PRACTICAL POINT

When an employee returns from maternity leave requesting an adjustment to hours or conditions because she wishes to breastfeed, there is a duty on the employer to conduct a risk assessment personal to her individual circumstances. Failure to do so could result in claims for discrimination and unlawful detriment. This case indicates that this could include a claim for direct sex discrimination. That would be in addition to claims she may have for pregnancy and maternity discrimination, indirect sex discrimination or unlawful detriment.

Other developments

Modern slavery: updated guidance

The Government has published updated guidance on modern slavery statements.

Certain organisations are required to provide an annual statement on slavery and human trafficking with information about the steps the organisation has taken to ensure modern slavery is not taking place in their business or supply chains.

Although no fundamental changes have been made to the guidance that was originally published in October 2015, the key changes are that the updated guidance:

  • highlights that smaller organisations who are not required by the legislation to make a statement may choose to do so voluntarily, and encourages all businesses to be open and transparent about their recruitment practices, policies and procedures in relation to modern slavery and to take steps that are consistent and proportionate with their sector, size and operational reach
  • emphasises the importance of continuity of statements, encouraging organisations to continue publishing a statement each year even if they are not required to do so (e.g. because their turnover falls below the £36 million threshold). It also emphasises the importance of statements from previous years being available online even when new statements are published so that the public can compare statements and monitor the organisation's progress over time
  • states that it is best practice for the director who signs the statement to sit on the board that approved it and include in the statement itself the date on which it was approved
  • includes a definition of child labour and recognises that children are particularly vulnerable to exploitation.

Employment tribunal fees: refund scheme rolled out in full

In October 2017, the government launched the initial phase of its tribunal fees refund scheme. This came after Justice Minister, Dominic Raab committed to reimbursing all fees paid since they were introduced in July 2013, in the wake of the ruling of the Supreme Court (the UK's highest court) in July this year that the fees being charged in employment tribunal claims were unlawful. The government has now rolled out the scheme in full. As expected, the scheme is open to claimants and respondents who paid a fee. It includes those who reimbursed their opponent for a fee because they were ordered to do so by the tribunal, and those who paid Employment Appeal Tribunal fees. The scheme is also open to those who paid a fee on behalf of a party to a claim (and who have not been reimbursed), such as lawyers and trade unions. However, the refund scheme does not cover payments made under a settlement agreement designed to compensate a claimant for a fee that they paid, even though it appears that the claimant may still be eligible to apply for a refund under the scheme. Eligible parties can apply online or by post.

Corporate governance: Parker Review final report on ethnic diversity on boards

On 12 October 2017, the Parker Review Committee published its final report into the ethnic diversity of UK boards, following its consultation on the report launched in November 2016. The recommendations made in the final report remain unchanged from those made in the consultation version of the report. The final report makes the following recommendations amongst others:

  • increase the ethnic diversity of UK boards. There should be at least one director of colour on each FTSE 100 board by 2021 and each FTSE 250 board by 2024
  • develop candidates for the pipeline and plan for succession. FTSE 100 and FTSE 250 companies should develop mechanisms to identify, develop and promote people of colour within their organisations to ensure that there is a pipeline of board-capable candidates, and their managerial and executive ranks appropriately reflect the importance of diversity to their organisation
  • enhance transparency and disclosure. The company's annual report should include a description of the board's policy on diversity. This should include a description of the company's efforts to increase, among other things, ethnic diversity within its organisation, including at board level. Companies that do not meet board composition recommendations by the relevant date should disclose in their annual report why they have not been able to achieve compliance

The Committee encourages members of the FTSE 100 and FTSE 250 to adopt the recommendations on a voluntary basis, however if there is insufficient progress towards the goals on that basis, the Committee reiterated that it may revise its approach and endorse that the recommendations (or relevant parts of them) become mandatory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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