August 2021 employment law newsletter out now

Welcome to August's newsletter

Employment news keeps on coming unabated despite the summer holidays being upon us.

Our news section looks at the impact of the menopause, how home working is affecting employment claim numbers and highlights a case in which the claimant was made redundant in place of furlough. We look at reactions to a proposed new duty for employers to prevent sexual harassment as well as organisations warning against "no jab, no job" policies.

Case law analysis is provided by Grace
Boorer on University Hospital of North Tees & Hartlepool NHS FT v Ms L Fairhall (whistleblowing); Karen Moss on Janet Kerr v Fife Council UKEATS/0022/20/SH (limitation); Craig Ludlow reviews Ms M Driscoll (Nee Cobbing) v (1) V & P Global Ltd (2) Mr F Varela (harassment claims

connected to constructive dismissal claims); Sarah Clarke considers IX v WABE and MH Muller v MJ (religious belief and workplace discrimination); Lachlan Wilson and Royal Mail Group Ltd v Efobi (burden of proof) and David Kemeny and Aaron Mayers analyse the latest Supreme Court guidance on non-compete clauses.

New duty on employers to prevent sexual harassment

Following its consultation on harassment in the workplace, the government is planning to bring forward new legislation, as soon as parliament time will allow, which will require employers to undertake "all reasonable steps" to prevent sexual harassment at work.

While unions and charities welcomed the proposal, others recommended more could be done to improve employers' compliance to current obligations under the Equality Act.

Failure to consider furlough in place of redundancy led to unfair dismissal

Personnel Today reviews the case of Mhindurwa v Lovingangels Care Limited in which a care assistant was made redundant for lack of work by her employer in the early phases of the pandemic, even though she had suggested furlough might be an option. The ET found the claimant to have been unfairly dismissed.

Warnings mount against "no jab, no job" policies

The CIPD, the Equality and Human Rights Commission and the Advisory, Conciliation and Arbitration Service were among senior voices warning UK employers against the temptation to follow in the footsteps of major US businesses in applying "no jab, no job" policies - with the CIPD advising its 160,000 members that such policies would amount to “an intrusion on an employee’s body and may discriminate on the basis of disability, or religious or philosophical belief”.

Lawyers warn of growing discrimination claims as home workers miss out on promotions

Specialist employment lawyers have warned that employees working from home due to their disability, gender or age may bring legal disputes forward in coming years if they feel their office-based counterparts progressed faster in their careers. The warning follows a report from the Office for National Statistics which found that employees who changed to mainly working from home saw their chance of being promoted fall by nearly half.

Menopause set to increase number of UK employment tribunals

As awareness of the menopause and its impact on women increases, more women are taking their employers to court, claiming the menopause as reason for unfair dismissal and direct sex discrimination. While only five ET claims cited the claimant’s menopause in 2018, the figure had increased to 16 in 2020, with 10 cases being recorded in the first six months of 2021 alone.

Limitation: important recommendations for employment practitioners

Karen Moss summarises the Scottish EAT’s consideration of acts, omissions and conduct extending over a period, for the purposes of calculating time in the reasonable adjustments case of Janet Kerr v Fife Council
UKEATS/0022/20/SH.

Determining the question of motivation in whistleblowing claims is not always as complicated as it seems

Grace Boorer reviews University Hospital of North Tees & Hartlepool NHS Foundation Trust v Ms L Fairhall [2021] 6 WLUK 454, a case providing a timely reminder to practitioners that in most cases it is not necessary to complicate whistleblowing determinations, notwithstanding the decision in Jhuti.

A constructive dismissal is, in principle, capable of constituting an act of harassment, within the meaning of section 26 of the Equality Act 2010

Craig Ludlow analyses the EAT’s decision in Ms M Driscoll (Nee Cobbing) v (1) V & P Global Ltd (2) Mr F Varela (EA-2020-000876-LA; EA-2020-000877-LA)
and its likely implications on the number of harassment claims connected to constructive dismissal claims.

Is the prohibition of employees wearing anything that manifests a religious belief in the workplace discrimination?

Sarah Clarke reviews IX v WABE and MH Muller v MJ, in which the CJEU ruled that a blanket ban on all forms of outward manifestations of religion did not constitute direct discrimination as all religions were being treated in exactly the same manner - but reached a more controversial conclusion in
relation to the issue of indirect discrimination.

The ‘shifting’ burden and the drawing of adverse inferences

Lachlan Wilson considers Royal Mail Group Ltd v Efobi [2021] UKSC 33, in which the Supreme Court ruled on whether a change in the wording of equality legislation has altered the burden of proof in employment discrimination cases, and when a tribunal may
draw adverse inferences from the absence of a potential witness.

"You know what we meant!": Supreme Court guidance on non-compete clauses

David Kemeny and Aaron Mayers analyse Harcus Sinclair LLP and another (Respondents) v Your Lawyers Ltd (Appellant) [2021] UKSC 32 in which the Supreme Court considers whether, in
determining a promisee’s legitimate interests, a court can take into account what the parties thought (assessed objectively at the time it was signed) would occur as a consequence of entering into an NDA containing a restraint of trade clause, in addition to the express and implied provisions of the contract itself.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.