Welcome to this month’s edition of Worked Up – your one-stop shop for the latest updates in employment and immigration law.

In this month’s update, we examine what constitutes ‘unwanted contact’ for employees on sick leave, consider the importance of consultation in relation to the proposed pool for selection in redundancy cases, review the ECHR’s new draft guidance on preventing sexual harassment at work, and outline next steps for employers in relation to introduction of eVisas for all migrants.

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Respecting birthday wishes: Tribunal delivers judgment on unwanted contact during sick leave

EHRC seeks feedback on new guidance on the prevention of sexual harassment

The digitalisation of the UK immigration system: advice for employers on the transition to eVisas

Not always the case of “one and done”: EAT rules that redundancy consultation unfair due to failure to consult on appropriateness of pool of one

If you want to stay ahead of the curve and keep updated on the key employment and immigration changes (including proposed legislation, consultations and case law) on the horizon over the next 24 months, check out our “What’s on the horizon” tracker.

Ms H Toure v Commissioners for HMRC

Facts: Ms Toure, a Muslim, French national of African origin, had been employed by HMRC as a customer service consultant since 2019. She brought over 20 allegations, including race and disability harassment, discrimination, and victimisation. Key incidents included a colleague pointing at her during a training session while commenting on pronunciation and accent, witnessing an inappropriate remark about Nigerians, and allegedly filming her without consent.

In August 2020, Ms Toure requested her birthday be removed from the internal ‘celebratory list’. However, while on sick leave due to work-related stress in June 2021, she received a birthday card and multiple emails from her new manager, despite having requested minimal contact and communication via email only.

Judgment: The Tribunal upheld several of Ms Toure’s claims, including those related to harassment and victimisation. The tribunal ruled that the repeated contact and the birthday card incident during her sick leave constituted unwanted conduct that created a hostile and intimidating environment. The judge noted that HMRC failed to respect Ms Toure’s explicit requests for limited communication, exacerbating her stress and violating her dignity. Ten of her claims were successful, with a remedy hearing scheduled for a later date.

Takeaway: This decision highlights the difficulty employers face when managing sick leave, particularly in cases of work-related stress, where employees may request minimal contact. Employers must balance the need to keep the worker informed about essential information with the need to respect their request for limited interaction. This case, while unusual in many aspects, demonstrates clearly how much risk there can be in employment relations matters of this nature.

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On 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023will come into force that requires employers to take reasonable steps to prevent sexual harassment in the workplace. In anticipation of this, The Equalities and Human Rights Commission (“EHRC”) has updated its guidance to help employers understand their obligations under this new legislation. The draft guidance, open for consultation until 6 August 2024, clarifies a number of key points, including the concept of reasonableness, the role of enforcement by the EHRC, and what employers must consider in respect of third-party harassment.

The legislation unfortunately does not actually specify what constitutes a ‘reasonable step’ to prevent sexual harassment, but the EHRC’s guidance helpfully provides some clarity. Employers are advised to assess the risks of sexual harassment within their particular business and workforce structure, and then consider steps to mitigate these risks. Factors influencing the reasonableness of steps include the size of the employer, workforce nature, existing risks, and third-party interactions. It suggests that practical steps might include:

• providing training to raise awareness about sexual harassment;
• offering specific training for managers to handle complaints;
• reviewing the effectiveness of policies and training regularly;
• implementing a timetable for refresher training;
• adopting a zero-tolerance approach to third-party harassment and encouraging staff to report incidents; and
• informing third parties of the zero-tolerance policy.

The guidance also highlights the two main consequences if an employer fails to comply with the preventative duty:

1. EHRC Enforcement Action: The EHRC can investigate breaches and take various actions, such as issuing an unlawful act notice, requiring action plans, entering binding agreements, or seeking court injunctions.
2. Uplift in Compensation: The ET can increase compensation awards by up to 25% if they find that an employer has not met its preventative duty in a successful sexual harassment claim.

Although the original legislation proposed employer liability for third-party harassment, this was not included in the final legislation. However, the EHRC’s guidance still requires employers to take reasonable steps to prevent sexual harassment by third parties (which could be particularly relevant for Film and TV businesses, where crew and talent are often exposed to contact with various third parties, such as commissioners, financiers, co-producers etc). The guidance suggests:

• adopting and communicating a zero-tolerance policy towards third-party harassment;
• encouraging staff to report instances of third-party harassment; and
• developing a protocol for handling reports of third-part harassment.

Whilst individuals will technically not be able to bring a direct claim against employers for third-party harassment, the EHRC can potentially take enforcement action if the preventative duty is breached in this context.

Employers should start preparing for the new duty now, taking the current draft guidance as best practice. The final guidance may change, but significant alterations are unlikely. Practical steps include updating policies, training staff, and implementing measures to prevent both direct and third-party sexual harassment.

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As you may be aware from our previous update, the Home Office is aiming to transition to a fully digital immigration system by early 2025, replacing physical Biometric Residence Permits (“BRPs”) and other documents with online eVisas. The Home Office has started emailing current BRP holders, inviting them to create online UK Visas and Immigration (“UKVI”) accounts. This is the first crucial step to enable a transition to an eVisa.

An eVisa will replace BRPs, Biometric Residence Cards (“BRCs”), passport endorsements, and vignette stickers. You may already be familiar with eVisas as they are available to many migrants, including those with permission under the EU Settlement Scheme. By 2025, all individuals with limited or indefinite leave to remain in the UK will evidence their permission via an eVisa, requiring them to create UKVI accounts to access their digital status. This change does not affect the immigration status or conditions of permission to stay in the UK.

To create a UKVI account, individuals need to follow the instructions sent by the Home Office via email. These emails are being sent on an individual basis and not all migrants will have received their instruction email at present. Once the account is set up, users can view details of their eVisa, including their type of permission, expiry date, and conditions of stay in the UK.

For those with indefinite leave to remain who prove their status with old-style physical documents, such as passport stamps or vignette stickers, it is recommended to make a “no time limit” (“NTL”) application. If successful, they will receive a BRP and can subsequently create a UKVI account to access their eVisa.

British and Irish citizens do not need an eVisa or UKVI account to prove their status in the UK. However, British citizens with dual nationality or those with the right of abode but no British passport may need to take action in the future, and we will provide updates in due course.

Please note that until the end of 2024, those with physical documents must continue to carry them when traveling.

If employees have not yet been contacted about how to set up their UKVI account, they will need to wait until at least November 2024. If they have not received an email by that date, they should consider contacting the Home Office for an update.

Employers should ensure that all employees are aware of these changes – they affect all migrant workers, not just individuals who are sponsored. Reminders should be sent on a regular basis, encouraging employees to check for emails from the Home Office, inviting them to upgrade.

We will provide further updates information as soon as the Home Office publish any updates on this matter.

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Facts: Mr Valimulla, a liaison officer for the Respondent’s charitable organisation, was dismissed due to redundancy during the COVID-19 pandemic. Three other employees performed this role or a similar role in different geographical locations; however, Mr Valimulla was the only one in his redundancy pool as his role had been deemed “unique” by the Respondent.

Although a consultation took place, Mr Valimulla was not consulted about the appropriateness of the pool. Following his dismissal, Mr Valimulla brought a claim for unfair dismissal.

Judgment: In first instance, the Employment Tribunal (“ET”) ruled that the dismissal was fair and accepted the Respondent’s case that Mr Valimulla’s role was “unique” and that he was in a “self-selecting pool of one”. Mr Valimulla appealed, arguing that the ET had not made enough factual findings regarding the fairness of the Respondent’s approach to pooling for redundancy selection. Mr Valimulla also claimed that the ET failed to address a crucial issue – that he was not consulted about being placed in a pool on his own.

The Employment Appeal Tribunal (“EAT”) allowed the appeal and concluded that the dismissal was procedurally unfair due to the lack of consultation on the pooling decision. The consultation should have occurred when it could have made a difference – namely, before the pooling exercise took place. The EAT also found that the ET accepted the Respondent’s claim that Mr Valimulla’s role was unique without questioning it or making any relevant findings. By taking this claim at face value, the ET failed to assess whether the Respondent had genuinely considered the question of pooling or the reasonableness of choosing a pool of one.

Takeaway: Redundancies involving a single employee can be tricky from a procedural fairness standpoint. To help mitigate against the risk of a potential unfair dismissal claim, employers should carry out a thought-through and well-documented pooling and consultation exercise which considers the appropriateness of pooling at the outset and includes clear communication with affected employee(s) about why their role has been placed in a particular pool. Failure to properly engage in those tricky pooling decisions and glossing over why a particular pool has been determined during consultation may seem easier in the short term, however this case demonstrates that this approach poses the long-term risk of a potential unfair dismissal claim and is simply not sufficient if an employer wishes to carry out a meaningful consultation.

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