September 13, 2023
Welcome to this month’s edition of Worked Up – your one-stop shop for the latest updates in employment and immigration law. This month represents a soft reboot of Worked Up, which we’ve freshened up with a brand-new look and format. Hear from Seth below who’ll fill you in on what’s in store:
If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.
Kicking off the changes to Worked Up 2.0, we have launched a new tracker of the key employment and immigration changes (including, amongst other things, proposed legislation, consultations and case law) on the horizon over the next 24 months and beyond.
If you want to stay ahead of the curve, check out our “What’s on the horizon” tracker.
Courtesy of Wiggin+, we’ll be hosting and highlighting key employment and immigration video material within Worked Up going forward. To get you started, please do check out the video below from Seth and Ellie in relation to de-risking restructuring and redundancy processes:
This month’s stories cover the hottest developments in employment and immigration law over the summer which are likely to be relevant to our clients and the core sectors we service.
As part of our re-boot, our updates are aimed at providing punchier summaries whilst clearly highlighting any key takeaways. We’ll also be highlighting points that may be of particular interest to certain sectors based on our sector experience and insights.
This month's headlines:
Balancing faith & fairness when assessing motivation in belief manifestation cases
Facts: Mrs Higgs, a Christian employed by Farmor’s School, posted her concerns about the teaching of same-sex relationships, same-sex marriage, and gender fluidity on social media. After receiving a complaint about the post from a concerned parent, the school’s head teacher asked for, and was provided with, a similar post by Mrs Higgs.
As a result, Mrs Higgs was suspended and later dismissed for gross misconduct following an investigation and disciplinary hearing. Mrs Higgs then issued a Tribunal claim on the grounds that she was discriminated against and harassed because of her religious beliefs.
While the tribunal recognized Mrs Higgs’ beliefs as protected under the Equality Act 2010, it concluded that she was not directly discriminated against or harassed because of these beliefs. Instead, her dismissal was attributed to the provocative language in her Facebook posts, which could be reasonably perceived as presenting homophobic and transphobic views and therefore did not qualify for protection under the Equality Act.
Judgment: The claim was overturned on appeal due to the tribunal’s failure to assess proportionality and balance Mrs Higgs freedom of belief against her employer’s objectives. The tribunal also failed to engage with the question of whether the school’s action was because of, or related to, Mrs Higgs’ manifestation of her beliefs. While the EAT avoided establishing general guidelines, it referenced key cases and outlined five principles that underpin the approach to be adopted when assessing the proportionality of any interference with those rights.
Takeaway: Employers are likely to find themselves in hot water when dealing with employees who express strong opinions which conflict with the beliefs, rights or freedoms of others. When dealing with such employees, advice should be sought early on to help navigate these situations, given that the application of the law in these scenarios is highly fact specific. A failure to deal with these scenarios carefully can lead to complaints, grievances and, as is evident from this case, litigation.
Sponsored Skilled Workers and UK employment law
The employment and immigration team at Wiggin have just completed a series of guides for the UK seafood industry, on behalf of industry body Seafish, to help businesses understand the Skilled Worker sponsorship and visa regime.
You can view the guides here.
Whilst the guides focus on seafood businesses and the types of occupations that might be sponsored in that sector,; there will be sections of the guides that will hold some interest for other types of business.
Producing the guides necessitated a “deep dive” (sorry) into both subject areas, and we hope that the result is readable and informative, summarising a complex regime. The work highlights that there is often an uneasy interaction between UK immigration law and employment law.
We think that many of the issues raised and discussed will be relevant for other types of business. In the guides we discuss salary calculations and how they are approached under the Immigration Rules, how to sponsor a Skilled Worker, how to select an appropriate Standard Occupation Code, and how to comply with your sponsor duties and wider employment law.
There are various areas of friction. The length of sponsorship versus the length of contractual engagement in an employment contract. The different types of employment statuses and how they can fit under sponsorship. How working time is approaching under the immigration rules and employment law.
We also explore how to approach cost recovery from sponsored workers, something which is bound to have increased focus as immigration fees are set to increase significantly.
If something piques your interest, and you’d like to discuss (even in a non-seafood context!), then don’t hesitate to get in touch.
Appeal decision favours higher holiday pay calculation on termination of employment
Facts: The Claimant in this case, Mr Connor, was dismissed after being signed off with depression and anxiety for the last 15 months of his employment. His employer, the South Yorkshire Police, calculated that he was entitled to 40 hours and 42 minutes of accrued but untaken holiday at his termination date. Mr Connor’s employment contract stated that payments in lieu would be based on 1/365th of annual salary for each day of leave. The Claimant worked a regular 37-hour week and, had he been working, he would have received the same sum for a week of holiday as for a week of work. However, using the payment in lieu calculation set out in his contract, Mr Connor was paid less than if he had taken the holiday.
Judgment: While the tribunal initially considered this valid, the EAT disagreed, stating that the Claimant was entitled to the higher amount determined by the calculation set out in the Working Time Regulations 1998 (“WTR”). The EAT ruled that a “relevant agreement” for the purpose of calculating a worker’s entitlement to payment in lieu of untaken holiday under the WTR cannot permit the employer to pay less than the amount payable if annual leave was taken during employment. The EAT noted that the taking of annual leave is “important to fulfil the health and safety purpose underpinning the legislation” and that the calculation of holiday pay is necessary because it would “undermine the purpose of the legislation if the amount paid could differ to the usual level of pay”. Consequently, any payment which falls below the usual level of pay will not be in accordance with the WTR.
Take away: Employers should review their precedent employment contracts to ensure that any payment in lieu clauses reflect the worker’s normal remuneration as any token or reduced holiday pay on termination will not be enforceable. This case again highlights the difficulty employers face applying holiday pay law correctly, a point that is particularly pertinent for the Film and TV industry given the atypical ways that individuals provide services to productions.
Deciding the deciders: EAT considers motivation of employees in discrimination cases
Facts: The case involved a claimant, Ms Ferridge-Gunn who was dismissed shortly after revealing her pregnancy to her manager, Ms Caunt. Shortly after Ms Ferridge-Gunn started employment, Ms Caunt raised concerns regarding her work performance. Ms Ferridge-Gunn later informed Ms Caunt about her pregnancy. Following this, there was some improvement in her performance, although concerns persisted. Ms Ferridge-Gunn then took two days of sick leave due to morning sickness. Upon Ms Ferridge-Gunn’s return, Ms Caunt displayed a lack of empathy by enquiring if morning sickness was contagious and questioning the duration of her time off. The following day, Ms Ferridge-Gunn’s employment was terminated, purportedly due to performance-related issues.
Judgment: While the tribunal initially concluded that the manager’s motivation and the pregnancy were linked to the dismissal, the EAT disagreed. They remitted the case back to the tribunal, emphasizing that the case “cried out” for an analysis of whether this was a decision by a sole decision-maker, a sole decision-maker influenced by others or a joint decision and that the focus should be on the decision-maker’s motivation alone. This decision differs from whistleblowing cases, where the influence of others can be considered in certain circumstances.
Take away: This case shows that a tribunal must be careful about assuming a decision maker’s decision has been tainted by another manager’s discriminatory views, and employers who can demonstrate independence in decision making are likely to be better placed than those who can’t. As always, employers considering taking action in relation to pregnant employees should also be aware of the risk of claims and, before a decision is taken, analyse whether pregnancy has anything to do with the decision.
Ignorance is bliss? EAT clarifies position on harassment claims under Equality Act 2010
Facts: The Claimant, Mr Greasley-Adams, had been diagnosed with Asperger’s Syndrome and qualified as disabled under the Equality Act 2010. During his employment with the Royal Mail Group, conflicts arose between Mr Greasley-Adams and two co-workers.
Following these conflicts, all three parties reported incidents of bullying and harassment. Royal Mail conducted an internal investigation into the matter and found the complaints against the Claimant to be well-founded. During the investigation, the Mr Greasley-Adams became aware of disparaging comments that his colleagues had made about his disability. Subsequently, the Claimant lodged a grievance then later filed a clam with the tribunal. At tribunal, Mr Greasley-Adams’ claims were dismissed.
Judgment: The EAT dismissed the appeal. It confirmed that perception is a mandatory component in determining whether harassment has occurred and therefore, if the claimant is not aware of the unwanted conduct, there can be no perception of unlawful conduct. The EAT also upheld the tribunal’s ruling that it was reasonable for the unwanted conduct to have the proscribed effect when the claimant became aware of it during an investigation into alleged bullying and harassment. It agreed that an employer should not be constrained in carrying out an investigation because that investigation reveals information which could be considered as “unwanted conduct”.
Take away: A victims’ ignorance may provide a defence to the perpetrator of harassment, though this defence might not bite if the perpetrator has the purpose of trying to violate the victim’s dignity. In an increasingly connected world, it’s important that employers ensure they have robust social media policies which set out what’s acceptable in the workplace.