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Employment tribunals
Some changes to the employment tribunal process will come into force on 6 October 2021 and are designed to remove some unnecessary red tape.
Burden of proof – discrimination
The wording which sets out the burden of proof rules in a discrimination case changed when the Equality Act 2010 brought all the laws on discrimination together in one place. The discrimination legislation previously said that if the employee proves facts which, in the absence of a reasonable explanation, the tribunal could conclude was discrimination, the burden of proof shifts to the employer who must then show that there is another, non-discriminatory explanation for their treatment of the employee. If the employee didn’t prove those facts then the claim failed. This was often referred to as the employee showing a ‘prima facie’ case. In reality, tribunals would hear all the evidence, including the employers, before deciding about whether the burden of proof shifted to the employer to explain their behaviour, not least because the employer’s evidence may completely contradict the employee’s. The Equality Act 2010 wording is slightly different – it says where there are facts rather than where the employee proves facts, which has caused confusion and some people to think that the rules have changed. The Supreme Court has now clarified the position in Royal Mail Group v Efobi.
Unfair dismissal
The opportunity to appeal against dismissal is usually considered to be an essential element of a fair dismissal. In the recent case of Gwynedd County Council v Barrett, the Court of Appeal said that this is not necessarily the case in a redundancy dismissal.
Flexible working
The government has published a consultation document – Making flexible working the default – which proposes various changes to the existing rights for employees to request flexible working. This consultation document comes hot on the heels of the widespread flexible working that business and workers have had to adopt in the wake of the Covid-19 pandemic. Homeworking has increased exponentially and been shown to work in many fields where it was previously rare. The pandemic has also created more awareness of the importance of work-life balance and caring responsibilities for children and family members who are unwell. Although some of this flexible working may not be sustainable in the long term, our eyes have been opened to what is possible and the government is seeking to capitalise on this opportunity.
Continue ReadingSocio-economic grouping
Most employers have long been alive to issues of diversity in business in terms of protected characteristics such as race, sex and disability. But what about class? Socio-economic grouping is not a protected characteristic, so is seeking to ensure a certain percentage of ‘working class’ employees a hurdle too far?
The Future of Furlough and other employment issues arising from Covid-19
Adrian Fryer
The Coronavirus Job Retention Scheme (“Furlough Scheme”) has been a lifeline to many employers during the Covid-19 pandemic, allowing businesses to retain employees that would have otherwise faced redundancy, but the scheme is now winding down and the Government is encouraging employees back to work with the lifting of the last restrictions from 19 July 2021. The return to work and the winding down of the furlough scheme however mean that business will face new challenges.
Continue ReadingIndirect Discrimination
Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to all employees which disadvantages a group of people who share a protected characteristic (such as race or sex). Indirect discrimination can be justified if it is a proportionate way of achieving a legitimate business aim. In making their decisions, employment tribunals must take ‘judicial notice’ of facts that are so well known to the court system that they can be accepted without further enquiry. One of those universally accepted truths relates to what the Employment Appeal Tribunal has recently described as the ‘childcare disparity’, where women are less likely than men to be able to accommodate certain working patterns because of childcare responsibilities.
Continue ReadingDiscrimination – interim relief
Interim relief is a powerful weapon in the employment tribunal’s toolbox. An employee can only ask for interim relief in dismissal claims relating to trade union, health and safety activities and whistleblowing. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue, with pay but without working, until the full hearing. It is a powerful tool because it essentially reverses the dismissal pending the final hearing.
Continue ReadingPhilosophical belief discrimination
Religion or belief is a protected characteristic under the Equality Act 2010 and can include any religious or philosophical belief. Article 9 of the European Convention on Human Rights provides for freedom of thought, conscience and belief. In a case called Grainger v Nicholson, the Employment Appeal Tribunal drew on the ECHR and gave guidance on what kinds of belief should be protected. The belief must be genuinely held; it must be a belief not a viewpoint or opinion; it must involve a weighty aspect of human life and behaviour; it must achieve a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with other people’s fundamental rights. The EAT has looked recently at whether a belief that humans cannot change sex is a protected belief under the Equality Act 2010.
Continue ReadingDisability – Long Covid
The TUC has called for long Covid to be recognised as a disability and an occupational disease so that workers can access legal protection and compensation. Their survey of more than 3500 workers, all of whom said they had contracted Covid-19, found that nearly a third have experienced symptoms for more than a year and 95 per cent have been left with ongoing symptoms. More than three quarters of those surveyed were key workers in either education, health or social care. They reported a range of responses when disclosing symptoms to employers, including questions about the impact of Covid symptoms, queries about whether they had long Covid at all and 5% said they had been forced out of their jobs. The report asks the government to change the Equality Act 2010 to show that long Covid is deemed to be a disability (in the same way as cancer, for example).
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