EmpLaw Newsletter May 2024

Employee could claim that he was dismissed for having ‘sought’ to take parental leave without actually making a formal application

Parental Leave is a type of leave which allows parents and those with responsibility for a child (if they have at least 1 years’ service) to take unpaid time off for the purpose of caring for that child. The right is set out in the Maternity & Parental Leave Regulations 1999 (the Regulations). Employees are entitled to 18 weeks’ unpaid leave per child, with the time off needing to be taken before they reach the age of 18 in most cases.

Under the Regulations, an employee must give written notice that they intend to take parental leave. Employers are able to postpone a request by up to 6 months on business grounds. They cannot refuse a valid request outright.

The Regulations state that a dismissal will be automatically unfair if the reason for it is that the employee has taken or sought to take parental leave. In the recent case of Wright v Hilton Foods, the Employment Appeal Tribunal looked at whether an employee could argue that they ‘sought to take’ parental leave when they had not actually given written notice of their intention to take it. The Claimant worked for the Respondent as a supply chain manager. He was made redundant. He alleged that the real reason for his dismissal was that he had sought to take parental leave. The Respondent applied for his claim to be struck out on the basis that he could not have ‘sought’ to take parental leave as he had not made a formal application to take it.

The EAT, allowing the claim to proceed, held that an employee could demonstrate that they had ‘sought’ to take parental leave without actually needing to have made a formal application.  The surrounding facts and discussions needed to be looked at.

The EAT held that it could not be right that if an employee unambiguously informed his employer of a decision to take parental leave and, for example, asked how to do so, and was dismissed to prevent the exercise of that right, the protection would not apply just because the employee would not have made the formal application.

Whether an employee has ‘sought’ to take parental leave is a question of fact for the Employment Tribunal, having considered the relevant evidence.

Key features of the new right to carer’s leave

From 6^th April 2024, all employees have the right to request one week of unpaid carer’s leave per year. The right is available to employees who have a dependant with a long-term care need and want to be absent from work to provide or arrange care for that dependant. We have broken-down some of the key features of this new right below:

• An employee's dependants can include:
  • their husband, wife, civil partner, or partner
  • their child
  • their parent
  • a person who lives in their household (not tenants, lodgers, or employees)
  • a person who relies on them for care, such as an elderly neighbour
• A long-term care need means a disability, an illness or injury that is likely to require care for over 3 months or a care need relating to old age.
• Requests can be in consecutive or non-consecutive half-days, full days or as one week-long block.
• Employees must give notice in writing of their intention to take carer’s leave. They must confirm their entitlement to take it and give whichever is the longer of at least twice the amount of notice than the period of leave requested or three days' notice.
• Employers can postpone a request if the operation of the business would be unduly disrupted. In these circumstances, the employer must give notice of the postponement before the leave was due to begin. They must explain why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested. The employer should consult the employee about rescheduling the leave.
• Employees are protected from detriment and dismissal because they take or seek to take carer’s leave, or the employer believes they are likely to do so.

Guidance on carer's leave has recently been published by Acas. Employers should consider creating a new carer’s leave policy or adding reference to carer’s leave to any existing policy dealing with other family/dependant leave.

Health and Safety dismissal and detriment – attendance at the workplace during COVID-19 pandemic

The Employment Appeal Tribunal recently considered whether an employee was unfairly dismissed on health and safety grounds for refusing to attend at her workplace during the COVID-19 pandemic. In Herve v Goldstein, the Claimant worked from an office at the Respondent’s family home. In the first national lockdown, the Claimant, whose partner was vulnerable, worked at her own house. When the first lockdown lifted, she began to attend the office for one day every two weeks.

When the second lockdown started in November 2020, she said she would work from home full-time. She felt there was no social distancing or mask enforcement at the Respondent's family home. She was also concerned about travelling on public transport.

The Respondent objected and said that the hybrid arrangement should continue. The Claimant resigned. The Respondent sent her a message accusing her of unprofessional conduct and malingering.

The tribunal held she had been automatically unfairly dismissed and subjected to detriment on health and safety grounds. The EAT, agreeing with the tribunal, held:

• The Claimant had raised circumstances connected with her work (which could include travel to and from work) which she reasonably believed were harmful or potentially harmful to health and safety. She had been subjected to detriment as a result (including criticism of her work and failure to pay notice pay and holiday pay).
• The Claimant had refused to return to the workplace at the start of the second lockdown in circumstances of danger which she reasonably believed were serious and imminent.
• The Respondent breached trust by objecting to her refusal and pressing the Claimant to attend. The Claimant resigned in response to this. She had been constructively dismissed. This dismissal was automatically unfair on health and safety grounds.

Every case in this area turns on its own facts but, in relevant circumstances, a dismissal (constructive or actual) because an employee refused to attend the workplace during the COVID-19 pandemic can be automatically unfair for health and safety reasons.

Discrimination: Continuing Acts

In discrimination cases, the normal time limit for bringing a claim in the Employment Tribunal is three months less one day from the act of discrimination.

Where an act or acts of discrimination extend over a period (commonly referred to as a ‘continuing act’), they are treated as having occurred at the end of that period. This means that earlier conduct can be brought within the primary time limit if it is part of a pattern of ongoing discriminatory conduct.

In the recent case of Allen v Worcestershire Health and Care NHS Trust, the Employment Appeal Tribunal considered whether acts extending over a period which ended in dismissal should properly be viewed as ‘continuing acts’ (and therefore in time).

The Respondent undertook a restructuring process. The Claimant was offered a role at a lower pay grade. She did not accept the role. She was not made redundant as the Respondent had a ‘no redundancy’ approach. She went off sick and was eventually dismissed for ill-health. She brought claims of unfair dismissal, age, and disability discrimination.

The tribunal found that ticking a box to consider the Claimant for ill-health retirement was age discrimination, as was pre-determining the Claimant's grievance. They also found that her dismissal was for a reason related to her disability. The Respondent appealed parts of the tribunal’s judgment.

The EAT held that the act of dismissal was the only act of discrimination within ordinary tribunal time limits. The tribunal had found that the earlier discriminatory acts could be treated as ‘conduct extending over a period’ as they all related to the restructure. The EAT disagreed with this position. For there to be conduct extending over a period, there must have been ongoing discriminatory conduct. It was not enough that later events would not have occurred but for the earlier events, there must be something in the conduct that involved continuing discrimination.

Whistleblowing detriment and dismissal

Employees have protection from dismissal if the reason for their dismissal is that they have made a protected disclosure under whistleblowing rules. Where the sole or principal reason for dismissing an employee is that they have made a protected disclosure, then the dismissal will be automatically unfair. However, how much does the dismissing officer actually have to know about the disclosure? Could an employee be unfairly dismissed and subject to a detriment as a result of whistleblowing where the decision-maker knew of the fact of the employee’s disclosure but not its substance?

The Employment Appeal Tribunal recently looked at this point in the case of Nicol v World Travel and Tourism. In this case, the Claimant worked as Vice-President of Communications and PR. He was dismissed and claimed unfair dismissal and detriment due to whistleblowing. He claimed to have made several protected disclosures to the Respondent. The Claimant made one of these to person A, an employee of the Respondent. Person A informed person B (another employee) of the fact of the disclosure but gave no detail of it. Person B dismissed the Claimant.

The tribunal held that the Claimant had not been unfairly dismissed or subject to any detriment for whistleblowing. The Claimant appealed on several grounds. One was that the tribunal had erred in finding that, for the protected disclosure to person A to count, person B must have been told some detail of it.

The EAT, dismissing the appeal, held that the tribunal did not err in deciding that person B needed to be aware of some of the detail of what the Claimant had disclosed to person A. It was not enough that person B knew that the Claimant had made a disclosure to person A. For employers to be fixed with liability for automatic unfair dismissal, the decision-maker had to have some knowledge of what the employee was expressing concerns about.

On the face of it, this decision appears to be a worrying erosion of whistleblower protection – what’s to stop person A, knowing of the details of the protected disclosure, instructing person B to dismiss them? As long as person B is kept in the dark about the details of the disclosure, it would appear, looking at this decision in isolation, that the employee would have no protection.

However, separate case law (specifically the case of Jhuti v Royal Mail Group) provides the employee with protection in such circumstances. The Supreme Court in this case held that where the real reason for dismissal (whistleblowing) is hidden from the decision maker behind an invented reason, the court must penetrate through the invention - the reason for the dismissal will be the hidden reason rather than the invented reason.

Tribunal finds that suggesting someone is 'playing the race card' is race discrimination

A former British Army musician has been successful in a claim for race discrimination. The Claimant was a black Rastafarian French Horn player in the Grenadier Guards. He was denied entry to his barracks while wearing civilian clothing by a guard who did not initially believe he was a soldier. The Claimant returned in uniform to discuss the matter with the guard and his superior officer. The Claimant felt that his identity had been challenged because he was black. The superior officer alleged he was turning the incident ‘into a racial thing’ and ‘playing the race card’. The Claimant was later disciplined for this altercation.

The tribunal held that the comments of the superior officer amounted to direct race discrimination. Direct race discrimination occurs where a person treats another person less favourably because of their race. The tribunal found that it was ‘inconceivable’ that a white person would have faced the same accusation of ‘playing the race card’. The comment was ‘irrefutably connected’ with race. The tribunal went on to find that the Claimant had been racially harassed. He had also suffered racial victimisation (as he had been treated unfavourably by reason of having raised the possibility of race discrimination in the first place).

The outcome in this case is not at all surprising given the language involved and the behaviour of the superior officer. However, it is a clear reminder to employers that employees, especially managers, need to receive clear and regular training on equality and diversity. Comments such as those made in this case have no place in the workplace, or anywhere in our society.

Are there signs that the new Employment (Allocation of Tips) Act 2023 will unintentionally kill-off the ancient custom of tipping?

The Employment (Allocation of Tips) Act 2023 has not yet been enacted (it is expected to come into force 1 October 2024), but it is already making waves in the hospitality industry. Under the Act, employers will have a duty to ensure that all qualifying tips are ‘allocated fairly’ to workers (including agency workers). Alternatively, if it is fair to do so, the employer may pay the tips over to an ‘independent tronc operator’ who will allocate them to workers.

The introduction of a legal obligation to allocate tips fairly will either increase the administrative burden on businesses (if they attempt to sort out the fair allocation themselves) or result in increased costs (if they engage the services of a tronc operator).

A London restaurant chain is trialling a novel way of working around this issue – but it does involve a distinct move away from tipping. City A.M. reports that Ping Pong, which has five outlets across London, is testing a new policy under which it will no longer allow customers to tip by card, although they will still be able to pay tips in cash. An optional service charge of 12.5% (90% of which was allocated to staff) will no longer be applied to customer bills. Instead, the restaurant will charge an optional ‘brand fee’ of 15% which will go towards franchise fees and other brand-related expenditure. Wages will increase by 19% to a minimum of £12.44 per hour, which the restaurant believes will match the earnings staff would have received by tip allocation. If other hospitality businesses follow their lead – and choose to increase wages rather than grapple with the need to allocate tips ‘fairly’ – then we may be heading for the end of tipping as we know it.

At the moment, this is just a trial and does not stop customers from leaving cash tips. But cash tipping is in decline, accelerated by the move away from using cash for payment during the pandemic. People do not tend to carry cash with them anymore. It will be interesting to see how this trial progresses and whether other hospitality businesses follow suit.

The reversal of the burden of proof in discrimination cases

In every legal claim the parties (and the court or tribunal) must engage with the burden of proof – who has the burden of proving/disproving the allegation?

In discrimination cases, s136 Equality Act 2010 states that ‘if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred’. If an employee is able to jump this hurdle then the burden of proof is reversed and the Respondent must then show that discrimination was not the reason for the treatment in question.

So, for example, in Ayodele v Citylink, the Claimant was unable to bring to the table facts which raised an inference of discrimination. She had not passed the hurdle necessary for the burden to shift to the Respondent (who would then have to show that the circumstances were not discriminatory). Her claim failed.

In the recent case of Atif v Dolce & Gabbana, it was held that the burden had shifted to the Respondent, the tribunal had erred in failing to acknowledge this – but the ultimate decision reached by the tribunal was still the correct one.

The Claimant in this case, an Arab-speaking Algerian, worked for the Respondent, an Italian fashion house. She raised a grievance which was not concluded by the Respondent. She was then dismissed for abusing the Respondent’s sickness policy. In particular, she asked about her annual sick day ‘entitlement’ and took time off sick on dates which had been refused as holiday.

The Claimant claimed unfair dismissal and race discrimination. She said she had been treated differently to her Italian colleagues in terms of her dismissal and her grievance. The tribunal dismissed both the unfair dismissal and race discrimination claim. On race discrimination, the tribunal found that the Claimant had not shown facts that raised an inference of discrimination. So, the burden of proof had not shifted to the Respondent. They did not have to show that discrimination was not the reason for her treatment. The Claimant appealed this aspect of the decision.

The Employment Appeal Tribunal held that the Claimant had raised facts which could amount to discrimination. They included that the Respondent’s management were all Italian; disciplinary proceedings started just after she had complained about her manager; her grievance was not completed; and her Italian manager had also taken sick days around other absences. The burden of proof had shifted. However, the EAT dismissed the Claimant’s appeal. Although they had gone the wrong way about it, the tribunal had grappled in detail with the facts and their implications. They had reached a clear conclusion: there was no race discrimination.

And finally

A recent Daily Mail article about disastrous job interviews included a cautionary tale for candidates embracing AI as part of the application process.

An unnamed manager shared an experience of interviewing someone who was feeding the questions asked into ChatGPT in real time. The interviewer said that the candidate’s answers were ‘rambling essays defining a key word in the question rather than answering it. I asked her about her proudest accomplishment, and she said, "some things that people often feel a sense of accomplishment about include..."’. Whilst this is an amusing tale it does clearly illustrate that, if well-used (which it clearly wasn’t in this case!), AI can improve and polish a candidate’s interview performance.

Using available technology may be seen by the prospective employer as a positive – using initiative and showing tenacity. However, will you actually know who you are employing? This is going to be an increasing problem in recruitment in the months and years to come as AI becomes more sophisticated. Employers should consider putting in place a robust generative AI policy which covers candidates as well as employees. This can set out where the use of generative AI is permitted and where it is not. Employers may also need to review current recruitment processes to reduce the risk that a candidate can ‘hide’ behind AI-generated answers.