In this month's legal update, our Employment & HR team cover:

News, including:

• Public sector exit payments
• Covid-19 prohibition notices on workplaces
• 1-in-5 employees still travelling into work
• Workplace rapid testing scheme
• No jab, no job.

Commentary on recent employment law tribunal cases, including:

• Sleep-in shifts not entitled to minimum wage
• Retail staff comparing themselves to distribution depot workers for equal pay
• Dismissal for not wearing face mask is lawful
• The importance of equality and diversity training
• BBC presenter not subject to IR35
• The Self-Employment Income Support Scheme ruled as not discriminatory
• Employee covert surveillance did not justify dismissal

News

• In a recent update we reported that the government had decided not to go ahead with the proposed restriction on public sector exit payments to a maximum of £95,000. The trade unions have now warned that the revocation of the Restriction of Public Sector Exit Payment Regulations 2020 is likely to be delayed because there are a large number of judicial review claims against the regulations which have been given permission to be heard, and these are taking place imminently.
• The Health and Safety Executive has revealed that it has not imposed any COVID-19-related prohibition notices on workplaces since March 2020, notwithstanding the publication by Public Health England of a concerning rise in the number of cases in offices, factories and construction sites during the third lockdown.
• A TUC survey has found that one in five employees are still travelling to work despite the government's guidance that people should only do so where they "cannot reasonably work from home". As many as 40% of those who responded to the survey cited management pressure as the key reason for going into the office.
• The government has extended the eligibility of its workplace rapid testing scheme to those businesses with more than 50 employees, from more than 250. It is hoped that this will encourage more employers to take part in the scheme.
• The UK government minister in charge of the COVID-19 vaccine rollout, has stated that it is "up to businesses to decide" whether to require staff to be vaccinated. The major concern, of course, is that so-called "no jab, no job" contracts may leave workers exposed to unlawful discrimination. The government is being asked to provide clearer guidance on this issue. The government is also debating whether or not to make vaccination of staff in care services mandatory.

Commentary

Workers providing sleep-in services not entitled to national minimum wage

In a landmark ruling, the Supreme Court has held that workers who carry out “sleep-in” duties for people they support in the health and social care sector are not entitled to be paid the national minimum wage for the entirety of their shift regardless of whether they are working or sleeping. They are only entitled to be paid for the hours which they are actually awake and working and the payment of a flat rate for the sleep-in, alongside national minimum wage for any time they are working during that period, is lawful.

The cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and Another were heard by the Supreme Court in February 2020 and judgment was given just over 1 year later. The workers had argued that the entirety of the time they spent on a sleep-in (in the case of Ms Tomlinson-Blake) or as an on-call night care assistant (in the case of Mr Shannon) should be remunerated via payment of the national minimum wage for each hour of their shift. The employers argued in both cases that, in accordance with the Working Time Regulations, they were only entitled to be paid for the time when they were actually awake and working, not when they were sleeping.

The Supreme Court paid particular attention to the Low Pay Commission (LPC) reports, the recommendations of which are adopted by Parliament unless Parliament expressly states otherwise (which it had not, at any time). Over a number of reports, the LPC had stated that a flat rate for shifts where the individuals are required to be at their place of work, but can sleep unless they are required to be awake and working, was lawful and that they should be paid the national minimum wage only for any hours which they actually worked. Ms Tomlinson-Blake had admitted that she very rarely got disturbed during the night, although she had to keep a “listening ear”. Mr Shannon was required to provide night-care assistance if requested; but it very rarely was, and he was entitled to sleep unless expressly required to provide assistance.

The cases turned on the interpretation of “time work” in the Working Time Regulations. The Court of Appeal, upheld by the Supreme Court, had held that under the Working Time Regulations, “available for work” was not the same as actually working and that if, while available for work, they could sleep, they were not entitled to be paid for their periods of sleeping.

This brings to an end a long-running saga over the last several years regarding the rate at which night care assistants and support workers are remunerated and will be a great relief for employers in the health and social care sector who were otherwise facing very considerable bills which, in some cases, may have finished them.

Retail staff entitled to compare themselves to workers and distribution depots for the purposes of equal pay

In another landmark Supreme Court decision, female retail staff at Asda, who brought claims regarding equal pay claiming that they should be paid the same as the staff in the distribution depots, who were mostly male, have won the right to compare their terms and conditions to those of the distribution depot staff. This point was taken as a preliminary issue all the way from the employment tribunal to the Supreme Court in Asda v Brierley & Ors. Judgment was promulgated on 26 March 2021. The workers have now won the right to bring claims for equal pay claiming that their work is of equal value to those of the, mostly male, distribution depot workers and that the disparity in their pay is on the ground of gender. So this case rolls on…

Dismissal for not wearing face mask is lawful

In what is probably one of the first decisions of its kind, an employment tribunal has held that an employee who refused to wear a face mask was lawfully dismissed. The case of Kubilius v Kent Foods Ltd concerned a delivery driver who was required to drive to and from the employer’s clients. The respondent’s staff handbook required courteous treatment of clients; employees to take all reasonable steps to safeguard their own and others’ health and safety; and, crucially in this case, that customer instructions regarding PPE must be followed.

Most of his work involved travel to and from the Thames refinery site of Tate & Lyle, which required face masks to be worn at their sites and issued visitors with a face mask on arrival. Despite being asked by two Tate employees, the claimant refused to wear a face mask while he was in the cab of his vehicle. He was told that, without one, droplets from his mouth would land on peoples' faces due to his elevated position in his cab and that Tate's rules required him to wear a face mask until he left its site. He argued that his cab was his own area and that wearing a face mask was not a legal requirement.

When this was reported to the respondent, alongside a requirement not to allow the claimant to attend the site again, the employer carried out an investigation and invited the claimant to a disciplinary hearing into allegations that he was refusing to comply with the employer’s requirement of maintaining good relations with its clients by following their instructions to wear a face mask and cooperate with ensuring a safer working environment. He was summarily dismissed.

An employment tribunal held that the dismissal had been fair. The employer held a genuine belief that the claimant was guilty of misconduct having carried out a reasonable investigation; and had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. The tribunal held that dismissal fell within the range of reasonable responses, even though another employer might have just issued a warning. The employer had been entitled to prioritise the importance of maintaining good relationships with its clients, and the claimant insisted that he had done nothing wrong, which raised concern as to his future conduct. There was also the logistical difficulty of him being banned from Tate's site, which was the main client to whom he drove.

Vicarious liability - reasonable steps - refresher training

The case of Allay (UK) Ltd v Gehlen is a salient reminder of the importance of equality and diversity training not only being given, but being regularly updated and refreshers provided.

When the claimant was dismissed for performance–related reasons, he complained that he had been racially harassed by a colleague. The investigation confirmed that the colleague had indeed made racist comments and he was required to undergo further equality and diversity training.

Mr Gehlen brought a claim alleging racial harassment against his ex-employer. The employer sought to defend the vicarious liability using the reasonable steps defence, namely that it had taken all reasonable steps to prevent the claimant’s colleague from carrying out the conduct and behaviour of which he had been found culpable. However the tribunal dismissed the employer’s defence on the basis that the equality and diversity training was several years out of date and no attempt had been made to provide refreshers. It held that the training had become “stale and ineffective” and reasonable steps would have been to provide regular refresher training, which the company had failed to do.

The company’s appeal to the EAT failed. The EAT held that it was not enough to demonstrate that training had been provided; the employer needs to consider the effectiveness of the training and, in this context, identify if there are further reasonable steps which could be taken to ensure that the training is absorbed and put into practice by its employees.

A reminder to employers to ensure that they keep their equality and diversity training, practice and policies regularly up to date and reviewed to ensure, not only that they are in place, but that they are effective and operative.

BBC Presenter not subject to IR35

The Upper Tribunal has overturned a decision of the First-tier Tribunal in the case of HMRC v Atholl House Productions Ltd v HMRC, finding that IR35 did not apply to a BBC presenter providing services through a personal service company. The Upper Tier Tribunal differed, in its opinion as to the terms of the hypothetical contract, from the First-tier Tribunal. It held that there was no employment relationship if the individual is in business on their own account.

Remaking the FTT's decision, the Upper Tribunal decided that the hypothetical contract would have included the following terms (additional to those found by the FTT):

• For the BBC, a right to restrict the presenter's other engagements and a modified right of first call over her services.
• For the presenter, a requirement to present at least 160 shows a year, at such times and places as the BBC deemed reasonably necessary and to adhere to certain editorial policies and guidelines.

These gave the BBC sufficient control and the parties agreed that mutuality was present. The FTT's findings that the presenter entered into the contract as part of a business carried out on her own account was not ameliorated by the degree of her economic dependence on the BBC in two years. The significance of economic dependence should be judged by reference to the presenter's career and not by reference to the tax years in dispute.

HMRC’s acceptance of the argument that, where a person is engaged to perform a particular task, there could only be control of what is done if they can be asked to perform other tasks during the engagement, as argued by the presenter, had been rejected by the First-tier Tribunal.

SEISS not discriminatory

The Self-Employment Income Support Scheme (SEISS) is the scheme introduced by the government during the pandemic whereby grants are awarded to self-employed individuals based on their average trading profits in the three full tax years preceding 2019/20. The case of R (Motherhood Plan and another) v HM Treasury concerned an application for judicial review of the SEISS on the basis that it was indirectly discriminatory. It was brought by a self-employed mother and a maternity rights charity, who argued that the SEISS breached Article 14 of the European Convention on Human Rights, on the following grounds:-

• It was indirectly discriminatory to calculate grants based on average trading profits in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have done had they remained working.
• Grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered due to their absence on maternity leave if treated the same as everyone else.

The application was rejected by the High Court, which was not persuaded that there was any indirect discrimination. The disadvantage complained of was not caused by the SEISS itself but instead from an absence of, or reduction in, past income. There were no hidden barriers to eligibility and it was not harder for women on maternity leave to quantify their earnings than for others. The fact that some claimants received lower grants than others reflected the fact of lower earnings in past years; in the context of the SEISS stated purpose, the reasons for the lower earnings in past years were irrelevant.

Even if there had been discrimination, the court considered that this would have been justified.

Employee covert surveillance did not justify dismissal

In Northbay Pelagic Ltd v Anderson the EAT ruled on the justifiability of dismissing an employee who had conducted surveillance in the workplace. He had done so in order to protect his confidential information. He had set up a camera trained on his computer to film anyone who entered the office and sought to access it. However, the employer dismissed him for doing so, which was found by a tribunal to be unfair. The EAT held that the employer had failed to conduct a balancing exercise between the right to privacy and the employee's desire to protect his confidential information.

That was not entirely the end of the matter, because the case has been remitted to a fresh tribunal to consider whether it was fair to dismiss the employee on the basis that he failed to follow a management instruction.

The EAT also held that if an employer is conducting disciplinary investigations into several employees with related cases it is not necessary for the investigations to be kept confidential from one another. The EAT also flagged up the importance of ensuring that evidence is obtained from all relevant witnesses. In this case, the employer had failed to do so and this may have caused the tribunal to prefer the evidence of the employee to the employer.