Survey shows online sexual harassment increased during coronavirus lockdowns

Few people would argue that the Internet has shaped and transformed the 21st century.  From shopping to researching, healthcare to defence, the online world has changed almost every aspect of our lives; sometimes for the better, and occasionally for the worse. It has long been recognised that many school children are tormented by online bullies.  Home used to be a safe haven but thanks to the Internet, tormentors can pursue students at home.  And following the surge in homeworking, driven by the Coronavirus pandemic, a new study shows that those suffering from workplace sexual harassment are also now having to deal with such behaviour inside their own four walls.

A recent survey by the Rights of Women charity lays bare the extent of the online sexual harassment problem.  It shows:

  • “45% of women experiencing sexual harassment, reported experiencing the harassment remotely, i.e. sexual messages (e.g. email, texts, social media); cyber harassment (e.g. via Zoom, Teams, Slack etc); and sexual calls.
  • 42% of women experiencing sexual harassment at work have experienced some to all of the harassment online.
  • 23% of women who have experienced sexual harassment reported an increase or escalation whilst working from home, since the start of lockdown (23rd March 2020).”

Furthermore, 72% of women do not feel that their employer is doing enough to combat online sexual harassment.  A hospital worker spoke of her experience, stating:

“As the pandemic was declared, all attention was diverted in managing clinical pressures and needs as I work in a hospital. This meant an investigation was not started for months. In the meantime, I felt unprotected as there was no system in place to remove the harasser from the department whilst an investigation was pending. …There is no policy in this mammoth organisation that addresses sexual harassment.”

Deeba Syed, Senior Legal Officer, Rights of Women, said:

“These statistics echo what women have been telling us already, sexual harassment at work happens online as well as in-person. Although more women are working from home, online sexual harassment has increased and women continue to suffer sexual harassment despite the Covid-19 pandemic. Women working from home have seen their harassers take to Zoom, Microsoft Teams, social media, messages, and phone calls, to continue the torrent of abuse.”

For employers, protecting employees from online sexual harassment presents yet another challenge that must be addressed.  Failure to do so could result in expensive, stressful, and reputation damaging Employment Tribunal claims.

What are employers’ duties regarding workplace sexual harassment?

Sexual harassment is illegal under the Equality Act 2010.  Sexual harassment can arise where there is:

  • Unwanted conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for the victim.
  • Less favourable treatment – this may occur because of the victim’s rejection or submission to the conduct as described above.

Employers have a duty to prevent workplace sexual harassment not only at the workplace premises but also at work-related events such as Christmas parties and on social media.

To protect their employees and commercial reputations, employers must take ‘reasonable steps’ to prevent sexual harassment from occurring.  Doing so may also act as a defence should an employee bring a sexual harassment claim against them.  Examples of ‘reasonable steps’ include creating a well-drafted sexual harassment policy and ensuring that policy is well communicated throughout the business.  It is also important to have training in place to help managers spot signs of harassment (both in person and online) and appoint one or two people to act as a safe person to go to if an employee wants to talk about concerns regarding a colleague’s behaviour.  An alternative is to publicise details of an outside organisation that can provide a confidential person to talk to.

Talk to an Employment Solicitor regarding sexual harassment

In this age of #MeToo, employers must be vigilant in their anti-sexual harassment policies and procedures.  If you have received a complaint about online sexual harassment, speak to an experienced Employment Law Solicitor about the best way to manage the situation.  The initial steps you take in handling a sexual harassment claim can make a significant difference as to whether an Employment Tribunal claim is brought.

If you would like to discuss any of the above issues, please contact Susan Bernstein, Employment Partner on 020 8349 5480 or by email

Uber loses in the Supreme Court – Uber BV v Aslam & Ors

Earlier this month, Uber, the largest player in the gig economy ran out of appeals in its long battle to retain the right to classify its drivers as self-employed rather than workers.  The Supreme Court dismissed Uber’s appeal, meaning thousands of drivers became entitled to minimum wage and holiday pay.

For employers, the decision has far-reaching consequences in cases where the relationship between the organisation and self-employed people may blur into the realms of ‘worker’.  To help you understand what the decision means for you, our Employment Law Solicitors in London have answered some of the most frequently asked questions related to the Supreme Court’s ruling.

What was the background to the decision?

In 2016, two former Uber drivers took the ride-hailing company to the Employment Tribunal arguing that they were workers and were therefore entitled to be paid the minimum wage and holiday pay.  Uber argued that all its drivers were self-employed.

The Employment Tribunal found in favour of the drivers.  Uber appealed to the Employment Appeal Tribunal and the Court of Appeal, both of whom upheld the decision in the first instance.

Why did the Supreme Court rule that Uber drivers were not self-employed?

The Supreme Court upheld the employment tribunal’s decision in Uber BV v Aslam & Ors, that Uber drivers are “workers” for the purposes of the rights mentioned above. It held that worker status was a question of statutory interpretation rather than contractual interpretation and therefore the written documentation between Uber and its drivers was not the correct starting point.  Instead, it was necessary to consider the purpose of the relevant legislation, which was to protect vulnerable individuals in a position of subordination and dependence in relation to another person who controls their work.  The greater the degree of control, the more likely the individual is a worker.

Delivering the unanimous decision, Lord Leggatt emphasised five aspects of the findings made by the Employment Tribunal which justified the Supreme Court’s conclusion that the drivers were working for and under contracts with Uber.

  1. Uber set the fare and drivers were not permitted to charge more, meaning that Uber dictated how much the drivers were paid.
  2. All drivers had to sign a contract and were not permitted to negotiate the terms.
  3. Once a driver had logged onto the Uber app, their right to turn down requests for rides was constrained by Uber.
  4. Uber exercised considerable control over how the drivers did their work; for example, passengers were encouraged to rate drivers on a scale of 1 to 5 and warnings were given for low scores. If the driver’s average score did not improve, Uber would end its relationship with them.
  5. Uber took active steps to prevent passengers from developing a relationship with its drivers beyond a particular ride.

Taking these factors together, it was clear that the services provided by the drivers were very tightly defined and controlled by Uber and that, accordingly, they were workers.

In addition, the Court held that the drivers’ working time under the Working Time Regulations was not limited to the time spent driving passengers to their destinations but started from the moment they logged in to the Uber app, within the territory in which they were licenced to operate, and were ready and willing to accept rides. 

Lord Leggatt concluded:

“Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”

What is the difference between a worker, employee, and self-employed person?

The Supreme Court upheld that Uber drivers were ‘workers’ as opposed to ‘employees’.  A worker includes an individual who works under a contract, whether written or oral, whereby the individual undertakes to perform personally work for the other party to the contract, provided that the other party is not, in reality a client or customer of the individual.

An employee is defined under section 230(1) of the Employment Rights Act 1996, as a person who has entered into or works under a contract of employment.  The contract can be in writing or implied by the structure of the working relationship.

A self-employed person is someone who runs their own business and takes responsibility for its success.  An employer has no responsibility in terms of employment rights and, subject to any commercial contract which is negotiated by both parties, a self-employed person is in charge of how and when their work is undertaken.

In determining whether an individual is self-employed or a worker, the courts will look at the reality of the working relationship rather than the label that the parties may have stated in the contract between them.

What advice do employment lawyers say to take in light of the Uber decision?

This decision leaves Uber vulnerable to claims from its workers for up to two years’ back pay or £25,000 (whichever is larger) in an employment tribunal, or up to six years’ back pay in the county court. They will also be able to claim 5.6 weeks’ annual leave each year.  However, they will not have employee rights, such as a right to a statutory redundancy payment or protection from unfair dismissal.

Many linked cases have been stayed pending the outcome of this case in the Supreme Court and the floodgate may open for many more.  That said, the Court’s finding that the Uber drivers were workers was fact specific and it may be that a different decision could be reached on a different set of facts.

If you are unsure as to whether certain members of your team are employees, workers, or self-employed, speak to one of our Employment Law Solicitors in London who can quickly advise you.

To make an appointment to discuss employment law matters please email us or phone 020 8349 0321.

Redundancy advice for employees and employers

In this post we look at some of the common questions both employees and employers have been asking about redundancies:

When is a dismissal of an employee by reason of redundancy?

A dismissal is taken to be a dismissal by reason of redundancy where it is wholly or mainly attributable to:

  • a closure of the employer’s business as a whole (business closure);
  • a closure of the particular workplace where the employee was employed (workplace closure); or
  • a reduction in the size of the workforce because the requirements of the business for employees to carry out work of a particular kind, or to do so in the place where the employee was employed, have ceased or diminished or are expected to cease or diminish (diminished requirements).

When is collective redundancy consultation necessary?

If an employer is proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less, it must consult on its proposal with appropriate representatives, such as a recognised trade union, or if none, with representatives elected by the affected employees and it must also notify BEIS.

The consultation should begin in good time and within minimum time limits:

  • Where the employer is proposing to dismiss 100 or more employees in a 90-day period, consultation must begin at least 45 days before the first dismissal takes effect.
  • Where the employer is proposing to dismiss between 20 and 99 employees in a 90-day period, consultation must begin at least 30 days before the first dismissal takes effect.

The maximum sanction for breaching the obligations is a protective award of up to 90 days’ gross actual pay for each affected employee, which can add up to a substantial amount.

Employers must not assume that collective consultation is an adequate substitute for individual consultation with affected employees.

What procedure does an employer need to follow in individual cases?

In dismissing employees for redundancy, employers should act fairly and reasonably in order to avoid claims for unfair dismissal.  Employers should do this by:

  • following any contractual redundancy procedures, express or implied, that may apply; and
  • following a fair procedure enabling the employer to make dismissal decisions that are fair and reasonable in the circumstances. In particular, an employer will normally not act reasonably (and a dismissal will therefore be unfair) if:
  1. there is no genuine redundancy situation; or
  2. the employer fails to consult the employee individually about the proposed redundancy; or
  3. the employee is unfairly selected because the employer fails to identify a fair pool from which to select the redundant employee or fails to choose reasonable selection criteria that can be objectively measured and are not discriminatory; or
  4. the employer fails to search for and, if it is available, give the employee an opportunity to apply for suitable alternative employment within its organisation.

The obligations with regard to an individual are distinct from the employer’s collective redundancy obligations. Accordingly, if there is a collective redundancy situation, there will still be a need for individual as well as collective consultation and the two processes will often run at the same time, although some aspects of the collective consultation should take place first.

An employee with at least two years’ continuous service is entitled to a statutory redundancy payment in addition to any contractual redundancy payment or other benefits that their employer may provide.

Can an employer make an employee on furlough redundant?

An employee can be made redundant whilst on furlough.  An employee’s redundancy rights will not be affected by being on furlough but an employer cannot claim reimbursement of redundancy payments or notice pay under the CRJS.  Notice pay will be at the employee’s normal rate of remuneration, not their furlough pay. 

Whether an employee would have a potentially successful claim for unfair dismissal if they were made redundant whilst on furlough or if they were made redundant instead of being furloughed would depend on the usual test of reasonableness, depending on the particular circumstances of the case, including the size and resources of the employer. Many workplaces have closed and jobs genuinely ceased to exist in this coronavirus pandemic. The fact that there may be a possibility that an employer may need employees in similar roles sometime in the future does not mean that an employer must continue to furlough employees. However, employers would be advised to consider furloughing as an alternative to redundancy and record in writing their reasons why furloughing or continuing to furlough would not be suitable in the particular circumstances of the case.

Redundancy or reorganisation exercise?

Where the employer carries out a reorganisation so that old roles disappear and are replaced by new roles, the question of whether this reorganisation is in fact a redundancy exercise is fact sensitive. As it was put by Burton P in Kingwell and others v Elizabeth Bradley Designs Ltd EAT/0661/02  “It is not an automatic consequence of there being a business reorganisation that there is a redundancy; nor is there a need for a business reorganisation in order that there should be a redundancy situation. The two are entirely self-standing concepts. But if a business reorganisation leads to a diminution in the requirement for employees carrying out the relevant work, then that business reorganisation leads to a redundancy situation and if not, not.” Given that these decisions are fact sensitive, they can be difficult to reconcile and can often cause uncertainty for employers.

If there is a reorganisation so that an old role disappears and is replaced by a new role, and the employee applies for the new role, the employer does not need to use objective criteria to assess the employee’s ability to perform in the new role, and can rely on their usual interview process to make a subjective assessment of who is the best person for the job as long as a fair process is followed and there is no indication of bias.

Can an employee still be made redundant if she is pregnant or on maternity leave?

Selection for redundancy due to pregnancy or maternity is automatically unfair and no minimum period of employment is required for an employee to make a claim. This is also likely to amount to sex discrimination.

That said, where a woman is made redundant while pregnant or on maternity leave, but not due to the fact that she is pregnant or on maternity leave, the normal test of fairness will apply.

A woman who is made redundant while on maternity leave must be offered a suitable available vacancy with her employer or an associated employer, however inconvenient for the employer.

The second reading of the Pregnancy and Maternity (Redundancy Protection) Bill 2019-21 is scheduled to take place on 12 March 2021.  This Bill aims to simplify current redundancy protections for pregnant women and women on maternity leave by making it automatically unfair for an employer to dismiss a woman by reason of redundancy if the dismissal occurs during pregnancy or maternity leave or the six month period after the end of the pregnancy or maternity leave, unless the employer’s business is closing down in the place where the woman worked or the work she is employed to do is ceasing and she has not been offered suitable alternative employment. Similar protections would also be available for women who experience a stillbirth or miscarriage.

If you would like to discuss any of the above issues, please contact Susan Bernstein, Employment Partner on 020 8349 5480 or by email

Flexible working – Is this the future?

What is flexible working?

Flexible working includes homeworking; part-time working; job share; staggered hours; annual hours; compressed hours (working the same number of hours over a shorter period; and phased retirement. This is not an exhaustive list.

Who can apply for flexible working?

Any employee, whatever their gender, can apply for flexible working provided they have at least 26 weeks’ continuous service.

How should an employee apply for flexible working?

An employee cannot make more than one application to the same employer in 12 months.  The application should be in writing and because it must contain certain information, it is useful to use the government’s application form to be found at: https://www.gov.uk/government/publications/the-right-to-request-flexible-working-form

How should an employer deal with an application for flexible working?

An employer must deal with the application ‘in a reasonable manner’ and notify the employee of the decision within 3 months of the application or any permitted appeal unless a longer period is agreed.  There is an Acas Code of Practice on handling requests in a reasonable manner and there are specified permitted grounds for refusal of an application. However, even if an employer refuses an application on one of the specified grounds, employers should be aware that a refusal may give rise to a discrimination claim if, for example, it unjustifiably refuses a woman’s request to change her hours for childcare reasons.

What should an employer do if its employees have been working from home during the COVID-19 pandemic and now wants to make homeworking (or working partly from home and partly from the employer’s premises) a more permanent arrangement for its employees?

This is likely to constitute a variation of the contract of employment, for which the employees’ consent should be sought.  Employers will need to decide at the start what they would do if any of the employees do not agree to the change as this could make a difference to the procedure they should follow.  The employees’ contracts of employment should be updated (and possibly the employer’s staff handbook) setting out the revised terms resulting from the homeworking arrangements. Such revised terms should include not only a change in place of work but also, for example, confirmation from the employee that they are not in breach of any mortgage or tenancy agreement by working at home and that they will comply with all health and safety and data protection instructions.

Should you require any help or advice arising from any of these issues, please call or send me an email

Covid-19 vaccine – Is this the light at the end of the tunnel for employers?

As the roll-out of mass Covid-19 vaccination gets under way, it has become clear that some employees are reluctant to be vaccinated.  We answer some key questions that employers, who are keen to get staff back in the workplace (whether or not with a combination of ongoing home-working), may be asking:

Can an employer require employees to get the Covid-19 vaccine?

In short, no. The government has not legislated for the vaccine to be mandatory, so on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people, such as in hospitals and care homes. If employers were to try to force their employees to be vaccinated, it could give rise to objections on the grounds of it being an unnecessary invasion of the employee’s entitlement to individual liberty and human rights and may also have criminal implications. Forcing an employee to receive a vaccine injection under duress, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.

Can an employer discipline or dismiss an employee who refuses to have a Covid-19 vaccine?

The Acas guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure but this would depend on whether vaccination was necessary for an employee to do their job. The example given by Acas is if staff travel to other countries for work and need vaccinations to enter a country. In most cases, however, disciplining an employee, who refuses to be vaccinated could result in the employee resigning and claiming constructive dismissal. In this situation, as well as any dismissal by the employer of an employee, who did not want to get the Covid-19 vaccine, could give rise to a potentially successful unfair dismissal claim since it is likely that an employment tribunal would find in favour of the employee rather than find it fair to impose what is effectively a medical procedure on employees.

Whereas ordinary unfair dismissal claims require the employee to have a minimum of two years’ continuous employment, there is no qualifying period of employment for an employee to bring a discrimination claim in respect of a protected characteristic under the Equality Act 2010.  For example, the employee may have a health condition that amounts to a disability, such as a serious allergy that prevents them from being vaccinated or they may be pregnant. Alternatively, the employee may be refusing to have a vaccination on religious grounds as it is understood that some vaccines use pig gelatine, which could be problematic for some religions and other philosophical beliefs, such as those held by vegans. It may also be possible that an ardent anti-vaxxer could argue that their stance was protected as a philosophical belief if it is genuinely held and worthy of respect in a democratic society. 

If employees cannot be forced to have the Covid-19 vaccine, how best can they be encouraged?

An employer has an implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work. If an employee does not want to be vaccinated, the employer should listen to their concerns and be sensitive towards the individual situation.  Employers may find it useful to talk with their staff about the benefits of being vaccinated to encourage voluntary vaccination within their workforce – particularly since evidence suggests that the success of the vaccination in eradicating the spread of the virus will depend on the extent of the take-up.  For health advice about the vaccines, see https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/

Can those employees, who will not or cannot be vaccinated, be prevented from attending the work-place?

It is understandable that employers will want to avoid the risk of Covid-19 returning to the workplace and continuing to spread amongst those who have not had the vaccination. Accordingly, an employer may decide on health and safety grounds not to permit employees, who have not been vaccinated, to attend the workplace. Such a course of action could potentially give rise to age discrimination claims on the basis that younger employees are unlikely to receive the vaccine until the last phase of immunisation or disability claims if the vaccination is not suitable for an employee due to a medical condition. An unlawful deduction from wages claim might also arise if unvaccinated employees’ pay is affected because they are not permitted to attend work. In view of these issues, employers should consider other alternatives such as working from home and/or regular testing of unvaccinated employees.

Can an employer make an offer of employment conditional upon having had a Covid-19 vaccination?

Potentially yes but the risks of discrimination claims as outlined above could still apply and since most employers anticipate low levels of recruitment for the foreseeable future, it would do little to secure widespread protection.

Do Covid-19 vaccination records need to be kept by an employer in accordance with GDPR and privacy laws?

In order to keep Covid-19 in the workplace under control, employers might want to keep a record of those who have and have not been vaccinated. This will constitute sensitive personal information and the records should comply with GDPR and privacy laws.

For further advice please get in touch with one of our North London Employment solicitors by email or call us on 020 8349 0321.

Is an employer obliged to postpone a disciplinary hearing pending the outcome of a police investigation into an employee?

No, in almost all circumstances, held the Court of Appeal in North West Anglia NHS Foundation Trust v Gregg. 

Where employees are suspected of having committed misconduct, such as theft, fraud, assault or substance abuse, complications can arise where there is a criminal investigation into the behaviour which is also the subject of an internal disciplinary investigation.  Most employers will not wish to wait for the outcome of criminal proceedings before conducting the disciplinary hearing, particularly if the employee has been suspended on full pay, as this will usually take several months.

FACTS:  Dr Gregg was employed as a consultant anaesthetist by North West Anglia NHS Foundation Trust (the Trust). In 2016 the Trust became concerned about the deaths of a number of patients under Dr Gregg’s care and launched an investigation while suspending him on full pay.  At the same time, the Trust notified the police and the General Medical Council. In May 2017, the Interim Orders Tribunal (part of the General Medical Council) imposed an interim suspension order on Dr Gregg and, in light of this, the Trust suspended his salary.

Dr Gregg’s lawyer advised him not to participate in a disciplinary hearing as he would risk prejudicing himself in the criminal investigation. The Trust refused to adjourn the hearing but then Dr Gregg successfully obtained an interim injunction in the High Court, preventing the Trust from continuing with its investigation until the police investigation was complete.  The High Court also found that the Trust was in breach of contract for not continuing to pay Dr Gregg his salary during the interim suspension.

The Trust appealed to the Court of Appeal.

HELD: The Court of Appeal overturned the High Court injunction, holding that employers do not have to postpone disciplinary proceedings to wait for the outcome of criminal investigations.  However, the Court upheld the High Court’s decision that Dr Gregg should have been paid his salary during his interim suspension.

The Court found that the Trust had not been entitled to withhold Dr Gregg’s pay during his period of interim suspension because:

  1. the interim suspension was for the purpose of preserving the position until more was known about the allegations, rather than as a sanction.
  2. the express terms of Dr Gregg’s contract of employment did not permit the deduction of pay during an interim suspension, nor was there any evidence that this had become an implied term of the contract by custom and practice.
  3. Dr Gregg had remained ready, willing and able to work even though the decision of the Interim Orders Tribunal had removed his registration to do so.

The Court ruled that where the contract did not address the issue of pay deduction during suspension, the default position should be that an interim suspension should not attract the deduction of pay.  Exceptional circumstances, such as a complete or part admission of guilt, might justify such a deduction, but did not arise in this particular case.

With regard to pursuing an internal disciplinary process in parallel with an investigation by the police, the Court established the following principles:

  1. An employer does not usually need to wait for the conclusion of any criminal proceedings before commencing or continuing internal disciplinary proceedings or dismissing an employee.
  2. The court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings gives rise to a real danger of a miscarriage of justice in the criminal proceedings if the court does not intervene.

In this case, the Court held that there was no evidence that the Trust’s actions in progressing the disciplinary process without waiting for the outcome of the police investigation would have had any effect on the criminal investigation or give rise to a real danger of a miscarriage of justice.

The Court also held that it would not have been wrong for the Trust, having started to investigate alleged misconduct, to ‘side-step’ the conduct disciplinary process by considering dismissal on the basis of Dr Gregg losing his registration to practice.  His contract allowed for alternative grounds for dismissal and starting one process did not prevent the Trust from relying on another.

Comment:  It is rare for an employee to obtain injunctive relief in the course of disciplinary proceedings.  Such cases are usually confined to the public sector where contractual disciplinary procedures and potentially career-ending allegations are more common.

However, this decision makes clear that an employer does not usually have to wait for the outcome of a criminal investigation before proceeding with an internal disciplinary process.  It should be noted that the standard of proof for the courts where a crime is alleged is ‘ beyond reasonable doubt’  whereas the question for the employer in carrying out a disciplinary procedure is whether it had a genuine belief, on reasonable grounds, that the employee conducted themselves in the manner alleged.

With regard to suspension this decision confirms that, without a contractual right to do so, it is unlikely that an employer will be able to stop an employee’s pay during a period of suspension and is consistent with the Acas Code of Practice on Disciplinary and Grievance Procedures which states that ‘suspension should not be considered a disciplinary action’.

Should holiday entitlement for term-time only workers be subject to a pro-rata reduction?

No, held the Court of Appeal in Harpur Trust v Brazel.

Workers in Great Britain, including part-time workers have a right to a minimum of 5.6 weeks’ paid annual leave under the Working Time Regulations 1998 (WTR).  How this applies to a worker with no normal working hours can be difficult to establish.  A common approach is to say that the worker accrues holiday entitlement at the rate of 12.07% of hours worked, based on the fact that the standard working year is 46.4 weeks (that is, 52 weeks less the statutory 5.6 weeks holiday entitlement) and 5.6 weeks is 12.07% of 46.4 weeks.

FACTS:  Mrs Brazel was a part-time music teacher engaged under a permanent zero-hours contract.  She worked variable hours, typically giving between 20 and 30 half-hour lessons a week.  The school year varied between 32 and 35 weeks. Mrs Brazel was therefore a part-time worker in two senses, firstly that she did not work a full working week and, secondly, that during the school holidays, she did not work at all.  It is the second type of part-time working with which this case is concerned.

Mrs Brazel’s contract stated that she was entitled to 5.6 weeks paid annual leave in line with the WTR and that she was required to take this during school holidays.  As the school holidays were far longer than 5.6 weeks, no particular weeks were designated as statutory holiday but by agreement the Trust made three annual payments in respect of holiday. Following Acas guidance, the Trust calculated Mrs Brazel’s earnings at the end of each term and paid her one third of 12.07% of that figure.

Mrs Brazel argued that this resulted in her being underpaid.  She argued that the ‘week’s pay’ calculation set out in section 224 of the Employment Rights Act 1996 (ERA) for workers without normal working hours, which would involve taking her average earnings over the 12 weeks immediately before holiday were taken, would result in holiday pay of around 17.5 % of her earnings for the term. She brought claims in the employment tribunal for unlawful deductions from wages for the difference as well as a claim asserting less favourable treatment on grounds of part-time status. The employment tribunal dismissed her claims.  It held that a principle of pro-rating should apply and that the statutory scheme should be read for part-time workers, who worked fewer than 46.4 weeks per year, so that payment was capped at 12.07% of annualised hours. Mrs Brazel appealed to the Employment Appeal Tribunal (EAT) in relation to the correct calculation of holiday pay only. The EAT upheld her appeal, finding that the tribunal had erred in capping her holiday pay at 12.07% of annual earnings. The EAT held that there was no requirement in the WTR to pro rate holiday for part-time employees to ensure that full-time employees were not treated less favourably and the tribunal should have applied the straightforward calculation prescribed by section 224 of the ERA.  The Trust appealed to the Court of Appeal.

HELD:  Lord Justice Underhill, giving the Court of Appeal’s judgement, noted that the issue was whether Mrs Brazel’s holiday entitlement should be reduced to reflect the fact that she was a ‘part-year’ worker, a phrase used by him to describe someone who did not work throughout the year.  He accepted that EU law requires only that workers accrue entitlement to paid annual leave in proportion to the time that they work but he concluded that it was not mandatory to adopt this approach and more particularly, there was no requirement in EU law to pro-rate the leave entitlement of part-year workers to that of full-year workers. He acknowledged  that at first sight not applying the pro-rata principle could lead to anomalous results if part-time workers worked a few weeks a year but still had 5.6 weeks’ holiday a year. However, he was not persuaded that this was unprincipled or obviously unfair.  It was important that Mrs Brazel was on a permanent contract and it was not unreasonable to treat that as a sufficient basis for fixing the amount of holiday entitlement, irrespective of the number of hours, days or weeks that she might have to perform under the contract; the actual days from which she would be relieved, and the amount of her holiday pay would reflect her actual working pattern. Given the wide spectrum of working arrangements, be it part-time, part-year or casual, there is an obvious attraction to having the same entitlement for all permanent employees.

Lord Justice Underhill accepted that this approach would lead to odd results in extreme cases such as the cricket coach or exam invigilator, whose services are required for only a few weeks a year.  However, general rules sometimes produce anomalies and it would be unusual for those who work for only a few weeks a year to be on a permanent contract as opposed to being engaged on a free-lance basis.

On a natural construction of the WTR, there is no provision for pro-rating and an employer should simply carry out a straightforward exercise of identifying a week’s pay in accordance with the provisions of section 224 of the ERA where there are no normal working hours and multiplying that figure by 5.6.

Comment:  Although Lord Justice Underhill made clear in this judgement that the ruling only applies to holiday entitlement and pay for those on permanent contracts, it could potentially lead the way for casual workers not employed on a permanent contract to argue that their holiday pay should also not be subject to the 12.07% cap. It should also be noted that Lord Justice Underhill emphasised that the case was about ‘part-year’ workers and not part-time workers, who work part of a week, and so the conclusions are inapplicable to part-time but full-year workers.  Where there are part-year workers on a permanent contract, be it in respect of anything from offshore oil rigs to education, the approach in this case should be followed.

Did a manager’s massaging of an employee’s shoulders constitute sexual harassment?

No, held the Employment Appeal Tribunal in Raj v Capita Business Services Limited 

FACTS:   Mr Raj was employed by Capita Business Services Limited (CBS) as a customer service agent.  When he was dismissed, with under a year’s continuous service, he brought claims of sexual harassment under the Equality Act 2010, alleging that on several occasions, while he sat at his desk his manager, who was female, stood behind him and gave him a shoulder, neck and back massage.  He claimed that this was:

  • unwanted conduct ‘related to sex’, a protected characteristic, which is prohibited conduct under the Equality Act where the conduct has the purpose or effect of –
  • violating B’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for B; and
  • unwanted conduct ‘of a sexual nature’, which is prohibited conduct under the Equality Act where both –
  • A engages in unwanted conduct of a sexual nature, and
  • the conduct has the purpose or effect of either violating B’s dignity, or creating an  intimidating, hostile, degrading, humiliating or offensive environment for B.

HELD:  The employment tribunal rejected the harassment claims. Although it found that the conduct was unwanted, and that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Raj, it concluded that the conduct was not related to sex, nor of a sexual nature. Although Mr Raj’s manager had tried to argue that she had done no more than tap Mr Raj’s shoulders on one occasion, the employment tribunal found that the evidence established that there was contact of a massage type lasting two or three minutes, which was long enough to make Mr Raj feel uncomfortable.  However, there was little evidence that the purpose behind it was a link to Mr Raj’s sex. Instead, the tribunal concluded that the purpose of the manager’s conduct was ‘misguided encouragement’ accompanied by words of praise to an underperforming employee. The tribunal took into account the fact that the contact was with a gender neutral part of the body, it had taken place in an open- plan office and the manager had not behaved in a comparable way to any other employee, male or female.  Although the conduct was unwise and uncomfortable, it was not harassment as prohibited under the Equality Act.  Mr Raj appealed to the Employment Appeal Tribunal but the employment tribunal’s decision was upheld. 

Comment: It is easy to assume in the age of #MeToo that any unwanted physical contact between a manager and a junior employee would amount to sexual harassment.  However, this decision highlights:

  • how each case turns on its own facts. For example, the outcome may have been different  if the manager had been male and the junior employee had been female; and
  • how important it is for a claimant to satisfy all aspects of the legal definition to succeed in a claim for sexual harassment. 

That said, it is clear that the decision does not encourage or condone any physical contact in the workplace and employers should ensure that their anti-harassment policy and training explains  this so as to avoid any potential misunderstandings.

Covert recordings in the workplace

In this issue of OGR Stock Denton Employment Law Update we consider  a question we are often asked by our clients, whether employees are permitted to make covert recordings at work, say in a disciplinary or grievance meeting.

Making a covert recording in an age where almost everyone owns a smartphone is a very straightforward and accessible thing to achieve and means that employees are now able to make secret recordings of meetings with very little effort whereas in the past  to achieve this would have taken considerable organisation on the employee’s part. This issue was considered by the Employment Appeal Tribunal (EAT) in the recent case of Phoenix House v Stockman.

It may be helpful if we first consider the facts of this case.

THE FACTS

The Claimant, Mrs Stockman worked as a financial accountant for Phoenix House, a charity. She complained she was unfairly treated during a restructuring process, and while in a meeting with the head of HR she covertly recorded the meeting.  Mrs Stockman was successful in her claim of unfair dismissal against the Respondent. She had been dismissed due to an irretrievable breakdown of relationships, which was not connected to the covert recordings. The tribunal held that this decision was unreasonable and the process that was followed to reach the decision was unfair. It was only during this tribunal claim that it was revealed that Mrs Stockman had covertly recorded the meeting. The Employment Tribunal (ET) found that Mrs Stockman did not make the recordings for entrapment purposes but rather because she was flustered at the time and reduced the compensatory award by 10% to reflect her conduct.

The Respondent appealed the ET’s decision, arguing that had it known about the recording it would have dismissed Mrs Stockman for gross misconduct and that her compensation should therefore be reduced to nil. They argued that Mrs Stockman’s conduct of covertly recording the meeting was a breach of the implied term of mutual trust and confidence.

THE EAT’S DECISION.

The EAT dismissed the appeal. They held that the ET had been entitled to find that Mrs Stockman had not recorded the meeting with the intention of entrapment. She had recorded a single meeting because she was concerned about her own position rather than with the intention of obtaining confidential information of the business. The EAT also provided helpful guidance on some of the relevant factors to consider when determining whether or not a covert recording could be justified. These factors are as follows:

  1. The purpose

The purpose of the recording was relevant, the EAT stated that as Mrs Stockman was not using the covert recording to deceive her employer it could not be gross misconduct; they said

“The purpose of the recording will be relevant; and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap to the confused and vulnerable employee seeking to keep a record and guard against misrepresentation.”

It is therefore important to consider the reasons why an employee may want to record the meeting. Do they simply want to protect their position and have a clear and accurate record of the meeting or are there any other, more complex, reasons that may make you suspicious.  

  1. Knowledge

An employee’s knowledge that their actions may constitute misconduct or gross misconduct is always a relevant factor. In this case the EAT observed that employers rarely list covert recording as an example of gross misconduct in their disciplinary policies, although they added that this may now change. The EAT did state that it “considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.”

As always, each case will turn on its own facts. You must look at each situation individually. Is this a case where a naïve and inexperienced employee just wants to make a record of their meeting for their own purposes, and doesn’t really have an understanding about what they are doing? Alternatively is this more a case of an employee who has been specifically told that a recording must not be made and then lied about it?

  1. Content

What is being recorded is also relevant.  If this was a meeting to discuss highly confidential business of the employer or personal information or information about other people compared with a meeting of which a record would normally be kept anyway.

PRACTICAL POINTS

So what does all the above mean to you in practical terms? Here are some practical steps you can take.

  • At the start of any meeting, whether it is under a disciplinary or a grievance procedure, make it clear that recordings are prohibited and ask that employees turn off mobile phones at the beginning of the meetings. Make it clear that if despite this warning, they still make a covert recording, then this may be regarded as gross misconduct.
  • If an employee does record a meeting without informing you, then as set out above, this will generally amount to misconduct. However, it will not necessarily amount to gross misconduct – that will require consideration of all the facts of the particular circumstances.
  • If you are in a situation where you want the meeting recorded then it remains good practice to communicate this from the outset. Although both sides should consider how desirable it is for meetings to be recorded sometimes it can often change the way people behave, it can make people feel inhibited and can sometime prevent a honest exchange of views from taking places.
  • You may want to revisit your disciplinary policies specifically to include covert recording in the list of examples of gross misconduct.
  • It is also important to note that even if covert recording amounts to gross misconduct, the contents may still be disclosable as evidence in an Employment Tribunal. Therefore when conducting disciplinary and grievance hearings it is important to behave in a way that would be happy for a tribunal to hear. In Punjab National Bank ( International ) Ltd and others v Gosain the EAT determined covert recordings were admissible evidence at the final hearing, and this included comments made while the claimant was out of the rooms and the private deliberations of the panel were secretly recorded. In general, tribunals do not like using recordings as evidence but will use them in circumstances where the parties have a dispute as to what was said and a recording can determine this issue conclusively.

Employers must record Working Time

It should be noted that the Court of Justice of the European Union (CJEU) held in a case referred to it from Spain – Federacion de Servicos de Comisiones Obreras (CCOO) v Deutsche Bank SAE that employers must keep records of hours worked to fulfil their obligations under the European Working Time Directive. The court decided that if there was no such requirement, it would be impossible to determine objectively and reliably either the number of hours worked or when the work was done so as to benefit from the limitation on weekly working time and minimum daily and weekly rest periods provided by the Directive. 

The Working Time Regulations 1998 do not currently require employers to keep records of hours worked and the Government will have to amend the Regulations if EU law remains in force in the UK – a matter, for which at the time of writing this update, we need a crystal ball!