Category: Employment Law

An important case recently heard in the Employment Tribunal highlights the importance of training managers on anti-harassment policies, and what they should do if harassment is reported to them.

In this case, KJ was employed by the British Council but had been working in Morocco as a teaching centre cluster lead when Morocco entered lockdown because of the Covid pandemic. Her role was deemed business critical and so she stayed in Morocco throughout this period, as well as Tony Reilly, who was the organisation’s most senior person in the country at that time. At first, their relationship was amicable as Reilly had helped KJ secure flights home to the UK when her father sadly passed away. However, the relationship soon became obsessive, and had culminated in stalking, constant messages, and sexual harassment.

KJ proceeded to lodge a formal grievance, however, the Company’s internal investigations revealed that there were no unwanted sexual advances. On the advice of her line manager, who said KJ should have been clearer in her communication that she did not want anything to happen, KJ emailed Reilly explaining how she felt. Reilly had replied with an apology, and an acknowledgement that the behaviour he displayed was wrong. However, even after this point, Reilly continued to message KJ and even turned up to work social events he knew KJ would be at, which made her even more uncomfortable.

Despite KJ’s report of Reilly’s actions to his line manager, no formal action was taken against Reilly by any member of management, or anyone at the British Council, in relation to the allegations made. As a result of this, KJ submitted a formal complaint to the British Council’s regional HR director. The examples of what she had experienced were taken straight from the organisation’s bullying and harassment policy, and included criminal behaviour, unwanted sexual advances, and physical touching. The organisation’s Speak Up Committee (SUC) – which was chaired by British Council CEO Andrew Williams – was notified of the complaint.

The investigation report was submitted to the SUC. Ultimately, the SUC concluded that the allegations of harassment were upheld but the allegations of sexual harassment were not. As part of its conclusion, the SUC stated: “Both parties have admitted that they were either exploring a romantic relationship or were being flirtatious with the other. [The claimant] has indicated that she was flirting back with Tony until early November, and Tony was also exploring the boundaries of their relationship.”

KJ raised concerns about the outcome with HR and resigned by email. She said receipt of the grievance outcome was “the final straw” that led to her resignation. She appealed the outcome of the grievance, and the organisation’s regional director was asked to be the final decision maker. As part of his findings, he said: “If [the claimant] was a victim of harassment/sexual harassment and stalking, why did she share such friendly, occasionally intimate, messages with TR, through November and December?” 

Employment judge Shore ruled that Reilly sexually harassed KJ and that the British Council was vicariously liable for his actions. Furthermore, the tribunal found that the SUC’s investigation was “deeply flawed” and “effectively said that the claimant had given a green light to Mr Reilly’s behaviours”. It found that the British Council failed to “proactively or reactively take steps to protect the claimant from Mr Reilly’s behaviour and/or take adequate effective measures to prevent it”.

The tribunal found the conclusion of the internally appointed investigator’s report – that there were no unwanted sexual advances – “inexplicable and entirely unsustainable” and “internally contradictory”. Ultimately, the tribunal stated that the SUC “erroneously and inappropriately attributed blame and responsibility to [KJ] for Mr Reilly’s harassing actions by dismissing his behaviour as having been encouraged by her” and “failed to uphold the complaint of sexual harassment by concluding that unwanted physical touching on two separate occasions did not constitute sexual harassment”. 

This case highlights to employers that a clear policy concerning sexual harassment must be a priority in protecting their employees and in the interests of the organisation.

It is the responsibility of employers to take active steps to implement the policy they have in place and enforce better training, communication and expected behaviours throughout their organisation. 

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

In the case of Taylor’s Services Ltd v HRMC, zero-hours workers travelled to farms around the country providing poultry services. They were picked up by their employer’s minibus from their home addresses. HMRC then proceeded to issue a notice of underpayments of national minimum wage (NMW) to their employer.

HMRC concluded that time spent by the workers travelling by minibus to and from their home addresses to several farms ought to be paid at national minimum wage. The employment tribunal agreed with this position, taking a consecutive approach to Regulation 30 and 34 of the National Minimum Wage Regulations 2015.

The Employment Appeal Tribunal disagreed and held that time spent ‘just’ travelling is not “time work” for the purposes of Regulation 30 unless it is deemed to be such by Regulation 34. Regulation 34 states that travel from home to place of work is not “time work”. Unless there is ‘work’ being done while ‘travelling’, the time spent on that activity cannot be ‘work’ for the purposes of Regulation 30. The mere fact that the travel is travel that the worker is obliged by the employer to undertake – using their minibus – does not turn the travel into work.
 
The EAT did recognise that this led to an injustice: “If the employer requires the employees to be collected from, and returned to home, then they are not (on my analysis) entitled to NMW, but if the employer requires them to come to its premises first, then the subsequent travel is deemed by regulation 34 to be “time work” and the NMW is payable”. The EAT set aside the employment tribunal’s decision and allowed the employer’s appeal against the notices of underpayments of NMW that had been issued by HMRC.

For your information, the National Minimum Wage (NMW) regulations require employers to pay the NMW for all hours worked. This includes certain types of travel time:

1. Travel between job sites: Travel time between different job locations during the workday is considered working time and is included in calculating whether the worker has been paid at least the NMW.  
2. Travel for job-related duties: Travel during the workday, such as travel to attend work meetings, is also included in working time.
3. Exclusions: Travel time between home and the first/last work location of the day is usually not considered working time for NMW purposes.

The key things to note from this case related to travel time are: 

• You do not have to include commuting time in NMW calculations where the worker travels between home and the first/last work location.
• You do have to include, for NMW calculations, travel time between the different work locations including where the worker attends a hub/base first, and then travels from there to their subsequent work location.
• The NMW regulations are different from the Working Time Regulations (WTR). Under the WTR the time spent travelling from home to the first work location, and from the last work location back home, is considered working time for peripatetic workers.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

On the 26 October 2024, The Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, amending the Equality Act 2010 in two respects.  

1. Imposes a ‘mandatory duty’ upon you to take ‘reasonable steps’ to prevent sexual harassment of your employees in the course of their employment. This applies to sexual harassment as defined in the Equality Act 2010, which is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. 

2. Providing employment tribunals the authority to uplift sexual harassment compensation by up to 25% where it is found you have breached this new duty.  Please note, this uplift could be substantial, particularly as compensation awarded in serious cases of sexual harassment can exceed £50,000.  In addition to this, complaints of sexual harassment can also lead to costly settlements, high-profile departures of senior management, loss of productivity and an adverse effect on recruitment and employee retention. 

What can you do?

Over time the courts have made it evidently clear that such reasonable steps will usually include:

• Having well-drafted equal opportunities and anti-harassment and bullying policies in place
• Ensuring all employees are aware and understand such policies and their implications
• Taking steps to deal efficiently and effectively with complaints, including taking appropriate disciplinary action where necessary, and
• Providing equality and harassment training to employees and supplementary training for those individuals with managerial/supervision responsibilities.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

A recent case heard by the Employment Tribunal highlights the importance of following a fair consultation process when looking at redundancies, regardless of the pool.

In the case of Valimulla v Al-Khair Foundation, the Claimant worked as a liaison officer covering the North-West of England. There were other employees who carried out a similar role in other geographic locations. Work for liaison officers decreased across the country during the Covid pandemic. The Respondent placed the Claimant at risk of redundancy in a pool of one, with the other liaison officers not placed at risk. Whilst three consultation meetings were held, there was no consultation about the appropriateness of the selection pool. The Claimant was dismissed and claimed unfair dismissal.

In the first instance, the Employment Tribunal accepted Al-Khair Foundation’s defence that Mr Valimulla was in a self-selecting pool of one and found that the selection process had not been flawed. The Claimant appealed.

The Employment Appeal Tribunal, allowing the appeal, held that consultation on redundancy had to take place at a time when it could make a difference. The Respondent had not consulted with the Claimant about the pool for selection. The tribunal had also failed to consider whether choosing a pool of one was a reasonable approach in this particular case. 

The EAT substituted a finding of unfair dismissal (on procedural grounds) because of the failure to consult about pooling. 

This case demonstrates the importance of employers genuinely applying their mind to the question of pooling and evidencing reasonableness in their approach. It also reiterates the need to consult with staff on a proposed redundancy pool and carefully consider the choice of pool, which includes looking at employees at different locations.

Relevant factors which may be considered when determining the pool of candidates for redundancy include the following:

• The extent to which employees are doing similar work (possibly even if they are performed at different locations). The employer should look at the reality of the situation as opposed to what the contract says in theory regarding the employees working role.
• The extent to which any employee roles are interchangeable.
• Whether the employer “genuinely applied” its mind to the composition of the pool.
• Whether the selection pool was agreed with the union or employee representatives, if appropriate.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

The Government recently announcement that the Employment (Allocation of Tips) Act 2023 will now come into force on 1^st October 2024, as opposed to the original proposed date of 1^st July 2024.

Under this Act, employers will be required to pass tips on to workers; employers of businesses where tips are left more than occasionally are required to have a tipping policy in place; and workers have a new right to request a copy of their tipping record, in order to enable them to bring a claim to the Employment Tribunal where they believe they are not receiving tips they should be.

Employers will also be required to consider the new statutory Code of Practice when distributing tips. The final draft version of this new statutory Code has now been published: https://www.gov.uk/government/consultations/distributing-tips-fairly-draft-statutory-code-of-practice.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

The law has always granted protection from redundancy to those on maternity, adoption, or shared parental leave. Individuals on these kinds of leave are entitled to right of first refusal for any suitable alternative roles in a redundancy situation.

From the 6 April 2024, this protection is being extended. The table below sets out the current position and how the law is changing.

	The current position	The change	When will this take effect?
Pregnancy	No protection	Protected from the date the employee informs the employer of her pregnancy for the full period of pregnancy	Where the employer is informed of the pregnancy on or after 6 April 2024
Maternity leave	Protected during the period of absence on maternity leave only	Protected for 18 months from the first day of the estimated week of childbirth. The 18-month period can be altered to start from the child’s actual date of birth where the employee informs the employer in writing of the actual date during their maternity leave period.	Where the maternity leave ends on or after 6 April 2024
Adoption leave	Protected during the period of absence on adoption leave only	Protected for the period of 18 months from the date of placement for adoption	Where the adoption leave ends on or after 6 April 2024
Shared parental leave	Protected during the period of absence on shared parental leave only	Protected for 18 months from birth/placement for adoption provided that the employee has taken a period of at least 6 continuous weeks of shared parental leave. This protection will not apply if the employee otherwise has protection under either the maternity or adoption provisions above. Protected during the period of absence on shared parental leave only (as now) if fewer than 6 consecutive weeks of leave are taken.	Where the period of 6 continuous weeks of shared parental leave starts on or after 6 April 2024

Where an employee suffers a miscarriage before their 24 weeks of pregnancy, they will have protection throughout their pregnancy and for a two-week period following the miscarriage. If they miscarry after 24 weeks of pregnancy, this is classed as a still birth. They will be entitled to maternity leave and will have the same protection as any other employee taking maternity leave.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

It is important you are made aware of the new rates of National Living Wage (NLW) and National Minimum Wage (NMW) which are due to come into force from 1 April 2024. These are outlined as follows:

• National Living Wage (21
  and over): £11.44 per hour
• 18-20 rate: £8.60 per
  hour
• 16-17 rate: £6.40 per
  hour
• Apprentice rate: £6.40
  per hour
• Accommodation offset:
  £9.99 per day

There is also a change to NMW exemptions so that, from 1 April 2024, employees who carry out domestic work while living with their employer will become entitled to the minimum wage.

Previously, live-in domestic workers were exempt if they were not members of the family but were ‘treated as such, in particular as regards … the provision of living accommodation and meals and the sharing of tasks and leisure actvities’. This exemption will now be removed.

Employers who do not pay staff at the appropriate rates not only risk claims from employees but may also be ‘named and shamed’ in a government report. Therefore, it is important for employers to keep abreast of the increases in pay rates, and in particular the application of the NLW to younger workers aged 21 and over from April.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Ask yourself, are you familiar with the process of handling flexible working requests?

A recent case heard by the Employment Tribunal highlights the importance of knowing how and when to manage a flexible working request made by an employee. In this case, a long-serving manager was constructively dismissed when her request for reduced hours after returning from a period of adoption leave was refused.

To establish some important facts, the Claimant and her partner adopted two sons in June 2022, and then had a period of adoption leave. Following the end of her leave, she submitted a flexible working request to look after her sons – one of whom the tribunal described had previously experienced “trauma” and “needed stability”.

During the period of leave, the Company was sold and following the acquisition, Miss Westerdale took over as HR manager, but she admitted to having no experience of dealing with employees returning to work after a period of family leave and had never dealt with a flexible working request. The Claimant sent an email to the Company outlining that she wanted to return to work on two days a week but would be able to increase her days the following year when her sons required less childcare. However, Miss Westerdale phoned her and told her that her request to work two days a week had been declined. Miss Westerdale denied this and claimed that in the phone call she said the matter was still under review. The tribunal did not accept this fact, as the Claimant had sent Miss Westerdale an email within half an hour of the call asking for the reasons why they had denied her request.

The Claimant’s solicitor wrote to the Respondent highlighting the failures in handling her flexible working request, outlining her legal claims and that she sought financial settlement in return for an agreed termination of her employment at the end of her adoption leave. Miss Westerdale did not reply to the letter, but instead wrote to the Claimant saying that no decision had been made yet, but if she was unhappy with the decision when received, she would be able to appeal the decision.

Miss Westerdale wrote to the Claimant saying they could not accommodate a two-day week and it needed her to return to work for four days a week. She also said in the letter that the Company could not afford the extra cost of recruiting another staff member to cover the handover from the Claimant at the end of her work period. The Claimant resigned, outlining in her resignation letter that the Company had failed in its obligations towards her in dealing with her flexible working request, and there were no valid reasons for the refusal.

The tribunal claimed that the firm’s HR manager had sought to “cover her tracks” after she realised that she had not followed proper procedures in denying the Claimant’s request. The Judge commented that Miss Westerdale failed to properly consult with the Claimant before reaching the decision, “and pretended that a decision had not been made when it had”, resulting in the Claimant being unfairly constructively dismissed. However, the tribunal concluded that it had not seen evidence to show that the Respondent acted as they did because the Claimant had taken adoption leave.

Rather, the tribunal found that it was effectively due to the HR manager’s lack of experience in dealing with flexible working requests, the failure to understand the need to obtain full information and discuss the request with the Claimant before reaching a decision, and the desire to cover their tracks when they realised, they should not have reached a decision when they did.

The tribunal therefore awarded a total of £15,048.18 in compensation to the Claimant for unfair dismissal.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn

Ask yourself the question, can liability for harassment transfer under TUPE, where the harasser transfers under TUPE and the Claimant was not employed at the point of the transfer?

If you have knowledge of TUPE, you will be aware that under these regulations, the transferee (the buyer) essentially steps into the transferor’s (seller’s) shoes with regards to transferring employees upon the transfer. Due to this, all the transferor’s rights, powers, duties, and liabilities under or in connection with the transferring employees’ contracts pass across to the transferee, as well as any acts or omissions of the transferor before the transfer, are treated as having been done by the transferee.

Given this, you may be thinking that the answer to the initial question is yes. However, this was not the case in Moore v Sean Pong Tyres, whereby it was held liability does not pass.

In this case, the Claimant claimed constructive dismissal and harassment against the Respondent. After the Claimant resigned, the alleged harasser had transferred from the Respondent to another company under TUPE. The Respondent wanted to add this company as an extra Respondent. The argument was a novel one – in harassment claims the employer is generally liable for the harassing acts of its employees. Here, the harassing employee had transferred to a new employer under TUPE.

The Respondent argued that liability for the harassing employee’s conduct should transfer to the transferee employer, even though the Claimant himself had not transferred. The tribunal refused the application in claiming that responsibility did not transfer and even if it did, the Respondent’s request was too late.

The Respondent appealed the tribunal’s decision. The EAT agreed with the tribunal and held that liability under the Equality Act 2010 does not transfer unless the claimant also transfers. Usually, when an employee does not transfer under TUPE, rights, and responsibilities towards them do not transfer either. The fact that the harasser had transferred did not alter this position.

Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited

LinkedIn