UK HR Two Minute Monthly - November 2021

Bryan Cave Leighton Paisner
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Summary

Our November update considers key employment law developments from October 2021. It includes recent cases on age discrimination, anonymity in the employment tribunal and automatic unfair dismissal on health and safety grounds following concerns raised by an employee about Covid-19 measures in their workplace.

Is compulsory retirement discriminatory – the importance of evidence

Since the introduction of age discrimination legislation in the UK, a default retirement age amounts to direct age discrimination unless the policy is a proportionate means of achieving a legitimate aim. The Employment Appeal Tribunal (EAT) recently considered appeals from two separate employment tribunals where contradictory decisions had been reached on whether the application of Oxford University’s Employer Justified Retirement Age policy (EJRA) was discriminatory.

Under the EJRA in place at the relevant time, Professor Pitcher was compulsorily retired at the age of 67. Professor Ewart was granted an extension of two years to his employment post age 67, but was not granted a further extension and was forced to retire at 69. An employment tribunal found that Professor Ewart’s dismissal amounted to direct age discrimination (and unfair dismissal). However, a different tribunal found that the use of the ERJA in Professor Pitcher’s case was justified so his age discrimination claim was dismissed.

Both cases were appealed to the EAT. In both appeals, the central issue related to the findings relating to justification. The EJRA had legitimate aims which met the threshold required to justify direct age discrimination, in each case inter-generational fairness, succession planning and equality and diversity. The issue was therefore whether the policy was a proportional means of achieving this. In both cases, the EAT held that the tribunal’s conclusions had been correct. Therefore, while this had resulted in different outcomes in relation to the same measure adopted by the same employer, the EAT was satisfied with this, concluding that it was not required to find a single answer but to consider each decision in its own right.

The key factor which resulted in different outcomes was the evidence put forward by the parties in each case. In the case of Mr Pitcher, there was limited evidence on the impact of the EJRA but the University relied on a survey which suggested that 25% of professors would have continued for a further three years. This, together with evidence on steps taken to mitigate the impact of the policy, were considered to be sufficient evidence of proportionality. However, Mr Ewart had presented contradictory evidence, suggesting that the policy only created 2 - 4% of vacancies. The tribunal in his case therefore found that the discriminatory effect of the EJRA could not be justified.

Why this matters?

At first glance, it seems unsatisfactory for there to be different outcomes on the application of the same policy. The lesson for employers who operate a retirement policy, however, is the importance of keeping the reasons for and the effectiveness of the policy under review. This has two purposes. First, it enables an employer to make proactive changes should the circumstances change. Second, it enables the employer to present strong evidence of justification if challenged in an employment tribunal. Without evidence to back up a policy, it may well be found to be discriminatory even if it operated for a legitimate aim. 

Pitcher v (1) The Chancellor Masters and Scholars of the University of Oxford (2) the President and Scholars of the College of Saint John the Baptist in the University of Oxford; The Chancellor, Masters and Scholars of the University of Oxford v Ewart

Anonymity Orders in the Employment Tribunal

Rule 50 of the Employment Tribunal Rules of Procedure 2013 gives the employment tribunal the power to make an order which restricts or prevents public disclosure of any aspect of tribunal proceedings. The power can be used where it is necessary in the interests of justice or in order to protect the rights of any person under the European Convention on Human Rights (ECHR).  Applications can be made by parties to the proceedings. However, as this case considered, applications may also be made by non-parties. 

The application arose following judgement given in favour of an employer in an unfair and wrongful dismissal claim. In the dismissal judgment, the judge referred by name to another former employee of the employer in question. Although the employee had been aware of the case, she was not a party or a witness. However, the reference in the judgment linked the former employee to serious misconduct of a potentially criminal nature. She therefore applied for an anonymity order under Rule 50 on the basis that the judgment infringed her right to privacy under Article 8 of the ECHR.

The Tribunal refused to grant the order. It held that the individual had no expectation of privacy for Article 8 purposes because the information relating to her had been discussed in a public hearing. Alternatively, it found that her Article 8 rights were outweighed by the Article 6 and Article 10 considerations of freedom of expression and open justice.  

The EAT disagreed. It found that Article 8 could still be engaged where matters had been referred to in a public hearing, particularly given that the issue here was not to protect privileged information but to prevent future reputational damage. It also held that, given the judge had concluded that Article 8 did not apply, the balancing exercise between the Article 8 rights of the applicant and the Article 6 rights to open justice had not been properly considered. It therefore remitted the application for further consideration on this point.

Why this matters?

Anonymity is an issue which is frequently raised, particularly in relation to discrimination cases with sensitive facts. It is therefore useful to have express confirmation that Article 8 rights can still be engaged even where an individual has been referred to in a public hearing. It is also a useful reminder that it is not only parties to the proceedings who can apply for an order under Rule 50 and that, when acting on sensitive matters,  consideration should be given at an early stage to the privacy rights of other individuals who may be affected, for example witnesses or other employees who may be named during the course of proceedings.

TYU v ILA Spa Ltd

Dismissal of employee who raised concerns about workplace approach to Covid was automatically unfair

Covid-19 has placed an unprecedented strain on UK workplaces. From early 2020, many workplaces struggled with balancing uncertain and changing workplace rules while also trying to keep businesses afloat. It was always likely that this would generate employment tribunal claims and, in particular, that we may see claims brought under section 100 of the Employment Rights Act 1996 (ERA) where dismissals could be linked to health and safety concerns raised in relation to Covid-19.

Rendina v Royston Veterinary Centre Limited is a claim on exactly this issue. The Claimant in this case was an assistant veterinary surgeon employed by the Respondent for a little over 2 months from January to March 2020. From 16 March 2020, Ms Rendina raised concerns about the practice’s approach to safety measures to protect against the spread of Covid-19. This included a request to wear a mask, concerns about the lack of safety measures being put in place and then discussions at meetings where Ms Rendina disagreed with the approach of the practice and raised concerns that carrying on with routine treatment breached the Veterinary Code of Practice. On 30 March 2020, less than a week after the final practice meeting discussing these matters, Ms Rendina was dismissed. The dismissal letter referred to the level of discord between Ms Rendina and the practice director, however it suggested that the issues she had raised relating to the response to the Covid outbreak were not the reason for her dismissal.

The Employment Tribunal did not accept this. It found that the potential spread of Covid in a workplace is a health and safety concern. It further found that the Respondent did not have a Health & Safety Committee or a representative and that Ms Rendina had raised concerns with the Respondent that its approach was potentially harmful to health and safety. Finally, it also concluded that she was dismissed for raising these issues and not because of her performance. Ms Rendina’s dismissal was therefore automatically unfair.

Why this matters?

While this case has relatively extreme facts, it is worth noting that it appears to arise from a difference in stance to the risks associated with Covid-19 between the practice owner, who viewed the risk as exaggerated, as opposed to Ms Rendina (who had family in Italy where the pandemic had already had a very serious impact by March 2020). It is therefore important for employers to note that similar issues could continue to arise, for example in relation to the risks posed by employees not wearing masks or remaining unvaccinated. The risk of claims under section 100 of the ERA will therefore continue as employers grapple with the ongoing impact of Covid-19.

Rendina v Royston Veterinary Centre Limited

Round up of other developments

FCA Guidance on Hybrid Working: The FCA has published a new webpage with guidance on hybrid working for regulated firms. The guidance addresses issues which impact on employees, including considerations on the location of senior managers, systems and controls issues (including security of data/customer information) and a reminder that staff should be made aware that the FCA could visit employee homes.

“Fire and Rehire” Bill blocked: The Government has blocked a Private Member’s bill designed to prevent employers dismissing employees and re-engaging them on less favourable terms. This practice attracted criticism when used during the pandemic. In line with the position it took earlier in the year, the Government has said that it will wait for more detailed guidance on this practice from Acas before deciding whether legislative action is appropriate.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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