1. In the News

Positive action or unlawful discrimination?

Where is the dividing line between lawful positive action and unlawful discrimination? This question is highlighted by a recent BBC News Report that an RAF internal inquiry has found their diversity targets aimed at increasing the proportion of women and people from ethnic minorities in the RAF led to discrimination against white men.

Employers can use positive action to encourage progression for individuals from underrepresented groups, for example providing support or mentoring, offering specific training, or targeting recruitment adverts in certain media outlets. But it is unlawful (with one narrow exception) to take a protected characteristic, such as race or gender, into account when making recruitment or promotion decisions.

The narrow exception to this rule arises if an employer has two equally qualified candidates for a role, and one of those candidates is from a group which is underrepresented in the employer's workforce. In this situation the employer can choose the candidate from the underrepresented group, in order to improve the diversity of the workforce. In practice though, this exception is rarely used because it is so difficult to prove that two candidates genuinely are equally qualified – if they are not equally qualified and the employer takes a protected characteristic into account the rejected candidate will have a strong claim for direct discrimination.

The Government has published guidance on positive action in the workplace, which highlights what employers can and cannot do in this area. However, given the nuances involved, taking advice on specific measures is usually recommended.

2. Immigration Radar

Youth Mobility Scheme

The Youth Mobility Scheme visa route allows 18- to 30-year-olds to come to the UK to work in any role for up to two years. The route only applies to nationals from selected jurisdictions – currently Australia, Canada, Monaco, New Zealand, San Marino, Hong Kong, Japan, South Korea, Taiwan and Iceland. Certain British overseas passport holders may also apply and, in February 2023, a similar scheme was introduced for applicants from India via a ballot. On 29 June 2023, the age limit for New Zealand nationals increased from 30 to 35 years and the length of permission increased from two to three years. The change is a result of reciprocal arrangements between the UK and New Zealand.

Electronic Travel Authorisation

Earlier this year the UK Government announced plans to introduce a new Electronic Travel Authorisation (ETA) scheme. The ETA is a digital permission to travel for those visiting or transiting through the UK who do not otherwise need a visa for short stays, or who do not currently hold another UK visa. The scheme is set to launch for Qatari nationals in October 2023 and the rest of the Gulf Cooperation Council (GCC) states and Jordan in February 2024, before being rolled out to the rest of the world in throughout 2024. The Government has announced that, when the ETA comes into effect, nationals from the GCC and Jordan will only be required to pay £10 (by comparison, GCC nationals are currently required to pay £30 per visit to the UK under the Electronic Visa Wavier scheme, and Jordanian nationals pay £100 for a visit visa). The ETA will generally last for two years and can be used for multiple visits to the UK.

3. Case Watch

Non competes – need for speed

A recent case has highlighted the need for employers to act quickly in response to a breach of a post-termination non-compete restriction.

The employer in this case was a trading and investment firm. One of its employees, a researcher, resigned and was placed on garden leave for his 12-month notice period. His contract contained a non-compete clause which prevented him from working for a competitor for 12 months after the end of the garden leave. Several weeks into garden leave, the employee told the employer he was going to work for a competitor after his employment ended, arguing that the 12-month non-compete was unenforceable. There was then a period of negotiation between the parties, followed by a period of nearly four months without any further communication. Towards the end of the garden leave, the employer brought a claim against the employee for breach of the non-compete and sought an interim injunction to stop him joining the competitor at least until the case had been resolved.

The High Court refused to grant the injunction. The Court ruled that the delay between finding out the employee's plans and seeking the injunction was unreasonable, particularly given the unexplained gap of nearly four months in which the employer had taken no action. This tipped the balance in favour of the employee and meant he could start work for the competitor immediately following the period of garden leave and before the full hearing of the case. However, the Court ordered a "speedy trial" so that the case could be finally resolved early in the life of the non-compete. The employer appealed, but the Court of Appeal refused permission to appeal against the refusal to grant an injunction or the order for a "speedy trial".

This case is a reminder that employers who discover breaches of post-termination restrictions must act quickly. An employer who brings a claim for breach of a post-termination restriction can ask the court to grant an "interim injunction" which stops the employee joining a competitor (or poaching a client or colleagues) until the matter is resolved at trial. This is because it can take some time to reach a final hearing, whereas an interim injunction can usually be granted swiftly. However, the employer must not delay in seeking an injunction. A court will take into account all relevant factors in deciding whether to grant an injunction, including whether the injunction would be of any value and whether the employer has unreasonably delayed seeking it.

JUMP TRADING INTERNATIONAL LTD V COUTURE

Gender critical beliefs

Two recent cases highlight the challenge employers face in balancing the rights of employees to express their beliefs against the need to protect others from offense and harassment.

Case 1: In this case, a non-profit thinktank decided not to renew a contract with a consultant after she had made a number of posts on social media which some colleagues found offensive. The posts questioned government plans to allow people to declare their own gender. An employment tribunal found that the decision not to renew her contract amounted to discrimination against her based on her "gender critical" beliefs that there are only two biological sexes and that it is not possible to change from one sex to another. The tribunal awarded over £100,000 in compensation based on injury to feelings, loss of earnings and the loss of a chance of being offered employment.

Case 2: The employee in this case worked for the Arts Council England. She raised a grievance after a charity had its grant from the Council suspended due to allegations of transphobia against the charity. She questioned the decision to remove the grant and disagreed that the charity was anti-trans. Another colleague then sent an email to all staff, referring to the grievance and linking to a petition seeking support for trans and non-binary colleagues against clear "anti-trans views" within the organisation. A number of employees signed the petition and comments were added which referred to gender critical beliefs as "anti-trans", "bigotry", "cancer", "openly discriminatory" and "transphobic". The petition was eventually taken down but remained up for more than 24 hours.

An employment tribunal ruled that the email and comments in the petition amounted to harassment on the grounds of the employee's gender critical beliefs. The email and comments were unwanted conduct that had the purpose and effect of violating the employee's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. The Council was liable for this as the employer, as it had failed to take reasonable steps to prevent it. The Council was aware that gender identity was a contentious issue and had failed to arrange training on this, even though the employee had raised the need for training a couple of years earlier.

These cases highlight the difficulties employers face when seeking to balance the competing rights of staff. In the first case, the main reason for not renewing the consultant's contract was that other colleagues found her views to be offensive. In the second case, the employer was also motivated by a desire to show solidarity and support for trans and non-binary colleagues. However, it is clear that employees who hold "gender critical" beliefs are also protected from discrimination and harassment. Employers should be careful not to discipline someone for such views, even if others might disagree with them or find them offensive. In contrast, employers will usually be justified in taking action where views on either side of the debate are expressed in an offensive or hostile manner. As the second case highlights, providing training to staff on diversity and inclusion will help avoid such issues, as well as protect the employer should any issues arise.

FORSTATER V CGD EUROPE AND OTHERS; FAHMY V ARTS COUNCIL ENGLAND

4. New Law

Carer's leave

The Government has passed legislation that will enable it to introduce a new right to carer's leave. Under the new Carer's Leave Act 2023, employees will be able to take up to one week of unpaid leave to care for a dependant with long-term care needs (e.g. an elderly or disabled relative). However, regulations must now be made to bring the new right into force. No precise timeframe has been given but the right is not expected to come into force until April 2024 at the earliest. When the regulations are made, employers will need to update their policies and processes to reflect the new right.

Neonatal leave and pay

The Government has also passed the Neonatal Care (Leave and Pay) Act 2023 which will create a new entitlement to up to 12 weeks' neonatal leave and pay for parents of premature babies. This will sit on top of existing statutory paternity and maternity rights. The new right will apply where a baby starts neonatal care (lasting at least seven days) within 28 days of being born. The Government has indicated that the new neonatal rights are expected to be in force in April 2025.

Redundancy protection for new parents

The Government has passed the Protection from Redundancy (Pregnancy and Family Leave) Act 2023. The Act will introduce extended protection from redundancy for new and expectant parents. Currently, employees who are made redundant during maternity, adoption or shared parental leave must be offered a suitable alternative vacancy if there is one. Under the new legislation, this protection will be extended so that it begins when an employee notifies the employer she is pregnant and ends 18 months after the child's birth. This would effectively extend the protection from the point the employee notifies of her pregnancy up until six months after her return from maternity leave (where the mother has taken a full year). This extended protection would also cover parents taking adoption or shared parental leave, as well as mothers who suffer a miscarriage before notifying the employer they are pregnant. While the Act itself comes into force on 24 July 2023, regulations are required to bring the extended protection into force. There is currently no timetable for this – the Government has said it will make regulations "in due course".

EU derived worker rights

The controversial legislation to enable the Government to revoke or reform retained EU law (the Retained EU Law (Revocation and Reform) Act or "REUL Act") has now received Royal Assent. Apart from a relatively minor measure relating to the working time of tanker drivers, no employment legislation is on the list of measures to be revoked. However, in a separate initiative, the Government has recently proposed changes relating to holiday entitlement and employee rights on business transfers. For more information, please see our general briefing on the REUL Act or our briefing on the post-Brexit employment reforms.

5. Consultations

Umbrella companies

The Government has published a consultation seeking views on proposals to regulate umbrella companies. An umbrella company is a business that employs and pays temporary workers and typically supplies their services to a recruitment agency or employment business, which in turn supplies them to an end client. Umbrella companies are currently largely unregulated (unless they qualify as an employment business). The Government is concerned about non-compliance with tax and employment rights, and is therefore seeking views on the definition of an umbrella company and different options for regulating them. The consultation closes on 29 August 2023.

6. Watch this Space

Paternity leave

The Government has published its response to a 2019 consultation on proposals to reform parental leave. The Government has confirmed that it does not currently plan to make any changes to the system of shared parental leave, despite its complexity and low take-up. However, it will make a few changes to paternity leave:

  • eligible employees will be able to take paternity leave in two separate blocks of one week, instead of having to take either one or two consecutive weeks;

  • eligible employees will be able to take paternity leave at any time within 52 weeks of the birth or adoption of the child (currently paternity leave must be taken in the first eight weeks after birth or adoption); and

  • the Government plans to reduce the notice required for paternity leave from 15 weeks to 28 days before each period of leave (although a notice of entitlement will still need to be given 15 weeks before the expected birth or adoption).

There is currently no timetable for these changes. Employment Update will report developments.

Covering employees on strike

In July 2022, the Government amended the law to allow employers to engage temporary agency workers to cover the work of employees on strike. Prior to that, temporary work agencies were prohibited from supplying agency workers to perform the duties of an employee who was taking part in official industrial action or the duties of any other worker who was covering an employee taking part in official industrial action. (Industrial action is official if it is authorised or endorsed by a trade union). However, the High Court has now ruled that the legislation introduced in July 2022 is unlawful and ordered it to be revoked. As a result, the law has returned to the pre-July 2022 position – it is again unlawful for temporary work agencies to supply, and for employers to engage, agency workers to cover the duties of employees taking part in official industrial action (or the duties of any other worker who was covering for an employee taking part in official industrial action). It remains to be seen whether the Government will appeal this decision or seek another way to lift the ban on engaging agency workers during a strike. Employment Update will report developments.

7. Community Engagement

In recent weeks, our team has been involved in a variety of pro bono work for organisations such as Change Agents, Grassroots Suicide Prevention, St Giles Cripplegate and Women's Sport Trust.

8. Our News

We are pleased to announce two promotions within the Employment team: Ailie Murray will become a partner in the team with effect from 1 August 2023 and Zoe Dearmer became a Senior Counsel with effect from 1 July 2023. Congratulations to Ailie and Zoe.

9. Our Work

Since the last Employment Update, our work has included:

  • advising on a number of termination arrangements for senior executives

  • advising a number of clients on the implications of employees working remotely abroad

  • advising on the TUPE and employment considerations associated with an outsourcing of services

  • advising on employment status issues associated with a client's engagement of a number of contractors

  • conducting a number of workplace investigations for clients into matters such as bullying, harassment and other whistleblowing disclosures

  • advising on the employment implications of staff being supplied from one group company to another in a regulated environment.

Originally published by 13 July, 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.