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Joy Dove and (1) HM Assistant Coroner for Teesside and Hartlepool (2) Dr Shareen Rahman and Secretary of State for Work and Pensions

<!-- wp:paragraph --> <p>Written by&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/sophie-watson">Sophie Watson</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The High Court considered whether the Department for Work and Pensions (DWP) owed a duty under Article 2 to a benefits claimant who took their own life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jodey Whiting had been receiving Employment Support Allowance since 2012, and other state benefits prior to that.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The DWP reassessed Ms Whiting’s work capabilities and gave her an appointment in person, which she missed because of pneumonia and her mental health difficulties. The DWP rejected Ms Whiting’s explanations and refused her invitation to seek evidence from her GP.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The DWP then stopped Ms Whiting’s benefits, which the family alleged had caused or contributed to her suffering severe depression, in the course of which she took an overdose of prescription medication on 21.02.17 and died.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 24.05.17 the Assistant Coroner held an inquest into her death. The Assistant Coroner refused to examine the actions of the DWP and recorded a conclusion of suicide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal to the High Court</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Whiting’s mother, applied to the High Court under section 13 of the Coroner Acts 1988 for an order quashing the Coroner’s determination and requesting that a new Inquest take place on the grounds of:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Insufficiency of inquiry by the Coroner under common law;</li><li>insufficiency of inquiry by the Coroner under Article 2;</li><li>there was fresh evidence, namely an Investigation report documenting the numerous flaws in the DWP’s conduct and medical report making a causal link between their conduct and Ms Whiting’s suicide; and</li><li>it was likely there would be a different conclusion if the new information was placed before a different Coroner.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The appeal was dismissed on all 4 grounds.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Justice Farbey considered the three categories in which a state is under an “operational duty” to protect an individual under Article 2, as set out in&nbsp;<em>Rabone v Pennine Care NHS Trust&nbsp;</em>[2012] UKSC 2, [2012] 2 AC 72:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>Where there was an assumption of responsibility by the state for an individual’s welfare and safety (including by exercise of control);</li><li>the vulnerability of the victim; and</li><li>the nature of the risk (i.e. if it falls outside of ordinary everyday risks).</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The Court found that the DWP did not owe an operational duty to Ms Whiting to prevent her suicide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mrs Justice Farbey stated that the DWP were bound by law to allocate funds to those who met the statutory requirements. Their decisions to allocate ESA to Ms Whiting were based upon the statutory criteria alone and had no consideration of Article 2 requirements.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The applicant argued that the respondent’s failure to follow its own guidance and undertake a “safeguarding visit” following the missed appointment, gave rise to an operational duty. The Court rejected this argument on the grounds that this was only practical guidance, not law, and was not sufficient reason to extend Article 2 obligations.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court accepted that Ms Whiting’s physical and mental health problems made her particularly vulnerable. However, it saw no reason to depart from the decision in&nbsp;<em>R (Maguire) v Blackpool and Fylde Senior Coroner&nbsp;</em>[2020] EWCA Civ 738, [2021] QB 409, that there is no general obligation to prevent suicide in the absence of an assumption of responsibility. The Court made reference to the fact that Ms Whiting was not under the care or control of the state nor a minor to whom responsibility may automatically arise.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Finally, the Court found that the nature of the risk was not “exceptional” for the purposes of assuming an operational duty. It found that the risk posed to Ms Whiting by the withdrawal of her benefits did not arise from a dangerous threat to life but an ordinary hazard of life.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court also considered the systemic duty under Article 2 and found that there had been no breach as the failings were individual, not systemic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case reinforces the limited scope of the operational duty under Article 2. The starting position remains as is stated in&nbsp;<em>Maguire&nbsp;</em>that there is no general obligation in the absence of responsibility and that the test applied in&nbsp;<em>Rabone&nbsp;</em>is likely to remain the focus for future coroners to consider in similar circumstances.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is important to note that this case relates principally to the operational duty under Article 2. The DWP, and other public authorities, remain under the primary duty to have in place appropriate systems to protect life.</p> <!-- /wp:paragraph -->

Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442: “A court should still consider criticisms of an otherwise uncontroverted expert report but when such criticisms should be made is far from clear.”

<!-- wp:paragraph --> <p>The eagerly awaited judgment of the Court of Appeal in the Case of Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442 was handed down on Thursday 7th October 2021.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Written by&nbsp;<a href="https://www.parklaneplowden.co.uk/barristers/ian-pennock">Ian Pennock</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Ratio Decidendi (binding) of all three judges is that a court is always entitled to assess the weight of even an uncontroverted expert report to ensure the expert has provided reasons for his conclusions (a bare assertion being worthless). When the court has assessed the experts report the court is entitled to reject the experts conclusions provided it has ‘good reason’ to do so - otherwise it should normally accept such evidence and conclusions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Obiter Dictum (non-binding) comments by Asplin LJ about the Defendant being entitled to reserve criticism of the expert report until their closing submissions (It being Obiter because the court was not deciding when any criticisms of an expert report should be made - such as with closing submissions or Part 35 Questions or cross examination) were ‘profoundly’ disagreed with by Bean LJ who considered such a tactic to be ‘Trial by Ambush’ and that Party is not just prevented from contesting the veracity of a witness to whom it has not put such a challenge to the honesty of that witness but also prevented from criticising in closing submissions a witness to whom they have not put criticisms regarding the accuracy of that witnesses evidence thereby denying that witness an opportunity to answer the same and denying the Court the opportunity to consider the witness’ response. He considered such a tactic of leaving such criticisms to closing submissions alone to be contrary to the ‘cards on the table’ approach advocated by the CPR and the overriding objective.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is notable that despite agreeing that the judge below (Spencer J) was wrong to say a court ought not to evaluate an uncontroverted expert report Bean LJ would still have dismissed the appeal because leaving such criticisms until closing submissions was a ‘<em>trial by ambush</em>’ and contrary to basic principles of fairness and justice which deprived Mr Griffiths of a fair trial.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>“<em>Mr Griffiths must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who in turn instructed an eminent microbiologist whose integrity has not been questioned. Mr Griffiths and his wife gave evidence at the trial, were cross-examined, and were found by the judge to be entirely honest witnesses. The eminent expert gave his opinion that on the balance of probabilities Mr Griffiths’ illness was caused by the consumption of contaminated food or fluid supplied by the hotel. No contrary evidence was disclosed or called, and the expert was not cross-examined. Yet the Claimant lost his case.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Asplin LJ, with whom Nugee LJ agrees, says at [65] that “as long as the expert’s veracity is not challenged, a party may reserve its criticisms of a report until closing submissions if it chooses to do so”, and that she can see nothing which is inherently unfair in that procedure. With respect, I profoundly disagree. In my view Mr Griffiths did not have a fair trial of his claim. The courts should not allow litigation by ambush. I would therefore have dismissed TUI’s appeal.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion -&nbsp;</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A court can still assess an uncontroverted expert report but should be very slow to dismiss its conclusions unless it has good reason to do so (i.e. as we have always said).&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Practice Points -</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Counsel - The Defendant’s practice of ‘keeping its powder dry’ for closing submissions</strong>&nbsp;ought to be resisted and criticised by Claimant counsel in their closing submissions noting the Defendants failure to put such criticisms to the expert by way of Part 35 questions &amp; denying that expert an opportunity to answer the purported criticism and denying the court the benefit of the experts answer to that purported criticism - all of which is contrary to the overriding objective of ensuring a fair trial such that any purported criticisms by the Defendant of that expert in closing submissions alone ought to be given very little weight (The Defendant having denied the expert the opportunity to answer the criticism and having denied the court the opportunity to consider any response by the witness).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Solicitor</strong>&nbsp;- Always read and check an experts report by asking the question in relation to any conclusion within the summary of those conclusions “Have they said WHY they have come to that conclusion?” if not send it back and ask them to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Also, if an expert does not answer the other sides Part 35 question properly point that out to them and ask them to reply further with a more expansive response.</p> <!-- /wp:paragraph -->

Clarity Ho!! &#8211; Qualified One-way Costs Shifting (&#8216;QOCS&#8217;) regime in Ho v Adelekun [2021] UKSC 43

<!-- wp:paragraph --> <p><em><a href="https://www.parklaneplowden.co.uk/barristers/stuart-jamieson">Stuart Jamieson</a>, group co-ordinator of the Parklane Plowden <a href="https://www.parklaneplowden.co.uk/expertise/costs--litigation">Costs</a> team, analyses the significant decision of the Supreme Court in Ho v Adelekun [2021] UKSC 43 in relation to the Qualified One-way Costs Shifting regime (‘QOCS’) handed down today. </em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ho provides clarification on the mechanism of the QOCS rules, specifically how these apply to competing costs orders between parties and potential set off.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Prior to today appellate authority meant that the correct approach to competing costs orders was that set off under CPR 44.12 would occur prior to enforcement under QOCS.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This circumstance can occur quite frequently, for example where a claim is successful but subject to an interlocutory or appeal costs order in favour of a Defendant or where a Claimant accepts a Part 36 Offer of settlement out of time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment of Lord Briggs and Lady Rose, with whom Lady Arden, Lord Kitchin and Lord Burrows agreed, contains an all-encompassing yet pithy and insightful consideration of the background to the introduction of QOCS.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is recognised that there is an inherent inequality of arms in PI litigation as Defendants ordinarily have the benefit of insurance and large resources.&nbsp; The old legal aid scheme and then CFAs / ATEs represent the previous ameliorating procedural schemes to address this, with QOCS the third attempt after the Jackson report identified that the previous regime may have tilted the playing field too far in favour of Claimants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Litigants are now familiar with the QOCS regime, which is celebrating its 8<sup>th</sup>&nbsp;anniversary since implementation on April Fool’s Day 2013.&nbsp; As part of a raft of reforms, Defendants were to forego enforcement of recovery of their own costs but not face meeting the payment of success fees or most ATE premiums inter partes.&nbsp; This was One Way costs shifting that was designed to shield Claimants from having the risk of having to pay the costs of the Defendant.&nbsp; It was however qualified by a monetary cap as to enforcement up to the aggregate of the Claimant’s damages and interest and with further, specific exceptions for non-PI claims (e.g. hire), vexatious, abusive claims or fundamental dishonesty where Defendant’s costs could be enforced without limit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is important to bear in mind that QOCS as finally enacted did encompass major differences as between the system initially set out persuasively by Sir Rupert in his Final report published in 2009.&nbsp; This included that the system enacted does not inhibit or restrain the making of a costs award in favour of the Defendant in principle, subject to QOCS acting to limit enforcement.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In addressing the issue of QOCS and set off the Supreme Court recognised that if there were a large amount of damages in a case then the matter may be redundant, the Defendant can fully enforce any costs order as it will be less than the aggregate amount of damages and costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the Supreme Court identified 3 scenarios where the issue of QOCS and set off are critical: (i) a Claimant loses the claim but has a costs order in its favour, (ii) where a settlement means there is no court order for damages or interest for a Defendant to enforce its costs (as can occur in multi-Defendant actions following&nbsp;<em>Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654</em>), and (iii) costs to be paid by the Claimant to the Defendant exceeds the damages and interest awarded to the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The background to&nbsp;<em>Ho</em>&nbsp;was that in&nbsp;<em>Howe v MIB [2020] Costs LR 297</em>&nbsp;the Court of Appeal decided in 2017 that set off of opposing costs orders was not affected by QOCS, as it was not a mechanism of enforcement and to be applied prior to application of the QOCS rules.&nbsp; The Court of Appeal in&nbsp;<em>Ho&nbsp;</em>were, however, critical of the outcome of Howe but felt bound to follow it.&nbsp; The Supreme Court were critical of this difference of opinion and that the matter had not been addressed decisively by the Civil Procedure Rules Committee.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The facts of&nbsp;<em>Ho</em>&nbsp;were that Ms Adelekun had a successful PI road traffic accident claim that settled by acceptance of a Part 36 Offer and Tomlin Order at £30,000 after exiting the RTA Protocol Portal.&nbsp; The initial key dispute following settlement was whether Ms Adelekun’s costs should be recovered on the fixed or more favourable standard basis.&nbsp; The Court of Appeal in [2019] Costs LR 1963 finally determined that fixed costs should apply.&nbsp; The costs of the assessment dispute up to the Court of Appeal were awarded in favour of the Defendant to the PI claim, Ms Ho.&nbsp; The issue for the Supreme Court was whether she could set off those costs (£48,600) against the fixed recoverable costs of the claim awarded to Ms Adelekun (£16,700) prior to applying QOCS.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The importance of the issue in&nbsp;<em>Ho</em>&nbsp;caused APIL to appear as an intervenor, making written submissions on the potential implications for the QOCS regime.&nbsp; &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was agreed in&nbsp;<em>Ho</em>&nbsp;that following Cartwright there was no “order for damages” against which to enforce the Defendant’s costs award. &nbsp;Accordingly, Ms Adelekun’s case was that she was entitled to her damages, interest and fixed costs in full and with the costs order made against her not to be enforced against her damages or costs under QOCS.&nbsp; Ms Ho contended for the set off of her costs (to occur before QOCS) such as to mean that no net payment of Ms Adelekun’s costs were to be made by her, i.e. the award of £16,700 was set off and eliminated by the costs order of £48,600 for the assessment costs.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ms Adelekun and APIL argued that to deprive the Claimant of costs for work undertaken on parts of the case where the Claimant had been successful would undermine the economic basis for PI litigation under QOCS.&nbsp; Ms Ho argued that the opposite approach would encourage unmeritorious or weak application on behalf of Claimants.&nbsp; The Supreme Court, rightly, evaluated that these policy considerations had limited utility.&nbsp; The purpose of QOCS to re-balance the playing field had had a greater effect from cases such as Cartwright, as more claims settle than are made subject to a court order for damages in favour of a Claimant, and by the reality that Claimants who lose at trial under QOCS do not ordinarily pay any costs.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In order to determine the issue before it the Supreme Court considered the specific language of the relevant rule on the “Effect of QOCS” at CPR rule 44.14.&nbsp; It was observed that, “<em>QOCS does not seek to constrain the court from making court orders, but merely the use which defendants can make of costs orders in their favour</em>.”&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was also explained by the Supreme Court that the QOCS regime operates mechanically.&nbsp; The test is whether relevant exceptions are met rather than requiring a court to exercise a general discretion.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In undertaking its analysis the Supreme Court found that, “<em>we would accept that QOCS is intended to be a complete code about what a defendant in a PI case can do with costs orders obtained against the claimant, ie about the use which the defendant can make of them. The defendant can recover the costs ordered, by any means available, including set-off against an opposing costs order, but only up to the monetary amount of the claimant’s orders for damages and interest.</em>”&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In what is likely to be an oft-cited passage Lord Briggs and Lady Rose set out at Paragraph 38 of&nbsp;<em>Ho</em>, “<em>rule 44.14(1) works in the following way. First, it requires two comparators to be constructed. First, the&nbsp;<strong>aggregate&nbsp;</strong>amount in money terms of all<strong>&nbsp;costs orders in favour of the defendant</strong>. Secondly, the&nbsp;<strong>aggregate&nbsp;</strong>amount in money terms of all<strong>&nbsp;orders for damages and interest in favour of the claimant</strong>. We will&nbsp;<strong>call them A and B</strong>. If A is less than or equal to B, the defendant can enforce his costs orders without limit. If A is more than B, then the defendant can only enforce his costs orders up to the monetary limit of B. The effect of this cap, as we have called it, is to require the defendant to keep a running account in money terms of all costs recoveries which it makes against the claimant, and to cease enforcement when limit B is reached.</em><em>&nbsp;[emphasis added]”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court then considers an example where A is at £30,000 and B is £20,000.&nbsp; The Defendant could then enforce its costs order against the damages, but the Defendant cannot enforce the remaining balance of its costs entitlement of £10,000 (£30,000 - £20,000).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In undertaking this illustration the Supreme Court note, at Paragraph 41 of the Judgment, that CPR rule 44.14(1) is by reference to the aggregate amount of costs orders in favour of the Defendant, it is&nbsp;<strong>not&nbsp;</strong>by reference to the net amount after setting off opposing costs orders.&nbsp; Accordingly, “<em>Costs orders in favour of the claimant are not even mentioned in the formula, and the aggregate expressly referred to [of the Defendant’s costs awards] is a gross not a net amount.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court judgment identifies that Claimant’s damages can be set off from Defendant’s costs award by operation of QOCS (A – B) but that competing costs orders are not to be treated in this way.&nbsp; It is stated forcefully that any apparent unfairness in not offsetting the Defendant’s costs from those of the Claimant must be accepted as part of the overall QOCS regime.&nbsp; The Jackson reforms mean that the Defendants have received other benefits, notably by not paying the large success fees and ATE premiums as in the past.&nbsp; In addition, the Supreme Court highlighted that QOCS works well in the vast majority of cases where one side succeeds.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Ultimately, Ho is an excellent example of the Supreme Court acting decisively to resolve with great clarity of judgment a difficult point over the application of the costs rules and to overrule a previously criticised decision of a lower court (the Court of Appeal in Howe).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision will have significant implications for circumstances such as where a Claimant is considering acceptance of a Part 36 Offer out of time or a Defendant is considering an appeal where the structure of settlement, if comparable to Ho, would mean that the costs of succeeding on appeal whilst ordered in principle will not be enforceable against the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Overall, Ho is a welcome decision that should help the continued, relative success of the QOCS regime and Jackson reforms in achieving a level playing field for PI claims, compared to the previous generations of ameliorating procedural schemes of Legal Aid and CFAs / ATE.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Stuart Jamieson and Abigail Telford will be giving a lecture on the implications and detail of Ho on Friday (8<sup>th</sup>&nbsp;October) as part of the Costs conference hosted by Carter Burnett in Newcastle.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Stuart Jamieson and Abigail Telford are the group co-ordinators of the Costs team at Parklane Plowden.</em></p> <!-- /wp:paragraph -->

Thompson v Scancrown Ltd: Refusal of flexible working request amounted to indirect discrimination

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/barristers/jade-ferguson">Jade Ferguson</a>.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In Mrs Alice Thompson v Scancrown Ltd T/a Manors ET/2205199/2019, the Employment Tribunal (‘ET’) found that refusing an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was employed as a sales manager by the Respondent, a small independent estate agency firm. The normal working hours of the office were 9 am to 6 pm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the Claimant’s return from maternity leave, she applied to modify her working hours in order to accommodate the closing time of the nursery that her child attended. She submitted a request to finish at 5pm instead of 6pm so that she could pick her child up from nursery in time.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent refused the request, detailing 5 business reasons for their decision. &nbsp;When this application was refused, the Claimant resigned and filed several claims, including indirect sex discrimination.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Section 19 of the Equality Act 2010 (“the Act”) defines indirect discrimination:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Indirect discrimination is concerned with decisions or policies which, in practice, have the effect of placing a group of people with a particular protected characteristic at a disadvantage. Sex is included as a relevant protected characteristic under the Act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When a PCP has the effect of placing a group of people with a protected characteristic at a disadvantage, it will amount to indirect discrimination unless the employer can objectively justify the PCP. This means they have to demonstrate that the PCP is a proportionate means of achieving a legitimate aim otherwise indirect discrimination will be established.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the present case, it was argued that the provision for sale managers to work full time 9am – 6pm, Monday to Friday, was a practice which placed women with children at a substantial disadvantage compared to men with children.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal upheld the indirect discrimination claim and found that the Respondent’s failure to consider this flexible working request put the claimant at a disadvantage as a result of the PCP as this meant that she was unable to collect her child from nursery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET also considered whether the Respondent had an objective justification for the provision. It was noted that although the recognised the Respondent’s business concerns, they did not outweigh the discriminatory impact on the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was therefore found to have been indirectly discriminated against on the grounds of sex and was awarded £184,961.32 for loss of earnings, loss of pension contributions, injury to feelings, and interest.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Tips for Employers</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Employers are seeing sharp rise in flexible working requests since the pandemic. Although working from home is unlikely to become a strict legal right for everyone, employees who are called back into the office after having enjoyed the benefits of hybrid or remote working may turn to statutory flexible working requests. Women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This recent judgment has reaffirmed the need for employers to carefully consider all flexible working requests. Before rejecting proposed changes, employers should not only assess their practices and business needs, but also ensure consideration is given to whether the employee making the request may have a protected characteristic and whether they are likely to suffer a disadvantage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Points for employers to consider:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li>If the request has been refused for a business reason, can an alternative working arrangement be agreed with the employee?</li><li>Can the requested flexible working be put in place for a trial period? If a trial period is used for a reasonable length of time, the employer will be able to assess the impact of modified working arrangements on their workplace.</li><li>Employers should keep clear records of their reasoning when making decisions.</li><li>Employers should ensure they remain consistent in their treatment of flexible working requests.</li><li>Employers should consult their existing policies and practices for flexible working, which ideally will incorporate the statutory requirements and principles outlined above and from the&nbsp;ACAS Code of Practice.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>A copy of the judgment can be found&nbsp;<a href="https://assets.publishing.service.gov.uk/media/60a375d3d3bf7f2888d19089/Mrs_A_Thompson__vs__Scancrown_Ltd_trading_as_Manors.pdf"><strong>here</strong></a>.</p> <!-- /wp:paragraph -->

Staying Away From Work Because of COVID: a Trap for Employers?

<p><em><strong>Written by <a href="https://www.parklaneplowden.co.uk/barristers/hari-menon">Hari Menon</a>.</strong></em></p> <ol style="list-style-type: undefined"> <li>Consider this scenario. Employee X, has a particular health condition which makes him&nbsp;especially vulnerable to contracting Covid and to the effects of Covid. There are several unvaccinated co-workers in his place of work. They are unvaccinated by choice which has nothing to do with any medical reason. X&rsquo;s employer does not require employees to be vaccinated or require employees or customers to wear a face mask at the workplace. The requirements of X&rsquo;s job are that he cannot work remotely. His job requires contact with his colleagues, none of whom work in compartmentalised units such as offices occupied by a single person. X stays away from work and refuses to return, citing the risk to his health caused the potential to contract Covid from by his unvaccinated co-workers and no one wearing a mask in the workplace. What are the options open to the employer and to X in response to any action taken by his employer?</li> <li>It is the duty of an employee to undertake work provided by the employer. When the&nbsp;employee fails to attend for work without good reason, an employer may withhold wages for the period of the employee&rsquo;s absence or dismiss him. As against that, it is the employer&rsquo;s duty under s.2(1) of the Health and Safety at Work Act 1974 to ensure the health, safety and welfare at work of all its employees, so far as is reasonably practicable, and failure to discharge this duty is an offence under s.33 of that Act.</li> <li>Section 44(1A)(a) of the Employment Rights Act 1996 (ERA) applies to detriment by&nbsp;way of non-payment of wages. Its counterpart in relation to dismissal is s.100(1)(d).</li> </ol> <p style="padding-left: 60px"><em><strong>S.44(1)(a)</strong> A worker has the right not to be subjected to any detriment by any act,&nbsp;or any deliberate failure to act, by his or her employer done on the ground that&mdash;</em></p> <p style="padding-left: 90px"><em>(a) in circumstances of danger which the worker reasonably believed to be&nbsp;serious and imminent and which he or she could not reasonably have been expected to avert, he or she left (or proposed to leave) or (while the danger persisted) refused to return to his or her place of work or any dangerous part of his or her place of work&hellip;..</em></p> <p style="padding-left: 60px"><em><strong>s.100(1)(d)</strong> An employee who is dismissed shall be regarded for the purposes of&nbsp;this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that &hellip;..</em></p> <p style="padding-left: 90px"><em>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; in circumstances of danger which the employee reasonably believed to&nbsp;</em><em>be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work.</em></p> <p>&nbsp;</p> <ol start="4"> <li>Note that the danger does not actually have to be serious and imminent. It is X&rsquo;s&nbsp;reasonable belief that matters and this will depend on the circumstances. Nor is it a requirement that the employee must have any disability or other condition that makes him particularly vulnerable to contracting Covid or to its effects. It is obvious that employees with a condition which makes them especially vulnerable to contracting Covid and to its symptoms will be in a better position to make out the reasonable belief. Whether X could reasonably have averted the danger to himself is a question of fact. Clearly, if X is say, immunocompromised and unable to take the vaccine, it may be reasonable for him to harbour the belief that it is simply a matter of time before he is exposed to a life-threatening infection in workplace where unvaccinated and unmasked colleagues and perhaps, also customers, pose a danger to him. It is also important to bear in mind that even an employer who is has no reasonable means of averting the risk to X is not given any leeway under these provisions The test is what X reasonably believed, not whether his employer had the capability to avert the danger to him or whether it was reasonably practicable for the employer to do so.</li> <li>The risks posed to the employer by a s.100(1)(d) dismissal should not be&nbsp;underestimated. First, reasonable belief on the part of the employee is a relatively low bar, given that there is no need to prove actual danger. Secondly, under ERA s.108(3)(c) a s.100 ERA claim does not require a qualifying period. Thirdly, except where the employee does not have the adequate qualifying years&rsquo; service, it is for the employer to prove a permissible reason for the dismissal. Fourthly, once it is shown that the reason, or a principal reason is caught by either provision, no issue can arise as to reasonableness because the dismissal is automatically unfair. Fifthly, the employee does not have to prove any disability and consequently, Equality Act 2010 considerations of proportionate means, PCPs and reasonable adjustments have no relevance. Sixthly, the fact that the employer has no reasonably practicable steps available to prevent the employee being exposed to risk in the workplace is irrelevant. Lastly, compensation for such a dismissal is uncapped &ndash; this is expressly provided for by s.124(1A) ERA.</li> <li>If it finds that the employee&rsquo;s reasons for staying away from work are prima facie well-founded, a reasonable employer would take all reasonable and practicable steps to obviate or minimise the risk to the employee, including modifying the workplace or redeploying the employee. If all such options have been exhausted or are not reasonably practicable and the risk to the employee, or the employee&rsquo;s fear persists , what is the employer to do? If it ceases paying the employee, it risks a detriment claim for unpaid wages. If it dismisses the employee for failing to attend work, it faces an automatic unfair dismissal claim.</li> <li>A possible way around this appears to be for the employer to treat the contract of&nbsp;employment as being end by frustration in that further performance of the contract is rendered impossible by supervening events . This is not a dismissal. The supervening events would be the pandemic and the employee&rsquo;s reasonable belief in the danger to him in the workplace, neither of which is the fault of either party. if the employee is disabled under the Equality Act 2010 (EA) a dismissal claim under s.15 and s.20 of the EA should be anticipated, though the defence of frustration would, if successful, defeat both such claims.</li> <li>The doctrine of frustration is encapsulated in this passage from the decision of the&nbsp;House of Lords <strong>in Paal Wilson &amp; Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854, 909:</strong> <em>&ldquo;There are two essential facts which must be present in order to frustrate a contract. The first essential factor is that there must be some outside or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without the fault or the default of either party to the contract.&rdquo;.</em></li> <li>It is important to note here that the defence of frustration will not succeed if the&nbsp;employer is at fault. It follows that an employer must explore all reasonable alternatives such as redeployment and re-configuration of the workplace before seeking to invoke frustration. A failure to do so would nullify the defence.</li> <li>In responding to a s.100(1)(d) claim, could the employer rely on an SOSR dismissal on <br />the ground that the employee is unable to attend for work in circumstances, and for reasons, which the employer cannot control? The risk with relying on this is that it may be regarded as a s.100(1)(d) dismissal with a different label if it is found that the employee did, indeed, have the reasonable belief. However, it should be relied upon as an alternative in the event the employee&rsquo;s reasonable belief is not made out.</li> <li>If the employee has no underlying condition, vulnerability or disability, the issue of&nbsp;whether he had a reasonable belief in the serious and imminent danger to him is (all other things remaining equal) likely to be more difficult to establish . It should however, not be thought that the fact that such an employee is in the same boat as his co-workers is a bar to running a s.100(1)(d) claim, or indeed its detriment counterpart in s. 44(1)(a). The fact that other workers may be prepared to put up with or overlook any such risk is not to the point. Relevant factors here will include working arrangements such as the proximity to other colleagues, any aspect or feature of his duties which places him at greater risk of infection, the prevalence of Covid infections in that workplace or locality and the extent to which government guidance is followed. This is a potentially difficult area, especially in the absence of any current appellate authorities and even so, is likely to be determined on the individual facts of a case.</li> <li>For the reasons discussed above, and apart from any obviously manufactured false&nbsp;claims, it is inherent in the nature of s.44(1)(a) and s.100(1)(d) claims that employers could be very much on the back foot. Such claims have the potential to become more ubiquitous and the following months will tell us whether Covid has set off a trend in yet another species of claim.</li> </ol> <p><em><strong>This article sets out the author&rsquo;s views on the topic discussed. It is not a substitute for legal advice and should not be relied upon as such.</strong></em></p> <p>&nbsp;</p> <p>&nbsp;</p> <p>[1] Assuming that the employee harbours a genuine belief in the danger to him and is not simply using Covid as an excuse to absent himself. The latter would clearly be misconduct, but it would require an intrepid employer supported by clear evidence to rely on this.</p> <p>[2] By analogy with frustration where an employee cannot attend work because of imprisonment. See e.g. <em><strong>F C Shepherd &amp; Co Ltd v Jerrom</strong></em><a href="https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23IRLR%23sel1%251986%25year%251986%25page%25358%25&amp;A=0.6118167050484329&amp;backKey=20_T294126583&amp;service=citation&amp;ersKey=23_T294126582&amp;langcountry=GB"><strong>[1986] IRLR 358</strong></a><strong>, </strong><a href="https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?linkInfo=F%23GB%23ICR%23sel1%251986%25year%251986%25page%25802%25&amp;A=0.5628371364583555&amp;backKey=20_T294126583&amp;service=citation&amp;ersKey=23_T294126582&amp;langcountry=GB"><strong>[1986] ICR 802</strong></a><em>.</em></p> <p>[3] For a somewhat benevolent (to the claimant) treatment of reasonable belief of serious and imminent danger, see the ET decision in <strong>Accattatis v Fortuna Group 3307587/2020; 6.4.21</strong> <strong>para.49 and 50 of the Reasons.</strong> This was a claim under a different, but related, sub-section, s.100(1)(e) which contains the same reasonable belief provision.&nbsp; The claimant did not have any condition which made him especially vulnerable to Covid, but Tribunal accepted that the claimant had made out his subjective belief because he had Covid-like symptoms for 3 weeks (albeit he was never diagnosed as having the virus) and had to travel by bus to work each working day.&nbsp; His claim failed because the Tribunal found that (i) his additional insistence on being furloughed was not an appropriate step for the purposes of s.100(1)(e) and (ii) the real reason for the dismissal was his employer&rsquo;s desire to sack him before he had the 2 years&rsquo; qualifying period for unfair dismissal.</p>

Changes to Guideline Hourly Rates Approved

<p><strong><em>Written by <a href="https://www.parklaneplowden.co.uk/barristers/may-martin-pupil">May Martin</a>.</em></strong></p> <p>The Master of the Rolls, Sir Geoffrey Vos, has accepted a change to the Guideline Hourly Rates. The change is planned to take effect from 1 October 2021.</p> <p>The changes to the hourly rates were recommended by the Civil Justice Council&rsquo;s working group, who collected data between September and November 2020. The suggested new rates were consulted on between January and March 2021. A draft revised Guide has been produced by the Civil Justice Council and can be found by following the link at the bottom of the page. A final Guide will be published shortly.</p> <p>The new Guideline Hourly Rates are as follows:</p> <table> <tbody> <tr> <td> <p><strong>Grade</strong></p> </td> <td> <p><strong>Fee Earner</strong></p> </td> <td> <p><strong>London 1 </strong></p> </td> <td> <p><strong>London 2</strong></p> </td> <td> <p><strong>London 3</strong></p> </td> <td> <p><strong>National 1</strong></p> </td> <td> <p><strong>National 2</strong></p> </td> </tr> <tr> <td> <p>A</p> </td> <td> <p>Solicitors and legal executives with over 8 years&rsquo; experience</p> </td> <td> <p>&pound;512</p> </td> <td> <p>&pound;373</p> </td> <td> <p>&pound;282</p> </td> <td> <p>&pound;261</p> </td> <td> <p>&pound;255</p> </td> </tr> <tr> <td> <p>B</p> </td> <td> <p>Solicitors and legal executives with over 4 years&rsquo; experience</p> </td> <td> <p>&pound;348</p> </td> <td> <p>&pound;289</p> </td> <td> <p>&pound;232</p> </td> <td> <p>&pound;218</p> </td> <td> <p>&pound;218</p> </td> </tr> <tr> <td> <p>C</p> </td> <td> <p>Other solicitors or legal executives and fee earners of equivalent experience</p> </td> <td> <p>&pound;270</p> </td> <td> <p>&pound;244</p> </td> <td> <p>&pound;185</p> </td> <td> <p>&pound;178</p> </td> <td> <p>&pound;177</p> </td> </tr> <tr> <td> <p>D</p> </td> <td> <p>Trainee solicitors, paralegals and other fee earners</p> </td> <td> <p>&pound;186</p> </td> <td> <p>&pound;139</p> </td> <td> <p>&pound;129</p> </td> <td> <p>&pound;126</p> </td> <td> <p>&pound;126</p> </td> </tr> </tbody> </table> <p>&nbsp;</p> <table> <tbody> <tr> <td> <p><strong>Band</strong></p> </td> <td> <p><strong>Area</strong></p> </td> <td> <p><strong>Postcodes</strong></p> </td> </tr> <tr> <td> <p>London 1</p> </td> <td> <p>Very heavy commercial and corporate work by centrally based London firms</p> </td> <td> <p>Not restricted to any particular London postcode</p> </td> </tr> <tr> <td> <p>London 2</p> </td> <td> <p>City &amp; Central London &ndash; other work</p> </td> <td> <p>EC1-EC4, W1, WC1, WC2 and SW1</p> </td> </tr> <tr> <td> <p>London 3</p> </td> <td> <p>Outer London</p> </td> <td> <p>All other London Boroughs, plus Dartford &amp; Gravesend</p> </td> </tr> </tbody> </table> <p>&nbsp;</p> <p><strong>National 1:</strong></p> <ol> <li>The counties of Bedfordshire, Berkshire, Buckinghamshire, Dorset, Essex, Hampshire (&amp; Isle of Wight), Kent, Middlesex, Oxfordshire, East Sussex, West Sussex, Suffolk, Surrey and Wiltshire</li> <li>Birkenhead, Birmingham Inner, Bristol, Cambridge City, Cardiff Inner, Leeds Inner (within 2km of City Art Gallery), Liverpool, Manchester Central, Newcastle City Centre (within 2m of St Nicholas Cathedral), Norwich City, Nottingham City and Watford.</li> </ol> <p>&nbsp;</p> <p><strong>National 2:</strong></p> <p>All places not included in London 1-3 and National 1.</p> <p>&nbsp;</p> <p><a href="https://www.judiciary.uk/wp-content/uploads/2021/08/Guide-to-the-Summary-Assessment-of-Costs-2021-Final-version.pdf">Guide to the summary assessment of costs 2021 (judiciary.uk)</a></p>

‘A New Deal for Working People?’: Employment Status, Qualifying Periods, and Labour’s Proposal

<a href="https://www.parklaneplowden.co.uk/barristers/robert-dunn">Robert Dunn</a> is an <a href="https://www.parklaneplowden.co.uk/expertise/employment">Employment</a> specialist. To view Robert's original comments, click <a href="https://www.parklaneplowden.co.uk/news/robert-dunn-quoted-by-hr-grapevine-on-labour-pledge-to-grant-the-same-rights-to-all-workers-from-their-first-day">here</a>. <strong>The Current Position</strong> As it stands, everyone in England &amp; Wales whom works, broadly fits into 1 of 3 groups. They could be an ‘employee’, a ‘worker’ or ‘self-employed’. These categories are far from clear cut, and are subject to a minefield of case law. Neither is it helpful that these categories can be defined differently, in different statutes. (Very) broadly speaking though, they are: <ul> <li>&nbsp;<strong>Employees - s.230(1) ERA 1996</strong>: These persons have a contract of service, express or implied. They are subject to control, mutuality of obligation, and must provide personal service;</li> <li><strong>&nbsp;</strong><strong>Workers</strong> - <strong>s.230(3)(b) ERA 1996</strong>: These persons have a contract for services, express or implied. They are should provide personal service, but may not have mutuality of obligation. These persons are categorised by their relationship of subordination to an employer, irrespective of what is on the face of their contract;</li> <li>&nbsp;<strong>Self-Employed</strong>: These persons are not subject to the subordination of a worker. They conduct business genuinely in their own right.</li> </ul> Different persons receive different employment rights, depending on which category they fall into. Crucially, rights also depend on one’s continuity of service. For example, employees require 2 years to claim unfair dismissal, or 26 weeks to complain that they have been subjected to a detriment for requesting training, pursuant to s.63(6)(d)(a) ERA 1996. Such qualifying periods are rife through employment law as we know it. &nbsp; <strong>Labour’s New Deal</strong> On 26<sup>th</sup> July 2021, Labour announced their ‘New Deal’, should they be elected in 2024. Essentially, they announced that they would: <ul> <li>Create a ‘unified worker status’. This would include employees, S.230(3)(b) ERA 1996 workers, and ‘those in bogus self-employment’;</li> <li>Remove qualifying periods for employment rights, and give all such ‘unified workers’ ‘full employment rights from Day One’;</li> </ul> Proposals have clearly not crystalised yet, and the devil will of course be in the detail. However, this article seeks to explore some of the potential questions which arise, and the possible effects of such a proposal. &nbsp; <strong>Discussion</strong> From the perspective of those in work, this appears at first sight to be a positive proposal. Whilst employees already have access to ‘full employment rights’, the qualifying periods will be removed. Rights, such as the right to claim for unfair dismissal or claim paternity pay, would be available from the outset. No longer could a less-than-thorough disciplinary or redundancy procedure be applied just before an employee’s 2 years are up. For many workers, the benefits are clear too. The weightier ‘employee’ rights would become open to them, and all without any qualifying periods. Labour have also announced that the requirement to earn £120 per week to access Statutory Sick Pay would also be removed, it being a quasi-qualifying period. The TUC estimate this would bring over 6 million additional workers within the sick pay regime. &nbsp; <strong>The Key Questions</strong> As ever with employment law though (and particularly employment status), the proposal also creates as many questions, as it does gives answers. Firstly, the proposal fails to comment on other definitions of ‘worker’. For example, S.43K ERA 1996 gives an extended ‘worker’ definition, for those not falling within S.230(3)(b). This gives S.43K workers the right to claim for detriments arising from whistleblowing, and does not even require a direct contract with their ‘employer’; per HHJ Eady QC in <strong>Keppel Seghers UK Ltd v Hinds [UK EAT/0019/14/JOJ]</strong>. On the face of the proposal, S.43K workers are excluded. If so, what is the logical basis for there being no widening of their rights at all, but other workers receiving ‘full’ employment rights? Secondly, there is the concept of the ‘bogus self-employed’. The inclusion of this concept, in addition to S.230(3)(b) workers, suggests it adds something more. However, it is entirely undefined. Moreover, key recent UK Supreme Court cases such as <strong>Autoclenz v Belcher [2011] UKSC 41</strong> and <strong>Uber BV v Aslam [2021] UKSC 5</strong>, are aimed at focusing on the ‘reality’ of a relationship to determine whether individuals have been genuinely self-employed or not. Given the <strong>Uber </strong>decision, it is questionable whether this concept of the ‘bogus self-employed’ really widens the scope of protection at all. If it does, it would almost certainly lead to a further raft of extensive satellite litigation to determine where the new boundary would fall. If it does not, why has it been included in addition to ‘workers’? Thirdly, that said, there may be concern for those whom are self-employed. These persons may well not want to be sucked into this ‘unified worker’ definition, given the control and potential tax implications it may have. As an example, many barristers work solely under a particular Chambers, whom provide them work, deal with any complaints against them, deal with their fees, and deduct payments for clerking and expenses. The relationship has features of subordination, yet most barristers would surely be loathed to fall under the definition of ‘bogus self-employed’. Fourthly, there may be concern for workers. Some workers can pay tax as a self-employed person, and this could be threatened. Moreover, many workers enjoy the flexibility that a lack of mutuality of obligation, and perhaps control, brings. If employers are forced to give such individuals ‘full employment rights’, the additional cost may well discourage their employment in the first place. Is it worth employing a casual zero-hours worker on a temporary basis, if they can immediately resign and take you to the Tribunal for unfair dismissal? Further, if employers are forced to give such workers typical ‘employee rights’, there appears no reason not to then subject them to the additional obligations of an employee, and exert a greater level of control, subordination and mutuality of obligation on them. This will be unwanted by many current ‘workers’. Fifthly, the proposal poses questions for other categories of persons. What about apprentices or probationary employees, for example? Such individuals having protection against unfair dismissal, or the right to claim sick pay or maternity pay, ‘from Day One’ may well impact the willingness of employers to take such persons on. And what about Agency workers? Whilst they may still not be the ‘worker’ of the end-user (unless S.43K workers are included), they would almost certainly have ‘full employment rights’ against the agency. That would have profound implications for recruitment agencies, and their profitability. Sixthly, there is the impact upon Tribunals. It is difficult to see how providing millions more individuals with greater employment rights will not lead to more claims. No longer will a Tribunal have a lack of jurisdiction to consider an unfair dismissal complaint because a person is a worker, or does not have continuity of service. What is now the near instant rejection of an ET1 on those bases, would instead become a Preliminary Hearing followed by a 2-day Unfair Dismissal claim. There have also been soundings of the time limit for bringing most Tribunal claims, perhaps being extended to 6 months. Unless such proposals are accompanied by substantial investment in the Tribunal Service, it is difficult to see how this would not further worsen the case backlog. Lastly, the impact upon employer HR teams seems mixed. There must be a practical ease, in understanding all those whom work for you are a ‘unified worker’ with all rights from the outset. Distinguishing between such persons and calculating continuity of service would fall away. That may though be outweighed by the impact of any increase in Tribunal claims. &nbsp; <strong>Conclusion</strong> The devil will of course be in the detail. 2024 is a long way away, and Labour still appear to have a long way to go in the polls to win in any event. Either way though, the proposals are interesting and worthy of discussion. They challenge the current orthodoxy, and some may argue simply continue the movement towards greater protection for those in unstable work, that is evident behind cases such as <strong>Uber BV v Aslam</strong>. As highlighted however, they require substantial clarification and pose risks for the Tribunal system, employers, and those workers whom want to retain the flexibility and freedom that their current role brings.

Pingdemonium &#8211; Workers, Employers and the NHS COVID-19 App

<p>Written by <a href="https://www.parklaneplowden.co.uk/barristers/sophie-firth">Sophie Firth</a>.</p> <p>&nbsp;</p> <p><strong>What are workers&rsquo; and employers&rsquo; obligations?</strong></p> <p>Reg 2 of the Health Protection (Coronavirus, Restriction) (Self Isolation) (England) Regulations 2020 makes it a legal requirement for an individual to self-isolate where they are notified by NHS Test and Trace that they have tested positive or had close contact with someone who has tested positive. In broad terms for close contacts the self-isolation period is 10 days from the date of exposure.</p> <p>A worker who is required to isolate in these circumstances is described as a self-isolating worker.</p> <p>Under reg 8, there is an obligation on a self-isolating worker to tell their employer as soon as reasonably practicable and before they are due to work of their requirement to self-isolate and the dates of the isolation period. Failure to do so without reasonable excuse is a criminal offence under reg 11 punishable by a &pound;50 fine.</p> <p>Under reg 7, an employer of a self-isolating worker who is aware of a worker&rsquo;s requirement to self-isolate must not knowingly allow that worker to attend the workplace during the isolation period for any purpose related to their employment. If an employer does so without reasonable excuse it commits a criminal offence under reg 11 punishable by a fine of up to &pound;10,000 for repeat offenders, or prosecution.</p> <p>However, reg 2 only <em>&ldquo;applies where an adult is notified, other than by means of the NHS Covid 19 smartphone app developed and operated by the Secretary of State&rdquo;</em>. Therefore, there is no <em>legal obligation</em> for an individual who has been pinged by the app to self-isolate &ndash; it is merely advice. Correspondingly, there is seemingly no <em>legal obligation</em> for a pinged worker to inform their employer they have been pinged, for their employer to knowingly allow them to come to work.</p> <p>Nevertheless, pinged workers and their employers would be well advised to take the same steps as they would have been legally obliged to take had they been contacted directly by NHS Test and Trace. Plainly, attending work in such circumstances could jeopardise the health and safety of colleagues by spreading covid within the workplace and beyond.</p> <p>If a worker who has chosen to download the app fails to notify their employer that they have been pinged or told by NHS Test and Trace to self-isolate, this may justify disciplinary sanctions. However, if employers wish to impose such sanctions, it would be sensible for them to write to their workers to inform them of that notification requirement, and the fact that failure to notify could carry a disciplinary sanction.</p> <p>Employers should also be careful to ensure compliance with GDPR if they intend to ask workers to share health data (special category data).</p> <p>&nbsp;</p> <p><strong>The government&rsquo;s response to the pingdemic</strong></p> <p>The government has decided that fully vaccinated workers in 16 critical sectors &ndash; including, for example, food production and supply and essential transport &ndash; may be exempt from self-isolation.</p> <p>Additionally, the Department for Environmental, Food and Rural Affairs (Defra) has announced a new testing scheme for food industry workers allowing critical staff to avoid self-isolation if they test negative.</p> <p>However, the exemption scheme is not a blanket exemption for all workers in a particular sector.&nbsp; In summary, only those workers whose absence would result in serious disruption to critical services qualify. If employers believe this applies to them, they need to write to the relevant government department making a request. If the criteria are met, then the relevant department will write to the employer setting out the named critical workers who qualify.</p> <p>However, the exception scheme will only operate until 16 August 2021, when all fully vaccinated individuals will be able to avoid self-isolating if they are exposed to Covid 19.</p> <p>&nbsp;</p> <p><strong>Can employers insist that workers download and use the app?</strong></p> <p>Downloading and using the app is entirely voluntary, including for workers.</p> <p>It may be reasonable for employers to require workers to have the app on a work phone and have contact tracing on whilst at work. However, this is unlikely to be of much assistance to employers. The government guidance for workers using the app states that contact tracing should be left on as much as possible, or the app will not work as intended. In practical terms, for workers, this would mean both inside and outside of work.</p> <p>It is doubtful whether instructing workers to use the app at all times, especially on a personal phone, would be a reasonable management instruction, and may breach workers&rsquo; rights to a private life.</p> <p><strong>&nbsp;</strong></p> <p><strong>Can employers instruct workers to pause contact tracing or ignore a ping?</strong></p> <p>The pingdemic is not only affecting critical sectors. Staff in sectors from banking to bar work are reportedly being asked to deactivate the app whilst at work, owing to numerous workers being pinged and absent from work. Some employers are concerned that such notifications are inaccurate.</p> <p>The government guidance for workers highlights four specific scenarios where workers are advised to pause contact tracing:</p> <ul> <li>When working behind a Perspex screen and fully protected from others.</li> <li>If they store their phone in a locker or communal area.</li> <li>If they work in health and social care and wear medical grade PPE.</li> <li>If they are a healthcare worker working in a healthcare building.</li> </ul> <p>Therefore, in those circumstances, it is likely to be reasonable to instruct workers to pause contact tracing. If employers wish to do this, they would be well advised to give such an instruction in writing, and could advise that if it not followed there may be disciplinary consequences.</p> <p>However, outside of those narrow circumstances, it would be risky for an employer to instruct workers to turn off contact tracing because of the possibility of inaccurate notifications and increased absence, or indeed to ignore a ping. This is not intended to be an exhaustive list, but some risks are:</p> <ul> <li>Discrimination claims from workers at increased risk from Covid 19 due to a protected characteristic.</li> <li>Health and safety related (constructive) automatic unfair dismissal under s100 ERA 1996 and detriment claims under s44 ERA 1996 from workers who complain about being told to turn off contact tracing or defy the employer&rsquo;s instruction, report being pinged or refuse to come into the workplace and resign, or are dismissed or disciplined as a consequence.</li> <li>Whistleblowing and victimisation claims in similar circumstances.</li> <li>Concern amongst workers that they are putting themselves, colleagues and customers at risk, which may damage worker and, &ndash; if discovered by them &ndash; customer relations.</li> <li>Potential implications under health and safety legislation.</li> </ul> <p>It is unlikely that it would ever be reasonable for an employer to instruct a worker to ignore a ping. The employer would have no way of knowing whether the worker had in fact been exposed to someone who had tested positive either inside or outside the workplace.</p> <p>&nbsp;</p> <p><strong>Conclusions</strong></p> <p>Whilst the self-isolation rules will change 16 August 2021, the considerations outlined in this article are still likely to be of relevance to workers and employers beyond that date, not least because some workers will not be fully vaccinated.</p> <p><em>&nbsp;</em></p> <p><em>This article provides some thoughts the use of the NHS Covid 19 app in the workplace. It is not a substitute for legal advice, and should not be relied upon as such.</em></p> <p>Sophie Firth is a member of Parklane Plowden's specialist <a href="https://www.parklaneplowden.co.uk/expertise/employment">Employment</a> team. To view Sophie's profile in full, click <a href="https://www.parklaneplowden.co.uk/barristers/sophie-firth">here</a>.</p> <p>&nbsp;</p> <p>&nbsp;</p>

Unfair dismissal, discrimination and whistleblowing: analysing the reasons for an employer&#8217;s actions

<p>Written by <a href="https://www.parklaneplowden.co.uk/barristers/paul-sangha">Paul Sangha</a>.</p> <p>&nbsp;</p> <p>Tribunals regularly have to considering the reasoning of employers as part of its factual inquiry into, for example, the reason for a dismissal or why certain treatment of an employee took place. In less complex cases, it is surprising how easily a tribunal can fall into error by either not performing sufficient inquiry or not giving sufficient reasons to demonstrate that it did perform such inquiry into the mental process of an employer&rsquo;s actions. In complex cases, a tribunal may be faced with having to unravel the background beyond the stated reason for dismissal, e.g. where it is contended that a manager is duped into dismissing a whistle blower by others (as was the case in <strong>Royal Mail Ltd v Jhuti</strong> [2019] UKSC 55).&nbsp;</p> <p><strong>Unfair dismissal</strong></p> <p>In an unfair dismissal claim, the first inquiry of a tribunal is usually into the reason for the dismissal. The reason comprises a set of facts known to the employer or beliefs held by the employer, which cause the dismissal (per <strong>Abernethy v Mott &amp; Ors </strong>[1974] ICR 323). Of course the stated reason for dismissal may not necessarily constitute the <em>real</em> reason, so certainly where there is a dispute as to the real reason, a tribunal needs to make findings.</p> <p>The reason for dismissal is to be contrasted with the statutory potentially fair reasons for a dismissal. Where that contrast is not apparent in a tribunal&rsquo;s analysis &ndash; for example, where a tribunal seemingly jumps to stating that the reason for a dismissal was one of the potentially fair reasons &ndash; there is a risk that it fails to identify the reason for dismissal with sufficient explanation for why it has been identified.</p> <p>This was the error identified by the EAT in the case of <strong>Cummins Ltd v Mohammed</strong> UKEAT/0039/20/OO (HHJ Tayler). Mr Mohammed was dismissed for misconduct for reasons relating to an unauthorised absence in which he travelled abroad to recuperate from the effects of anxiety and depression. A live final written warning was also taken into account. The tribunal found that Mr Mohammed either was given permission to travel to Pakistan by the Respondent&rsquo;s HR Manager or, at least, believed that he had been given this permission.</p> <p>In its findings, the tribunal stated that &ldquo;[t]he evidence points to the principal reason in the mind of the dismissing officer&hellip;as being the conduct of the claimant.&rdquo; The EAT concluded that the tribunal did not consider precisely what the dismissing officer determined Mr Mohammed to be guilty of. Was it the fact of travelling abroad? Was it the absence of permission to do so? Was it that there was oral permission but no written permission? Or was it because Mr Mohammed travelled despite occupational health concluding that he was fit to work and made himself unavailable for meetings with his employer?</p> <p>The potential reason for dismissal in the mind of the dismissing officer is central to considering the reasonableness of the investigation in respect of that matter, and whether there were reasonable grounds for the decision reached. So one can see the obvious consequences if there is a failure to accurately identify the reason for dismissal: its finding and conclusions on other aspects (reasonable investigation, genuine belief in the employee&rsquo;s guilt) are also potentially unsound.</p> <p>&nbsp;</p> <p><strong>Discrimination</strong></p> <p>In discrimination cases, the focus is usually on what influenced or caused certain treatment (on a conscious and subconscious level) that is complained of.</p> <p>Returning to the facts of <strong>Mohammed</strong>, a further claim under s.15 Equality Act 2010 claim was brought of discrimination arising from disability. Mr Mohammed contended that the &ldquo;something&rdquo; was the trip to Pakistan. The unfavourable treatment included the dismissal. So the tribunal had to consider whether Mr Mohammed&rsquo;s dismissal was because of his trip to Pakistan and, if it was, whether the Respondent had established that dismissal was justified.</p> <p>On appeal, the Respondent contended that the tribunal had simply adopted a &ldquo;but for&rdquo; analysis of whether the dismissal was because of the trip to Pakistan. The appeal was upheld: the tribunal did not engage sufficiently with the mental processes of the dismissing officer. In particular, it was unclear what facts/matters were taken into account by the decision-maker, Mr Smith. Was it the mere fact of Mr Mohammed travelling to Pakistan? Or was the visit to Pakistan just part of the context of a dismissal which was actually because occupational health had stated that Mr Mohammed was fit to return to work and did not have permission to make the trip?</p> <p>Ultimately, then, because the tribunal had not engaged with the issue of the mental process of the decision-maker regarding the reason for dismissal (the unfavourable treatment) its finding on whether it was &ldquo;because of&rdquo; the trip to Pakistan was also not made out.</p> <p>&nbsp;</p> <p><strong>Whistleblowing</strong></p> <p>In <strong>University Hospital North Tees &amp; Hartlepool NHS FT v Fairhall</strong> UKEAT/0150/20/VP, the EAT considered challenges to a tribunal&rsquo;s findings upholding a claim of automatic unfair dismissal (whistleblowing).</p> <p>Ms Fairhall, a clinical care co-ordinator for district nursing, had made 13 disclosures, which were essentially concerns about the workload of her staff, which placed them under pressure. Ms Fairhall expressly instigated the Trust&rsquo;s whistleblowing policy. Ten days later she was informed that she was being suspended from her work. Allegations of gross misconduct were made against Ms Fairhall regarding her leadership and also unprofessional behaviour, including bullying and harassment. The allegations included her handling of charitable money. Ms Fairhall raised a grievance which, inter alia, challenged the need for and length of her suspension, which was almost 6 months (she was dismissed for gross misconduct at around 5&frac12; months post-suspension). The tribunal was highly critical of the suspension, the handling of the grievance and the disciplinary process.</p> <p>Regarding the disciplinary process, it found that no particular dishonesty allegation was put to Ms Fairhall regarding handling of charitable money, but notwithstanding this a dishonesty allegation was upheld and led to her dismissal. The tribunal concluded that the Respondent was seeking to &ldquo;beef-up&rdquo; its case against Ms Fairhall. The decision to dismiss was not supported by the evidence before the panel, so the tribunal concluded that the Respondent had not established that the reason for dismissal was a reason related to her conduct. The tribunal had rejected the conduct reason put forward by the Trust and it accepted Ms Fairhall&rsquo;s contention that, through appropriate inferences on the evidence, the principal reason was her whistleblowing.</p> <p>So far as analysis of the Respondent&rsquo;s decision-making was concerned, the EAT concluded that this was not a Jhuti-type case where a manager was duped into dismissing an employee. Instead, the EAT considered that this is a case where the tribunal had found that the manager had knowledge of the whistleblowing and dismissed for that reason.</p> <p>The tribunal had found that the dismissal process commenced with the decision of three managers to suspend Ms Fairhall shortly after she had invoked the whistleblowing policy. Then, it found that the Trust&rsquo;s human resources were focused on the process leading to her dismissal. The tribunal referred to the management and human resources as the &ldquo;hierarchy&rdquo; and found that the investigating of Ms Fairhall, the instigating of disciplinary proceedings against her and her dismissal, were also influenced by that hierarchy to such an extent that it was appropriate to attribute their motivation to those carrying out the process which led to the dismissal.</p> <p>As this was not a Jhuti-type case, it was not necessary for the tribunal to be concerned with the mental processes of the Trust&rsquo;s other managers that were involved in suspending Ms Fairhall and dealing with her grievance. So by not engaging with that issue, the tribunal had not fallen into error. The EAT considered that tribunals are well able to see through ruses and get to grips with the reason that operates on the mind of a dismissing officer. Even in the case of a panel process, if a tribunal only hears from the chair, that is likely to be sufficient as the employer presumably accepts that the reasoning process of the chair properly evidences that of the panel.</p> <p>&nbsp;</p> <p><a href="https://www.parklaneplowden.co.uk/barristers/paul-sangha">Paul Sangha</a> is a member of Parklane Plowden's specialist <a href="https://www.parklaneplowden.co.uk/expertise/employment">Employment team</a>.</p>

Chief Coroner&#8217;s Guidance No.41: The Use of &#8216;Pen Portrait&#8217; Materials, 5 July 2021

Legal update written by <a href="https://www.parklaneplowden.co.uk/barristers/abigail-telford">Abigail Telford</a>. &nbsp; <strong>What are pen portrait materials?</strong> Pen portrait materials are statements and other documents, such as photographs, that enable the family and friends of the deceased subject of the inquest to present a picture of who that person was in life. The Chief Coroner’s latest guidance recognises that such materials can humanise the inquest process and provide dignity to the deceased. &nbsp; <strong>What is the guidance?</strong> The Chief Coroner has endorsed the increasingly common practice of coroners hearing inquests to allow pen portrait materials to be adduced, subject to the caveat that it may not be appropriate in all cases. The Guidance states that the materials can assist with addressing one of the key four statutory questions of who the deceased was (the other three questions being when, where and how the deceased died). The Guidance identifies four categories of inquest, setting out the usual circumstances regarding pen portrait materials for each: <ul> <li>Documentary only rule 23 inquests: where there would not ordinarily be attendance, no pen portrait materials would usually be required.</li> <li>Inquests with only family and friends: the informal approach typical in such inquests enables the family and friends of the deceased to tell the coroner something about their loved one.</li> <li>Inquests with interested persons present but no jury: the Guidance suggests that advance notice of a family statement is preferred, but a flexible approach is to be expected from coroners. The coroner hearing the inquest can decide what materials are to be permitted and when they can be adduced.</li> <li>Inquests where a coroner sits with a jury: where photographs relating to the circumstances of a person’s death are to be adduced, a family may want to adduce photographs of the deceased in life. This is permissible, but the type, timing and amount of such materials remains a matter for the coroner. Directions at a Pre-Inquest Review should provide for advance disclosure of these materials. The Guidance recognises that some families will want to read their statements themselves, whilst others might prefer a lawyer, coroner’s officer or other person to do this for them. Importantly, the Guidance states that a coroner should make clear to a jury that what is said or seen in Pen Portrait Materials is not evidence and is not to be taken into account when considering appropriate conclusions.</li> </ul> &nbsp; <strong>Comment</strong> Pen portraits have been widely but inconsistently used in inquests for a long time. In my experience, they humanise what can otherwise be a deeply impersonal process. However, practice has varied between courts and coroners, and guidance aimed at unifying practice is to be welcomed. That said, the Guidance could be read as doing little more than simply documenting the current practice, because a large degree of discretion is still left to the coroner hearing each inquest as to whether to permit such materials. Although the Guidance can be read as encouragement to allow pen portrait materials, it is possible that some coroners may still resist allowing their inclusion on the basis that they already know who died and therefore the materials are not required to answer one of the key questions. Equally, pressure to conclude an inquest in an efficient and timely manner could inadvertently dissuade a busy coroner from permitting such materials. The Guidance will however provide support for families and those representing them - particularly at the Pre-Inquest Review Stage - when arguing that pen portrait materials should be permitted. Moreover, the Guidance could be seen as a step in the direction of a more victim focused, or at least victim acknowledging, approach in the Coroner’s Court. &nbsp; Abigail Telford is a member of Parklane Plowden's specialist <a href="https://www.parklaneplowden.co.uk/expertise/inquests-inquiries">Inquests and Inquiries team</a>. To view Abigail's profile, click <a href="https://www.parklaneplowden.co.uk/barristers/abigail-telford">here</a>.