COMPENSATION – IMPORTANT REMEDY DECISIONS (8 July)

Historically June is a busy month for practitioners and the Courts trying to finish up before the summer recess period. And in keeping with that tradition, a number of interesting Judgements have been handed down by the courts.

These included two significant remedy Judgments that we have commented on below.

Maya Forstater v CGD

Forstater is the gender critical case that was determined last year.

In the merits Judgment, the Tribunal found that CGD had discriminated against Forstater when it decided not to offer her full employment or to renew her Visiting Fellowship because of her gender critical beliefs. This was found to be discriminatory.

This year the remedy hearing took place in March 2023 with the decision issued in June 2023. The Tribunal awarded Forstater a total sum of £106,404.31 compensation made up of (approximately):

• £25,000 for injury to feelings
• £2,000 for aggravated damages **
• £14,000 for loss of earnings
• £50,000 for loss of chance of earnings (equivalent to 1 year’s salary)
• £14,778.47 for interest

** Aggravated damages were awarded due to CGD’s public statements about the case which included: “We believe CGD must take a consistent stance against all forms of bigotry…..”

The Tribunal found that this, and other public statements, amounted to oppressive or high-handed conduct in that the Company had overstated the judicial observations about Forstater’s belief and in that in doing so, they equated that belief to bigotry. The Tribunals findings and comments are a stark reminder for Organisations to be careful for their communications during litigation.

Jhuti V Royal Mail Group

Jhuti is a well-known case for a variety reasons. It is a whistleblowing case that has been considered by the Court of Appeal on two separate occasions and pathed the way for the Official Solicitor to act as a Litigation Friend** in Tribunal cases in GB as Claimant was found to lack capacity to litigate on her own behalf.

[**NB: Northern Ireland is different and at present the Official Solicitor does not have standing to act as a Litigation Friend in our Tribunals, we are, however, currently involved in a Northern Ireland case in the Court of Appeal on this very point with Judgement imminently expected.]

The merits Judgment found that Jhuti was unfairly dismissed and suffered detriments (bullying and harassment over a period of months) after she raised concerns that Ofcom guidance was breached. The bullying and harassment included criticisms, setting unfair targets, holding mandatory meetings and making unwarranted criticism of her performance. As a result of these actions, Jhuti i went off ill and became extremely unwell.

Following the merits Judgment, the Tribunal provided the parties with time to try and agree compensation. When parties were unable to agree compensation courts awarded Jhuti a figure £2,365,614.13 made up of:

• £718.50 for Basic Award for Unfair Dismissal
• £494,213.79 for Past Losses
• £1,079,165.07 for Future Losses (including Pension Loss)
• £67,265 for Detriment Compensation
• £8,229.49 for 0.5% Uplift for a failure to follow ACAS Code
• £716,022.28 for Grossing Up for Tax

Whistleblowing Claims (same as in discrimination claims) damages are uncapped, and this case is an example where significant damages can be awarded to Claimants where they have been unfairly and unlawfully treated by their employer as a result of making a protected disclosure. It also demonstrates that when assessing compensation, the Tribunal will consider both the discriminatory acts but also their impact on the person and you take the person as you find them. So, whilst one person may suffer moderate hurt, upset and humiliation another person’s reaction can be more extreme and become very unwell. In those latter circumstances the compensation will be significantly higher.

WORKPLACE BULLYING (13 July 2023)

It may still come as a surprise to some, but there is no stand-alone legal claim outlawing workplace bullying, unless it is on grounds of a protected characteristic (for example on grounds of their sex, religion, sexual orientation, race etc).

As a result of this, if a person is bullied in the workplace, and it is not on grounds of a protected characteristic, then the main remedy (if they are an employee not available to workers) is to resign and claim constructive unfair dismissal. There are other claims that they can pursue in the civil court such as under the Protection of Harassment (otherwise known as stalker legislation) or a personal injury claim if the bullying resulted in any personal injury such as psychiatric injury.

However on 11 July 2023, Rachel Maskell (MP for York Central) presented a Bill to parliament to introduce a statutory definition of workplace bullying at work.

The Bill, if enacted, would:

• Introduce a statutory definition of workplace at work.
• Enable stand-alone claims relating to workplace bullying to be considered by an employment tribunal;
• Provide for a Respect at Work Code to set minimum standards for positive and respectful work environments;
• Give powers to the GB Equalities and Human Rights Commission to investigate workplaces where there is evidence of a culture of, or multiple incidents of bullying;
• Allow enforcement action to be taken for breaches and for connected purposes.
• Suggests a 6-month period to bring a claim.
• Provide for injury to feelings awards and compensation.

This is a Private Member Bill (PMB) and historically not many ever-become law. However, we have seen this change in the last year with the Government supporting several PMB including the Carers Leave Bill, the Neonatal (Leave and Pay) Bill and the Protection from Redundancy (Pregnancy and Family Leave) Bill.

As employment law is devolved in Northern Ireland, Rachel Maskells PMB would not apply if, if enacted, however  it could instigate a discussion on this and path the way for such laws in the future, should the Stormont Executive make a return.

The full discussion in parliament can be viewed here

ELECTRONIC TRAVEL AUTHORISATION VISA COST ANNOUNCED (June 2023)

On 7 June 2023, the Home Office updated its Link to Guidance and Fact Sheets to confirm the price of the  Electronic Travel Authorisation (ETA) confirming that the cost of the ETA will be £10 per applicant.

An ETA is a new requirement for people who need a visa for short stays to the UK, or who do not already have a UK immigration status prior to travelling. It gives the person permission to travel to the UK, and it is electronically linked to their passport. It will permit multiple journeys and be valid for two years or until the holder’s passport expires – whichever is sooner.​​

It will launch for Quatari nationals from 25 October 2023. From 1 February 2024, the scheme will be introduced for nationals of Bahrain, Jordan, Kuwait, Oman, United Arab Emirates and Saudi Arabia.

BREXIT REFORM & CONFIRMATION THAT THE SUN HAS SET ON THE “SUNSET CLAUSE” (10 May)

On 10 May 2023, in answer to a question posed to the Department of Business and Trade  Kemi Badenoch, Secretary of State for Department for Business published a Written Statement in which she said:

…However, with the growing volume of REUL being identified, and the risks of legal uncertainty posed by sunsetting instruments made under EU law, it has become clear that the programme was becoming more about reducing legal risk by preserving EU laws than prioritising meaningful reform. That is why today I am proposing a new approach: one that will ensure ministers and officials can focus more on reforming REUL and doing that faster.

Today the Government is tabling an amendment for Lords Report, which will replace the current sunset in the Bill with a list of the retained EU laws that we intend to revoke under the Bill at the end of 2023.

This provides certainty for business by making it clear which regulations will be removed from our statue book, instead of highlighting only the REUL that would be saved. We will retain the vitally important powers in the Bill that allow us to continue to amend EU laws, so more complex regulation can still be revoked or reformed after proper assessment and consultation. Today we also update the REUL dashboard, available on gov.uk.

We will still fully take back control of our laws and end the supremacy and special status of retained EU law by the end of 2023. We will also make our laws fit for UK purposes: reducing the regulatory burden and controlling the flow of new regulation. We will no longer tie business up in red tape.

As such, the Secretary of State has confirmed that the Government no longer intends to repeal all Retained EU laws (unless retained) by 31 December, effectively abandoning the controversial sunset clause. Instead, the current sunset clause will be replaced with a list of the retained EU laws that government intends to revoke under the Retained EU Law (Revocation and Reform) Bill at the end of 2023.

On same day, the Government then published its Policy Paper ‘Smarter Regulation To Grow The Economy’  in which it announced the first of these areas it intends to reform namely:
1. Working Time
2. TUPE
3. Non-compete clauses

The Policy Paper confirms that further areas will be announced; it also published a News story entitled ‘Smarter regulation unveiled to cut red tape and grow the economy.’

Interestingly it recognises that that this may result in divergence between the devolved nations but states that UK government has been working jointly with them to develop UK Common Frameworks which are ‘designed to manage regulatory divergence.’

It remains to be seen how this will progress (if at all) in Northern Ireland given the lack of a functioning Executive.

CURRENT AREAS FOR REVIEW /REFORM:

1. Working Time & Holiday Pay:
   In relation to working time there are proposing two main changes:

• Reducing Working Time Regulations reporting burdens specifically in relation to recording working hours and other administrative requirements.
• Reducing administrative burden and complexity of calculating holiday pay
• Permitting rolled up holiday pay i.e. allowing workers to receive their holiday pay with every payslip.
• Merging the current two separate leave entitlements into one pot of statutory annual leave (treating the 4 weeks derived from EU and additional 1.6 weeks provided by UK law the same way) while maintaining the same amount of statutory leave entitlement overall.

2. Simplifying the Employment Regulations that apply when a Business Transfers to a New Owner (TUPE)

• Currently, businesses cannot start consultation unless employee representatives are in place.
• They propose removing this requirement for businesses with under 50 people and transfers affecting under 10 employees.

3. Reforming Non-Compete Clauses to boost competition and innovation

• Limiting non-compete clauses to 3 months.

 CONCLUSION 

The Government does plan to consult on the proposals with the aim that they improve how the regulations work without affecting the rights that really matter to workers. Business will certainly welcome any attempt to reduce the complexity for calculating holiday pay.  This will be a very welcome development for business and hopefully create more certainty in a somewhat uncertain commercial landscape. We will keep Members updated on any developments.

NORTHERN IRELAND CONSULTATION ON THE REVIEW OF THE RACE RELATIONS (NI) ORDER 1997

Northern Ireland (NI) Equality laws lag well behind our counterparts in both Great Britain (GB) and the Republic of Ireland (ROI).

And despite the lack of functioning Executive, on 27 March 2023 the Executive Office launched the 12 week public consultation on the review of the Race Relation Order which can be viewed here: Review of the Race Relations (NI) Order 1997 Consultation Document

The Consultation forms part of Executive’s 10-year strategy (running from 2015 to 2025 so entering its last few years) to review and revamp the laws and bring them into line GB and Ireland or advance them to help future-proof them.

The Consultation examines the differences between the three jurisdictions and compares the laws in those jurisdictions to those currently in place in NI laws. These laws are in the main:

• In Northern Ireland – Race Relations Order 1997;
• In Great Britain – Equality Act 2010;
• In Ireland – in the main Employment Equality Acts 1998–2015.

It considers areas including:

• Employment
• Provision of Goods, Facilities, Services & Premises,
• Role & Powers of Equality Commission for Northern Ireland (ECNI)
• Enforcement
• Other

Some key points of the Consultation includes consideration of:

1.  Widening the definition of racial harassment from ‘on the grounds of race’ to lower threshold of ‘related to race.’ (If adopted, this would align NI to the position set out in GB Equality Act.)

2. Consider if other categories should be protected recognising legal concept and definition of employee is difficult to understand.

3. Questioning if when relying on the exception on grounds of a Genuine Occupation Qualification, there should be an additional requirement of establishing a legitimate aim which is the test in GB.

4. Making employers liable if they fail to take reasonably practicable steps to prevent Third Party Harassment. (NB: this was brought in under Equality Act in 2010 in GB and subsequently repealed in 2013. The Consultation notes that it will examine the reasons for bringing it in and subsequently repealing it.)

5. The Consultation looks at personal liability for unlawful acts. The consultation states that currently if employee discriminates when doing their job both employee and employer are responsible. If the laws change, it would mean employee should take responsibility unless it was employer who told them to do it.

6. Allowing Equality Commission Northern Ireland to bring cases in their own name (i.e. ECNI name) rather than through supporting an individual. This would be a significant step as it would allow the ECNI to pursue a case when there was no individual named.

7. The Consultation proposes to remove some of the current powers of the ECNI albeit these are ones that do not appear to be regularly used and increasing ECNI’s powers in other areas. For example, one proposal is to give ECNI the power to conduct formal investigations not on grounds of a test of ‘belief of unlawful acts’ but on grounds of a test that ‘things could be improved.’

8. Under Enforcement, the Consultation considers increasing Tribunal powers to make Recommendations that benefit whole workforce and not limited to recommendations that only benefit the person named in the complaint.(NB: the same provision was introduced and then repealed in GB). Also introducing effective sanctions for non-compliance with Tribunal Recommendations and considers options for increased powers to ECNI.

9. Presently the test referred to as the ‘reverse burden of proof test’ is used for some but not all claims. The Consultation proposes removing that anomaly and making the consistent test for all claims.

10. Views are sought on whether the Statutory Questionnaire should be retained or abolished; it has been abolished in GB. This is the questionnaire sent by persons seeking more information usually before a claim is commenced or 21 days after the Tribunal claim has been lodged.

11. Introducing Ethnic Equality Monitoring which they initially propose rolling out for the public sector before moving to private sector. This is timely as on 17 April 2023, in GB the Government published Guidance for employers on how to measure, report on and address any ethnicity pay differences within their workforce.

11. Considering the inclusion of ‘descent and caste’ in the definition of race so as to allow their protection without having first to shoe horne them into the current aspects of race.

Responding:

The Consultation closes on 18 June 2023 and states feedback will be provided to a new Minister, if and when the Executive gets back up and running. We could foresee that any changes adopted to this strand of discrimination could eventually be applied across other protected ground as it would make the area of discrimination more consistent across all strands.

We will write separately setting out the questions asked seeking Members comments and thoughts. All comments are very welcome, and we strongly encourage any member with comments to email them to us as they are invaluable in forming part of our response.