TRADE UNION WINS DETRIMENT CASE: SUPREME COURT JUDGMENT

In Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) Case ID: 2022/0080, the Supreme Court held that section 146 of the GB Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) [‘Detriment on grounds related to union membership or activities’] is incompatible with Article 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR).

The case centered around the interpretation of TULRCA and whether it could be interpreted to protect employees against detrimental action short of dismissal for taking part in industrial action during working hours. The SC found that TULRCA does not protect workers who take part in lawful strike action from detriment short of dismissal and therefore is incompatible with Article 11 of ECHR.

FACTS

Ms Fiona Mercer (M) was employed as a support worker in the care sector, and was also a workplace representative for UNISON Union. M was suspended from work on basic pay (resulting in a loss of overtime pay) and given a written warning after she was involved in planning and taking part in lawful strike action.

M brought a claim under s.146 TULRCA alleging the suspension was a detriment solely or mainly for the purpose of preventing and/or deterring her from taking part in trade union activities “at an appropriate time” or penalising her for having done so. An “appropriate time” is defined as a time outside of a worker’s working hours, or a time within working hours during which it is permissible for the worker to take part in trade union activities with an employer’s consent or by agreed arrangement.

LOWER COURTS

At first instance, the Employment Tribunal (ET) held that M could not bring a claim under s.146, but went on to consider whether the provision could be interpreted as compatible with Article 11 (right of freedom of association and assembly) of the ECHR. The ET held that TULRCA did not protect against detriment short of dismissal and could not be read in a way to give effect to that protection, meaning that M’s claim failed.

M appealed to the Employment Appeal Tribunal (EAT). The EAT allowed M’s appeal and held that TULRCA could be interpreted as compatible with Article 11.

The Secretary of State for Business and Trade then intervened in the proceedings and successfully appealed the EAT’s decision to the Court of Appeal (CA). The CA held that s.146 TULRCA could not be interpreted compatibly with Article 11 of the ECHR but declined to make a declaration of incompatibility; the CA stated the current law did not protect against action short of dismissal for taking part in or organising industrial action.

M appealed the CA’s decision to the Supreme Court.

SUPREME COURT

The Supreme Court (SC) agreed with the CA that TULCRA did not protect against detriment short of dismissal, because s.146 only covered industrial action outside of working hours.

This lack of protection in essence nullified the right to strike as enshrined in Article 11 and encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of ECHR. The SC declined to read words into section 146 to make it compatible with ECHR finding that to do so would involve making policy choices that were for Parliament to determine.

However, the Supreme Court exercised its discretion and made a formal declaration that s.146 TULRCA is incompatible with Article 11 as it fails to protect workers from being subjected to any detriment short of dismissal for taking part in lawful strike action. The Supreme Court did note that the right to strike is not an absolute right and that it was now for Parliament to decide whether to enact laws to strike a fair balance between workers’ right to strike and the interests of employers.

CONCLUSION

This is an important win for Unions, and it is now for Parliament to decide if and how enact laws to give effect to the Judgment.  It is important to note that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the current law. The upshot of the declaration is that if the relevant Minister may order such amendments to be made to the legislation as they consider necessary.

Although workers remain unprotected under the current legislation, employers should be circumspect in subjecting workers to a detriment for taking part in industrial action to avoid being accused of acting in a manner now acknowledged as a breach of workers’ human rights.  As employment law is devolved in Northern Ireland even if in Great Britain they decided not to enact any changes we would predict that our Economy Minister  (who is responsible for employment law) would extend the protection to give effect to the Judgment. This could be part of the expected upcoming Employment Bill.

Employment Developments: Great Britain New Guides etc. (12 April 2024)

For businesses in Northern Ireland, we have some time to wait before we know the details of exactly what, and importantly how, new employment rights will take shape in the planned Northern Ireland Employment Bill expected later this year.

For now, we continue to look across the water at the latest developments in Great Britain, which this week has produced a flurry of guides including:

1. On 11 April 2024, Kevin Hollinrake, Minister for Enterprise, Markets and Small Business, issued a Statement on review of domestic abuse statutory leave provision for employees.

In his statement, Mr Hollinrake confirmed the GB Government’s position in relation to domestic abuse statutory leave provisions. In its view, ‘now is not the right time to bring forward specific proposals in this [domestic abuse statutory leave provision for employees] area, which are likely to be complex to design given that the needs of victims of domestic abuse can be very different.’

This is in contrast to Northern Ireland, where the legislative provisions are in place and Domestic Abuse Safe Leave will be implemented when it is fleshed out on how it will operate.

2. On 6 April 2024, ACAS (equivalent to LRA)  published its new new Code of Practice on Flexible Working and an updated Guide on the new extended rights to Flexible Working that came into force in Great Britain on the same date.

3. Carer’s Leave Guidance was published by ACAS and the Government on 5 April 2024, the day before the new right came into force in Great Britain on 6 April 2024.

4. On 5 April 2024, the Equality and Human Rights Commission (EHRC) published an updated toolkit to provide employers with clear advice on what they should do to prevent pregnancy and maternity discrimination at work. The guidance advises employers on updated pregnancy and maternity protections in the workplace.

This updated guidance reflects changes to law which came into effect in April 2024.

5. On 9 April 2024, Disability Confident and CIPD worked in partnership with the Department of Works and Pensions to develop Employing disabled people: manager’s guide on recruiting, managing and developing people with a disability or health condition.

The Guide aims to support managers to ‘help recruit, retain and foster the progression of disabled people and those with health conditions in workplace’.

Commentary

Each year, changes are normally expected to be implemented in April or October so it is usual to see new Guides etc.

However, this year there is certainly is a higher flurry of activity perhaps encouraged by a potential imminent General Election. Time will tell when that happens.

In Northern Ireland, we will no doubt look across at what is happening in Great Britain but we will also be looking to the Republic of Ireland.

Conor Murphy, the Economy Minister, has set out in broad terms his Economic Vision and how ‘good jobs’ is an integral part of it. We will undoubtedly see new rights in the employment arena as part of that vision.

NEW GUIDE: NATIONAL CYBER SECURITY CENTRE GUIDE RESPONDING TO A CYBER INCIDENT (11 April 2024)

In this modern era and dependence on technology cyber security is one the biggest issues facing businesses.

As such we thought it important to draw Organisations attention to this new guidance published by the National Cyber Security Centre (NCSC), is important as it helps CEOs in public and private sector organisations manage a cyber incident.

The NCSC was launched in October 2016, is the go-to Organisation for cyber security and provides a single point of contact for SMEs, larger organisations, government agencies, the general public and departments.

The Responding to a cyber incident – a guide for CEOs  is divided into 10 sections covering:-

1. Who is this guidance for?
2. Why do I need this guidance?
3. Put in place proportionate and effective governance.
4. Bring in resources for advice and support.
5. Consider the impact of a data breach.
6. Think about your public messaging.
7. In a ransomware attack, consider the risks of making a payment.
8. Consider team resilience and welfare.
9. Review the lessons learned.
10. Report it.

It is a short and straightforward Guide and will assist in navigating the steps in the aftermath of a cyber incident.

Under review of the lessons learned it refers to the Cyber Security Toolkit for Boards and recommends embedding cyber resilience and risk management through the whole organisation, including your people, systems, processes and technologies and is a good starting point.

Whilst not strictly employment law given the importance of this area we thought it prudent to bring this guidance to your attention.

NORTHERN IRELAND: INCREASE IN TRIBUNAL AWARDS (April 2024)

This time of year is all about various increases to payments and awards including statutory payments, national minimum and living wages, injury to feelings awards and other statutory Tribunal awards.

In line with increases applying in the Employment Tribunals in Great Britain, the Northern Ireland Executive has passed The Employment Rights (Increase of Limits) Order (Northern Ireland) 2024  which as published on 27 March 2024. The Economy Minister also announced annual increase in limits for unfair dismissal and redundancy payments.

The Order confirms the new statutory caps on certain awards of Industrial and Fair Employment Tribunals and other amounts payable under employment legislation. Like its Great Britain counterpart it comes into operation on 6 April 2024 and reflects the RPI increases of 8.9% (for the period September 2022 to September 2023).

MAIN ONES TO NOTE:

• Northern Ireland Week’s Pay* limit increases from £669 to £729
  *used in the calculation of statutory redundancy payments
  (Great Britain increased from £643 to £700)
• Northern Ireland Compensatory Award increases from £105,915 to £115,341
  (Great Britain increased from £105,707 to £115,115)
• Northern Ireland Guarantee Pay for any day increases from £35 to £38
  (Great Britain increased from £35 to £38)

It is of note that the limits in Northern Ireland have diverged to those applying in Great Britain. This is due to a different method of rounding up and has resulted in Northern Ireland figures being slightly higher than those applicable in Great Britain.

NEW ICO GUIDANCE: INFORMATION SHARING IN MENTAL HEALTH EMERGENCIES AT WORK (1 March 2024)

‘What can you do, and what information can you share, when you are worried about an employee’s mental wellbeing?’ This is a question that we commonly get asked when an employer has serious, and genuine, concerns, that an employee’s mental ill health may pose a risk to them or others.

Helpfully, on 1^st March 2024, the ICO produced guidance on this issue ‘ Information Sharing in Mental Health Emergencies at Work’. This guidance is in the same format as previous guides (i.e. uses the must, should, and could do to comply).

The Guidance provides advice on when and how it is appropriate to share workers’ information when the employer believes that someone is at risk of causing serious harm to themselves, or others, because of their mental health.

You can read the full guidance, and there is also a data sharing hub with useful guides on when and how to share personal information.

The ICO guide also contains worked examples and links to additional resources and sets out a pathway for business to ensue they are complying with their obligations under GDPR.

What is a Mental Health Emergency?

This is defined as situation in which you believe that someone is at risk of serious harm to themselves, or others, because of their mental health including a potential loss of life.

Sharing Workers’ Information?

In a mental health emergency the guide states that Employers should share necessary and proportionate information without delay with relevant and appropriate emergency services and/or health professionals.

It states Employers could also share necessary and proportionate information with the worker’s next of kin / emergency contact and cautions that they need to use their judgement on appropriateness of doing so.

Planning Ahead?

Here the Guide sets out information about how an Organisation can plan ahead, which includes mandatory (must do) steps such as:

• identifying the lawful basis to share the sensitive personal information
• identifying the additional special category needed to share sensitive personal information
• informing workers you may share their information in health emergency
• sharing the policy for sharing personal information with existing workers and new workers

In terms of what Employers should do, this includes:

• carry out a data protection impact assessment (DPIA)
• Develop a policy
• Ensure workers are aware of the policy.
• Train staff
• Ensure that workers keep next of kin and emergency/mental health emergency contacts up to date

In terms of what Employers could do, this includes:

• Include this in broader training & awareness around mental health.
• give workers the opportunity to identify separate emergency contacts for general emergencies and mental health emergencies

Lawful Basis and Special Category Conditions 

When sharing personal information in a mental health emergency,

Organisations must identify both a lawful basis to share information and as the data is special category data, it must also identify a special category condition.

The lawful basis could be:

• Vital interests
• Legitimate interest
• Legal obligation

Special category conditions could be:

• Vital interests
• Employment, social security and social protection law

The Guidance reassures employers that during a mental health emergency  they should share necessary and proportionate information without delay with relevant and appropriate emergency services or health professionals.

Any Organisations requiring advice should contact the Legal Team.

Our Annual Employment Law & HR Conference was held at the Crowne Plaza on 27 September 2023.

This year our Conference was fully booked and we were delighted to be joined by so many managers and HR professionals from both Member and non-Member organisations.

Our Conference is our flagship event of the year and it’s a great opportunity for networking amongst the various businesses and to catch-up on a personal level.

Importantly, it is also a day full of learning with lots of insights and practical take aways.

Karen Moore, Head of Training (NI & ROI) welcomed all delegates and opened the day.

The morning session then started with Kathryn O’Lone, Head of ROI & Business Improvement leading us through the most topical cases of the year and providing key learnings for employers. Amongst the variety of cases covered, Kathryn looked at the balancing of competing beliefs in the workplace and the latest decision around menopause in the workplace.

Next we had a very practical “What if” session from Sara Plower, Employment Lawyer dealing with the complex issues that can arise when managing absence such as ‘When can you withhold sick pay?‘ and ‘What if they refuse to attend OH?’

After the mid-morning break we heard from our three external speakers. Sharon Didrichsen is the Founder and Managing Director of Specialisterne NI, an organisation whose aim is to help neurodivergent people secure and sustain rewarding careers. Sharon provided a real insight into how businesses can unlock the potential of neurodivergent persons.

Sarah McKay, Vice President of Service Delivery at Concentrix followed with ESG, ‘What does it mean?’ identifying the why in ‘Why even do it?’ and provided a practical pathway explaining how a business can develop their ESG strategy.

The Federation was then privileged to be joined by Vice President of OITFET, Maxine Orr who delivered a thoroughly engaging session overviewing of the process of Judicial Mediation in NI. The Vice President was able to give us an insight into how it is working, including up to date statistics and experience of the Tribunal to date.

Lunch provided a further opportunity to network and catch-up.

After lunch, Kathryn O’Lone lead us through a panel session with: Helen McCann, HR Manager at Kyocera AVX UK; Bridgeen Mullin, Head of Employee Relations – Senior Vice President, Fintru; Sharon Didrichsen and Peter Bloch, Managing Director of Employers Federation. The panel shared insights and experiences on issues such as diversity, recruitment, industrial action and Artificial Intelligence.

Karen Moore then led delegates through a practical scenario covering requests for anonymity during a disciplinary process.

This was followed by Lorraine Toolan, Employers Federation Consultant who addressed workplace grievances through the lens of whether the employer’s approach is helping or harming.

Finally Michelle McGinley, Director of Legal and Policy ended the day with a review of the policy and legal developments throughout the last year and a look forward into 2024.

We would like to thank all who attended the day and to the exhibitors that included:
Action Mental Health; Autism NI; AWARE NI; Cedar Foundation; Disability Action Northern Ireland; Employers For Childcare; Inspire Therapeutic & Wellbeing Services; The Labour Relations Agency; Parenting NI Charity; PIPS Suicide Prevention Ireland Charity; Rainbow Charity and; Women in Business NI

Worker Protection (Amendment of Equality Act) Act which originated as a Private Members Bill, and received the backing of government, finally passed into law on 26 October 2023, but will not come into force for another year i.e. 26 October 2024.

This Act will only apply in Great Britain and not extend to Northern Ireland, where the provisions on sexual harassment differ. (see below)

The Act places a positive duty on employers to take reasonable steps to prevent the sexual harassment of employees.

How does that differ from the current statutory defence?

The statutory defence allows employers to avoid vicariously liability for the actions of their employees. To avail of the statutory defence, employers must show that they have taken all reasonably practicable steps to prevent the act or similar acts occurring.

For example, if Employee X makes a comment / commits an act of a sexual nature against Employee Y and Employee Y brings a tribunal claim, the employer can avoid liability by demonstrating that it has taken all reasonably practicable steps to prevent Employee X doing that act, or similar acts. The ‘all reasonable steps’ defence is a high threshold and therefore not easy for employers to meet.

If Employee X was also named as a Respondent party in Employee Y’s legal claim, Employee X can also be held personally liable.

Under this Worker Protection Act rather than simply avoiding liability (via the statutory defence) this Act places an additional and positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

The word ‘all’ has been omitted from the Act, so the duty appears to be at a lower threshold to that of taking ‘all reasonably practicable steps’. How this will differ to the statutory duty to take all reasonable steps remains to be seen.

If a person succeeds in a sexual harassment claim, the tribunal must go on to consider if this duty has been satisfied.

Should the tribunal find that the duty has not been satisfied, it can apply an uplift to compensation awarded by up to 25%, to reflect the extent to which the employer has failed to comply with its duty.

It is important to note that the Act only applies to sexual harassment and not to other protected equality grounds (e.g. race, age, religious belief etc).

The Act originally had provisions to re-introduce third party harassment which were abandoned on its passage through parliament.

Northern Ireland position

As mentioned above, the Worker Protection (Amendment of Equality Act) Act will not apply in Northern Ireland.

There is also a distinction between Northern Ireland and Great Britain regarding liability for acts of harassment by third parties. In Northern Ireland the Sex Discrimination Order 1976 (amendment) Regulations (Northern Ireland) 2008 (which came into force 6 April 2008) provides that employers must take reasonably practicable steps to protect their employees from harassment by third parties (such as clients or customers), where such harassment is known to have occurred on at least two other occasions. In other words, unlike Great Britain we have retained employer liability for third party harassment.

Guidance Update Right to Work Scheme 

We have received an update from the Home Office who have asked us to communicate this message to stakeholders.

The Home Office has updated its Guidance for employers on the Right to Work Scheme to reflect changes brought about by case law in relation to the EU Settlement Scheme (EUSS) and following recent Home Office reforms to the EUSS.

The updated Guidance can be accessed here:

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Points of note in this updated guidance include:

• The requirement for employers to verify a digital Certificate of Application (CoA) with the Home Office Employer Checking Service (ECS) when conducting a right to work online check involving an outstanding EU Settlement Scheme application made on or after 1 July 2021 has been removed.

• The reference to Immigration Enforcement 28-day notices in respect of EEA citizens and their non-EEA family members which are no longer in use has been removed.

If you require any further information you contact Home Office:

RighttoRentandRighttoWork@homeoffice.gov.uk

CIPD GUIDE ON TRANSGENDER & NON BINARY INCLUSION AT WORK (30 October 2023)

This is a very helpful CIPD Guide on Transgender & Non Binary inclusion at Work is aimed at people professionals & line manager. It will assist those trying to understand how to support and manage transgender and non-binary inclusion and rights at work. The Guide has been punished as part of CIPD’s equity, diversity and inclusion policy.

The Guide recognises like other areas of EDI, Transgender and Non-binary Equality issues can be complex and sometimes lead to polarising views across a spectrum of beliefs which need to be balanced and managed.

It includes a section of key terminology which can often be misunderstood (e.g cisgender, gender critical and gender fluid).

Contents include:

• Setting the right foundations for EDI in the workplace

• Embedding Policy

• Considerations for transgender and non-binary EDI in the workplace

The Guide contains 4 Appendices:

Appendix A: List of employment tribunal and employment appeal tribunal cases

Appendix B: Inclusive language

Appendix C: What is bullying, harassment and victimisation?

Appendix D: Transitioning at work action plan prompts.

The Guide covers every stage of the employee life cycle, from recruitment through to progression. It sets out the legal considerations and the protected characteristic of gender reassignment and the importance of encouraging inclusive language in the workplace and ensuring privacy.  Appendix D provides practical guidance on how organisations can support employees through a transition and managing different views in the workplace, an issue that has seen increased litigation.

We previously wrote to members regarding an ICO consultation in relation to Employment Practices and Data Protection. That consultation closed on 26 January 2023 and, following the responses received,  the ICO has made the decision not to replace the Employment Practices Code but rather publish topic specific guidance on employment practices and data protection. The first of these Guides have now been published which are:

1. Guidance on Information about workers’ health
2. Guidance on Monitoring in the Workplace

 Further details about these Guides and links are set out below.

 Guidance on Information about workers’ health

One of the first of these Guides was published on 31 August 2023, namely the Guidance on Information about workers’ health  The purpose of the Guidance is to assist employers handle health information of workers in compliance with the GDPR Principles.

The Guidance is divided into 2 main parts:

1. Overview of how data protection law applies to the processing of workers’ health information which is special category data and so stricter requirements apply.

2. How these data protection principles apply to common types of employment practices that process workers’ health information.

In the Guidance, the ICO have adopted a must, should and could approach,  which it explains is to help employers  understand which parts  of the guidance are the must that are (1) mandatory, (2) recommendations and (3) good practice. This approach is adopted in all their Guides.

The Guidance provides a number of a number of practical scenarios pertaining to the management of employees’ health information whilst at work, such as:

• How do we handle sickness and injury records?
• What if we use occupational health schemes?
• What if we use medical examinations and drugs and alcohol testing?
• What if we use genetic testing?
• What if we carry out health monitoring?
• When can we share workers’ health information?

At the end there is also a set of checklists included to give employers an overview and quick guide to help run through their data protection considerations whenever they need to process workers’ health information.

• Checklist: Data protection and workers’ health information
• Checklist: Sickness and injury records
• Checklist: Occupational health schemes
• Checklist: Medical examinations and drugs and alcohol testing
• Checklist: Genetic testing
• Checklist: Health monitoring
• Checklist: Sharing workers’ health information 

Guidance on Monitoring in the Workplace

On 3 October 2023, ICO published its Guidance ICO Guidance on Monitoring In Workplace

The guide recognises that increase in remote working has increased checks on workers and again the purpose of guidance to help employers comply with law if wish to monitor workers.

Like the Health Data Guidance it follows the must, should, could approach

It states monitoring can include tracking calls; messages; keystrokes; taking screenshots; webcam footage and audio recordings; using specialist software to track activity.

If monitor workers, businesses then they must:

1. Making workers aware of nature, extent & reasons for monitoring.
2. Have clearly defined purpose & using it in least intrusive way .
3. Have a lawful basis for processing workers data.
4. Tell workers about monitoring in way that is easily understood.
5. Only keep info which is relevant to purpose.
6. Do a Data Protection Impact Assessment for any data that is high risk to workers’ rights.
7. Make data collected through monitoring available in Subject Access Request.

The Guidance gives overview of data protection law and considers specific monitoring practices e.g. use of biometric data to monitor timekeeping and attendance.

The contents includes (not limited to):

• What do we mean by monitoring workers?
• How long should we keep information obtained from monitoring workers?
• What must we tell workers about our monitoring?
  Can we use covert monitoring?
• Can workers object to being monitored?
• What do we need to consider if we use a third party provider or an application provided by a third party to carry out monitoring?
• What do we need to consider if we transfer personal information of workers OUTSIDE UK?

At the end there are Checklists that business can use to assess compliance with the Guidance.