UK Employment Hub 

A recent Employment Tribunal’s ruling suggests that the physical and psychological effects of the menopause could constitute a disability for the purposes of the Equality Act 2010 (the 2010 Act) Ms Davies, a court officer for the Scottish Courts and Tribunal Service, had experienced the onset of the menopause resulting in her becoming severely anaemic, stressed and anxious, and experiencing memory loss.

In February 2017, Ms Davies was prescribed medication (for a separate medical condition), which had to be dissolved in water before being taken. Ms Davies left her medication and a jug of water on her desk during a court adjournment.  On her return, the jug was empty.  Believing she had dissolved the medication in the jug, Ms Davies informed two male members of the public who had been in the court and had drunk the water that they may have ingested her medication. An argument ensued between Ms Davies and these two members of the public.

A subsequent health and safety investigation concluded that the water could not have been contaminated as the medication would have turned the water pink and made it taste like cranberries. Ms Davies had been taking the medication for “a couple of days”. The employer concluded that Ms Davies had lied about her belief that the water contained her medication and had showed no remorse for her actions. Ms Davies asserted she honestly believed at the time of the incident that the medication may have been in the jug of water. However, she couldn’t be sure as one side effect of her menopause was memory loss.

Ms Davies was dismissed for gross misconduct. She brought a claim before the Employment Tribunal for unfair dismissal and disability discrimination.

The Employment Tribunal found that the dismissal was unfair and also discriminatory because of something arising in consequence of Ms Davies’ disability.  The employer could not justify the dismissal as it could not satisfy the Tribunal that it was a proportionate means of achieving a legitimate aim.  Ms Davies was ordered to be reinstated to her previous post and awarded £14,009.84 in respect of arrears of pay and a further £5,000 in respect of injury to feelings.

The judgment does not consider in detail the extent to which a person would need to experience physical and psychological effects of the menopause in order for them to be considered disabled for the purposes of the 2010 Act. The legislation provides that a person has a disability if that person has a physical or mental impairment which has a “substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities”. It is worth noting that it appeared that Ms Davies experienced more extreme and detrimental effects of the menopause than most. This case serves as a useful reminder that it is the extent of any particular illness or condition and the effects of that on the individual that will determine whether the individual could be considered disabled for the purposes of the legislation.

EU citizens will be able to apply for settled status in 3 easy steps for less than the price of a passport, under plans outlined by the Immigration Minister today. Please see here for further details.

In the week after Father’s Day in the UK, insurance provider Aviva commissioned a report into Shared Parental Leave (SPL) polling 1,000 fathers and 1,000 mothers with children aged 16 and under nationwide. Despite the legislation on SPL being in force since 2015 and the recent government campaign “Share the Joy”, intended to raise awareness (which we talked about here), half of working fathers haven’t heard of SPL. This is particularly disappointing as nine out of 10 parents are reported as believing mums and dads should be given equal parental leave.

The results of the report tell us that 86 per cent of fathers would have liked to take more time off at the arrival of their children, but felt restricted by financial factors and employer constraints. The report’s authors at Aviva commit to an equal parental leave policy entitling male and female employees to 26 weeks each on full basic pay on the arrival of a child. However, not all employers have equalised their offering.

In the “2018 Modern Families Index Summary Report”, Working Families (the UK’s work-life balance charity) recommends “day one” parental and paternity leave rights in new employment, as well as properly paid, extended, standalone paternity leave for fathers, in an effort to tackle gendered assumptions about who works and who cares for children. Linking this to improving the gender pay gap, Working Families suggests that improved paternity leave will mean that fathers will be more likely to use it and thereafter be more involved in their children’s care throughout their life, having a knock-on effect on the participation and remuneration of women in the workforce.

Despite these findings the government has, regrettably, recently announced that, whilst it accepts the need for change in this area, calls by the Women and Equalities Committee for new measures on paternity leave and pay, SPL and driving cultural change have been roundly rejected. The Chair of the Committee, Maria Miller MP, said: “It is surprising that the government’s response does not refer to its own recently published research on the gender pay gap which found that if men and women took similar amounts of unpaid family leave the gender pay gap would decrease by 13 per cent … we will continue to press for reform.”

If you need any advice around family-friendly working policies and/or improving your organisation’s gender pay gap, please get in touch with your contact at Dentons.

The Employment Appeal Tribunal (EAT) has dismissed an appeal by Addison Lee, the London-based minicab and courier company, seeking to challenge an earlier decision regarding employment status. The EAT rejected the view that the contractual documentation between the parties supported a finding of self-employed status, and upheld the findings of the Employment Tribunal.

In August 2017 the Employment Tribunal held that a former courier, Chris Gascoigne, was a worker and not a self-employed independent contractor. As a result he was entitled to claim certain employment rights including holiday pay (our blog regarding the original ET decision can be found here).

Addison Lee’s position on appeal was that its couriers were under no legal obligation to work, as they could log-off from the app when they wanted and were free to decide whether to accept the jobs when they were logged on. They stated that at most there was a “gentle pressure” from a controller to accept jobs, but that no adverse consequences were actioned if the couriers did not accept.

In reaching its decision, the EAT emphasised that the facts of the case were the starting point rather than the law. Whilst Mr Gascoigne was not obliged to log into the app, when he was logged-on there was no mechanism for him to refuse jobs offered, other than contacting the controller in exceptional circumstances where the package was too heavy.  That Mr Gascoigne could log-off from the app, and there being no express sanction for failing to accept work, did not shift the EAT’s view that there was a contractual obligation for work to be offered and for the individual to accept it.  With the necessary mutuality of obligation demonstrated, worker status was established. You may recall that this was also found to be the position in the earlier CitySprint and Uber decisions.

Whilst cases in this area will always turn on their own facts, the decision is yet another nail in the coffin for employers within the gig economy. With a date set for the end of October for Uber’s challenge to worker status to be heard in the Court of Appeal, and the decision of the Supreme Court in the case of Pimlico Plumbers on the issue of employment status awaited, status cases look set to continue to dominate the headlines throughout 2018.

With the focus of many a blog post and newspaper article on the General Data Protection Regulation, (or GDPR to its friends .. and others), coming into force on 25 May, you would be forgiven for having missed the news that the Data Protection Bill received royal assent on 23 May. Having successfully steered its way through Parliament it officially became the Data Protection Act 2018 (DPA 2018).

The new Act came into force at the same time as the GDPR, ensuring that the UK remains a committed party to the European-led modernisation of data law.

The DPA 2018 has three main purposes that all employers should be aware of:

1. It incorporates the GDPR into UK law and aims to ensure that the standards set out in the GDPR have effect in the UK by enshrining those standards in UK law;
2. It repeals the Data Protection Act 1998 as the primary piece of data protection legislation in the UK and replaces it with what the government has described as “a comprehensive and modern framework for data protection in the UK, with stronger sanctions for malpractice”; and
3. Importantly, it ensures that the UK and EU data protection regimes will continue to be aligned post-Brexit so allowing the UK to continue to be able to freely exchange personal data with the EU.

With the dreaded 25 May 2018 commencement date now a thing of the past, and the GDPR and DPA 2018 in force, we are sure you will be glad to see the back of becoming compliance ready!  However, the legislation is here to stay and the way in which personal data is collected and processed is more important than ever.  Ongoing work is required to ensure that your business remains GDPR-compliant.  Please do contact us if you have any queries and/or require some expert advice.