January saw two interesting employment tribunal decisions. The first was that BBC presenter Samira Ahmed did work that was of equal value to Jeremy Vine on Points of View, entitling her to the same pay as her male counterpart.
We also discovered, in Casamitjana v League Against Cruel Sports, that ethical veganism amounted to a philosophical belief, meaning employees who are vegan for ethical reasons are protected from discrimination under the provisions of the Equality Act.
In February, an Employment Appeal Tribunal (EAT) case demonstrated that during a disciplinary process an employer has something akin to a collective consciousness. In Uddin v London Borough of Ealing, an employee complained to both her employer and the police about alleged sexual harassment committed by the claimant. At the time of the claimant’s dismissal, the police complaint had been withdrawn, a fact known to the investigating officer but not to the dismissal officer. Even though the dismissal officer did not know this information, the tribunal should have taken it into account when considering the fairness of the dismissal as it was information known to the employer.
In March, the world changed as the pandemic exploded across the globe. We were first introduced to the concepts of lockdown and furlough, which have now become second nature to employers the length and breadth of the country. Regulations were also introduced to relax the restrictions on carrying over holiday from one year to the next where it was not reasonably practicable to take annual leave because of Covid-19.
In April, there were several important legislative changes, mostly related to the implementation of parts of the Good Work Plan. The government also introduced a new right to statutory bereavement leave and pay.
In May, the chancellor announced that the furlough scheme would absolutely, definitely, without any shadow of a doubt, end on 31 October (it didn’t).
The EAT also confirmed that the Transfer of Undertakings (Protection of Employment) Regulations, which render void contractual variations that are solely or principally related to the transfer, invalidate beneficial as well as detrimental changes. In Mr D Ferguson and others v Astrea Asset Management, four directors decided to give themselves new terms and conditions just before a transfer, including a guaranteed annual bonus of 50 per cent of their salary. Cunning, but, according to the EAT, not effective.
The chancellor announced that the furlough scheme would be closed to new entrants after 30 June. Again, famous last words. The government also announced the easing of lockdown measures that would take place in July. A return to semi-normality seemed on the horizon.
In July, regulations came into effect to ensure that various statutory entitlements based around the concept of a week’s pay – redundancy, notice, etc – should be calculated on normal salary, not any reduced furlough pay.
In August, shielding was officially paused and clinically vulnerable employees across the country were encouraged back to Covid-secure workplaces.
In September, we found out that the outgoing furlough scheme was being replaced with the substantially less generous job support scheme, which would run for six months from 1 November 2020 (it didn’t).
Elsewhere, the Inner House of the Court of Session found that it was not a breach of the right to private life and correspondence (article 8, European Convention on Human Rights) for the Police Service of Scotland to use WhatsApp messages discovered on an officer’s smartphone as the basis for misconduct proceedings against a group of officers who were members of the chat group. This seems to have been the first case to make findings in respect of WhatsApp.
The government announced changes to the job support scheme and then postponed it altogether, along with the job retention bonus, when the existing furlough scheme was extended through to March next year.
The Restriction of Public Sector Exit Payments Regulations 2020, which introduced the long-awaited £95,000 cap on public sector exit payments, also came into force.
The government confirmed that furlough payments could not be used to fund any notice monies paid to employees from 1 December. It was also announced that in the three-month period to September 2020, 314,000 people were made redundant, the highest figure since 2009. No doubt many of these redundancies were concluded before the extension of the furlough scheme.
The EAT also clarified the so-called ‘cost plus’ rule in Heskett v Secretary of State for Justice, stating that a pay freeze was capable of being a legitimate aim for the purposes of defending an indirect discrimination claim.
Finally, at the beginning of December, the employment tribunal in Taylor v Jaguar Land Rover held that a person does not need to undergo or intend to undergo any medical treatment to have the protected characteristic of gender reassignment, provided that the individual in question is ‘on a journey’ of transition.
James Tamm is employment law director at Ellis Whittam