Round-up of recent employment law developments: things you might have missed

With the exciting promise of an end in sight to the pandemic as the vaccine rollout begins, the “deal or no deal” Brexit saga reaching crunch-point and Christmas fast-approaching, you will be forgiven for not having focussed on the employment news of recent weeks. Here is a round-up of significant recent developments to bring you up to speed.

Health and safety protections apply to workers

In the judicial review case The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others, the High Court decided that workers should have the same protection as employees from being subjected to detriments on health and safety grounds, and the same right to be provided with personal protective equipment (PPE). The issue arose in the context of gig economy workers raising issues such as lack of PPE, failure to implement social distancing measures and not being provided with sanitising products whilst working during the COVID-19 pandemic.

The High Court found that the Government had failed to properly  implement two EU Directives relating to health and safety at work because those Directives confer health and safety protections on employees and workers, whereas UK legislation only protects employees. The Directives are the source of the protections in section 44 of the Employment Rights Act 1996 for employees who leave their workplace or take action in circumstances of serious and imminent danger, and the rule in Regulation 4(1) of the PPE at Work Regulations 1992 states that an employer must provide PPE if the risks of an activity cannot otherwise be avoided.

It is now for the Government to decide how to respond – it has the opportunity to appeal this decision; if it chooses not to do so it will have to amend the legislation. In the meantime, it would be advisable for employers to consider what health and safety protections they are currently offering workers (particularly in comparison to employees) during the pandemic and ensure that adequate protections are in place.

An employer’s need to balance the books can potentially justify indirect discrimination

By way of reminder, indirect discrimination relates to “provisions, criteria or practices” which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging people with a particular protected characteristic. Where such a policy disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified as a proportionate means of achieving a legitimate aim.

Until recently, the accepted principle has been that employers cannot rely solely on the saving or avoidance of costs to justify something which would otherwise amount to indirect discrimination. This is known in employment jargon as the “costs plus” principle.

In a significant judgment, in the case of Heskett v Secretary of State for Justice, the Court of Appeal has clarified that an employer’s need to reduce expenditure (and specifically its staff costs) in response to financial constraints can constitute a legitimate aim in order to satisfy the justification defence, although the issue of proportionality will still be relevant. In the current challenging climate, it will be welcome news for employers that an employer’s need to balance the books and live within its means can be a legitimate aim that amounts to more than just saving costs.

The protected characteristic of “gender reassignment” extends to employees who are gender fluid or non-binary

“Gender reassignment” is one of nine protected characteristics in the Equality Act 2010 (EqA). According to section 7 EqA: “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex”.

In the recent case of Taylor v Jaguar Land Rover, the Employment Tribunal held that the protected characteristic of gender reassignment extends to employees who are gender fluid or non-binary. In that case, the Claimant described herself to members of the Respondent’s staff as “gender-fluid” and “transitioning”, but with no intention of undergoing surgery. She had also told the Respondent that she wished to dress in a male style on some days and a female style on other days.

In order to reach its judgment, the Tribunal considered the intention of Parliament in enacting section 7 EqA. It found that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum and get protection from the legislation.

The ICO has published new guidance on right of access

Following consultation, the ICO has published new guidance on rights of access which provides clarification for employers on how to deal with data subject access requests (DSARs).

A couple of amendments have been made to the guidance which have the potential to be practically or strategically helpful for employers:

• There is expanded commentary on when a DSAR will be “manifestly excessive”, such that an employer can refuse to comply with it. The guidance states that employers should consider whether the request is “clearly or obviously unreasonable”, which involves assessing “whether the request is proportionate when balanced with the burden or costs involved in dealing with the request”. The guidance states that employers should consider all the circumstances, including (but not limited to): the nature of the information request; the context of the request; the harm that would be caused to the employee by a refusal; and the employer’s available resources.
  
  
• An employer can potentially “stop the clock” on the 30-day time limit for compliance with a DSAR when waiting for individuals to clarify their request. This will apply if the employer processes “a large amount of information” about the employee and asks the employee to “specify the information or processing activities their request relates to”, and provided that such clarification is genuinely required in order to respond to the DSAR.

For school employers wishing to find out more about the implications of this guidance, see our blog Subject access requests: new guidance provides (mostly) good news for schools.

BEIS is consulting on measures to reform post-termination non-compete clauses

The Department for Business, Energy and Industrial Strategy has issued a consultation paper  on measures to reform post-termination non-compete clauses in contracts of employment. The Government is considering two options:

1. Mandatory compensation: this would mean that non-compete clauses would be enforceable only when the employer provides compensation for the period the clause prohibits the individual from working for a competitor, or starting their own business.
   
   
2. Banning non-compete clauses: this would mean making all non-compete clauses unenforceable ie in effect a ban on the use of non-compete clauses.

The closing date for the consultation is 26 February 2021. I would be very surprised if option two is pursued, but it will be interesting to read the responses to the consultation paper in due course, and to see what the Government comes up with. Watch this space…

In the meantime, for some useful guidance on drafting restrictive covenants, see our blog Restrictive Covenants: how can employers draft them effectively?.

If you require further information about anything covered in this blog, please contact Alice Kendle, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, December 2020