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Happy New Year! (although 2021 already feels like it’s been dragging on for months).

It doesn’t look like I’ll be meeting many clients in person this year, but one of the things that I have discovered in these rather gloomy times is how much fun webinars can be. Even when I am eventually let out of my employment law bunker, I’m sure I will keep running regular webinars on topics where I think I have something to say. You can see my upcoming webinars on my Eventbrite page or sign up here to be the first to hear about them. 

And while we're talking about webinars: 

Positive Action
4 February

The next webinar is all about positive action. I’ve wanted to talk about this topic for ages because I really think a lot of people get it wrong. I’ll pick apart what the Equality Act actually allows you to do and look at common positive action initiatives – including those that may actually be unlawful. You can get more details and book your place by pressing this big shiny button:   
More details here

Brexit and Employment Law

So it seems that the Government has done a screeching U-turn on its plans to reform employment law following the end of the Brexit Transition period. Earlier this month The FT reported that proposals were close to being finalised – and I wrote about that on my blog.

But now the new Secretary of State Kwasi Kwarteng (I had completely missed his appointment when Alok Sharma left the role on 8 January to concentrate full time on COP26) has said in a TV interview that the review is no longer happening ‘within BEIS’ (whatever that means). This is just a week after confirming to MPs that the review was going ahead.

It’s all rather strange.

You would think that the Government would want to come up with at least some changes to demonstrate the value of our new found freedom from EU rule. I’m a died-in-the wool remainer, but even I was hoping for some clarity on calculating a week’s pay when workers take annual leave. Instead it looks like we really will have to leave it to the Supreme Court to sort out. Remarkably, the Court is due to hear three separate holiday pay cases this year. That alone should be a sign that the Regulations need sorting out.

Exclusivity clauses - new consultation

If ever there was an example of employment law that was purely symbolic it is the ban on exclusivity contracts in zero hours contracts that was introduced during David Cameron's premiership in 2015. It allowed the government to claim that it had ‘addressed the issue’ of zero hours contracts by pretending that the problem was employers inserting actual clauses into zero hours contraxcts prohibiting employees from working elsewhere.

As I wrote at the time, this involved some sleight of hand. In these sort of jobs it is the behaviour of  the employer that matters more than the terms of the contract itself. The central inequality in a zero hours contracts does not depend on a carefully drafted exclusivity clause, but the implicit or explicit threat that an employee will not be offered work in the future if he or she is not available for work when the employer calls on them at short notice.

So colour me indifferent to the Government’s latest consultation in which it is proposing to extend the ban on exclusivity clauses to cases where the employee is guaranteed less than £120 per week. Introducing this change will again allow the Government to claim to be doing something, while making no meaningful change at all. Consultation closes on 26 February, but that doesn't mean the government will introduce even this modest change any time soon.

Remember the Taylor Review? Well the Good Work report recommended that employers should be encouraged to guarantee at least some regular work for employees by increasing the level of the minimum wage for non-guaranteed hours. That would be a meaningful reform, but three years down the line there is no sign of the Government taking action or following up on any of the consultations it launched in the wake of the report.

Oh and as it turns out Matthew Taylor who had been appointed Director of Labour Market enforcement in August 2019 has not had his contract renewed and the role is being allowed to fall vacant – a least for the time being. I think it is clear that Boris Johnson does not have the same enthusiasm for improving workers’ rights that his predecessor had.


An EAT decision that caught my eye this week involved a litigant in person claiming victimisation. To bring that claim, you have to show that you have been treated unfavourably for doing a ‘protected act’. We generally summarise that as being ‘making an allegation of discrimination’ but the Equality Act is more specific and defines a protected act as any one of the following:
  • bringing proceedings under the Equality Act
  • giving evidence or information in connection with proceedings under the Act;
  • doing any other thing for the purposes of or in connection with the Act
  • making an allegation (whether or not express) that A or another person has contravened the Act.
The employee in the case of Chalmers v Airpoint Ltd had claimed she was victimised for writing the following to her boss when raising a grievance:

‘My work is mostly ignored and I have been excluded from both the Christmas night out and from the hardware refresh, neither of which is acceptable to me and both of which may be discriminatory’

The EAT agreed with the Tribunal that this was not a protected act because she only asserted that she ‘may’ have been discriminated against and did not positively assert that she had been.

I mean, really?

Surely her complaint that the employer’s conduct ‘may be discriminatory’ is something done in connection with the Equality Act? Surely there is at least an implied allegation lying behind the cautious wording of the complaint?

We don’t know whether the employee in this case was actually treated unfavourably for making her complaint, but if she was, it seems absurd to hold that she cannot claim victimisation because her complaint was not unequivocal enough. It would clearly be wrong to encourage employees to make their allegations as trenchant as possible just to be sure they are protected against victimisation. I suspect that this will be one of those cases that very much ‘turns on its own facts’ – judicial code for ‘clearly a bit dodgy, lets just pretend it never happened’.

Constructive dismissal

One of the tricky issues that Tribunals have to grapple with in a constructive dismissal case is the concept of ‘affirmation’. This is the idea that an employee may lose the right to resign and claim constructive dismissal if he or she ‘affirms’ the contract by doing something inconsistent with an intention to bring it to an end. We often talk about affirmation arising because the employee has delayed the decision to resign, but delay cannot amount to affirmation in itself. It is more that an employee who does delay resigning is likely to do something else – like continuing to work and getting paid – which shows that they have decided to keep the contract going. Once they have made that choice, they cannot change their mind later.

In Gordon v J & D Pierce (Contracts) Ltd A Tribunal held that an employee affirmed the contract when he exercised his contractual right to raise a grievance. This is clearly wrong. Giving the employer a reasonable opportunity to put matters right in no way indicates that the employee has decided to accept the continuation of the contract. To hold otherwise would be to encourage employees to resign before giving their employer an opportunity to deal with any problems first.

The EAT confirmed that raising a grievance did not amount to affirming the contract (the claim failed on other grounds) – though it does make rather a meal of the point. It draws a parallel with an employee appealing against a decision to dismiss – as both an appeal and a grievance are example of the employee relying on the continued existence of a contract. The EAT looked at the recent case of Phoenix Academy v Kilroy (which held that an employee appealing against dismissal was affirming the contract because the appeal implied that he wanted to remain employed) and contrasted that with Kaur v Leeds Teaching Hospitals in which Lord Justice Underhill suggested that appealing against an unfair disciplinary sanction would not normally amount to an affirmation of the contract. The EAT preferred that approach.

There really was no need for the EAT to get so bogged down in the issue and we should perhaps ignore any suggestion that the decision in Kilroy was wrong. In that case, the employee had been dismissed and his appeal and subsequent reinstatement were held to prevent him from resigning based on any breach of contract that took place before he appealed. In Kaur the employee was not dismissed but given a final written warning that she considered to be unfair.

In any event, a grievance is not the same thing as an appeal against a dismissal. It makes sense to view an appeal as a request to be reinstated. In a grievance, however,  the employee is complaining about the employer’s conduct and giving it an opportunity to resolve matters. It is clearly reasonable to let that process play out and see what the employer’s response to the grievance is before the employee has to make the choice of whether to resign in response to the employer’s conduct or stay with the employer and lose the right to claim constructive dismissal.

That's all from me this month. Thanks for subscribing!
Copyright © 2021 Darren Newman Employment Law Ltd, All rights reserved.

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