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The Employment Appeal Tribunal has found that an employee’s “gender-critical belief”, namely a belief that people cannot change their biological sex, represent a philosophical belief that is capable of protection under the Equality Act 2010.

The Case 

Ms Forstater was dismissed after posting a series of tweets questioning government plans to let people declare their own gender. The original tribunal found that Ms Forstater’s views were, “not worthy of respect in a democratic society”, and that her employer was justified in dismissing her. At appeal, whilst Ms Forstater’s words were found to be offensive, the Honourable Mr Justice Choudhury found that this did not stop Ms Forstater from being protected from expressing those beliefs as they “did not seek to destroy the rights of trans persons”.

This case involved two relevant sections of the Equality Act 2010:

• Section 7 of the Equality Act 2010 confirms that gender reassignment is a protected characteristic, giving protection to people who have proposed to undergo, are 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. It is therefore unlawful to treat someone less favourably because of their gender reassignment.
• Ms Forstater was relying upon section 10(2) of the Equality Act 2010, confirming that a “philosophical belief” is also a protected characteristic.

The Decision

The decision does not mean that Ms Forstater is/was free to unlawfully harass or discriminate against trans people, but that her rights and protection under the Equality Act 2010 should also have been considered before taking any action to dismiss her.

This case represents another example of a Tribunal trying to balance the rights of employees who have the freedom to express their genuinely-held beliefs which may be offensive to some employees, versus those offended employees who have a right not to be treated less favourably because of their protected characteristics.  

Read the full story by the BBC here. 

If you need advice because you have been unfairly treated due to your own protected characteristics, or if you are an employer with employee issues, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.

Employees are protected from being unfairly treated or dismissed as a result of them raising reasonable issues regarding the safety of the workplace. The aim behind this protection is to encourage employees to be able to raise any relevant health and safety concerns, without fear of being dismissed just for raising these concerns. This might happen in circumstances where an employer considers that an employee is being ‘difficult’, or raising too many issues. This protection has been particularly relevant during the current Pandemic, as employers have an obligation to take reasonable steps to make sure the working environment is ‘COVID secure’ and safe in line with the Government’s guidance. Many employees who refused to attend their workplaces and were dismissed because of that refusal, have subsequently brought claims against their employer under this legislation.

From 31^st May 2021, the Government intends to amend Section 44 of the Employment Rights Act 1996 to extend protection from Health and Safety detriment to workers.  A worker is someone who provides services to a person or business, but the person or business does not have to offer them work and they do not have to accept it – they only work when they want to.

Currently workers do not have the same rights as employees to receive protection from complaining about unsafe working environments, but The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 will grant workers the same rights.

If you are affected by any of the issues in this article, or if you would like advice on any other employment issue, please contact Ben Stanton on 01908 660966 / 01604 828282 or email ben.stanton@franklins-sols.co.uk.

The Government’s Business Minister, Paul Scully, has highlighted that employers have a duty to support staff who may be suffering from domestic abuse at home. Domestic violence charity Refuge said it saw an 80% increase in calls to its helpline during the first national lockdown, a trend the government believes has continued through this latest lockdown period. In having regular contact with employees, employers and colleagues are considered to be best-placed to spot signs of abuse and provide assistance.

In November 2020, 43% of respondents to a survey by charity Surviving Economic Abuse showed an abuser had interfered with someone’s ability to work or study from home during the crisis. Examples included hiding phones or computers, removing Wi-Fi connections, and phoning an employer claiming a breach of lockdown rules, in an apparent effort to get them sacked. The Government’s Domestic Abuse Bill is also making its way through parliament which will confirm that coercive or controlling behaviour is considered to be an act of domestic abuse, but this is not yet law.

Employers have a duty of care over their employees, an obligation which would ordinarily focus on making sure that an employee is provided with a safe working environment. The shift to working from home has meant that many employers now face greater difficulty in making sure that their employees have a safe working environment, as they would not generally have access to the employee’s home during the working day. It is, however, important that an employer makes sure that risk assessments are carried out by an employee of their working environment, to make sure that there are no hazards to this working day.

Whilst an employer should also make adjustments to reduce situations which could cause significant stress for an employee, Mr Scully’s comments reminds employers that they should also be vigilant in noticing any issues of domestic abuse with their employees. Things to look out for would include:

• An employee becoming more withdrawn than usual;
• Sudden drop in performance;
• Any mention of controlling or coercive behaviour in partners;
• Physical signs such as bruising.

If an employee is showing the above signs, it would be advisable to discuss your concerns with that employee. An employer could find a plausible reason for an employee to go into the office as a one-off so they can talk freely, or switching conversations to email or text if your conversations are being overheard, in order to hopefully give the employee a ‘safe space’ in which to discuss any issues they are experiencing at home.

Employers are encouraged to either create policies which address this issue, or to otherwise speak with all employees to acknowledge that these issues exists and to hopefully assist staff in recognising signs of a colleague facing domestic abuse so they can respond appropriately and sympathetically. It may also be beneficial for employers to provide information about domestic abuse support services on its extranet, or in a company-wide email, to show employees that  help is available.

If you would like assistance with drafting a policy, or if you would like advice on any other employment issue, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

Former Great Britain cyclist Jess Varnish has spent years in a legal battle over her claim that she should be considered as an employee of British Cycling. Miss Varnish lost her initial case in January 2019, with the employment tribunal finding that the relationship was not that of employee or worker. Miss Varnish appealed to the Employment Appeal Tribunal which agreed with the original decision, finding that the relationship was more like, “students receiving grants”.

Why was it important that Miss Varnish should be considered as an employee?

All employees benefit from all of the protection afforded to “workers” as well as additional rights to the following:

• Statutory Sick Pay;
• Statutory Redundancy Pay;
• Statutory maternity, paternity, adoption and shared parental leave and pay;
• Protection against unfair dismissal;
• The right to request flexible working; and
• Protection under the Transfer of Undertaking (Protection of Employment) Regulations 2006.

If she had been deemed an employee, it would have paved the way for Miss Varnish to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination after she was dropped from Team GB in the build-up to the Rio 2016 Olympics. As she is not an employee, she can no longer pursue this claim.

How do I know if I am an employee?

An employee is an individual who has entered into or works under a contract of employment. A contract of employment is a contract of service, whether in writing or implied over a period of time.

The 1968 case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI set out some basic requirements for an individual to be an employee:

• The employee must be paid;
• The employee must have agreed to carry out the work personally (i.e. they cannot hire someone else to do it for them);
• The employer must exercise at least some control over the individual; and.
• The employee must be obliged to carry out work for the employer, and the employer must be obliged to provide that work.

What are the differences between employees and workers?

The main difference is that there is no obligation on the worker to perform any work for the company and no obligation on the company to provide any work to the individual. Workers are entitled to fewer statutory rights than employees, but do have some key legal rights, such as protection from discrimination and against unlawful deduction from wages.

If you have any questions in relation to this story, your employment status or any other employment-related issue, contact our Employment Law Team on 01908 660966/ 01604 828282, or email employment@franklins-sols.co.uk.

Almost £20bn had been paid out to over a million employers in furlough grants by 7^th June 2020. Whilst the guidance on the furlough leave scheme has been regularly updated, two messages have been consistent:

1. The employee must not carry out any work for their employer whilst on furlough leave; and
2. HMRC has always confirmed that it intended to investigate incorrect and fraudulent claims for grants under the scheme.

The furlough leave scheme guidance confirms that an employer must pay an employee a minimum of 80% of their wages whilst on furlough leave. Whilst the amounts that an employer can claim back from HMRC from 1^st August 2020 onwards will begin to reduce, the employer will still need to pay a minimum of 80% wages to the employee.

By the end of May, HMRC had received almost 2,000 reports to its digital reporting service of fraudulent use. The majority of complaints involved employees being placed on furlough leave but then being asked by their employer to carry out some work at the same time. This is a clear breach of the terms of the scheme.

Guidance updated on 12^th June 2020 confirms that the claims portal will allow employers to declare mistakes that they may have made in previous claims, which can then be offset in their next claim. This amnesty gives employers the opportunity to resolve any issues that may have arisen before any action is potentially taken by HMRC. The guidance also allows employers to raise any error that has resulted in an under-claimed amount.

If you have made a claim, please take time to check that you have submitted your information correctly. If you would like advice on this, or any other aspect of the furlough leave scheme, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

Rishi Sunak has announced changes to the amount of wages employers can recover under the Coronavirus Job Retention Scheme (CJRS) from 1^st August 2020.

Currently, employers can place an employee on Furlough Leave under the terms of the, claiming back 80% of their employee’s wages (up to £2,500.00 per month), based on the employee’s wages as at 19^th March 2020. On top of this, an employer can also claim back their employer National Insurance Contributions and the 3% auto enrolment pension contribution that they are required to pay.

From August 2020, the level of the grant will be slowly tapered to reflect that people will be returning to work:

• In June and July, the government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance Contributions (ER NICS) and pension contributions for the hours the employee does not work. If the employee is brought back to work under the flexible furlough leave scheme from 1^st July 2020, employers will have to pay employees for the hours they work
• In August, the government will pay 80% of wages up to a cap of £2,500 and employers will pay ER NICs and pension contributions for the hours the employee does not work.
• In September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee does not work. Employers will pay ER NICs and pension contributions and 10% of wages to make up 80% total up to a cap of £2,500.
• In October, the government will pay 60% of wages up to a cap of £1,875.00 for the hours the employee does not work. Employers will pay ER NICs and pension contributions and 20% of wages to make up 80% total up to a cap of £2,500.

We have summarised the position in this table below:

An early assessment of CJRS claims suggest that around 40% of employers have not made a claim for employer NICs costs or employer pension contributions and so will be unaffected by the change in August if their employment patterns do not change.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

As of midnight on 24^th May 2020, 1 million employers had placed their employees on furlough leave under the Coronavirus Job Retention Scheme (CJRS). The total value of claims made was £15 billion and the Government estimates that this has protected around 8.4 million jobs. On 29^th May 2020, Rishi Sunak announced the creation of ‘Flexible Furlough Leave’, an attempt to create a transitional period to allow employees to gradually return to work.

The flexible furlough scheme means that:

• From 1^st July 2020, employers can bring back to work employees that have previously been furloughed for any amount of time and any shift pattern, while still being able to claim the furlough leave grant for any normal hours they have not worked. Employers will be able to agree any working arrangements with previously furloughed employees.
• When claiming the grant for furloughed hours, employers will need to report and claim for a minimum period of a week. This is a minimum period and those making claims for longer periods such as those on monthly or two weekly cycles will be able to do so.
• To be eligible to reclaim the grant, employers must agree with their employee any new flexible furloughing arrangement and confirm that agreement in writing.
• Employers can claim the grant for the hours their employees are not working calculated by reference to their usual hours worked in a claim period. Further details are going to be provided by the Government on 12^th June 2020;
• Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
• For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts;
• The number of employees an employer can claim for in any claim period cannot exceed the maximum number they have claimed for under any previous claim under the CJRS. An employee will only be able to use the flexible furlough leave scheme for the employees it has already furloughed.

The changes to the CJRS means that employers will not be able to place any new employees on furlough leave after 30^th June 2020. From this point onwards, employers will only be able to furlough employees that they have furloughed for a full three-week period prior to 30^th June. This means that the final date by which an employer can furlough an employee for the first time will be 10^th June 2020, in order for the current three-week furlough period to be completed by 30^th June. Employers will have until 31st July to make any claims in respect of the period to 30^th June.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

Furlough leave was a concept that was foreign to the majority of the British population just a few weeks ago. However, since the announcement of the Coronavirus Job Retention Scheme on 20^th March 2020, it is now a term synonymous with the COVID-19 pandemic.

The government has continued to publish some much-needed guidance on the issue, clarifying which classes of persons are eligible to receive a grant whilst on furlough leave. In particular, the guidance now confirms that office holders, including company directors, can claim the grant as long as they are paid through PAYE. The grant will be based on 80% of the director’s annual salary; any dividends or other payment made outside of PAYE will not be used when calculating wages.

Importantly, one of the key requirements to qualify for the furlough leave scheme is that the individual does not undertake any work for their employer. Whilst this is reasonably straightforward when furloughing an employee, how does this concept apply to directors who may be responsible for making day-to-day decisions regarding the business?

A director should be aware that the Companies Act 2006 imposes certain general duties on every director of a UK company, all of which will still apply during furlough leave. However, the government’s guidance now confirms that:

“where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their company, they may do so provided they do no more than would reasonably be judged necessary for that purpose, for instance, they should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company.”.

Essentially, this means that as long as any work a director carries out does not generate commercial revenue or provides services to or on behalf of the company, they will still be classed as being on furlough leave and thus eligible for the grant.

Any decision to furlough a director should be made and adopted through a (virtual) meeting of

the board of directors in the normal way, with quorum, decision making, conflicts of interest etc. being documented in a set of thorough board minutes.

For more information on furloughing in general please read one of my previous posts, click here or watch one of my two videos which have been uploaded onto the Franklins Facebook page:

• 20th March 2020
• 1st April 2020

If you would like any advice regarding furlough leave please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk or if you would like any advice on drafting board minutes or directors duties in general please contact our Business Services team on 01908 660966/ 01604 828282 or email businessservices@franklins-sols.co.uk.

Many employers have now taken advantage of the Coronavirus Job Retention Scheme, placing employees on furlough leave to allow them to be eligible to recover a grant of up to £2,500.00 gross per month (or 80% of the employee’s wages, whichever is lower).

The guidance on the scheme has been amended twice since it was first announced, giving additional clarity to what was a hastily put together emergency scheme. Our employment solicitor, Ben Stanton, has created two videos to advise on the terms of the scheme. Click on dates below and you’ll be redirected to the respective videos:

• 20th March 2020
• 1st April 2020

As these videos were created as soon as any information was released, some of the information has since been clarified by the Government’s updated guidance of Saturday 4^th April, although the terms of the scheme are still as outlined in the video.

Disappointingly, the Government has still failed to clarify whether an employee can take annual leave during a period of furlough leave. However, in its stead, ACAS has released its own guidance to confirm that:

“If an employee is ‘furloughed’ (temporarily sent home because there’s no work), they can still request and take their holiday in the usual way. This includes taking bank holidays.”

This confirms that if an employee wishes to take annual leave during furlough leave (or if an employer wants them to take annual leave), the employee can take their annual leave and be paid in accordance with their contractual entitlement, whilst remaining on furlough leave.

As an alternative, the Government announced The Working Time (Coronavirus) (Amendment) Regulations 2020, a piece of emergency legislation which permits an employee to carry over 4 weeks’ untaken leave where it was not reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)”. Holiday entitlement can now be staggered over the next two years, rather than employees having to take their holiday entitlement when they return to work.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

From 6^th April 2020, employees who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, are now entitled to two weeks’ statutory leave. Employees can choose to take two separate one-week blocks of leave, as long as it is taken within 56 weeks of the child’s death. This leave is available to both parents of the child.

To be eligible to receive pay during this leave, employees must have at least 26 weeks’ service and earn at least £120.00 per week (based on the current rates). Bereavement pay is paid at the same rate as statutory maternity/paternity pay, currently £151.20 per week.

The employee must give the employer notification of:

• the date of the child’s death;
• the date on which the employee chooses leave to start;
• whether the employee intends that period to be one or two weeks.

It would be advisable for an employee to send this notice in writing to their Manager, in the form of an email or text message.

If taking leave within the first 56 days of the child’s death, the employee must notify their employer before the time they are due to start work on the day leave starts. If the employee wishes to take leave after the initial 56 day period, employees must give at least seven days’ notice of their intention to take leave. An employee can cancel or change the date of leave within same period of notice.

Employees are protected from exercising their rights to take this leave. Any dismissal will be automatically unfair if the reason or principal reason is connected to the fact that the employee took bereavement leave, or if their employer believed that the employee was likely to take parental bereavement leave.

There are already a number of statutory rights available to bereaved parents at work in certain circumstances, but these new regulations give specific leave for employees in this very difficult time.

If you wish to discuss any employment issue, please contact our employment team at employment@franklins-sols.co.uk or by calling our offices on 01908 660966 or 01604 828282.