October 2022 Newsletter
Hello and welcome back to your monthly employment law newsletter rounding up all things employment law in the news this month. This month we have features on yet another new prime minister, flexible working, sex discrimination and sexual harassment.
New Prime Minister
Last month we looked at what the impact the Truss premiership might mean for employment law. Part of this included tax changes implemented in Kwasi Kwarteng’s minibudget. What was not forecast was the Truss Premiership being like my email password: requiring change every 45 days!
He has already announced plans to scrap Kwarteng’s proposed income tax changes and also the plan to cut IR35. It is also expected that the basic income tax rate will drop from 20% to 19%. A full Autumn Statement will be made on or around 17 November meaning next month’s update should be able to provide better detail on what Sunak’s plans are for employment law.
Flexible Working Bill
One employment issue gaining traction in Parliament this month has been the Flexible Working Bill. The bill passed its second reading this week and, whilst currently being vague on details, is anticipated to encourage more flexible working with the right to make a request expected to become a day one employment right.
It is also believed the bill would reduce the time to consult on a request would drop from three months to two and that employees would be able to make two requests a year instead of one. Employees would also not have to provide any detail on the impact of the request on the business or how it could be mitigated. However, little has been said on what reasons an employer will have to refuse save for encouragement to “think outside of the box and more creatively”.
The bill still needs to pass several more readings before having a chance of becoming enshrined in law. However, do not be surprised to see it be introduced in April 2023. Regardless of whether it does or not the rise in hybrid working in the post-covid world means most employers are already adopting a more flexible approach to work in order to attract skilled candidates.
High Award in Self-Represented Morrison’s Sex Discrimination Claim
Many of you may have read about the self-represented Claimant who was awarded £60,000 by an Employment Tribunal having been discriminated against following her maternity leave.
Donna Patterson was a part-time buyer in the supermarket’s online business and was asked to return to a full time role once her maternity leave ended. Upon raising her concerns Ms Patterson noted managers were reluctant to let her work from home or work flexibly around childcare.
She also submitted a subject access request which suggested bosses wanted to demote her whilst on maternity leave. She subsequently resigned and was successful at her tribunal hearing, being awarded over £60,000 despite representing herself throughout the matter.
It is often assumed amongst both employers and legal professionals that litigants in person are likely to lose their claim. Whilst this may normally be true, representation or otherwise, it might be best to avoid tribunal proceedings if there is open correspondence suggesting a women on maternity leave be demoted!
Royal Navy Bullying and Sexual Harassment Scandal
Many of you will have seen BBC drama Vigil last year. Whilst this article is not a high-octane, suspense thriller, it is none the less shocking.
Recent Navy whistle-blowers in the Submarine Service have reported that sexual harassment, bullying and misogyny are rife listing several disturbing examples. Including:
- A Death Rape List which ranked women in order of attractiveness to be raped during a catastrophic event.
- Repeatedly being called c***s or splits.
- Repeatedly being subjected to lewd and sexual comments.
- Having money inserted into their room in a bid to buy sexual favours.
- Being assaulted whilst sleeping.
- Having their laundry sniffed.
- Being told they cannot report the matter as it will attract unwanted negative press.
Whilst not employees, serving men and women can bring some discrimination claims before the employment tribunal. However others relating to age/disability for example may not be possible such as an adjustments claim for a role with overseas combat deployment.
A bigger barrier for serving armed forces personnel is that before bringing a claim they must normally raise a service complaint first. As per the above this is not always possible due to the culture of the organisations they work for and leads to many feeling unable to speak out until after they have left the service.
Rise to Statutory Pay Rates Forecast
Inflation and interest have been in the news this week with the latter rising to try and stem the former. The announcement this week forecast the longest recession since the 1920s with interest rates likely to rise above 4% by 2024.
In addition to impacting the cost of living and cost of doing business it is also worth noting that statutory pay limits for the SSP, NMW, SMP and redundancy pay are linked to the Consumer Price Index. This means we are likely to see them rise substantially next year.
With inflation currently at over 10% and it likely to rise further before April 2023 it would not be surprising to see the NMW rise to over £10.50 per hour and redundancy pay to over £600 per week. The knock on impact of this will likely lead to redundancies being announced with notice expiring before April 2023.
Lighter Side of the News – Emoji Harassment Leads to £420k Award
We end this month’s update with another tale of the absurd. In the case of X v Volkerrail Ltd & Z a women succeeded in a claim of discrimination and was awarded £420,000 at the remedy hearing. X, the Claimant, was employed as a senior manager at Volkerrail, Respondent 1. The Claimant was from a conservative British-Pakistani family and lived with her parents. Z, Respondent 2, was her manager, was a married man and older than the Claimant.
During the Claimant’s employment, Respondent 2 commenced a series of inappropriate conduct against the Claimant. This started by sending inappropriate peach emojis (referring to her bottom) over Teams messenger. It then led to further and progressively more inappropriate conduct including:
- Sending her kissing emojis.
- Repeatedly texting her about her location during the evening when she was out visiting friends or family.
- Suggesting they move abroad together.
- Inviting her out to dinner.
- Calling her whilst inebriated.
- Becoming jealous of her friendship with another male manager.
- Alleging she was transexual as she required hormone treatment for polycystic ovaries.
- Becoming hostile towards her once the conduct was rebuffed.
Separately the Claimant was expecting a £15,000 pay rise having been given assurances of this by Respondent 2 prior to the above conduct taken place. The Claimant raised a grievance about the sexual conduct. She then resigned having had her pay rise refused.
In the handling of the Claimant’s grievance it was found she was treated like a scheming femme fatale, only raising the matter due to the pay dispute. Respondent 1 also refused to rescind her resignation.
The Claimant was successful at hearing. It was found that the treatment by her manager and the conduct of the grievance were both discriminatory. This resulted in a high tribunal award including £24,000 injury to feeling and £30,000 due to psychiatric injury.
Previously it would be very uncommon for people to use emojis in a professional capacity. However with the rise of work related WhatsApp and Microsoft Team messenger groups rising they are becoming more common. This case highlights how staff should be reminded what is and is not appropriate.
