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Kerry Nelson

HR Advisor - Uckfield

30th May 2022

Employment Team Newsletter

Employment Team Newsletter – Employment Law Round Up (May 22)

The Queen’s Speech – What Employment Bill?

In what was expected to be a game-changer for employment law, the Queen’s Speech left most of us puzzled after no mention was made of the employment law changes which had been through a consultation period and which were set out in the Employment Bill, dating back to 2019.

In 2021, the Government confirmed that the employment law changes would be introduced when “Parliamentary time allowed”, due to the ongoing pandemic. This term is often used by the Government when it intends to legislate on a particular issue which normally forms part of the Queen’s Speech.

As a reminder, the Employment Bill was due to cover employment law changes, such as:

  • Flexible working (day one right).
  • Extended protection from redundancy during pregnancy.
  • Neonatal leave.
  • Carer’s leave.
  • Workers in the hospitality sector to receive tips in full.
  • Stronger protections against sexual harassment in the workplace.

As the employment law changes were aimed to protect vulnerable workers and women, many have expressed their frustration at the possibility of another delay. The indications are however, that some of the measures will be implemented before too long

What happens next? The Government are yet to provide an update on the Employment Bill. The GatekeeperHR Team will update you when there’s more to know.

Calling a man “bald” is sexual harassment!

In a recent Employment Tribunal decision, a panel ruled that calling a man “bald” was sex-related harassment.

Mr Finn worked for British Bung Company for almost 24 years before being sacked in May 2021. He later took the Company to court claiming that he been the victim of sex-related harassment, among other claims.

What happened? Mr Finn alleged that, during a shop floor row in 2019, the factory supervisor, Mr King, referred to him as a “bald ****”. The tribunal stated that such language had crossed the line and was regarded as making remarks personal about Mr Finn’s personal appearance.

Whilst the tribunal acknowledged that some women can be bald, they stated that baldness is much more prevalent in men than women, finding the word “inherently related to sex”.

Mr Finn won his claims of unfair dismissal, wrongful dismissal, being subject to detriments and sex-related harassment. Compensation is yet to be awarded.

Rodgers v Leeds Laser Cutting – Latest COVID-19 employment ET case

Mr Rodgers, employed since 2019, brought a claim against his employer, Leeds Laser Cutting, after he had been dismissed for “unclear reasons”.

After the first lockdown on 23 March 2020, the Company remained open, albeit with mitigation measures in place. It was not on the Government’s list of workplace sectors that must close.

Shortly after the first lockdown, Mr Rodgers texted his manager advising that he was going to stay off work “until lockdown had eased” due to concerns of transmitting the virus to his vulnerable children. There was no further communication between the Company and Mr Rodgers until his dismissal a month later.

Mr Rodgers did not have the necessary two years’ service to bring an ordinary unfair dismissal claim, instead, he brought a claim of automatic unfair dismissal using s.44 of the Employment Rights Act 1996 (ERA), which does not require two years’ qualifying service.

What is s.44 of the ERA? Workers have the right not to be subjected to poor treatment by their employer should they take steps to avoid what they believe is a risk of serious, imminent danger, this can include danger to themselves or others, including family.

The tribunal rejected Mr Rodger’s claim for a number of reasons including, but not limited to:

  • he had not mentioned his concerns about workplace danger and could not show there had been such danger; and
  • he had not taken any steps to avert danger or raised such concerns with the Company before deciding not to come to work.

The tribunal acknowledged that Mr Rodgers had significant concerns about the pandemic but, essentially, he failed to convince the tribunal that the workplace was unsafe.

This resulted in the case being dismissed from tribunal.

NB: the tribunal did point out that if Mr Rodgers was able to bring an unfair dismissal claim, it may have succeeded.

Disabled worker discriminated against after employees used her desk

Ms Baker worked for the House of Commons from 1991. She had been issued with specialist equipment recommended by an occupational health service, due to a musculoskeletal condition.

In 2018, Ms Baker’s employer implemented a hot-desking policy. However, a later occupational health report advised that her desk should not be used as a hot desk as she needed to have her own dedicated workstation with her specialist equipment and an adjustable chair.

Soon after, Ms Baker took a day off to attend a medical appointment and left a note on her desk to remind colleagues that her desk was not to be used for hot desking. On her return, she found that someone had adjusted her chair.

Ms Baker was invited to a disciplinary hearing about the content of the note she placed on her desk. This allegation was later withdrawn.

In January 2019, Ms Baker brought claims against her employer including disability discrimination.

The tribunal upheld Ms Baker’s claim of disability discrimination concluding that the hot desking policy had been applied to all desks and that the policy failed to accommodate her disability condition. It also found that Ms Baker had been victimised and subjected to discrimination ‘arising from’ her disability, when disciplinary proceeding were brought against Ms Baker, causing her unnecessary distress.

We are here to help

Do you need support or advice on employment law? The GatekeeperHR team is here to help. GatekeeperHR is a fixed cost, employment law and HR retainer service which provides businesses with access to a dedicated team of experienced lawyers and HR professionals who you can speak to, or meet face-to-face, at any time. The service includes a full HR compliance audit, access to an online portal full of valuable employment law and HR resources and an annual training session on topics of your choosing. To find out more about GatekeeperHR, please visit: www.gatekeeperhr.co.uk or call 01825 761555 or contact us

The contents of this employment team newsletter do not constitute advice for future arising matters in your business. You are advised to make contact with the team for any specific advice.

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