Hand Morgan & Owen Employment Bulletin – AUTUMN 2022

Hand Morgan & Owen Employment Bulletin – AUTUMN 2022

 

EUROPEAN UNION DERIVED EMPLOYMENT LAW

The Government has published a Bill, the retained EU Law (Revocation and Reform) Bill 2022 which could lead to the abolition of some or all of law retained from the European Union.  This would cover derived legislation that has continued in all domestic legislation since the end of the Brexit transition period and potentially covers several pieces of legislation relating to employee rights.

Retained European law will expire at the end of December 2023 unless the Government legislates to retain and incorporate it into UK law.  This could have significant consequences in respect of important employee rights legislation including:

  • the Working Time Regulations (dealing with issues such as the National Minimum Wage and holiday entitlements)
  • The Transfer of Undertakings Protection of Employment Regulations (TUPE): dealing with employee rights after transfer of a business and
  • Regulations protecting part-time and agency workers.

What will become of the various pieces of legislation is not yet clear as Government Departments are now going through a process of deciding which EU law to retain or relinquish.

DISABILITY DISCRIMINATION: LONG COVID

In a recent Scottish Employment Tribunal case of Burke v Turning Point Scotland, an Employment Tribunal has held that an employee with long covid symptoms was disabled within the meaning of the Equality Act.

The Employment Tribunal found that he had suffered from a post-viral fatigue syndrome caused by Covid-19 and this fell within the requirements of the Equality Act to be a physical impairment having an adverse effect on his ability to carry out normal day to day activities and that this effect was more than minor or trivial and “could well” last for a period of 12 months or more.

In the light of this decision employers will need to give careful consideration to the relatively new condition of long covid which can involve a complicated diagnosis and make sure that they are making reasonable adjustments.  If not, employers might find themselves on the receiving end of a disability discrimination claim under the Equality Act.

CIVIL PROCEEDINGS ORDERS

Where an individual repeatedly brings questionable claims and/or Court applications against the same or different parties, the Attorney General can apply to the Court for an Order preventing that person from bringing further proceedings without the leave of the High Court.  (There is a similar provision known as a Civil Restraint Order which is limited in time to 2 years).

In an interesting Employment Appeal Tribunal case, Williamson v the Bishop of London and Others, consideration was given as to whether that permission could be obtained retrospectively (i.e. after the Claimant had issued the claim).

In these circumstances the Claimant was subject to a Civil Proceedings Order and then commenced an Employment Tribunal Claim for age discrimination without having obtained permission from the High Court.  He subsequently applied to the High Court for retrospective permission which was granted to pursue the existing claim or in the alternative issue proceedings in the Tribunal.

Agreeing with the Employment Tribunal, the Employment Appeal Tribunal stated that it was not possible to give a retrospective permission under a Civil Proceedings Order, the provision (which is derived from the Senior Courts Act 1981) imposes a substantive, not merely procedural bar, on the commencement of Civil Proceedings by a Claimant.

BALDNESS: SEXUAL HARASSMENT?

In an interesting case in the Sheffield Employment Tribunal between Finn and The British Bung Company, the Tribunal found that calling the Claimant a “bald ###” amounted to sexual harassment.  The rationale for this is that baldness is significantly more prevalent in men than women and accordingly such an insult is related to sex.

This is a case employers need to be aware of as it indicates that the scope for harassment related to sex is potentially quite wide.  The decision has divided legal commentators as to whether it is a genuine act of sexual harassment. It highlights the limited remedy for straight forward bullying and harassment, with the remedies for such behaviour being substantially more limited if it were not deemed sexual harassment.

21 October 2022

For advice and assistance in respect of Employment matters contact Patrick Nelson, Associate on 01785 211411.

Disclaimer

The contents of this article are for the purpose of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

 

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