Every fortnight, the Knights Employment team publish their Top Fortnightly Facts (TFFs), providing a summary of the key updates in the employment and HR world. Looking first at “What?” the issue is, we then consider the “So what?” point for you that flows from that.
We focus on HR/ Employment issues but also look at any Immigration, Data, Tax and Pensions points of interest.
- IN THE NEWS - DISCUSSION POINTS:
In the news this week, we look at three topics: (a) P&O Ferries dismissals with no consultation or notice; (b) Russian/Ukrainian war; and (c) an update on COVID-19.
I am sure that you will have seen the headlines on Thursday lunchtime that P&O Ferries made 800 of its purported 3,000 employees redundant by zoom with immediate effect and has replaced those 800 people with agency staff, believed to have been recruited in the UK and Europe (some of whom started work on the ships on Thursday afternoon!). Staff initially refused to come off the ships and “balaclava-clad guards” had to get them off.
The government said it was given no notice of the plans. However, the Head of the RMT has since spoken on the Tonight with Andrew Marr show and said that the Government was “made aware” of P&O’s plans to sack their entire British workforce, albeit only the day before the public announcement, but chose not to tell anyone. Staff were informed over zoom with no notice or consultation. The RMT’s General Secretary said it was seeking legal action over “one of the most shameful acts in the history of British Industrial relations”. The Shadow Transport Secretary, Louise Haigh said the dismissals were the “actions of thugs”. P&O Ferries have issued a statement stating that they are not a viable business and have made a £100m loss year on year which is not sustainable. The maritime union, Nautilus International, has responded by saying that this is “nothing short of scandalous” given that the Dubai owned parent company, DP World, received millions of pounds of tax-payers money during the pandemic (they were reportedly given £33m in emergency support by the UK government to ensure freight kept sailing in May 2020 and claimed furlough pay for 1,100 of its employees).
Well, you don’t get much more involved exam questions than this!
A whole host of issues are at play:
- Whether or not what P&O have done is unlawful (and whether or not the employees sign up to the settlement agreement that is supposedly being offered in return to bumper pay outs (as is being reported)), the way that they were treated is inhumane. No good employer should treat its employees in the way P&O ferries have done. The impact on their mental health will no doubt last years. It was reported that one 46-year old employee with 30 years’ service said, “there were grown men in tears.. we were treated abysmally”.
- This is a textbook example of how to destroy a company’s (consumer and employee) brand in an instant. We are not sure how they will ever recover from this.
- Then, there is the big question of whether they should have complied with UK employment laws, for example regarding collective redundancy consultation. On the face of it, you would have thought yes. The employees may meet the definition of “mariners” under the ERA 1996, which potentially affects some of their employment rights, but we cannot see that the redundancy or unfair dismissal regime would be any different.
- Even if P&O are hiding behind the fact that the employees they dismissed have no fixed place of work in the UK as they are sailing around the world as part of their job, the crew appear to be UK-based and, even if they aren’t, you would have thought there is a sufficiently strong connection between P&O and the UK that Parliament would have intended unfair dismissal rights and collective consultation obligations had intended to apply (following the suite of territorial jurisdiction cases such as Serco Ltd v Lawson and Ravat v Halliburton Manufacturing).
- Failure to comply with the collective consultation obligations (which should have involved consulting collectively with the RMT union for a minimum of 45 days, in addition to some other requirements) and any individual redundancy obligations could lead to large unfair dismissal awards (for those with more than 2 years’ service, this would be a basic award (statutory redundancy payment) plus a compensatory award of up to a year’s salary or £89,493 if lower) and protective awards (here, the maximum 90 days’ actual pay per employee would surely be awarded as no consultation took place).
- If it is the case that P&O were subject to UK employment laws when dismissing the employees, they would also have been obliged to submit an HR1 form to BEIS (which does not seem to have happened if the government are saying that they had no notice of the plans). Failure to do so can attract criminal sanctions.
- That said, maybe P&O are going to say that it is not a redundancy scenario as the work is still required (now being done by agency workers) but we don’t have the detail of whether the roles that the agency workers are doing are the same as those that were lost.
- Before moving on from redundancy, it is worth noting that there was a case in 2018 (Seahorse Maritime Limited v Nautilus International  EWCA Civ 2789) which held that each ship of a fleet, operating mostly abroad, constituted a single establishment, for collective consultation purposes, and that members of the crews were assigned to particular ships. This resulted in collective consultation obligations in that case only being triggered where 20 or more dismissals were being proposed per ship within a period of 90 days or less. Surely there were more than 20 dismissals per ferry?
- If it is not a redundancy scenario, then there could potentially be claims under TUPE legislation that they should have transferred to the agency, especially as P&O have talked about a new “3rd party crew provider”. Other consultation obligations (and consequent protection awards (13 weeks’ pay per employee rather than 90 days’ pay)) would then kick in.
- P&O may also be subject to financial penalties under s12A of the Employment Tribunals act 1996, which states that if a tribunal concludes the employer “has breached any of the worker’s rights and is of the opinion that the breach has one or more aggravating features”. This penalty is paid to the Secretary of State and is in addition to any other compensation awarded. The penalty will usually be 50% of the compensatory award made subject to a maximum cap of £20,000. The legislation does not define “aggravating features” but the explanatory notes to the Enterprise and Regulatory Reform act 2013 (under which the power was introduced) suggests that a tribunal may be more likely to find that an employer’s behaviour in breaching the law had aggravating features if the action was “deliberate” or “committed with malice” or the organisation had a “dedicated HR team” (which surely P&O does) or where the employer had repeatedly breached employment rights (which would not be surprising given this action).
- In addition, there could be discrimination claims since the press are reporting that it is only UK employees that have been dismissed and other non-UK employees (such as French employees) have not lost their jobs.
- Finally, if they try and make the whole mess go away by making big pay outs under settlement agreements, they may still find themselves with protective awards claims brought by the union. Settlement agreements cannot settle those claims- something that they may not be aware of! The alternative is to get Acas involved and go down the COT3 route as such claims can be settled that way.
All in all, a total bizarre situation! I am sure that we will hear more about it in the days to come but Labour MPs are already calling on the government to step in and suspend any contracts they have with P&O and ask them to repay the money back they received during the pandemic.
With the war waging on in the Ukraine, there have been attempts in the UK to aid Ukrainian refugees by way of offering them employment. An initiative has been set up by entrepreneur Emma Sinclair which has seen over 45 employers, including Marks & Spencer, Asos and Lush join together to offer assistance to the refugees. It is hoped that this initiative will help connect Ukrainian refugees with employment opportunities in the UK, taking advantage of the many sectors, which are currently experiencing skill shortages. The coalition of businesses have told the Government it has around 10,000 jobs available for the refugees and are hoping this will push the Government into allowing more displaced Ukrainians to enter the country.
Is this something that you think the UK Government will get on board with and push them to open up the doors to the refugees? So far 2.5 million refugees have left the Ukraine and this initiative, if taken up by the Government, could offer some element of certainty and stability to those that fled their war-torn country.
Is this initiative something you and your business would get involved with? Would you offer jobs to the refugees who are seeking employment?
Get in touch and let us know your thoughts.
On 15 March 2022, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No 3) Regulations 2022 (SI 2022/206) came into force. This revoked the statutory requirement for mandatory vaccination of workers in Care Quality Commission (CQC) regulated care homes on 11 November 2021 and the statutory requirement for mandatory vaccination for health and social care workers which was due to come in on 1 April 2022. This comes after a public consultation where 90% of the responses called for the removal of the legal requirement for health and social staff to be double vaccinated.
There were issues when this legal requirement was enforced with many care home workers not wanting to get the vaccine for personal reasons/beliefs and it forced thousands of care home workers to leave their jobs. Many will therefore be delighted with this change in the law.
The Government issued a press release stating that as the population is now better protected it was right to revisit the restrictions, rules and regulations in place and to reduce some of these, including this requirement. This revocation now means health and social care workers do not have to have the vaccinations nor do those working in CQC regulated care homes. The Government did however issue a reminder to unvaccinated health and care workers that they still have a “professional responsibility” to get vaccinated despite this change in the law and are still encouraging them to get the jabs.
What are your thoughts on this revocation? Do you agree that it was now the right time to reduce the requirement to get vaccinated in these industries? Would you have waited longer? Let us know what you think. If you need any advice regarding unvaccinated employees let us know and someone from our employment team will be happy to help.
2. RECENT CASE LAW:
We focus on two cases in this edition: (a) the case of Harpur Trust v Brazel which is based on holiday pay calculations; and (b) Warburton v The Chief Constable of Northamptonshire Police which provides a succinct reminder on what the correct test is to apply when determining if a Claimant has suffered a detriment for the purposes of a victimisation claim.
Ms Brazel was a music teacher who only worked during term time and irregular hours. Under her contract she was entitled to the full-time equivalent of 5.6 weeks paid annual leave to be taken during school holidays. Her employer calculated holiday pay as 12.07% of the hours she worked over the course of the year. Ms Brazel argued under the Working Time Regulations it should be calculated using her average weekly earnings during the 12 weeks before she went on holiday.
This decision was appealed and the Court of Appeal agreed with Ms Brazel.
The Supreme Court has heard this appeal and it is one of the most eagerly anticipated decisions of 2022. This is because it could have a significant impact on how employers calculate holiday pay for part-year (and potentially even part time) workers.
The Court of Appeal’s decision means that an employee with a part-year, permanent contract would be entitled to proportionately more holiday pay than an equivalent full-year worker. The Supreme Court’s decision is therefore eagerly anticipated, especially by those in sectors who employ term time workers.
The Claimant applied to be a police officer with the Respondent. In his application he referred to a protected act, that being proceedings he was pursuing against Hertfordshire Constabulary, alleging unlawful discrimination after he made an application to join that force. The Claimant was informed that his application had not been accepted.
The Claimant put forward a claim for victimisation. The Respondent stated that the Claimant’s application was not successful because another force failed to provide information to allow the vetting procedure to proceed, not due to the protected act.
It was held at the EAT that the tribunal had not used the correct test when deciding whether the Claimant had suffered any detriment. The EAT reiterated that the correct test to use is “whether the treatment is of such a kind that a reasonable worker would, or might take the view that in all the circumstances it was to his detriment”. It was concluded that the detriment is to be interpreted widely.
The EAT also stated that the correct test to the causation or ‘reason why’ test was whether the protected act had a significant influence on the outcome.
This case is a good reminder for the correct test to use when determining if a Claimant has suffered a detriment for the purposes of a victimisation claim. If there is a determining factor which is not the protected act, this should be clearly recorded and explained.
3. QUICKFIRE POINTS:
Below are some quickfire points to note on some other stories in the news and recent cases.
- From 6 April 2022, there will be a new form of fit note. The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.
- Next month there will be the April 2022 rate changes. This will see limits for certain compensation and statutory payments increase. Two of the key new limits are a week’s pay for the purpose of calculating statutory redundancy payments and basic awards will increase from £544 to £571 and a new limit on the amount of compensatory award for unfair dismissal (£93,878 from £89,493).
- National Statistics figures show 250,000 more over-50s are economically inactive compared to before the pandemic. Many workers over the age of 50 have decided to leave the workplace since the pandemic.
- The UK has recently ratified the International Labour Organisation’s Violence and Harassment Convention which means employers will have a duty to protect employees from all types of harassment, including from third parties.
- It has been announced that ethnicity pay gap reporting will not be mandatory. The government has said that BEIS will produce guidance this summer for employers that want to voluntarily report.
- Higgs v Farmor’s School – It was ruled in an Employment Tribunal that a Christian school assistant was not unlawfully sacked after being dismissed for sharing Facebook posts which criticised the introduction of teaching about LGBTQ+ relationships in primary schools. The school assistant has been granted permission to appeal this and this decision will be something to look out for in the near future.
- Victor Nwosu, a solicitor and owner of a law firm, was fined £20,000 and ordered to pay £23,500 costs for unprofessional conduct whilst conducting an interview. He asked the interviewee whether she had a boyfriend and told her she was beautiful, amongst other comments. The tribunal was ‘deeply concerned’ at the comments and stated his behaviour was a ‘grave departure’ from that expected of a solicitor.
- The Employment Appeal Tribunal has ruled that Mr D Taheri was to receive a ban from using the employment tribunals service after making more than 40 ‘vexatious’ claims against numerous companies. He has been given a Restriction Proceedings Order (RPO) of indefinite notice meaning he is not able to make claims against employers without permission of the EAT.
Should you require specialised legal advice on any point in this document or any other employment law assistance, please contact a member of the Knights Employment team at Employment@knightsplc.com and we will be happy to assist you.
This document is provided for information purposes only. This list of consideration is not exhaustive and does not constitute legal advice.
Produced by Mary Langen, James Keogh and Laura McLellan.