HR briefing - July 2023

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package.

Podcast: neonatal leave, carer's leave and protection from redundancy

As our regular readers will know, Parliament has recently enacted legislation introducing new rights to neonatal leave, carer's leave and protection from redundancy in connection with some forms of family leave. In this month's podcast, Louise Pereira joins Matthew Ramsey to give her very personal perspective on these new rights. Listen to the podcast.

Agency workers and industrial action

From 1976 to 2022, it was unlawful to use agency or supply workers to replace those taking industrial action. The Government consulted in 2015 on whether to change this position, but the majority of the responses were not in favour, and the proposal was dropped. In 2022, the Truss Government introduced legislation permitting the use of agency staff, but did so without any further consultation. The High Court has now ruled that this was unlawful, and has quashed the offending legislation. Unless or until the ruling is appealed, organisations facing industrial action must therefore not seek to bring in agency staff to replace those on strike.

Paternity leave

The Government has indicated that it intends to loosen some of the administrative constraints governing paternity leave. We have summarised the proposed changes in this table:

There is not yet any fixed timetable for the introduction of these changes.

Proportionality and discrimination

Most fundamental human rights are not absolute. They can be overridden where that is necessary and proportionate - so that a citizen's right to freedom of speech can be curtailed if they engage in incitement to racial hatred. The Employment Appeal Tribunal (EAT) has set out useful principles to be adopted when considering whether an employer should be able to suppress the expression of a protected belief. In this case, a school employee indicated on social media her view (which had its origin in her religious convictions) that government policy on teaching as it relates to gender and sexuality is misguided. Her school accepted that she was not, in fact, homophobic and/or transphobic, but concluded her posts might reasonably indicate that she was, which might damage its reputation locally and thereby its ability to recruit teachers and attract pupils. She was dismissed, and the Tribunal needed to weigh her freedom of belief and freedom of expression against the school's concern for its reputation. In human rights terms, was this interference with her rights prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. In assessing whether an interference is proportionate, the EAT noted:

• Freedom of belief and freedom of expression are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
• The manner of the manifestation or expression of a particular belief or religion can be objectionable, which can permit interference with the fundamental right.
• Each case is context-specific. The employer-employee relationship is a relevant factor to have in mind.
• Courts and Tribunals must consider:
  • whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question;
  • whether the limitation is rationally connected to that objective;
  • whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and
  • whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
• In an employment relationship, these factors are usually relevant:
  • the content of the manifestation;
  • the tone used;
  • the extent of the manifestation;
  • the worker's understanding of the likely audience;
  • the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer's ability to run its business;
  • whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
  • whether there is a potential power imbalance given the nature of the worker's position or role and that of those whose rights are intruded upon;
  • the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; and
  • whether the limitation imposed is the least intrusive measure open to the employer.

Ethnicity pay gap reporting

As anticipated (and as we last covered in our April 2022 bulletin), the Government has reconfirmed it will not legislate to make ethnicity pay gap reporting mandatory for employers. Instead, it continues to favour a voluntary approach. Read the available guidance.

Positive action v positive discrimination

We have looked in previous bulletins at the difficulties of taking positive action (i.e. permitted measures to take proportionate steps to address low participation in a particular field, or a specific ability to give preference in recruitment or promotion decisions where two candidates are equally qualified for a role). These kinds of measures can easily slip into unlawful positive discrimination. A recent report into recruitment in the RAF illustrates the problems. It can be useful to see targets as acceptable, but quotas as unlawful. The RAF example demonstrates that this binary approach can be dangerous. The RAF had ambitious targets to increase the under-representation of female and BAME staff. Targets are usually not considered to be discriminatory in themselves, but here the targets were applied at a granular level and formed part of each recruiting officer's KPIs. That produced pressure to hit targets by whatever means, and was accompanied by an institutional desire to accelerate female and BAME recruitment by pulling prospective recruits for future years into the current year's statistics. Those, concluded the report, amounted to positive discrimination. As we have previously advised, clients contemplating trying to improve their diversity metrics should seek specific advice well in advance so that appropriate measures can be put in place to stay on the right side of this difficult line.

EEA Employees with Pre-Settled Status to be granted automatic two year extensions or Settled Status

On 17 July 2023, new Immigration Rules laid before Parliament, confirms that from September 2023 people with Pre-Settled Status under the EU Settlement Scheme (EUSS) will automatically have their status extended by two years before it expires if they have not obtained Settled Status.

This note sets out further details.