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Employment law update – August

Social Media in the Employment Tribunal

In a recent judgment dated 1st August 2023, the Employment Appeal Tribunal (‘EAT’) confirmed that comments made by an Employment Tribunal member on social media could, in some cases, support a finding of apparent bias.

This case is interesting not because of its outcome, but because of what it implies about the legal landscape now and the sorts of cases we might see before the EAT in the future.

The case of Aspect Windows (Western) Limited v Retter (as representative of the estate of McCrorie) (the ‘Aspect Windows’ case) was, at first instance, decided in favour of the Claimant. After the judgment was handed down by the Employment Tribunal, one of the lay members of the Tribunal made a post about it on her LinkedIn account. The contents of the post and the subsequent comments were all inoffensive. Indeed, the EAT confirmed in its decision to dismiss the appeal that a fair-minded individual would not have considered them demonstrative of apparent bias. However, the role that social media played in this appeal is still interesting insofar as it raises the question of how far this sort of issue could go.

It is not unusual for comments on social media posts to be admitted as evidence in the course of Tribunal or other legal proceedings. In the so-called ‘court of public opinion’ people are ‘cancelled’ frequently for posts made on Twitter (now ‘X’) in the early 2010s. However, it is significantly less common for social media to be used to interrogate the fairness of proceedings or to question a judgement of the Employment Tribunal.

The Aspect Windows Case is a poignant reminder that the digital age has transformed the way we communicate and how our thoughts and feelings are documented. We have all heard the warning at least once: if you published a post online, it is there forever. While this case did not lead to a finding of bias, it is certainly true that otherwise private opinions are now more accessible than ever. It does not seem far-fetched to imagine a world in which Tribunal members might also be subject to scrutiny based on tweets or Facebook posts.

Certainly, this case represents a reminder to all to be thoughtful and cautious when posting online; especially where our virtual personas can be tied back to our professional selves.

The Right to Strike

The right to strike is a fundamental aspect of labour rights in the United Kingdom. However, it is a qualified right; one which must be balanced against broader societal interests. In the case of R (on the application of ASLEF and Ors) v Secretary of State for Business and Trade (‘ASLEF’), the High Court considered whether the Government’s repeal of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the ‘Conduct Regulations’) was lawful. They found that it was not.

Regulation 7 outlawed the practice of supplying temporary workers to cover the work of those participating in official industrial action; a repeal would therefore seriously undermine the efficacy of strike action. Due to this, ASLEF and thirteen other trade unions challenged the repeal on grounds that: –

  1. the Government failed to comply with its obligation to consult with representatives of the affected groups before repealing the regulations; and
  2. that this represented a breach of their obligations under Article 11 of the European Convention on Human Rights (‘ECHR’).

Article 11 of the ECHR, incorporated into UK law through the Human Rights Act 1998, recognises the right to freedom of assembly and association. This includes the right to strike; a right which is, perhaps unsurprisingly, increasingly pertinent with more days lost to strike action in 2022 than in any other year since 1989. The decision of the High Court means that from 10th August 2023 employers will no longer be able to use agency workers to cover striking employees; a successful outcome for unions all over the United Kingdom.

On their victory, the general secretary of the ASLEF rail union, Mark Whelan, said: “we are proud to have stood with the other trade unions and the TUC to challenge these changes legally, and we will continue to do so in all those other areas, including minimum service levels, to ensure a level playing field for workers here in the UK.”

Whether or not the government will attempt to appeal this decision remains to be seen. However, given that there are other ways for employers to mitigate the impact of industrial action, the overall impact of this victory removes only one weapon from the arsenal of employers.

As always, our experienced employment solicitors are able to assist with any aspect of industrial action.

New Legislation and Consultation

The realm of employment law is, as always, in a state of constant evolution. The past month has seen several key developments which this article will explore together with the relevant implications and the importance of staying abreast of these changes.

Occupational Health

In previous blog posts, we have discussed the UK Government’s plans to bolster economic growth through key changes to employment law. However, one very important matter is yet to be addressed; ill-health in the workforce.

According to data from the Office of National Statistics (‘ONS’), ill-health absence in the United Kingdom was at an all-time high in 2022 with a record-breaking 185.6 million working days lost to sickness or injury. This represents an increase of 35.8 million from 2021 and an increase of 47.4 million from before the COVID-19 pandemic. Whether it is caused by physical illness or mental health conditions, the adverse impact of sickness absence on the economy cannot be overstated. It results in decreased productivity, increased workload on colleagues and financial strain on employers.

On 20th July 2023, the Government launched two consultations to tackle this issue: one seeking views on proposals aimed at increasing employer use of Occupational Health (OH) Services; and one aimed at exploring the role of tax incentives in boosting OH provision by employers. They stated their intention to seek views on establishing collaboration between Government, employers, and OH providers to boost OH coverage in the United Kingdom.

OH encompasses a range of practices and services designed to promote and maintain the health, safety and well-being of employees in the workplace. By focusing on prevention, health management, and creating a supportive work environment, OH professionals contribute to a healthier, more engaged workforce. As businesses in the UK continue to prioritise employee well-being, the role of OH will remain pivotal in reducing sickness absence and ensuring workplaces thrive.

If you have any questions about how to make best use of OH in your business, please get in touch with the team at Balfour+Manson.

Employment (Allocation of Tips) Act 2023

The following provisions of the Employment (Allocation of Tips) Act 2023 (the ‘Act’) came in to force on 31 July 2023: –

  • Section 9 inserts sections 27P to 27T (“Code of practice about tips etc”) into the Employment Rights Act 1996 (ERA 1996). Section 27P of the ERA 1996 enables the Secretary of State to issue a code of practice for the purpose of promoting fairness and transparency in the distribution of qualifying tips, gratuities and service charges.

  • Sections 1 to 8 and 10 to 12, for the purpose only of enabling the Secretary of State to issue a code of practice under section 27P of the ERA 1996 (as inserted by section 9).

This represents the first steps towards implementing the Act in its entirety.

The subject of tip distribution entered public consciousness in the United Kingdom in 2015 when Pizza Express found itself embroiled in a tipping controversy that soon spread to other restaurant chains and shed light on broader issues surrounding tipping practices within the hospitality industry.

The first Government consultation on tips, gratuities, cover and service charges took place in 2016, so to say that reform has been long-anticipated would be an understatement. Business and Trade Minister Kevin Hollindrake stated that “as people face rising living costs, it is not right for employers to withhold tips from their hard-working employees”. Evidently now in 2023, given the current state of the economy and the cost-of-living crisis, this new legislation is still as relevant as ever.

The Act will require employers to fairly allocate “qualifying tips” – these being tips over which they exercise control or significant influence. Importantly, failure to comply with the statutory code of practice on the fair and transparent distribution of qualifying tips (yet to be consulted on) will be admissible in evidence in Employment Tribunal claims. Given the impact on employers, it is likely that we will see more widespread use of tronc systems which, when run independently of the employer, provide National Insurance savings.

Major changes are clearly underway. As always, the Employment Law team at Balfour+Manson are on hand to provide guidance on all HR and Employment Law issues. Whether you are an employer or an employee – please do get in touch to discuss your requirements.

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