2020 Update

2020 has been quite a remarkable year, and some might say for all the wrong reasons. If someone had said to business owners last year that by March 2020, offices would be closed across the country, the vast majority of staff working from home, and thousands of others receiving assistance from the government for not working, aside from the usual Social Security benefits, they might have been accused of reading a page from a dystopian novel by Franz Kafka. This unfortunately, is the reality we are currently experiencing, as we enter the fourth week of what has become known as Lockdown2.

The Furlough Scheme and Job Retention

The biggest surprise, as well as the biggest headache, for employment lawyers and employers this year, has been navigating the furlough scheme. Readers will be all too familiar with a word that until March, had been associated with the Armed Forces on a leave of absence. Despite complex legislative regulations and sometimes contradictory guidance, the furlough scheme, under which the government pays up to 80% of employee’s hours not worked up to a maximum of £2,500 per month, has provided a much-needed reprieve for businesses, who might otherwise have had to make wide-scale redundancies. Just as we were getting our heads around the job support scheme, Rishi Sunak announced that he was putting it on ice and extending furlough until 31 March 2021. We shall have to see if a vaccine emerges, and if so whether this will provide the silver bullet everyone hopes it will. If lockdown persists beyond March next year however, then we are likely to see an extension of the furlough scheme, or an implementation of the job support scheme. My hunch is that one or other of the schemes will remain in place for some time yet.

Whilst I’m sure most of us are suffering coronavirus fatigue, given that it has dominated our attention since the first quarter of the year, it’s important that we do not lose sight of other legal developments that have perhaps gone under the radar.

Agency Worker Rights

The government introduces legislation on 6 April of each year, and we saw a raft of new measures implemented in 2020, extending rights to atypical workers. Firstly, the government removed the so-called “Swedish derogation“ in the Agency Workers Regulations 2010 (which allowed employers to avoid parity between agency workers and employees). The 2020 amendment requires all employment businesses (employment agencies) to provide agency work-seekers with key information before agreeing the terms on which they’ll undertake work and fundamentally, agency workers now have the right to a basic written statement outlining the terms of their engagement. A so-called “section 1 statement”, must include confirmation of the name of the putative employer, the date on which the employment began, the scale or rate of pay and the method of calculating pay, normal working hours and any other benefits.

Parental Bereavement

The Parental Bereavement Act 2018 took effect on 6 April. It is a right available only to employees although as with other forms of parental leave there is no length of service requirement. It entitles the bereaved parent of a child under 18, including a stillbirth after 24 weeks of pregnancy, to one week, two continuous weeks, or two separate weeks’ leave, starting on any day of the week.

Employees taking parental bereavement leave may also be entitled to statutory parental bereavement pay if they meet certain statutory eligibility criteria including being a “bereaved parent” and having 26 weeks’ continuous service. Statutory bereavement pay, is paid at the same rate as other parental leave payments, currently £151.20 per week. This is not an overly generous financial provision, but interestingly, individuals who are not “employees” in the strict sense, may still benefit from statutory parental bereavement pay even if they do not qualify for parental bereavement leave itself, provided they serve the relevant notice and do not work during the relevant period. This is because the regulations define an “employee” as a person employed under a contract of service, or an officer (including an elected office), with “earnings”. This widens the scope to apprentices, agency workers and members of the clergy.

Vegans: 1 – Vegetarians: 0

Turning to case law now, wellness has been on the agenda for many of us affected by the rigours of isolation during lockdown, and for some it might entail a change of habits for the better.

In the case of Casamitjana Costa v League Against Cruel Sports heard earlier this year, an Employment Tribunal found that ethical veganism amounted to a protected belief under the Equality Act 2010. This won’t be the case for every lifestyle choice, but here, the claimant’s veganism amounted to more than a mere fad. It was a “weighty and substantial aspect” of his life.

In order for a belief to be protected it must be genuinely held, cannot be an opinion or viewpoint, and must attain a certain level of cogency, seriousness, cohesion and importance.

In this case, the claimant’s belief was founded upon a long-standing tradition recognising the moral consequences of the non-human animal sentience, upheld by both religious and atheists alike. The Judge found that the claimant dedicated himself to his belief throughout what he ate, where he worked, what he wore, the products he used, where he shopped, and with whom he associated.

In light of this, the Judge stated that he found it “easy to conclude” that there was “overwhelming evidence that ethical veganism is capable of being a philosophical belief and therefore protected”.

It seems that vegetarians haven’t had quite the same luck, with an employment tribunal in the case of Conisbee v Crossley Farms and others this year finding that vegetarianism is not a belief qualifying for protection, although the claimant is seeking permission to appeal. The reason the employment tribunal rejected Mr Conisbee’s claim, in contrast with Mr Casamitjan’s above, was that Mr Conisbee’s vegetarianism did not attain the required level of cogency, seriousness, cohesion and importance. The reason for this was (so held the Employment Judge), that vegetarians practice vegetarianism for a variety of different reasons including lifestyle, health, diet, as well as a concern about the way animals are reared for food.

Is Menopause a Disability?

Whatever your dietary choices, it is important to have regard to mental health during lockdown and this can be relevant to the question of disability.

An interesting case on this subject, heard in 2017 but which is awaiting appeal as we speak, is Davies v Scottish Courts and Tribunals Service, which deals with the symptoms of menopause, which for many is still sadly a taboo subject. As is the case with disability discrimination, we are often less concerned with the underlying cause of the impairment, than we are the adverse effects. The same goes for obesity, which of itself is not a disability, but which can give rise to adverse effects, such as fatigue or heart problems, so as to bring a person within the definition.

Miss Davies experienced transition symptoms including heavy bleeding which required her to work near a bathroom, as well as stress, memory loss and other symptoms. An Employment Judge found that her employer had treated her unfavourably because of something arising in consequence of her disability, when she said she could not remember whether she had placed her tablets in a jug, which two male colleagues had drunk from. The employer accused her of lying and dismissed her. The Employment Tribunal found that the menopause had caused memory loss and confusion which were adverse effects.

A bright new horizon?

Once 2020 is over, we have Britain’s exit from the European Union to look forward to, which no doubt this will bring headaches of its own. Look out for our regular updates about this, as well as our engaging series of 2021 webinars, in which we will deal with this and other developments, in the coming months. Until next year…