Frontline UK Employment Law Update Edition 1 2020

Welcome to the latest edition of Frontline UK.

Our feature article, co-authored by Associate Amy Barlow and Senior Associate Jonathan Goldsworthy, provides some practical tips to help make sure that your Christmas party strikes the delicate balance between entertainment and professionalism.

Our immigration feature, written by Yuichi Sekine (Head of UK Business Immigration) explains how the Home Office's vision of the UK as a science superpower has influenced proposed immigration policy changes.

Our case updates cover an EAT judgment on investigation reports; a Tribunal ruling that it was not discriminatory to dismiss an employee based on their religious refusal to use preferred pronouns; an EAT judgment on the scope of protected conversations under the Employment Rights Act; an EAT finding on unlawful detriment claims in relation rights under the Working Time Regulations; an EAT confirmation on the scope of unlawful harassment under the Equality Act; and a Supreme Court decision confirming that an award of over £2m to an employee was justified on the basis that their invention was of "outstanding benefit" to their employer.

Finally, our legal updates cover a new EU directive to protect whistleblowers and detail the new ACAS guidance on managing menopause at work.

Christmas parties in the workplace: how to avoid a HR headache

Written by Associate Amy Barlow and Senior Associate Jonathan Goldsworthy

It's that time of the year when the tinsel and mince pies come out far too soon and it's acceptable to wear questionable knitwear to work. In office life, Christmas is practically synonymous with a lavish office party resulting in bonding, carousing and hangovers. For employers, Christmas parties provide a unique opportunity to strengthen teams, thank employees and relax. However when one drink flows into another, an evening of cheer can quickly turn into a serious problem with far-reaching consequences, to the extent that employers can be potentially liable for their employees' drunken actions.


Bird & Bird & Background Screening - Thursday 23 January 2020

On 23 January 2020, our Data Protection & Employment teams are hosting an event on Background Screening at our offices here in London.
More and more employers are carrying out background checks on their workforce, whether to meet legal and regulatory standards or to mitigate internal risks. Workers who have lived, worked or studied abroad provide welcomed diversity to the workforce but can present added complexity for an employer's background screening program.

For further information or to register your place, please click here >

Immigration Update

Attracting Global Talent

How employers can take advantage of the government's vision to become a science superpower

The Home Office published their latest Statement of Changes (HC2631) to the Immigration Rules on 9 September 2019.

This statement encompasses a huge variety of tweaks and updates, however specific changes to the Shortage Occupation List hint at a more open future for skilled migrants working in IT, engineering and sciences.

Click here for the article >>

Case Summary

EAT endorses removal of pro-employee findings from investigation reports

Dronsfield v The University of Reading (Employment Appeal Tribunal)

The EAT has held that an employer which had, on the advice of a solicitor, removed findings helpful to an employee in an investigation report had not subsequently unfairly dismissed that employee on the grounds of misconduct. This was because investigative reports should be limited to factual findings and recommendations as to whether or not disciplinary action is warranted. Evaluative conclusions should follow a formal hearing.


Dismissal for religious refusal to use preferred pronouns not discriminatory

Mackereth v Department for Work and Pensions and another (Employment Tribunal)

An Employment Tribunal has ruled that it was not discriminatory to dismiss an employee when he refused to address transgender patients using their preferred pronouns. In its view, the employee's conscientious objection to trangenderism due to his Christian beliefs was not capable of protection as a religious or philosophical belief under the Equality Act 2010 ("EqA"), on the basis that such views were incompatible with human dignity and conflicted with the fundamental rights of others.


EAT reminds employers of limits of protected conversations

Harrison v Aryman (Employment Appeal Tribunal)

In a reminder to employers as to the limits of "protected conversations" under s.111A Employment Rights Act 1996 ("ERA"), the EAT has provided guidance on how Tribunals should approach limits to the inadmissibility of "protected conversations" in circumstances where: (i) claims other than ordinary unfair dismissal are made; (ii) claimants allege "impropriety" on the part of their employer.


Dismissal following dispute over rest break constitutes unlawful detriment

Pazur v Lexington Catering Services Ltd (Employment Appeal Tribunal)

The Employment Appeal Tribunal has held that an employee who was denied his minimum entitlement to rest breaks under the Working Time Regulations 1998 ("WTR"), subsequently refused to work and was then dismissed by his employer for doing so had suffered an unlawful detriment for refusing to forego his WTR rights.


Unwanted massage by female manager did not constitute harassment

Raj v Capita Business Services Limited (Employment Appeal Tribunal)

The EAT has held that a female manager who had given an unwanted massage to a junior colleague had not subjected him to unlawful harassment, on the basis that such actions did not constitute conduct of a sexual nature or "related to sex" as required under the Equality Act 2010 ("EqA").


Employee awarded £2 million for invention of "outstanding benefit" to employer

Shanks v Unilever Plc and others (Supreme Court)

The Supreme Court has upheld an award of £2 million in favour of an employee on the basis that his invention was of "outstanding benefit" to his employer and should therefore qualify for compensation under the statutory invention recognition scheme under the Patents Act 1977. This case is of real significance for all innovative businesses since it potentially increases the level of exposure to claims by their research employees to a share of the benefit derived from their invention.

Chris de Mauny, in our Intellectual Property team, has written a detailed summary of the implications of this case, which is available here.

Legal Updates

EU adopts new Directive to protect whistleblowers

The EU's "Whistleblowing Directive" (named the Directive of the European Parliament and of the Council on the protection of persons who report breaches of Union law) was published in the EU's Official Journal on 26 November 2019. This means that Member States will have until 17 December 2021 to implement the vast majority of its provisions.

Whilst UK law already reflects much of the Directive's requirements, it is likely to require the enhancement of applicable whistleblower protections in many European jurisdictions. Our previous commentary on the international impact of this new legislation can be found here.

New ACAS guidance on managing menopause at work

The Advisory, Conciliation and Arbitration Service ("ACAS") has released guidance on how to manage and provide support for employees or workers who are going through the menopause when at work. Some of the key areas covered include ensuring that health and safety checks are suitable; developing a menopause policy; offering an alternative to a manager as a first point of contact (such as a wellbeing champion); and sensitively managing sickness.

For full details, please see the ACAS Guidance here.

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