Law and Labour » Transport

P&O Ferries: was firing 800 staff unlawful?

Law and Labour — Sat, 19 Mar 2022 10:54:57 +0000

On 17 March 2022, the management of P&O Ferries announced by video call to 800 workers that their employment was to be terminated with immediate effect. Many are stunned that a major British employer could fire so many employees at will. However, there are potential legal consequences to P&O Ferries’ actions.

Under UK employment law, an employer needs a fair reason in order to dismiss an employee. It is unclear what reason P&O is likely to rely upon to justify the sackings. The company reportedly said the sackings were necessary “to reduce our crewing costs by 50 per cent, secure the future of our business and set it up for growth”.

One reason P&O Ferries might rely on is redundancy. This reason is appropriate where dismissal is due to a need to reduce headcount. However, P&O Ferries could struggle to prove that this was a genuine redundancy situation. It does not appear that staff numbers are being reduced; the main motivation appears to be reduction of staffing costs.

Alternatively, P&O Ferries could rely on the catch-all category of “some other substantial reason” (SOSR). This reason is typically used by employers where the reason for dismissal does not align neatly with one of the other legally accepted reasons for dismissal.

Whatever reason is chosen an employer must follow a fair procedure when dismissing staff. The appropriate procedure to follow depends on the reason for dismissal. With either redundancy or SOSR, a fair process involves consulting with employees prior to their dismissal. Given the swift manner in which the dismissals took place, no form of consultation seems to have occurred.

Without a fair reason or a fair procedure being followed prior to dismissal, P&O Ferries may find itself facing claims of unfair dismissal in the employment tribunal. However, those are not the only claims it could potentially face.

Where 100 employees or more are facing dismissal, an employer is legally required to take certain steps under collective consultation legislation. These include consulting collectively with employees at least 45 days before the date of the first dismissal. The penalty for not engaging in collective consultation is a protective award for each employee of up to 90 days’ gross pay. This is one of the most expensive liabilities an employer may face in employment law.

Another requirement is the need to notify the Secretary of State of the Department for Business, Energy and Industrial Strategy (BEIS) of the planned dismissals. The notification must be sent to BEIS at least 45 days before the first dismissal. Failure to do so is a criminal offence punishable by a fine. According to reports, the Government only learnt of the planned dismissals the night before the P&O Ferries announcement. The company’s directors could face criminal proceedings for failing to comply with the collective consultation obligations.

According to reports, P&O Ferries has offered its employees severance packages containing enhanced redundancy payments. These are likely being offered as a means of staving off claims for unfair dismissal and failure to carry out collective consultation. However, the company cannot dispel the potential criminal charges the company [...]

Gender-critical views were part of protected belief

Law and Labour — Sun, 13 Jun 2021 11:22:47 +0000

Facts

Maya Forstater was a researcher hired by CGD Europe Limited (CGD) in November 2016 to carry out consultancy work and appointed a visiting fellow. She regularly posted social media comments on the “transgender debate” – the rights of transgender persons in wider society. In autumn 2018, staff at CGD raised concerns about Ms Forstater’s posts, which they felt expressed transphobic views. CGD investigated the complaints and decided not to offer Ms Forstater further consultancy work. Her visiting fellowship was not renewed.

Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

Employment Tribunal

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

genuinely held; not a viewpoint based on the present state of information available; a belief as to a weighty and substantial aspect of human life and behaviour; capable of attaining a certain level of cogency, seriousness, cohesion and importance; and worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

Employment Appeal Tribunal (EAT)

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Ms Forstater’s appeal was therefore successful.

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

Comment

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. [...]

Gender reassignment includes non-binary and gender fluid persons

Law and Labour — Sun, 06 Dec 2020 20:01:13 +0000

It’s not often that the Employment Tribunal is the site of a landmark decision, but that is the case with Taylor v Jaguar Land Rover.

Facts

The case concerned an employee of Jaguar Land Rover (JLR), Rose Taylor, who joined the company in 1999. Ms Taylor was considered to be a high performer and very competent at her engineering job.

By 2017, Ms Taylor had notified JLR that she was gender-fluid and transitioning, but she had no intention of undergoing surgery to reassign her gender. She retained her male birth name but chose to dress in a male style on some days and a female style on other days.

Ms Taylor was subjected to a sustained campaign of harassment on grounds of gender reassignment over a long period. Although she submitted a grievance to JLR about her treatment, the company did not take any action to prevent the discriminatory treatment from occurring or continuing. Ms Taylor’s employment by JLR ended in June 2018 shortly after she had contacted Acas to start early conciliation.

Employment Tribunal

Following the ending of Ms Taylor’s employment, she brought claims of constructive unfair dismissal and discrimination on grounds of sexual orientation and gender reassignment, and victimisation.

The key question for the Tribunal to decide was whether a non-binary, gender-fluid person has the protected characteristic of gender reassignment. The definition of gender reassignment in the Equality Act describes a person who is undergoing or has undergone a process (or part of a process) to reassign their sex by changing “the physiological or other attributes of sex”.

The Employment Tribunal decided that a person need not have (or intend to have) surgery in order to identify as a different gender to their birth sex. Starting to dress or behave like someone who is changing their gender or is living in the identity of the opposite sex would be sufficient to qualify for protection from gender reassignment discrimination.

We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. Employment Tribunal

Ms Taylor accordingly succeeded in her various claims.

The Employment Tribunal considered it appropriate to award aggravated damages in this case because of the “egregious way” in which Ms Taylor was treated and the “insensitive stance” taken by JLR during the legal proceedings. This was in addition to a 20% uplift on damages due to JLR’s “complete failure” to comply with the Acas Code of Practice when handling the grievance. The parties eventually agreed compensation of £180,000.

Comment

The Employment Tribunal was scathing of JLR’s treatment of Ms Taylor which it found to be “unconscionable”. It took pains to stress that the fault did not rest with individual managers, [...]

Coronavirus job retention scheme announced

Law and Labour — Sun, 22 Mar 2020 12:27:04 +0000

Under the Coronavirus Job Retention Scheme, all UK employers will be able to access financial support to continue paying part of their employees’ salaries for those employees who would otherwise have been laid off or made redundant during the coronavirus pandemic. The Government intends that the scheme will run for at least 3 months from 1 March 2020, but it may be extended if necessary.

HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. This is broadly median national salary. Employers can choose to fund the difference between this amount and an employee’s full salary, but there is no need to do so.

All UK businesses will be eligible to participate in the scheme. This includes not only limited companies but also LLPs, partnerships and charities.

Employers will need to:

Designate affected employees as ‘furloughed workers’, and notify employees of this change. Changing the status of employees remains subject to existing employment law. This means an employer will need to agree with an employee that they’re going to become a furloughed worker and also decide upon the appropriate pay. It’s likely employees will agree to this if the alternatives are being made redundant or being sent home without pay. Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal. HMRC is working urgently to set up a system for reimbursement as its existing systems are not set up to facilitate payments to employers. When the portal is set up, HMRC will set out further details on the information required.

Employees should not undertake any work for their employer while on furlough. The employee will still be eligible for additional forms of support, including Universal Credit.

We’ll update this page as further details about the scheme become available.

Photograph: “Computer on minimal desk” by Startup Stock Photos

Claimant’s right to privacy insufficient to prevent online publication of judgment

Law and Labour — Sun, 10 Feb 2019 17:29:17 +0000

Since February 2017, it has been possible to obtain copies of Employment Tribunal judgments from an online database managed by Her Majesty’s Courts and Tribunals Service. When online judgments were first introduced, they were welcomed as a move towards open justice by adding transparency to the Tribunal process. One risk of any litigation, in addition to the concomitant time and cost, is the potential for reputational damage. Employers which fear having a public spotlight drawn to their activities are often keen to settle. However, the risk of damage to reputation applies to employees as well. The individual who has taken steps to assert their hard-earned employment rights might be labelled a troublemaker by potential employers.

Application for anonymity order

This was the difficulty faced by the claimant in the case of Ameyaw v PricewaterhouseCoopers Services Ltd. Miss Ameyaw was employed by PricewaterhouseCoopers (PwC) as a senior manager. She brought four claims against PwC which ultimately failed when they got to a final hearing. The early stages of the proceedings included a January 2017 preliminary hearing that was closed to the public and a hearing concerning an application to strike out the claim, which was heard in March 2017.

The judgment for the March 2017 hearing was published online and contained unflattering depictions of Miss Ameyaw’s conduct at the January 2017 preliminary hearing. Miss Ameyaw applied to the Tribunal for an order to (1) ensure the judgment relating to the final hearing would not be published, (2) remove the March 2017 judgment from the online register, and/or (3) anonymise her name in both judgments.

The application was made, Miss Ameyaw said, because she felt online publication of the judgments was harming her ability to find new employment. The Employment Tribunal rejected Miss Ameyaw’s application, so she lodged an appeal at the Employment Appeal Tribunal (EAT).

Appeal

The first question for the EAT to consider was whether the Tribunal had the power to exclude a judgment from the online register. The EAT found that it did not. The only exception permitted to the Tribunal was to exclude written reasons from a judgment if national security might be affected.

The second question was whether, if a judgment had to be published, should the Tribunal have exercised discretion and anonymised Miss Ameyaw in order to protect her right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

In deciding this point, the EAT first had to consider whether Article 8 was triggered by the circumstances of the case. The EAT found it was not: Miss Ameyaw could have no reasonable expectation of privacy in respect of a public hearing.

The EAT decided to go further and consider whether, had Article 8 been engaged, Miss Ameyaw’s right to privacy would have outweighed the common law principle of open justice and the competing ECHR rights to a fair trial (Article 6) and to freedom of expression (Article 10). The EAT found the Tribunal had decided correctly that there was no basis for overruling the principle of open justice in Miss Ameyaw’s case. [...]