Autumn 2021 Employment Law update: Part 2 - Focus on family friendly and equalities

Here, Gowling WLG's Employment, Labour & Equalities team brings you a quick round-up of the recent need-to-know employment law developments. In Part 1, we looked at COVID-19 related developments. In Part 2, we turn to the latest on family-friendly and equalities issues:

1. Flexible working – making it the default
2. Flexible working and sex discrimination
3. Right to one week unpaid carer's leave to be introduced
4. Shared parental leave and pay
5. Harassment: reforming the Equality Act
6. Indirect associative disability discrimination
7. The burden of proof in discrimination cases
8. Radical reforms relating to sickness absence rejected

In Part 3, we focus on issues relating to unfair dismissal claims, and finally in Part 4 we move on to trade unions, enhanced redundancy terms, employment status and the National Minimum Wage.

1. Flexible working – making it the default

As a result of the COVID-19 pandemic, flexible working arrangements have been the norm for many. On 23 September 2021, the Government published a Consultation: Making Flexible Working the Default. This consultation sets out five proposals for reshaping the existing right to request flexible working regulatory framework so that it better supports the objective of making flexible working the default, drawing on the experience of the past 18 months. Under the consultation, which runs until 1 December 2021, the Government is considering taking forward proposals to:

1. Make the right to request flexible working a day one right (currently there is a 26 week service requirement).
2. Review whether the eight business reasons for refusing a request all remain valid.
3. Require the employer to suggest alternatives if they intend to refuse a request, for example an alternative part-time working pattern or a time-limited change being agreed.
4. Change the administrative process underpinning the right to request flexible working, namely
   1. introducing the ability to make more than one request every 12 months; and
   2. shortening the existing employer's three month decision-making period.
5. Ensuring better utilisation of requests for a temporary arrangement.

In addition to the above, the Flexible Working Taskforce has been asked to consider how to move on from the immediate response to COVID-19 and make the most of the recent lessons learnt, initially focusing on the "location" aspect of flexible working through "hybrid working".

As for what has been taken off the table, the Government has confirmed that it will not be introducing a requirement for large employers (250+ employees) to make public their flexible working policies as proposed in the July 2019 consultation, "Good Work Plan: Proposals to support families".

2. Flexible working and sex discrimination

The penalty for an employer who unreasonably refuses a request under the right to request flexible working regulatory framework is relatively limited. There is no mechanism by which a tribunal can enforce a request for flexible working, although it can award up to eight weeks' pay (subject to the statutory cap) if it finds that an employee's complaint is well founded.

However, some employees may also have alternative recourses against their employer if their request for flexible working is refused. For example, women returning from maternity leave may be subjected to indirect sex discrimination if their request is refused based on the fact that more women than men need to amend their working pattern to fit their caring responsibilities. On 6 September 2021 in Thompson v Scancrown Ltd T/a Manors, a tribunal awarded £185,000 highlighting this risk. A notable feature of the case was that the employer dealt with the request to vary hours by simply repeating a number of reasons for refusal lifted straight from the flexible working regulations themselves and this contributed to their failure to get over the hurdle in the indirect discrimination claim of showing that their refusal was a 'proportionate means of achieving a legitimate aim'.

3. Right to one week unpaid carer's leave to be introduced

On 23 September 2021, the Government published its response to the 2020 Carer's Leave Consultation confirming that it will introduce a new day one right for employees with caring responsibilities for a dependant with long-term care needs to take up to one working week of unpaid carer's leave.

Key provisions:

• Employees with caring responsibilities for a dependant with long-term care needs will be entitled to one working week of unpaid carer's leave (per employee, per year).
• The new right will apply to "employees" and not the wider category of "workers" in line with other forms of family-friendly rights. There will be no qualifying service requirement, making this a day one right.
• Eligibility for the new right, both in terms of who the employee is caring for and how the leave can be used, will be broadly defined. But what is NOT included is childcare (other than where the child has a disability or other long-term caring need in scope).
• The leave can be taken flexibly (i.e. from several half day blocks to a single block of a whole week).
• There will be a minimum notice period requirement and employers will be able to postpone (but not deny) the request for carer's leave where the employer considers the operation of their business would be unduly disrupted.

The draft regulations have not yet been published. Regarding timeframe for implementation, the Government simply states "when parliamentary time allows".

4. Shared parental leave and pay

Back in July 2019, The Department for Business, Energy and Industrial Strategy (BEIS) published a Consultation Good Work Plan: Proposals to support families. This included proposals for high-level options and principles for reforming the parental leave and pay system to enable parents to balance the gender division of parental leave (the term 'parental leave is used in a generic sense, not Parental Leave under reg 13 Maternity and Parental Leave etc Regulations 1999). On 23 September 2021, the Government stated it will respond to the 2019 consultation "later this year".

While we await the detail of future reform of the parental leave system, on 17 June, BEIS launched a new online tool to help expectant parents and employers quickly check their eligibility and pay entitlement under the shared parental leave and pay scheme. Parents will be able to check their eligibility for the scheme, calculate their pay entitlement, as well as download all the documents they need to complete to secure leave from their employer.

5. Harassment: Reforming the Equality Act

Back in 2019, the Government Equality Office (GEO) ran a consultation that primarily focused on sexual harassment, but equally applied to harassment related to age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation. On 21 July 2021, the Government published its response and has confirmed it will:

1. Introduce a duty on employers to prevent sexual harassment. The new duty will be based on employers being required to take 'all reasonable steps' to prevent harassment, and for an incident to have taken place before an individual can make a claim. A statutory code of practice will be developed to "help employers understand whether they have taken 'all reasonable steps' to prevent harassment".
2. Re-introduce protection from third-party harassment to include an "all reasonable steps" defence.
3. Consider extending the time limit for claims under the Equality Act 2010 from three to six months to apply to all claims under the Equality Act, not just claims for harassment.

As for when changes will be introduced, the Government simply states "when parliamentary time allows".

6. Indirect associative disability discrimination

The 2008 Court of Justice of the European Union (CJEU) decision in Coleman v Attridge Law established the concept of 'associative' discrimination - it is not necessary for an employee to be disabled to bring a direct disability discrimination claim: the claim can be based on someone else's disability with whom they are associated, for example a parent of a disabled child.

In 2015 the concept of associative discrimination was expanded, at least at EU level, to indirect discrimination. In CHEZ Razpredelenie Bulgaria AD v Komisia za Zashtita ot Diskriminatsia, the CJEU held that an indirect discrimination claim may be brought by a person not possessing the protected characteristic of those disadvantaged by the relevant provision, criterion or practice (PCP). It is enough that the person suffers alongside those who have a protected characteristic, provided the treatment stems from a measure which impacts disproportionately due to that group's protected characteristic. This left a question mark over the indirect discrimination provisions of the Equality Act 2010, which requires an individual to establish that the PCP creates a group disadvantage based on a protected characteristic that they themselves possess. As such, we were left back in 2015 having to see if time would tell how significant the CHEZ judgment would prove to be in the English courts.

Well, we now have an answer from the London Central employment tribunal, which has upheld a claim of indirect associative discrimination on the grounds of disability, applying the 2016 CJEU judgment.

In the case of Follows v Nationwide Building Society, Mrs Follows was the principal carer for her disabled mother. She was employed as a Senior Lending Manager (SLM) on a homeworker contract since 2011, although did attend the office a couple of days a week. In 2017, Nationwide decided that SLMs could no longer work at home on a full-time basis due to the need to provide effective on-site supervision. As Mrs Follows could not comply, she was dismissed by reason of redundancy. The tribunal accepted that carers for disabled people were less likely to be able to be office-based than non-carers and, as such, Mrs Follows was put at a substantial disadvantage because of her association with her mother's disability. The tribunal concluded that Nationwide's requirement was not objectively justified and upheld the claim of indirect associative discrimination.

This is the first reported case of a UK tribunal concluding that the indirect discrimination provisions of the Equality Act 2010 must be read as applying to an employee who is associated with a person with a relevant protected characteristic, despite the clear wording in the Act that the claimant themselves have the protected characteristic in issue. Although the case is not binding on other tribunals, as it is only a first-tier decision, it suggests tribunals may more readily find that where a PCP disadvantages an individual who has an association with an individual with a protected characteristic, indirect discrimination may be established.

7. The burden of proof in discrimination cases

Under the shifting burden of proof principle that applies in discrimination cases, it has long been held that the claimant has to initially prove facts from which the tribunal could infer that discrimination has taken place. It is only if such facts have been made out on the balance of probabilities that the burden shifts to the employer to prove that – again on the balance of probabilities – the treatment in question was in no sense on the protected ground. In 2017, the EAT in Efobi v Royal Mail Group Ltd controversially overturned this accepted orthodoxy, saying that the shifting burden of proof rule under the Equality Act 2010 did not put any burden on the claimant at all. A few months later, the Court of Appeal in another case reasserted the established view that the onus lies initially with the claimant.

In July, the Supreme Court handed down its judgment on the 'burden of proof' issue in Efobi. Agreeing with the Court of Appeal, the established orthodoxy remains: it is for the claimant in a discrimination case to initially prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.

8. Radical reforms relating to sickness absence rejected

In 2019, the Department for Work and Pensions (DWP) and Department of Health and Social Care (DHSC) published a consultation, 'Health is everyone's business,' in which it proposed significant reforms to statutory sick pay (SSP), including phased returns allowing an employee to receive part wage and part SSP. It also proposed introducing a right to request workplace modifications on health grounds for non-disabled employees. On 21 July 2021, the Government confirmed that it would not be taking the above proposals forward.

If you have any questions about this article, or about employment law in general, please contact Connie Cliff.