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The Employment Appeal Tribunal has found that an employee’s “gender-critical belief”, namely a belief that people cannot change their biological sex, represent a philosophical belief that is capable of protection under the Equality Act 2010.

The Case 

Ms Forstater was dismissed after posting a series of tweets questioning government plans to let people declare their own gender. The original tribunal found that Ms Forstater’s views were, “not worthy of respect in a democratic society”, and that her employer was justified in dismissing her. At appeal, whilst Ms Forstater’s words were found to be offensive, the Honourable Mr Justice Choudhury found that this did not stop Ms Forstater from being protected from expressing those beliefs as they “did not seek to destroy the rights of trans persons”.

This case involved two relevant sections of the Equality Act 2010:

• Section 7 of the Equality Act 2010 confirms that gender reassignment is a protected characteristic, giving protection to people who have proposed to undergo, are undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. It is therefore unlawful to treat someone less favourably because of their gender reassignment.
• Ms Forstater was relying upon section 10(2) of the Equality Act 2010, confirming that a “philosophical belief” is also a protected characteristic.

The Decision

The decision does not mean that Ms Forstater is/was free to unlawfully harass or discriminate against trans people, but that her rights and protection under the Equality Act 2010 should also have been considered before taking any action to dismiss her.

This case represents another example of a Tribunal trying to balance the rights of employees who have the freedom to express their genuinely-held beliefs which may be offensive to some employees, versus those offended employees who have a right not to be treated less favourably because of their protected characteristics.  

Read the full story by the BBC here. 

If you need advice because you have been unfairly treated due to your own protected characteristics, or if you are an employer with employee issues, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.

Employees are protected from being unfairly treated or dismissed as a result of them raising reasonable issues regarding the safety of the workplace. The aim behind this protection is to encourage employees to be able to raise any relevant health and safety concerns, without fear of being dismissed just for raising these concerns. This might happen in circumstances where an employer considers that an employee is being ‘difficult’, or raising too many issues. This protection has been particularly relevant during the current Pandemic, as employers have an obligation to take reasonable steps to make sure the working environment is ‘COVID secure’ and safe in line with the Government’s guidance. Many employees who refused to attend their workplaces and were dismissed because of that refusal, have subsequently brought claims against their employer under this legislation.

From 31^st May 2021, the Government intends to amend Section 44 of the Employment Rights Act 1996 to extend protection from Health and Safety detriment to workers.  A worker is someone who provides services to a person or business, but the person or business does not have to offer them work and they do not have to accept it – they only work when they want to.

Currently workers do not have the same rights as employees to receive protection from complaining about unsafe working environments, but The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 will grant workers the same rights.

If you are affected by any of the issues in this article, or if you would like advice on any other employment issue, please contact Ben Stanton on 01908 660966 / 01604 828282 or email ben.stanton@franklins-sols.co.uk.

Former Great Britain cyclist Jess Varnish has spent years in a legal battle over her claim that she should be considered as an employee of British Cycling. Miss Varnish lost her initial case in January 2019, with the employment tribunal finding that the relationship was not that of employee or worker. Miss Varnish appealed to the Employment Appeal Tribunal which agreed with the original decision, finding that the relationship was more like, “students receiving grants”.

Why was it important that Miss Varnish should be considered as an employee?

All employees benefit from all of the protection afforded to “workers” as well as additional rights to the following:

• Statutory Sick Pay;
• Statutory Redundancy Pay;
• Statutory maternity, paternity, adoption and shared parental leave and pay;
• Protection against unfair dismissal;
• The right to request flexible working; and
• Protection under the Transfer of Undertaking (Protection of Employment) Regulations 2006.

If she had been deemed an employee, it would have paved the way for Miss Varnish to sue both British Cycling and UK Sport for wrongful dismissal and sexual discrimination after she was dropped from Team GB in the build-up to the Rio 2016 Olympics. As she is not an employee, she can no longer pursue this claim.

How do I know if I am an employee?

An employee is an individual who has entered into or works under a contract of employment. A contract of employment is a contract of service, whether in writing or implied over a period of time.

The 1968 case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and NI set out some basic requirements for an individual to be an employee:

• The employee must be paid;
• The employee must have agreed to carry out the work personally (i.e. they cannot hire someone else to do it for them);
• The employer must exercise at least some control over the individual; and.
• The employee must be obliged to carry out work for the employer, and the employer must be obliged to provide that work.

What are the differences between employees and workers?

The main difference is that there is no obligation on the worker to perform any work for the company and no obligation on the company to provide any work to the individual. Workers are entitled to fewer statutory rights than employees, but do have some key legal rights, such as protection from discrimination and against unlawful deduction from wages.

If you have any questions in relation to this story, your employment status or any other employment-related issue, contact our Employment Law Team on 01908 660966/ 01604 828282, or email employment@franklins-sols.co.uk.

Furlough leave was a concept that was foreign to the majority of the British population just a few weeks ago. However, since the announcement of the Coronavirus Job Retention Scheme on 20^th March 2020, it is now a term synonymous with the COVID-19 pandemic.

The government has continued to publish some much-needed guidance on the issue, clarifying which classes of persons are eligible to receive a grant whilst on furlough leave. In particular, the guidance now confirms that office holders, including company directors, can claim the grant as long as they are paid through PAYE. The grant will be based on 80% of the director’s annual salary; any dividends or other payment made outside of PAYE will not be used when calculating wages.

Importantly, one of the key requirements to qualify for the furlough leave scheme is that the individual does not undertake any work for their employer. Whilst this is reasonably straightforward when furloughing an employee, how does this concept apply to directors who may be responsible for making day-to-day decisions regarding the business?

A director should be aware that the Companies Act 2006 imposes certain general duties on every director of a UK company, all of which will still apply during furlough leave. However, the government’s guidance now confirms that:

“where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their company, they may do so provided they do no more than would reasonably be judged necessary for that purpose, for instance, they should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company.”.

Essentially, this means that as long as any work a director carries out does not generate commercial revenue or provides services to or on behalf of the company, they will still be classed as being on furlough leave and thus eligible for the grant.

Any decision to furlough a director should be made and adopted through a (virtual) meeting of

the board of directors in the normal way, with quorum, decision making, conflicts of interest etc. being documented in a set of thorough board minutes.

For more information on furloughing in general please read one of my previous posts, click here or watch one of my two videos which have been uploaded onto the Franklins Facebook page:

• 20th March 2020
• 1st April 2020

If you would like any advice regarding furlough leave please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk or if you would like any advice on drafting board minutes or directors duties in general please contact our Business Services team on 01908 660966/ 01604 828282 or email businessservices@franklins-sols.co.uk.

Many employers have now taken advantage of the Coronavirus Job Retention Scheme, placing employees on furlough leave to allow them to be eligible to recover a grant of up to £2,500.00 gross per month (or 80% of the employee’s wages, whichever is lower).

The guidance on the scheme has been amended twice since it was first announced, giving additional clarity to what was a hastily put together emergency scheme. Our employment solicitor, Ben Stanton, has created two videos to advise on the terms of the scheme. Click on dates below and you’ll be redirected to the respective videos:

• 20th March 2020
• 1st April 2020

As these videos were created as soon as any information was released, some of the information has since been clarified by the Government’s updated guidance of Saturday 4^th April, although the terms of the scheme are still as outlined in the video.

Disappointingly, the Government has still failed to clarify whether an employee can take annual leave during a period of furlough leave. However, in its stead, ACAS has released its own guidance to confirm that:

“If an employee is ‘furloughed’ (temporarily sent home because there’s no work), they can still request and take their holiday in the usual way. This includes taking bank holidays.”

This confirms that if an employee wishes to take annual leave during furlough leave (or if an employer wants them to take annual leave), the employee can take their annual leave and be paid in accordance with their contractual entitlement, whilst remaining on furlough leave.

As an alternative, the Government announced The Working Time (Coronavirus) (Amendment) Regulations 2020, a piece of emergency legislation which permits an employee to carry over 4 weeks’ untaken leave where it was not reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)”. Holiday entitlement can now be staggered over the next two years, rather than employees having to take their holiday entitlement when they return to work.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966 / 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

On 20^th March 2020, the Chancellor of the Exchequer, Rishi Sunak, introduced furlough leave. Whilst placing an employee on furlough leave is commonly-used in the United States, furlough leave is an entirely new UK legal concept.

Currently, if an employer closes its workplace or does not have any work to provide its employees and wanted to send them home, the employer is still obliged to pay employees their normal full pay if it had no work to provide to them. The exception to this is if the employer already has a contractual right to ‘lay off’ an employee, by sending them home without work; such a clause is commonplace in the building and aviation industry, but less so in others.

The Coronavirus Job Retention Scheme (otherwise known as the introduction of ‘furlough leave’) now means that whilst employers would still have to pay 100% of their employees’ wages if they asked them to remain absent from work, they could claim back 80% as a grant from HMRC, up to a maximum of £2,500.00 per month. On top of the 80%/£2,500.00, HMRC will also reimburse the employer the equivalent Employer’s National Insurance Contributions, together with the minimum employer auto-enrolment pension contribution. The employer should pay the employee 80% of the wages that they were paid on or before 19^th March 2020.

Whilst furlough leave was announced on 20^th March 2020, we had to wait until the evening of 26^th March 2020 to receive further details of the scheme. However, now that we have the details, we are able to offer our clients clear and detailed advice as to how to comply with this scheme and how to place employees on furlough leave correctly, in order to allow employers to claim back the furlough leave grant from HMRC.

If you would like assistance in placing your employees on furlough leave, or if you are an employee who has been placed on furlough leave and would like to discuss your rights, please contact Ben Stanton on 01908 660966/ 01604 828282 or by emailing ben.stanton@franklins-sols.co.uk.

A number of employment law updates have been announced to take place on 6th April 2020.

If you require legal assistance in relation to any of the changes, or indeed employment law generally, please do not hesitate to contact contact Ben Stanton, Partner in our employment department who will be happy to assist on 01908 660966 / 01604 828282 or by email at ben.stanton@franklins-sols.co.uk.