Too hot to work
HSE guidance issued guidance in August recommended that employers review their workplaces and consider what measures they may need to put in place to counter the sort of extreme heat that the UK has experienced this summer. There is no maximum working temperature for workplaces in the UK, but this may need to be revised in future. Employers are legally obliged to look after the health and safety of their workers and heat is ‘classed as a hazard’. Employers whose premises are more exposed to heat and temperature fluctuations, such as manufacturing or catering, are particularly at risk of breaching reasonable temperatures under heatwave conditions. Our regulatory team would be delighted to help employers devise an audit protocol for assessing and anticipating workplace temperatures.
Agency workers can replace striking staff
A number of sectors have been affected by industrial action over the summer. Since legislation came into force on 21 July, employers have been able to employ agency staff to cover roles left temporarily vacant by striking staff, something that was previously illegal. However, as the train drivers’ dispute has proved, moving agency staff into highly skilled roles on a temporary basis is not easy so it will be interesting to see how widespread an effect such a move will have. However, employers can continue to employ temporary staff on fixed-term contracts which may be a more practical route to filling specialist roles.
Government support for Private Members' Bills
Two bills sponsored by private members have received government support. The Employment (Allocation of Tips) Bill 2022 was published in July and will make it illegal for employers to withhold tips from staff: the legislation is intended to ensure that all tips go directly to employees. The Neonatal Care (Leave and Pay) Bill, published in June, will give qualifying parents of babies receiving neonatal care additional leave and pay. Both bills have started their parliamentary progress.
‘Hire and fire’ alive and well
The Court of Appeal has recently confirmed that Tesco is able to dismiss employees and rehire on them on different contractual terms, overturning an injunction imposed by the High Court in January earlier this year. The Tesco case dates from a 2007 reorganisation which resulted in workers being offered retained pay (‘guaranteed for life’) rather than being made redundant. Last year, changed circumstances led to Tesco wanting to remove the retained pay element in return for a lump sum. USDAW took the case to the High Court which issued the injunction. On appeal, the Court ruled that there was no express term in the employments of contract that prevented Tesco from dismissing and rehiring – and also considered that the ‘guaranteed for life’ statement was unenforceable. Much of the case revolved around the language used in the employment contracts, reinforcing the overall message that drafting such documents must avoid any potential ambiguity. USDAW is seeking leave to appeal to the Supreme Court.
Age discrimination claims on the increase
Age discrimination has featured in several recent cases recently. In Northern Ireland, a prospective Domino’s Pizza delivery driver won over £4,000 after her application was unsuccessful. A tribunal found that age discrimination was central to the decision after the franchise interview panel had asked her about her age at the beginning of the interview.
In Citibank NA and others v. Kirk  EAT 103, Mr Kirk, a departmental manager aged 55, was made redundant after a reorganisation, with a younger colleague (aged 51) retaining the managerial position. Mr Kirk brought a claim for unfair dismissal and age discrimination, citing a comment made during the process that he was ‘old and set in his ways’. The Employment Tribunal upheld his claim. Citibank appealed and the EAT remitted the case back to the ET on the basis that the original tribunal had not fully considered Citibank’s reasons for the differences in treatment between the two individuals.
Finally, in Sunderland v Superdry, a designer in her fifties who finally resigned after being repeatedly overlooked for promotion was found to have been discriminated against on the basis of age and was awarded £85,000 compensation. The Tribunal found that the promotion process was unclear and unfair, and that Ms Sunderland had been classed as being a low ‘flight risk’ i.e. she was unlikely to leave.
All the cases outlined above reinforce the message that employers need to demonstrate that any decisions involving older employees – or potential employees - are fair, reached by objective reasoning to obtain a legitimate aim. Contact a member of the employment team if your policies need to be reviewed.