In this month’s instalment, our team highlight key updates to flexible working requests, as introduced by the Employment Relations (Flexible Working) Act 2023. We also explore recent case law relating to dual employment status, a fair dismissal in absence of a meeting, and proportionality in relation to an employee's beliefs that may otherwise be considered objectionable by others.
1. Changes to Flexible Working
The Employment Relations (Flexible Working) Act 2023 (the “Act”) received Royal Assent on 20 July 2023. The Act amends the statutory flexible working regime under the Employment Rights Act 1996 and makes the following changes:
- Employees will have a “day one” right to request flexible working. Currently, employees must have at least 26 weeks’ continuous employment to make a request.
- Employers will be required to consult with employees before rejecting a flexible working request. Currently, there is no consultation requirement.
- Employees will be able to make two flexible working requests in any 12-month period rather than the current limit of one request a year.
- Employers will be required to respond to flexible working requests within two months. This is shorter than the existing requirement to respond within three months.
- Employees will no longer be required to set out how their employer might deal with the effects of their flexible working request.
The Act does not change the eight statutory business reasons for rejecting a request.
In light of the changes made by the Act, ACAS has published an updated draft Code of Practice for consultation. The update seeks to encourage a more positive approach to flexible working, with the aim of fostering an environment in which requests are not automatically rejected without prior consideration and consultation.
Employers will need to update flexible working policies in due course to ensure that individuals who deal with flexible working requests are aware of the changes implemented by the Act and the updated ACAS Code of Practice.
2. Dual Employment Status
In the case of United Taxis Ltd v Comolly & Anor the Employment Appeal Tribunal held that a taxi driver could not be regarded simultaneously as a worker and an employee for two separate employers in respect of the same work.
- The claimant, Comolly, worked as a taxi driver through a licensed taxi owned by Tidman. The licensed taxi was also associated with United Taxis Ltd ("United Taxis"), by virtue of Tidman being a shareholder of United Taxis.
- There was no written contract between the claimant and Tidman in respect of the working arrangements. However, the claimant was required to:
- Contribute £150 in maintenance costs.
- Work five days a week, from Tuesday to Saturday.
- Work the hours that Tidman chose for him.
- Inform Tidman of when he intended to take annual leave, though the claimant did not receive holiday pay.
- Split the fare price with Tidman equally.
- Adhere to United Taxi's dress code, training requirements, byelaws and regulations.
- The relationship between the claimant and Tidman eventually broke down and the claimant made various complaints to the Employment Tribunal, alleging that he was an employee or a worker of Tidman or United Taxis.
Employment Tribunal Findings
- At first instance, the Employment Tribunal held that the claimant was a worker of United Taxis and an employee of Tidman. In doing so, it implied a contract between United Taxis and the claimant.
- Both United Taxis and Tidman appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal Findings
The Employment Appeal Tribunal held that it was not necessary to imply a contract between United Taxis and the claimant, and that the Employment Tribunal could not properly find that the claimant was simultaneously a worker of United Taxis and an employee of Tidman in respect of the same work (a concept often referred to as ‘dual employment’). The Employment Appeal Tribunal stated that dual employment was ‘problematic,’ further calling into question whether, and in what circumstances, dual employment would be legally possible. As such, the Employment Appeal Tribunal allowed the appeal and held that the claimant was a worker of Tidman and he was neither a worker nor employee of United Taxis.
This case demonstrates the complexity of dual employment relationships. The Employment Appeal Tribunal made it clear in its judgment that it was not aware of any authority to suggest that dual employment in respect of the same work is legally possible.
3. Dismissal in Absence of a Meeting
In the case of Charalambous v National Bank of Greece, the Employment Appeal Tribunal found that, in some circumstances, a dismissal can be fair even if the dismissing manager did not meet with the employee.
- Charalambous, the claimant, was employed by the National Bank of Greece as a relationship manager based in London.
- In January 2019, the claimant sent an email containing confidential information, including a spreadsheet with details of private clients, commission, turnover and assets, to her solicitor and trade union representative. The claimant also sent this email to her own private email address and to her brother.
- This was considered to be a client data breach, and the claimant's manager investigated. . A separate manager then held two face-to-face disciplinary meetings with her. Following this, the second manager provided his report of these meetings to the claimant’s manager.
- On receiving the report, the claimant’s manager decided to dismiss the claimant without meeting with her.
- The claimant brought claims of automatic unfair dismissal and detriment on whistleblowing grounds, ordinary unfair dismissal and race discrimination.
Employment Tribunal Findings
- The Employment Tribunal dismissed the claimant's claims and held that the reason for dismissal was gross misconduct and that the decision to dismiss the claimant was within the range of reasonable responses, open to a reasonable employer.
- The claimant was allowed to appeal whether the dismissal was procedurally fair.
Employment Appeal Tribunal Findings
- The Employment Appeal Tribunal confirmed that a procedurally fair disciplinary process would normally involve an investigation carried out by one manager, with a further separate and distinct disciplinary hearing carried out by an independent decision maker. The disciplinary hearing would then involve a meeting between the employee and the decision maker.
- However, the Employment Appeal Tribunal reasoned that, because the claimant had two formally recorded meetings with a manager, with the opportunity to be accompanied and make her own submissions in relation to the allegations, this was sufficient in the circumstances.
- The Employment Appeal Tribunal dismissed the claimant's appeal.
The decision was reached on the particular circumstances of the case and employers should not take this as authority that a dismissal will be fair if the dismissing manager does not meet with the employee. Employers should ensure that they follow the ACAS Code of Practice on disciplinary procedures to avoid unfair dismissal claims on the basis of procedural unfairness.
4. Employee's Beliefs
In the case of Mrs Kristie Higgs v (1) Farmor's School (2) The Archbishops' Council of the Church of England, the Employment Appeal Tribunal held that a teacher's lack of belief in gender fluidity was protected under the Equality Act 2010. The case centred on whether the severity of the limitation imposed on the employee outweighed the importance of the objective pursued by the school.
- The claimant, Higgs, is a Christian who worked as a pastoral administrator/work experience manager at Farmor's School.
- The claimant reposted content on her personal Facebook page about primary schools’ teachings about relationships, including same-sex relationships, same-sex marriage and gender being a matter of choice. On the same post, she encouraged readers to sign a petition to prevent the "brainwashing" of children. The post did not mention Farmor's School.
- A parent of Farmor's School complained about the claimant's post, citing that it demonstrated the claimant's homophobic and prejudiced views against the LGBTQ+ community.
- The claimant was suspended. Following a disciplinary investigation and an appeal, she was dismissed for gross misconduct.
- The claimant brought claims of direct discrimination and harassment on the grounds of her protected beliefs.
Employment Tribunal Findings
- The Employment Tribunal agreed that her beliefs were protected by discrimination laws. However, it dismissed her claim, finding that she was dismissed because of the school's concern regarding the Facebook posts, and how she could reasonably be perceived as holding homophobic and transphobic views.
- The claimant appealed to the Employment Appeal Tribunal.
Employment Appeal Tribunal Findings
- The Employment Appeal Tribunal found that the Employment Tribunal had erred in its judgment by failing to consider whether the school's action was because of, or related to, the manifestation of the claimant's beliefs. This would involve a consideration of whether there was a sufficiently close connection between the Facebook posts and her protected beliefs.
- It was for the Employment Tribunal to consider whether the posts constituted a manifestation of the claimant's beliefs under Article 9 of the European Convention on Human Rights, and whether the dismissal was because of the manifestation of the belief in itself, or, because the way in which she manifested her belief was justifiably objectionable.
- The Employment Appeal Tribunal found that the Employment Tribunal had not carried out a proportionality assessment, and therefore remitted the case back.
- The Employment Appeal Tribunal provided the following principles for consideration when dealing with a balancing exercise:
- The "foundational nature" of a person's rights to freedom of expression and manifestation of beliefs must be recognised. These rights are indispensable in a democracy, regardless of whether the belief is popular or mainstream, and even if its expression may offend.
- These are qualified rights, whereby the law permits the limitation or restriction of such expression and manifestation where necessary to protect the freedom and rights of others. Where a limitation or restriction can be objectively justified, such action is not taken in response to the exercise of rights in question, rather it is by reason of the objectionable manner of the manifestation or expression.
- The objective justification of a limitation or restriction will always be context specific.
- It will always be necessary to ask whether:
- The limitation of the right in question is sufficiently justified by the objective the employer seeks to achieve.
- The limitation is rationally connected to the objective.
- The objective can be achieved by a less intrusive limitation, without undermining the achievement of that objective.
- The severity of the limitation on the rights of the employee outweighs the importance of the objective.
- In addition, when answering the questions from within an employment relationship context, regard should be had to:
- The content of the manifestation.
- The tone used.
- The extent of the manifestation.
- The worker's understanding of the likely audience.
- The extent and nature of the intrusion on the rights of others and any consequential impact on the employer’s ability to run its business.
- Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk.
- Whether there is a potential power imbalance given the nature of the worker’s role and that of those whose rights are intruded upon.
- The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients.
- Whether the limitation imposed is the least intrusive measure open to the employer.
This case offers valuable guidance to employers, especially when addressing a situation which requires a balancing exercise, such as an employee expressing views that some may see as objectionable. The Employment Appeal Tribunal’s decision provides helpful guidance on the factors that are likely to be relevant when determining whether the action is justified.