29/07/2020

Welcome to our Summer edition of the Higher Education Employment Eye.  Following the impact of COVID-19, HEIs will be busy preparing for the new term in September and how to manage staff and students whilst maintaining health & safety standards.

We have selected four articles for you in this publication: three cover particularly interesting cases, whilst we start with the Government’s latest announcement on the detail of its shiny new immigration system which is due to start in January 2021.

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A single global immigration system – Home Office publishes further details of its plans for new UK Immigration System

On 13 July 2020, the Home Office published a statement providing further details for applications, employers and educational institutions on the UK’s Points-Based Immigration System. The statement sets out the draft requirements and conditions underpinning the key immigration routes in the new Points-Based System. The new system will be implemented on 1 January 2021 and when in operation, any non-British or Irish nationals coming to the UK from any country in the world for the purpose of work or study (other than some short-term business visitors) will need to obtain a visa for which they will pay a fee.

The Government have stated that they will confirm final details for the Points-Based System later this year via guidance for applicants, Immigration Rules and secondary legislation. A summary of some of the changes are set out below.

Change of terminology

The Government appear to have chosen to drop the “tier” terminology which currently exists. None of the immigration categories listed in the statement contain references to Tiers:

  • Tier 2 will become the Skilled Worker category.
  • Tier 4 will become the Student category.
  • The Tier wording will be dropped from the existing Tier 1 and 5 routes.

This is likely to be a welcome change which should provide further clarity to migrants in relation to which route they should apply under.

Sponsorship

For workers or students, sponsorship maintains a relationship between a recognised UK employer or educational institution and a migrant to ensure that those to come on the work and student routes are genuinely intended to work or study. Overall, the sponsorship system will form an integral part of the Points-Based System by supporting compliance with the Immigration Rules.

Student Route

There will be no limit of the number of international students who can come to the UK to study, and the Home Office will seek to increase the number of international students in higher education as set out in the International Education Strategy published in March 2019. The new Points-Based Student route will build on the current Tier 4 system. The core tenets of the Tier 4 route will remain: sponsorship by a licensed provider, demonstration of English language ability and the ability of the student to support themselves in the UK.

However, the Home Office hope to improve this route by making it more streamlined for sponsoring institutions and their students, creating clearer pathways for students and ensuring the UK remain competitive in the changing global market.

Students will require a total of 70 points to be granted leave. Points will be non-tradeable and will be awarded for meeting the necessary requirements (i.e. study, financial and English language).

 

A link to the full guidance can be found here.

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Employer not held to be liable to a whistleblowing employee for damage to the employee’s reputation caused by a false statement (Court of Appeal)

(Jesudason v Alder Hey Children's NHS Foundation Trust)

Following tensions with the Claimant and his colleagues in 2008, a mediation process took place and was conducted on a confidential basis.

The Claimant subsequently made a disclosure to the Trust’s HR department in 2009, triggered in part by allegedly improper treatment of a colleague.  The disclosure made use of confidential information obtained in the mediation process. In 2011, the Claimant made a second disclosure again using confidential information. He then contacted the media which resulted in an article, critical of the Trust, appearing in national newspaper. He also made further disclosures to the Care Quality Commission (“CQC”).

The Trust instructed the Royal College of Surgeons (“RCS”) to review the Claimant’s criticisms and produce a report which found failings in the way the Trust has managed the Claimant’s whistleblowing.

Following unsuccessful High Court proceedings concerning the termination of his contract, the Claimant resigned from his post. He then brought an employment tribunal claim for whistleblowing detriment and race discrimination, relying on post-termination detriments allegedly suffered as a result of protected disclosures including disclosures made after his resignation.

The tribunal found that several of his disclosures (such as those to the media) were not protected, but other disclosures, such as those to the Trust and CQC, were protected. One of the detriments the claimant alleged to have suffered concerned letters sent from the Trust to third parties, setting out the Trust's position. In particular, several letters stated that "each of Mr Jesudason's allegations have been thoroughly and independently investigated by different professional bodies on a number of occasions and found to be completely without foundation", even though the RCS report had in fact identified some failings.

The tribunal held that the sending of the letters did not amount to a detriment, as the Trust was defending its position and this could not reasonably be viewed as causing a detriment. The Claimant appealed to the EAT which upheld this decision.

The Claimant then appealed to the Court of Appeal and his appeal was dismissed.

The Court of Appeal held that there had clearly been a detriment to the Claimant. However, it held that the detriments were not on the grounds of any protected disclosures. Further, an employer was entitled to respond, even to protected disclosures, in order to rebut allegations against them. If, as in this case, the rebuttal also contained misleading statements which constituted a detriment to the worker, it did not follow that the reason for making those statements was the fact that the Claimant had made the protected disclosure. The Court of Appeal agreed with the tribunal’s finding that the Trust’s motivation for making the statements had been to minimise the effect of potentially damaging put into the public domain.

Not only does this case highlight the difficulty of showing causation in whistleblowing cases of this nature, but it also confirms that where a whistleblower has taken the matter outside the organisation, the employer will not necessarily be liable under the whistleblowing legislation if it responds in kind, even if this harms the employee’s reputation in the process.

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The EAT finds that an unfair dismissal claim could proceed on procedural fairness grounds, even where there is no prospect of monetary award

(Evans v London Borough of Brent)

The EAT has overruled an Employment Tribunal’s decision to strike out a claim for unfair dismissal, even though the Claimant had no prospect of winning a financial award.

The Claimant, a deputy head teacher, had been dismissed on grounds of gross misconduct for his involvement in financial mismanagement. The mismanagement had resulted in him receiving unauthorised overpayments from the school and allowing unauthorised overpayments to another person.

The Claimant’s claim in the Tribunal was stayed pending High Court action which resulted in the Claimant being ordered to repay over £46,000 to the school. The Employment Tribunal struck out the claim for unfair dismissal on the grounds that there were no reasonable prospects of finding that the employer did not have reasonable belief in the misconduct, or that dismissal was outside the range of reasonable responses. Although the disciplinary process was arguably procedurally unfair, this ground was also struck out, as any compensation would inevitably be reduced to zero (either as a Polkey reduction or due to contributory fault).

The Claimant appealed this decision which was upheld by the EAT. The EAT held that he Employment Tribunal had failed to acknowledge the potential value of a mere finding of unfair dismissal, even without a financial award. Further, it could not be said that such a finding would be of no value, or that it was not in the interests of justice to hold an employer accountable for procedural unfairness in deciding to dismiss an employee, even if the Claimant would not be entitled to a financial award.

This decision highlights the importance the EAT places on ensuring employers are held to account for procedural unfairness, even where the Claimant may not be entitled to a financial award.

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Reasonable Adjustments – undertakings and a request to work with certain colleagues

(Hill v Lloyds Bank plc UKEAT/0173/19)

A recent case in the EAT, Hill v Lloyds Bank plc, explored the use of an undertaking when considering reasonable adjustments for a disabled employee. Section 20 of the Equality Act 2010 requires employers to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by an employer’s provision, criterion or practice (“PCP”). If a claim is brought, the Tribunal will consider whether a particular adjustment is in fact reasonable to make in the circumstances.

The Claimant in this case was employed by Lloyds Bank for over 30 years, and remains employed there. She was on sick leave for stress for a period of time in 2016 – 2017 which she alleged was caused by bullying and harassment by two colleagues (Ms A and Mr B). When the Claimant returned to work, she was placed in a separate office to Ms A and Mr B but she was still anxious she may have to work with them again in the future.

The Claimant subsequently sought an undertaking from Lloyds that it would not rearrange duties or roles so that she would have to work with, or report to, either Ms A or Mr B, and in the event there was no practical alternative, Lloyds would offer her a severance package equivalent to what she would have received on redundancy. Lloyds responded that whilst it could make efforts to ensure this did not happen, it could not provide an absolute guarantee. Further, Lloyds told the Claimant that they could not offer a redundancy or severance package in this scenario as her role would not be redundant.

The Claimant then brought a claim against her employer for a failure to make reasonable adjustments. It was accepted that the Claimant was a disabled person (by reason of reactive depression) and that her employer had knowledge of this disability. The Claimant argued that she was placed at a substantial disadvantage compared to a non-disabled person in that she was in a state of "constant fear, worry and stress" that she may be required to work with either Ms A or Mr B in the future.

The employment tribunal upheld the claim and held that the practice of not giving undertakings (only words of comfort) placed the Claimant at a substantial disadvantage because it meant she would suffer a level of anxiety and fear which a non-disabled person who had been bullied and harassed would not. The tribunal awarded £7,500 for injury to feelings and made a recommendation. This recommendation was subsequently set aside by the tribunal, who noted that it was inappropriate for a number of reasons. Both parties appealed to the EAT.

Of significance, the EAT saw no reason why it could not be reasonable to give an undertaking to provide a disabled employee with certain benefits if, in future, certain circumstances arise. The fact that this would be a special benefit could not be an objection, as the inherent purpose of the reasonable adjustments regime is to give a special benefit to disabled people.

This case may give employers concerns as to the adjustments which could be considered “reasonable” in giving comfort to employees who are concerned with working with certain colleagues. Despite the Claimant working in a different office to the colleagues in question, it was still held to be reasonable to provide an undertaking as opposed to mere “words of comfort”. The EAT did however concede that an undertaking in the form such as this is likely to only be required rarely, and taking some more informal steps to assuage the employee's reasonable concerns at an early stage might prevent the request escalating.

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