26/01/2021
A belated happy new year to all although with lockdown 3 underway, it isn’t the greatest start to the year. That said, we all hope that the vaccination programme will create a path out of the pandemic.
This edition covers our usual range of case law and legislative/policy developments which impact the HE sector.
Education secretary accused of 'improper interference' with universities' autonomy and right to free expression over the IHRA definition of antisemitism
We look at the recent debate surrounding the IHRA definition of antisemitism and whether it should be adopted by all higher education institutions.
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Equality Act 2010 - Do paranoid delusions amount to a disability?
Do paranoid delusions amount to a disability? We report on a recent case which explores this question and consider what employers can do to assist those with mental health issues.
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Equality Act 2010 - Does protection extend to gender fluid or non-binary individuals?
We look at a recent case which explores the question of whether protection under the Equality Act 2010 extends to gender fluid or non-binary individuals and consider the measures employers need to put in place to ensure no individual is subjected to discrimination as a result of their gender identity.
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Coronavirus (COVID-19) and the higher education sector
We consider the ongoing impact of the pandemic and any updated guidance and policies issued by the government.
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What does Brexit mean for the higher education sector?
We consider the current and potential impact that Brexit is having on the education sector.
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Education secretary accused of 'improper interference' with universities' autonomy and right to free expression over the IHRA definition of antisemitism
In a letter dated October 2020, Education Secretary, Gavin Williamson, called for all universities to adopt the IHRA definition of antisemitism or else he “will act”.
Whilst his letter was welcomed by many Jewish communal organisations, Williamson’s threat has been criticised by those who believe his threats are an improper interference with universities’ autonomy and right to free expression. Amongst those who have spoken out against Williamson are a group of eminent lawyers, including two former appeal court judges, who put their names to a letter critiquing Williamson’s strong-armed approach. They wrote:
The Universal Declaration of Human Rights declares that “everyone has the right to freedom of expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
The letter goes on to say that the definition Williamson is promoting is often described as ‘the international definition of antisemitism’, whereas in reality it has no legislative or other authority in international or domestic law. The IHRA definition is as follows:
“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
It is accompanied by 11 illustrative examples, seven of which relate to Israel.
According to the Report of the Academic Board Working Group on Racism and Prejudice, the definition and its examples “disproportionately draw debate over Israel and Palestine into conversations antisemitism, potentially conflating anti-Zionism with antisemitism … thereby … risking the suppression of legitimate speech and academic research.”
However, James Harris, the president of the UJS – The Voice of Jewish Students, said the continuing battle over the IHRA definition was unacceptable; “When the definition is not used, it gives the power to those investigating to arbitrarily determine what they believe constitutes antisemitism.”
University College London adopted the definition in November 2019 but following the debate, academics at the university are due to vote this month on whether to call on the institutions’ governing body to rescind its adoption of the definition.
Williamson’s letter has brought to the foreground an international debate surrounding the IHRA definition. Academic opposition to the wholesale adoption of the definition centres on freedom of expression and in particular, whether criticism of Israel’s treatment of Palestinian people would be inhibited. In contrast, strong advocates say that the universal adoption of the definition would be a cornerstone for protecting the Jewish community. Either way, Williamson’s letter has sparked debate surrounding an emotive and important issue which needs to be discussed if institutions are to properly address and tackle antisemitism.
Equality Act 2010 - Do paranoid delusions amount to a disability?
No, confirmed the Employment Appeal Tribunal in the case of Sullivan v Bury Street Capital Ltd; an employee who suffered from paranoid delusions did not have a disability for the purposes of the Equality Act 2010 as his delusions, and therefore the impact on his ability to carry out daily activities, were temporary and intermittent.
A person has a disability under Section 6 of the Equality Act 2010 if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities. An impairment is considered to have a long-term effect if it has lasted, or is likely to last, for at least 12 months.
Background
Mr Sullivan was employed as a Senior Sales Executive for a small finance company. His employer had concerns about his time-keeping and attitude from the outset. In mid-2013, his relationship with a Ukrainian woman broke down and he started to believe that he was being followed and stalked by Russian gangs. His attendance and performance at work deteriorated for a period, but by September 2013 matters had improved and, even though he continued to experience some paranoid delusions, he was able to concentrate on work.
In April 2017 however, Mr Sullivan’s mental health worsened and his employer’s previous concerns about his behaviour and time-keeping came to the fore again. Following a performance and remuneration review in September 2017, Mr Sullivan informed his manager that he would be signed off sick for four weeks. His employer decided to terminate the employment for reasons relating to his capability and attitude.
Mr Sullivan’s Claims
Mr Sullivan brought a number of claims in the Employment Tribunal, including for unfair dismissal and disability discrimination. His claim for unfair dismissal was successful. However the Tribunal found that he did not have a disability within the meaning of Section 6 of the Equality Act 2010. Mr Sullivan appealed.
EAT Decision
The Employment Appeal Tribunal (“EAT”) upheld the Tribunal’s findings that even though Mr Sullivan had experienced periods of delusions in 2013 and again in 2017 which had, at each time, a substantial adverse effect on his ability to carry out normal day-to-day activities, these delusions were temporary and intermittent and therefore the adverse effect would not likely last for twelve months or even recur.
Mr Sullivan argued that the fact his delusions had in fact recurred in 2017 demonstrated that the Tribunal was wrong in its decision on this point. The EAT disagreed. The Tribunal had to assess matters based on the information that was available when the condition first occurred and consider if it was likely, at that point in time, that the substantial adverse effect would recur. The fact that it subsequently did was irrelevant to the assessment.
As such, the EAT agreed that Mr Sullivan did not satisfy the definition of a disabled person under the Equality Act 2010.
Implications for Employers
Whilst this is a fact-specific case, it shows the hurdles to establishing a disability under the Equality Act 2010; specifically the need for the impairment to have a long term adverse effect on an individual’s ability to carry out normal day-to-day activities. If an individual has suffered from an impairment over a long period of time, but there are fluctuations in the effect of that impairment on them, they may not meet the statutory definition of disability and therefore they may not benefit from the protection of the Equality Act 2010.
It also serves as a useful reminder to employers that not all disabilities are obvious and visible, and if they suspect that an employee is suffering from a disability, such as a mental health issue, the employer must act cautiously.
If an employee notifies the employer of an actual or potential mental or physical impairment, the first step should be to establish a communication channel so that there is regular communication and an ongoing opportunity to monitor the employee.
Equality Act 2010 - Does protection extend to gender fluid or non-binary individuals?
Yes, said the Employment Tribunal in the recent case of Taylor v Jaguar Land Rover Ltd; individuals who identify as gender fluid, or non-binary, are protected under the Equality Act 2010 by virtue of having a protected characteristic.
Facts of the Case
Ms Taylor worked as an engineer at Jaguar Land Rover for almost 20 years. In 2017, having previously presented as male, she began identifying as gender fluid and wearing women’s clothes to work.
She started suffering insults from her work colleagues and was the subject of abusive jokes. She also encountered difficulties with accessing appropriate toilet facilities in the workplace. When she raised these issues with management, she claimed to have received little support. As a result, she resigned and brought a claim in the Tribunal for harassment, direct discrimination and victimisation because of gender reassignment and sexual orientation, alongside a claim for constructive unfair dismissal.
Tribunal’s Decision
The Tribunal was unanimous in its decision that Ms Taylor had the protected characteristics of gender reassignment, acknowledging in its ruling that gender is a “spectrum”.
As a result, the Tribunal found that Ms Taylor had suffered direct discrimination, victimisation and harassment as a result of gender reassignment. She was also found to have been constructively unfairly dismissed.
Jaguar Land Rover was heavily criticised, and penalised, by the Tribunal for the “egregious way” in which Ms Taylor was treated.
Actions for Employers
The outcome reflects a broadening approach to viewing a person’s gender identity and it also reminds us that equality legislation is not set in stone.
Individuals may now identify as, amongst others, gender fluid, non-binary, trans, transgender (man or woman), gender variant, agender or gender queer. It is therefore important that employers familiarise themselves with the range of gender identities and are sensitive to the preferences of each individual within their organisation.
Where an employee identifies as a different gender it is vitally important to take time to understand their individual situation and steps that can be taken to support them in the workplace.
In terms of the wider workforce, employers should implement measures to demonstrate best practice and ensure no person is subject to discrimination as a result of their gender identity. This could include:
- Appointing a Diversity and Inclusion Champion (as Jaguar Land Rover was ordered to do by the Tribunal);
- Running awareness training for managers and staff;
- Inviting employees to state their preferred pronoun on their email signatures;
- Reviewing employment contracts and policies to ensure gender-neutral language is used;
- Ensuring a robust diversity and inclusion policy, or gender equality policy, is in place and anti-bullying policies are fit for purpose;
- Reviewing workplace facilities to ensure that, where appropriate, they are gender-neutral and accessible to all.
Coronavirus (COVID-19) and the higher education sector
Lockdown
With the implementation of a third lockdown, the government’s National Lockdown: Stay at home guidance states that people are not permitted to leave their homes ‘without reasonable excuse’ subject to a list of exemptions. Importantly, university students have been banned from returning to campuses and being told to study remotely from home. One exemption that permits people to leave their homes is for work where it is ‘unreasonable for them to do their job from home’. Employers should carefully consider which employees may attend their place of work with this test in mind and ensure they record their decision-making.
Shielding Regulations
The third lockdown has brought with it the reintroduction of shielding for the clinically extremely vulnerable, meaning those who are listed as ‘extremely vulnerable’ should stop going to work even if they cannot work from home. Employers should identify any employees which fall within this category, consider whether it is practical for them to work at home and furlough them if not.
Furlough
Updated guidance from the HMRC confirms that employers can furlough employees if they are unable to work, including from home or working reduced hours because they:
- are clinically extremely vulnerable, or at the highest risk of severe illness from coronavirus and are following public health guidance
- have caring responsibilities resulting from coronavirus, such as caring for children who are at home as a result of schools and childcare facilities closing, or caring for a vulnerable individual in their household
Importantly, this confirms that a parent who has to stay at home to look after school-age children is eligible for furlough. Rishi Sunak has also confirmed that the furlough scheme is being extended until April 2021 and that the government will continue to pay 80% of the wages until the end of the scheme.
Vaccination
Mass vaccination has now begun in the UK with prioritisation being given to the most vulnerable first. Employers should remember that there is no express statutory legal right for them to require staff to be vaccinated and any policy that requires all employees to be vaccinated before attending the workplace might fall foul of the implied term of mutual trust and confidence, as well as potentially raise discrimination issues. Instead, we advise employers to carry out risk assessments and consult, communicate and engage with any staff who do not want to have the vaccination but the employer feels they will be unable to work safely without one. This is a highly sensitive and contentious issue which should be considered on a case-by-case basis.
Higher Education Restructuring Regime
In December 2020 the Department of Education released guidance on the application and assessment process for the HE Restructuring Regime. This is a temporary scheme designed to provide financial support for higher education providers in England who are at risk of insolvency due to COVID-19.
The Restructuring Regime is intended as an avenue of last resort, and support will only be available where other financing options have been explored and exhausted and the following conditions are met:
- there is a clear economic and value for money case for intervention;
- the problems are related to COVID-19 and there is a clear and sustainable model such that as a result of restructuring the HE provider should not need further assistance;
- the failure of the HE provider would cause significant harm to society or the national or local economy, such as through the loss of high-quality research or teaching, a disruption to COVID-19 research or healthcare or the overall disruption to policy objectives including a significant impact on students
What does Brexit mean for the higher education sector?
From 1 January 2021, the free movement of people and goods and services between the UK and EU ended. Here are some of the most important things that have changed which will affect the education industry:
Visas and Immigration Rules
Changes to immigration rules will make it much more difficult and expensive for universities to recruit anyone from outside the UK. On 1 January 2021, the UK’s new points-based immigration system kicked in, marking the end of free movement between the EEAU and UK. The new system will treat EU and non-EU citizens equally and anyone coming to the UK to work, excluding Irish citizens must meet a specific set of requirements for which they will score points. Visas will then be granted to those who gain sufficient points. Importantly, all students coming from the EU must apply for a student Visa before entering the UK.
EU, EEA and Swiss Citizens can apply for ‘settled’ or ‘pre-settled’ status under The EU Settlement Scheme. This is mandatory for all EU nationals who wish to continue living in the UK. The scheme is open now and the deadline for applying is 30 June 2021. Home Office guidance on the Scheme is available here.
Universities wishing to recruit skilled EU and non-EU workers in the UK from 1 January 2021 will need a sponsorship licence from the Home Office in order to do so. Employers must be up to date with changes which have been implemented to the sponsorship scheme which they can do by seeing here.
University Fees
As a result of Brexit, the UK government has confirmed that EU/EEA and Swiss students will lose their home fee status from the autumn of 2021 onwards. This means people coming in from the EU/EEA and Switzerland will no longer enjoy the same tuition fees as local students in the UK but have to pay rates which can be up to four times higher per year, depending on the university and degree type. A second major implication of Brexit is that all students coming from the EU/EEA and Switzerland will no longer be able to apply for student loans from 2021. Couple this with the new visa requirements and immigration laws and suddenly there is the risk that the UK will become less and less appealing to students than its European counterparts.
Mutual recognition of professional qualification
The mutual recognition of professional qualifications between the UK and EU has now ended. Instead, the UK and EU have agreed a framework by which professional bodies in the UK and in EU countries can work to agree a certain level of bilateral recognition in the future.
Those persons that previously have had their professional qualifications recognised, or that have applied for a recognition decision before the end of the implementation period (meaning that the application was submitted by 31 December 2020), are unaffected.
EU-derived Employment Law
Perhaps the most interesting issue to watch is whether the UK government will seek to change any aspect of EU-derived employment law. Whilst the UK has agreed that it will not reduce employment law rights below the standards that existed on 31 December 2020, this agreement only applies to laws which will affect trade or investment. The UK is therefore free to make more minor changes and diverge from future EU employment laws. However, the UK must be mindful that the EU may, with certain constraints and subject to an arbitration process, apply ‘rebalancing measures’ if they consider that the UK has diverged significantly from the EU in relation to employment rights in a way that materially impacts trade or investment. The Supreme Court is considering three cases on holiday pay in 2021 and their judgements could potentially provide some indication of their approach to settled ECJ case law.
Can we help?
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We provide practical, high quality and commercially relevant legal and HR management advice and support on all workforce law issues.
We offer a collaborative working approach and provide a full support service covering the entirety of the relationship between your organisation and its employees. To find out more, please click here.
You may also be interested in attending our forthcoming webinar Immigration update for higher education employers which will take place on Thursday 11 March: 11.00 - 11.45
