Welcome to our November HRizon employment newsletter. With just five weeks to go until Brexit occurs, we consider the employment implications for employers and their workers from the EU. We also take a detailed look at the new cap on public sector exit payments, and highlight recent employment law cases and HR news from the last month.

In the Court of Appeal

Can an absence of financial means justify indirect discrimination? Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) that is neutral and applies equally to all workers, but which inadvertently puts a certain group of workers with a protected characteristic at a disadvantage in comparison to other workers who do not share that protected characteristic. An employer has a defence to a claim of indirect discrimination if it can prove that the PCP is objectively justified, as a proportionate means of achieving a legitimate aim. Employers often point to cost considerations when attempting to justify an apparently discriminatory PCP. In 2012, the Court of Appeal endorsed what became known as the 'cost-plus' approach, meaning that considerations based on cost alone, or on economic or financial factors alone, cannot justify treatment that is discriminatory - there must be something more (the 'plus' in the phrase 'costs plus'). The Court of Appeal has recently revisited this issue when it considered whether an employer could rely on absence of financial means to justify a PCP that put younger workers at a disadvantage. The claim was brought by H, a probation officer employed by the Ministry of Justice (MOJ). Following cuts to public sector funding, the MOJ changed the rate at which probation officers, including H, progressed up the salary scale. As a result, it would take H many more years to reach the top of the pay scale, so he brought an indirect age discrimination claim. The ET held that the MOJ's amended pay policy was indirectly discriminatory, because it favoured probation officers over the age of 50. However, the ET went on to hold that, in light of the funding constraints the MOJ was under, the PCP was objectively justified. The EAT rejected H's appeal, so he appealed to the Court of Appeal. The Court expressed a dislike of the term 'cost plus', although said that the legal principle itself is sound. An employer's need to 'live within its means', or unaffordability, is a legitimate aim capable of objectively justifying indirect discrimination. The Court held that there is a distinction between something being more expensive, and unaffordable. The Court held that the ET had been entitled to draw a distinction between an absence of financial means and impermissible reliance on costs alone. (The Independent Workers' Union of Great Britain -v- The Secretary of State for Work & Pensions and others [2020] EWHC 3050 (Admin))


An EHRC investigation has found no unlawful acts of equal pay discrimination by the BBC: In March 2019, the Equality and Human Rights Commission (EHRC) launched a statutory investigation into suspected pay discrimination at the BBC, following high-profile complaints by female presenters. The EHRC recently published its report, in which it concluded that it had found no evidence of unlawful acts of pay discrimination by the BBC, but made some recommendations to improve pay transparency.

Changes to bank holidays in 2022 to celebrate the Queen's Platinum Jubilee: In 2022, as part of the celebration of the Queen's 70th anniversary, the government has announced that the late May bank holiday (which would usually take place on Monday 30 May 2022) will be moved to Thursday 2 June 2022, and an additional bank holiday will take place on Friday 3 June 2022.

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