Archived content: employment law changes 2021/22

The UK employment and business immigration law changes for employers, HR professionals and in-house lawyers

21 December 2022

Employment law is constantly on the move. We keep track of the employment law changes so you don't have to. Below you'll find our regular round-up of legislation, case updates and helpful guides.

Employment law updates

Update posted: 15 December 2022

Flexible working reforms

The government has published its response to the 2021 consultation on “Making flexible working the default”. In its response, (in which we were pleased to be quoted), the government outlined the following proposed reforms:

Making the right to request flexible working a day one right, by removing the current requirement for a requesting employee to have 26 weeks’ continuous service
Introducing a new requirement for the employer to consult with the employee before it rejects a flexible working request
Increasing the number of statutory requests that an employee can make in any twelve month period from one to two requests
Reducing the time within which employers must respond to statutory flexible working requests from three months to two months
Removing the requirement for employees to set out the effects of their request on their employer and how those effects might be dealt with

Although the government’s response reiterates that it remains a right to request (rather than a right to have), these reforms will make it easier for employees to make flexible working requests.

Alongside its response, the government confirmed that it is supporting the Private Member’s Bill that sets out most of the above reforms and will continue to do so as it progresses through parliament. In addition, in order to make the right to request flexible working a day one right, the government will put forward new legislation. It is not yet clear when these reforms will come into force. Once a timeframe is known, employers will need to update their policies and practices.

The government’s consultation response can be found here >

Pay disputes and industrial action

Given the current levels of industrial action, many employers are bracing themselves for potentially challenging pay negotiations with their trade unions in the coming months. With this in mind we wanted to recirculate a briefing from earlier in the year in which we consider how employers can prepare for difficult negotiations and look at possible contingency measures should industrial action arise.

Read our briefing here >

Holiday pay

This week sees another significant holiday pay case reach the Supreme Court. In an appeal from the Northern Ireland Court of Appeal, the Supreme Court is set to consider (amongst other things) what is meant by a series of unlawful deductions and whether a gap of three or more months between underpayments of holiday pay will break such a series. The Court’s findings could have a significant impact on how far back claims for unlawful deductions of holiday pay can go, although there is a two year cap on such claims in England, Wales and Scotland.

The hearing is scheduled to take place from 14 to 16 December but, given the complexity of the issues to be determined, it is likely that the Court will reserve judgment and issue its decision at some point in 2023. We will bring you further updates on this case once the judgment is published.

(Chief Constable of the Police Service of Northern Ireland and another v Agnew and others)

Protecting workers against harassment

As we have reported in recent editions of Edit, in the last few months the government has given its backing to a number of Private Members’ Bills which cover some of the reforms that were intended to be covered by the Employment Bill. The latest such bill to receive government support is the Worker Protection (Amendment of Equality Act 2010) Bill.

Here is a summary of the key changes set out in that Bill:

Expanded employer liability for harassment meaning that an employer would be liable where its employee is harassed in the course of their employment by a third party (such as a customer or supplier) and the employer failed to take reasonable steps to prevent that harassment.
The introduction of a new duty for all employers to take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.
Enforcement provisions to back up the new duty, including a potential 25% compensation uplift that can be awarded in the event that a tribunal finds that an employee has been subjected to sexual harassment and their employer failed to take all reasonable steps to prevent that harassment.

If these changes are implemented, employers will need to review their policies, reporting procedures and training provision to see if they are fit for purpose in light of their expanded duties. There are a number of approval stages left before the Bill could become law so watch this space for further updates.

Redundancy – assessing the compensatory award

The EAT has considered the extent to which a tribunal can reduce a claimant’s compensatory award where his redundancy dismissal was procedurally unfair due to a lack of any warning or consultation.

The claimant was a chef who was made redundant by his employer in April 2020 after a significant reduction in work due to the pandemic. Unlike the other chefs working for the employer, the claimant (who was the only chef dismissed) was not working as a specialty chef. The employer did not follow any procedure before dismissing the claimant and therefore accepted that his dismissal was procedurally unfair.

The tribunal reduced the claimant’s compensatory award to zero on the basis of its finding that there was a 100% chance that the claimant would have been dismissed on the same date that the unfair dismissal took place. The tribunal found that it was not unreasonable for the employer to determine that the claimant (as a non-specialty chef) was in a pool of one and that, even if he had been pooled with the other chefs, he would have been the lowest scorer. The EAT disagreed and noted that some consultation about the redundancy could have resulted in the selection of a pool of more than one and might have affected the choice of selection criteria. It also noted that, even if dismissal was inevitable, it might have been delayed to some extent by consultation. The EAT remitted the case to the employment tribunal for it to consider various factors including what selection criteria would have been adopted, what the outcome would have been and (if the conclusion remains that dismissal would have been inevitable) how long any consultation would have taken.

The case is a useful reminder for employers of the importance of following an appropriate process and consulting with the employee, even in circumstances in which redundancy is highly likely or inevitable.

(Teixeira v Zaika Restaurant Ltd and another)

Statutory pay rates

The Department for Work and Pensions has announced the new rates of statutory sick pay and statutory pay for various types of family-related leave. The new rates, which will apply from April 2023, are:

Statutory sick pay – £109.40 per week (up from £99.35 per week)
Statutory maternity, adoption, shared parental and paternity pay - £172.48 per week (up from £156.66 per week). The same rate of pay will apply to statutory parental bereavement pay.

On-demand webinar: Managing Workplace Investigations

Our recent webinar on managing workplace investigations is now available on-demand. In the webinar, we looked at how to set up your investigation at the outset to keep it on track, how to approach many of the practical issues that crop up and how best to tackle some of the more complex situations we see cross our desk.

Watch the on-demand webinar here >

Update posted: 1 December 2022

National Living Wage increase

In the Autumn Statement on 17 November 2022, the government announced increased rates of the National Living Wage and National Minimum Wage. The National Living Wage (the rate that applies to workers aged 23 and over) will increase from £9.50 to £10.42 per hour from 1 April 2023. In setting the new rate (which represents a 9.7% increase on this year’s rate), the government accepted the recommendations made by the Low Pay Commission earlier this year.

The government also announced new rates of the National Minimum Wage from 1 April 2023 as follows:

£10.18 per hour for 21 to 22 year olds;
£7.49 per hour for 18 to 20 year olds;
£5.28 per hour for 16 and 17 year olds; and
£5.28 per hour for apprentices.

Reasonable adjustments

The EAT has considered the extent of an employer’s duty to make reasonable adjustments for a disabled employee placed at risk of redundancy.

As part of a proposed restructure, the claimant (who was absent from work due to depression) was placed at risk of redundancy. He was invited to interview for one of the roles available in the proposed new structure but he told his employer that his absence would continue for a further month and that he was too ill to attend an interview. The EAT upheld the tribunal’s finding that the claimant did not in fact attend the interview out of choice, for reasons unconnected to his disability. He therefore could not show that he was at a substantial disadvantage due to his disability.

Although the claimant’s claim failed on that basis, the EAT went on to consider what adjustments would have been reasonable had the claimant succeeded in showing he was put at a substantial disadvantage by the requirement to interview. The claimant argued that a reasonable adjustment would have been to slot him in to the role without interview. The EAT rejected this argument and upheld the tribunal’s finding that there was no other reasonable adjustment that the employer could have taken – it would not have been a reasonable adjustment to slot him in to the role without interview. The EAT took into account the impact that appointing the claimant would have had on the other employees who were at risk of redundancy.

Although an assessment of adjustments will always be context-specific, this case is a useful marker for employers as it shows that an adjustment may not be reasonable where it impacts on other employees.

(Hilaire v Luton Borough Council)

Employers’ Guide: Supporting your people through the cost of living crisis

As the cost of living crisis runs on, employers continue to look for ways in which they might further help support their people. As legal advisers to many employers of different sizes and across different sectors, we are aware of a very wide range of initiatives that are being considered and implemented and have been advising on the legal issues arising.

Given the scale and reach of the crisis, we thought it might be helpful to draw together this knowledge into a short guide for employers to make you aware of some of the ways in which your organisation may be able to further support your people as well as highlighting some of the potential legal ‘red flags’ to take account of.

Read our guide here >

Update posted: 17 November 2022

Employers’ Guide: Supporting your people through the cost of living crisis

Read our guide here >

Webinar: Managing Workplace Investigations: a guide for employers – 30 November 2022

With many organisations now keen to encourage a ‘speak up’ culture at work, employers may find they are facing more workplace investigations. Without tight management, investigations can take on a life of their own, creating extensive amounts of work and expense, as well as causing levels of anxiety to rise for those involved.

Our webinar, which is free to attend, will help you understand how to set up your investigation at the outset to keep it on track. We’ll also discuss how to approach many of the practical issues, including those which can arise in regulated sectors, before finishing by tackling some of the more complex situations we see cross our desk.

The one-hour webinar will be at 12pm on Wednesday 30 November 2022. For more information and to book a place, please follow the link below.

Exclusivity clause ban extended

The ban on exclusivity clauses in employment contracts will soon cover low-income workers, as well as zero hours workers.

Exclusivity clauses are contractual clauses which prevent employees and workers from taking up work with other employers (or which prohibit them from doing so without the employer’s consent). These types of clauses have been unenforceable in zero hours contracts since 2015, effectively banning the use of such clauses in zero hours contracts. New regulations passed last week extend this ban to cover a wider range of contracts. Under the new regulations, exclusivity clauses will be unenforceable in contracts where the minimum guaranteed weekly income for the employee or worker employed under that contract is on or below the Lower Earnings Limit (currently £123 per week).

This change is designed to offer lower paid workers the opportunity to increase their income and to widen the pool of talent for employers to choose from. The change, which will apply in England, Wales and Scotland, will come into force on 5 December 2022.

Disability pay gap reporting

The Trades Union Congress (TUC) wrote to the government last week calling for urgent action to address the disability pay gap. Statistics from analysis carried out by the TUC in 2022 suggest that non-disabled workers now earn 17.2% more than disabled workers. This has increased from a gap of 16.5% identified in the TUC’s 2021 analysis.

The TUC’s proposals to address this gap (which it has put forward to the government for consideration) include the following:

the introduction of mandatory disability pay gap reporting for employers with more than 50 employees; and
an accompanying duty on employers to produce action plans that identify the steps they will take to address any gaps identified

Social isolation and mental health: the employer’s role in a post-pandemic workplace

In an article for the International Bar Association, employment partner Katie Russell and senior associate Pip Galland consider the impact of social isolation in the post-pandemic workplace.

In the article, Katie and Pip take a look at what social isolation is and what legal responsibilities employers have. They then focus in on the practical steps that employers can take to combat social isolation and support their employees.

Read the article here >

Update posted: 3 November 2022

Webinar: Managing Workplace Investigations: a guide for employers – 30 November 2022

The one-hour webinar will be at 12pm on Wednesday 30 November 2022. For more information and to book a place, please follow the link below.

Government backing for two Private Members’ Bills

Following its backing earlier this year of Private Members’ Bills covering neonatal care leave and the allocation of tips, the government has recently given its backing to two further Private Members’ Bills. There are a number of stages left before either of these two Bills could become law so keep your eyes peeled for further updates. In the meantime, here is a brief summary of the proposed changes:

Carer’s Leave Bill – If passed, this Bill would introduce a new entitlement of one week’s unpaid leave per year for employees who are providing or arranging care for dependants with long-term care needs. Eligible employees would be entitled to this leave from day one of their employment.

Read the government’s press release here.

Pregnancy and Maternity (Redundancy Protection) Bill – This Bill would give the Business Secretary the power to make regulations about redundancy during or after pregnancy and after a period of maternity, adoption or shared parental leave. Under current rules, employers are required to offer suitable alternative vacancies (where they exist) to workers who are at risk of redundancy whilst on maternity, adoption or shared parental leave. Within its press statement announcing its support for the Bill, the government detailed its intention to introduce new regulations to extend this obligation to apply to workers from when they tell their employer that they are pregnant up until 18 months after birth. If the Bill is passed, further details of the extended protections (including the scope of those protections) would be set out in separate regulations.

Read the government’s press release here.

Two further Private Members’ Bills on employment-related topics are also currently being considered by the House of Commons and have received support from MPs. These Bills cover proposed reforms to flexible working and protection against third party harassment.

Further proposed changes to industrial action rules

The government has published draft legislation to introduce minimum service levels on certain transport services that must be maintained during strikes. The draft legislation would introduce obligations on both employers and trade unions in connection with minimum service levels and would remove some of the legal protections currently in place for workers and trade unions involved in relevant strike action. In particular, a trade union that did not take reasonable steps to ensure that certain workers required to work in order to meet the minimum service levels do not take part in the strike would lose its legal protection against liability for inducing a breach of their contract.

The draft legislation reflects a commitment made by Liz Truss during her leadership campaign and it was introduced shortly before she left office. Given the subsequent appointment of Rishi Sunak as Prime Minister, it remains to be seen whether the draft legislation will continue to progress through parliament.

Read the government’s press release here >

ICO fine for failure to protect employee personal data

In this legal update, our specialist Data Protection team examines a recent fine issued by the ICO against an outsourcing and construction company after it suffered a cyber-attack in 2020, which resulted in the personal data of 113,000 of its current and former employees being compromised. The article touches on the trend of increased ICO enforcement for non-compliance and takes a look at some practical takeaways for employers to consider.

Read the update here >

Update posted: 20 October 2022

IR35 reforms reinstated

As part of the changes to the mini-budget announced by the Chancellor this week, the government announced that the 2017 and 2021 reforms to off-payroll working rules (often known as IR35) will no longer be repealed. End user clients will therefore need to continue to carry out status assessments for contractors engaged through personal service companies and fee payers (often the end users) will remain responsible for accounting to HMRC for any income tax, NICs and Apprenticeship Levy sums payable where the contractor is determined to be “inside” the off payroll working rules.

As things stand, the other proposed employment-related measures that were announced within and alongside the mini-budget (including the proposed reform of EU-retained employment law) have not been reversed. In our update below, we take a look at those proposed changes in more detail. This is a fast moving area and it remains to be seen how (and if) each of these proposed measures will progress, particularly given the Prime Minister’s resignation earlier today. We will continue to keep you posted on developments and what they might mean for employers.

Read our update here >

ICO consultation on monitoring at work guidance

As part of its review of employment practices and data protection, the Information Commissioner’s Office (ICO) has issued new draft monitoring at work guidance for public consultation. The draft guidance details the legal obligations employers need to think about when they are considering or carrying out monitoring of their workers. It also touches on some specific types of monitoring, including monitoring of emails and messages, time and attendance records and work vehicles.

In order to collate responses to the consultation, the ICO has set up a survey which includes a range of questions regarding the draft guidance. The consultation runs until 11 January 2023.

Details of the consultation can be found here >

Timing of redundancy consultation

In a recent decision, the EAT provided helpful guidance on the appropriate timing of individual consultation in a redundancy situation.

Two band 6 nurses were employed by the respondent on fixed term contracts. When it needed to reduce the number of band 6 nurses it employed, the respondent selected one of those two nurses (the claimant) for redundancy. The sole selection criteria applied by the respondent in determining which nurse to dismiss was the fact that the claimant’s fixed term contract was due to expire first. After making this decision but prior to her dismissal, the respondent carried out consultation with the claimant including attempting to find alternative employment.

At first instance, the tribunal found that the claimant’s dismissal was fair. However, the EAT disagreed with the tribunal and instead upheld the claimant’s claim of unfair dismissal. The EAT noted that for consultation to be fair and meaningful it must take place at a stage when the employee or their representative can still potentially influence the outcome. As the selection criteria used by the respondent in this case automatically left a pool of one, it meant that the claimant’s dismissal was determined before any consultation took place. The EAT noted that a pool of one can be appropriate in some circumstances but it should not be considered, without prior consultation, where there is more than one employee.

As a reminder, there are additional factors to think about where a redundancy situation impacts on fixed term employees. Those employees should not be treated less favourably than permanent staff except where that difference in treatment can be objectively justified, which may for example be the case where the fixed term contract is linked to a particular project which is coming to an end.

(Mogane v Bradford Teaching Hospitals NHS Foundation Trust)

Online service to help employers better support workers with health conditions

As part of a drive to create more inclusive work environments, the government has announced that it will invest in a new online service to help employers better support workers who have disabilities and long-term health conditions.

A test version of the online service (which is in an interactive question and answer format and sets out guidance for employers on managing staff who have long-term health issues) is currently available. The government states that the service will be updated and improved over the next three years. Businesses and disability groups can give feedback on the test service via an online survey, with this feedback helping to shape the future service.

Mini-budget – implications for employers

With headlines focussing on the tax reforms set out within the Chancellor’s mini-budget on 23 September, it has been easy to overlook some very significant proposed employment law changes that were announced within and alongside the mini-budget.

In this update, we dig beneath the surface of those employment law changes and explore the practical implications for employers. We take a look at the proposed reform of EU-retained employment law as well as considering changes to industrial action rules, removal of the financial services bonus cap and repeal of the off-payroll working reforms.

Read our update here >

Increase to the real Living Wage

The Living Wage Foundation has announced a significant increase to the real Living Wage to reflect sharp increases in living costs. The real Living Wage is a voluntary rate of pay that is independently calculated according to the cost of living. There are currently around 11,000 employers who pay the voluntary rate.

The new rates are £11.95 an hour in London and £10.90 an hour across the rest of the UK. The Foundation said that real Living Wage employers should pay the increased rate as soon as they are able to and by 14 May 2023 at the latest.

Original grievance report was not legally privileged

The EAT has upheld an order requiring a respondent to disclose the original version of a grievance report which was produced before amendments were made following legal advice.

After the person investigating the claimant’s grievance had produced the original report, the report was passed to external legal advisers who suggested some changes. The tribunal and the claimant were only provided with the final version of the report, which incorporated those changes and contained an annotation stating that the report had been amended following legal advice. The claimant applied for the original un-amended version of the report to be disclosed but the respondent resisted this application as it said that the original report was protected by legal privilege.

The EAT held that the original version was not privileged and so must be disclosed. The fact that comparison of the original and amended versions of the document might allow inferences to be drawn about the legal advice did not mean the original version of the document was privileged. The decision is a useful reminder of the importance for employers of carefully considering and planning the timing of legal advice.

(University of Dundee v Chakraborty)

Business immigration – end of temporary COVID-related adjustments

In response to the COVID-19 pandemic, the Home Office introduced several adjusted processes to assist individuals and employers in complying with their immigration obligations whilst COVID-19 related restrictions were in place. As the majority of those restrictions have now been lifted, the adjusted processes are being phased out. Two important dates to note are:

30 September 2022 – adjusted right to work checks (allowing employers to carry out right to work checks via video call) came to an end. With effect from 1 October 2022, employers must carry out either an in-person manual right to work check, an online right to work check using the Home Office’s online right to work check system or a right to work check using “Identification Document Validation Technology” via the services of a certified identity service provider. Which of these checks an employer can carry out depends on the nature of the individual’s right to work document(s). We provide more details on the different types of check in our guide to getting right to work checks right (linked below).

30 October 2022 - overseas nationals who are in the UK on a visa or some other form of immigration permission which is due to expire before 31 October 2022, who intend to leave the UK but are unable to leave prior to that date may request “exceptional assurance”. The purpose of exceptional assurance is to provide short-term protection to those who are affected by COVID-related travel restrictions, such as where a country has closed its borders or where quarantine facilities are temporarily over-subscribed. It remains to be seen whether exceptional assurance will be extended further to cover visas expiring after 30 October 2022.

Read our guide to right to work checks here >

Further details on exceptional assurance can be found here >

Update posted: 22 September 2022

ACAS advice on staff suspensions

ACAS has published new advice on how to handle staff suspensions, whether while carrying out a disciplinary or grievance investigation, or to safeguard an employee’s health and safety. While the advice is non-binding and is unlikely to change well-established and thorough working practices, it could be a useful source of guidance and a valuable resource against which to sense check workplace policies and procedures. You can access the advice here.

Employment law in Scotland

During a House of Commons debate on 6 September, the Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy stated that there are no plans to devolve employment law to the Scottish Government. Eilidh Wood considers this government update further in this blog post.

Read Eilidh’s blog post here

Financial services bonus cap

Prime Minister Liz Truss has said that she wants to scale back financial rules inherited from the EU which “holds the City and its contribution to the entire country, back”. James Green, our expert in advising employers in the financial services sector, has considered what this could mean for the notorious cap on bonuses in the financial services sector.

Read James’ blog post here

Conversation about managing employee requests to work from abroad

In the past two years, increasing numbers of employees have made requests to work for their UK employers from abroad. In our latest video, Kate Redshaw and Katie Russell consider the practical and legal issues that employers should consider when presented with an employee’s request to work abroad.

Watch video here

TUPE transfers with multiple contractors

TUPE issues can be complex at the best of times, but when there are multiple incoming contractors (as is increasingly common) they become trickier still. In this XpertHR podcast, Adrian Martin (Head of Burges Salmon's Employment team) considers the ever more sophisticated tendering landscape and discusses how ‘new-look’ commercial outsourcing arrangements can affect the application of TUPE.

Adrian draws on his hands-on experience to offer practical resolutions to the issues raised for both outgoing and incoming contractors and the end user client.

Listen to the podcast here

Update posted: 8 September 2022

Review of off-payroll working rules?

During the leadership contest, the new Prime Minister raised concerns regarding the current off-payroll working rules (known as IR35). On the back of these comments, she said that she would instigate a government review of the rules if she were elected. In this blog post, Annelise Tracy Phillips (a Senior Associate at Burges Salmon) takes a look at the some of the areas that a government review might look at.

Read Annelise’s blog post here

Challenge to industrial action changes

The TUC has this week written to the International Labour Organization (a United Nations agency with a focus on labour and employment practices and standards) regarding reforms to UK industrial action rules.

The TUC’s submission references recent changes made to industrial action legislation, including the removal of the prohibition on agency workers covering the duties of striking workers. It also refers to proposed future changes that the government may seek to introduce in the coming months, such as the introduction of minimum service levels in certain critical sectors. The TUC (which is an umbrella organisation of trade unions in the UK) argues that these steps infringe the ILO Convention that covers freedom of association and the right to organise. The ILO can comment on the application of an ILO Convention by a state but it cannot require the state to make changes to its position.

Employers and trade unions will be keeping a close eye on developments relating to industrial action in the coming months, particularly in light of election campaign comments made by the new Prime Minister about intended changes in this area.

Covid-related leave policy was not discriminatory

The EAT has rejected discrimination claims relating to a special paid leave policy for Covid-related leave.

The employer introduced special paid leave for those staff who were unable to attend work (because they were shielding or for childcare reasons) and could not perform their duties from home. Before being placed onto special paid leave, each affected employee had to first use up their accrued TOIL and holiday. Two groups of employees issued discrimination claims against the employer – one group argued that the condition to use up TOIL and holiday amounted to indirect sex discrimination and the other group argued that it was less favourable treatment because of something arising in consequence of disability.

Both discrimination claims were rejected. The EAT concluded that the special paid leave policy was favourable to the claimants and the fact that there were conditions of entitlement under the policy did not detract from the favourable nature of the benefit. The decision is a useful one for employers as it reinforces the principle that the conditions of entitlement to a benefit should not be artificially separated out from the benefit itself.

(Cowie and others v Scottish Fire and Rescue Service)

Tax review of hybrid and distance working

The Office of Tax Simplification (OTS) is undertaking a review into new ways of working. As part of that review, it will consider whether the current tax and social security rules are flexible enough to cope with the changes to the ways in which people are now choosing to work. As part of that review, the OTS recently issued a call for evidence seeking submissions on these topics. The call for evidence closes on 25 November 2022.

The main focus of the review will be on trends in the following areas:

employees of UK companies working overseas and employees of overseas employers working in the UK (not on formal expatriate assignments);
hybrid and distance/home working within the UK; and
impacts on practices of the self-employed.

View the call for evidence here

Update posted: 25 August 2022

Scale-up visa route opens

Earlier this week a new scale-up visa route (part of the points-based immigration system) opened for applications. This new visa route is aimed at enabling certain high-growth companies to recruit and sponsor highly skilled individuals.

In this blog post, Megan Summers (a senior associate at Burges Salmon) takes a look at the eligibility criteria for the new visa and considers some of the potential pros and cons of the new route.

Read Megan’s blog post here >

Reform of Civil Service Compensation Scheme?

Following its consultation into possible reforms of the Civil Service Compensation Scheme (first launched in 2017), the government has issued a supplementary consultation document. Under the proposed CSCS reforms (and the potential reforms to the approval process for certain public sector exit payments, which is itself subject to an ongoing consultation), the government is looking at a number of ways to manage and reduce the cost of exit payments in the public sector.

Under the proposed reforms, rather than making fundamental structural changes, the government instead proposes to make adjustments to elements of the scheme within the existing structure. These proposals include:

A standard tariff for use when calculating redundancy entitlements of three weeks per year of service (the current tariff is generally one month per year of service, with certain exceptions).

A maximum payment of 18 months’ salary for Voluntary Exit and Voluntary Redundancy (the current maximum being 21 months’ salary).

A cap on Compulsory Redundancy of nine months’ salary (the current cap being 12 months’ salary).

Clawback arrangements for individuals who return to an organisation that uses the CSCS within six months of receiving a compensation payment.

Read the supplementary consultation document here >

Age discrimination - a marginal age difference

The EAT has confirmed that age discrimination claims should be carefully scrutinised by a tribunal where there is only a marginal age difference between the claimant and their comparator.

In this case, the claimant was 55 and his comparator was 51. As part of a restructure, the employer created a single managing director role in a new consolidated team, decided that the comparator was the most suited to the new role and then made the claimant redundant. A tribunal found that the claimant had been dismissed on the grounds of direct age discrimination. However, following an appeal by the respondents, the EAT concluded that the tribunal had failed to properly consider the respondents' explanation for the treatment of the claimant. In particular, the tribunal should have considered the respondents’ evidence that all of the individuals involved in the redundancy decision had considered the claimant and the comparator as being within the same age group.

The EAT noted that age discrimination can arise where there is only a small difference in age and it gave examples of where this is most likely to be relevant, such as where there is a cut-off age for a benefit. Where there is no cut-off age, the EAT concluded that it is less likely that some form of discriminatory treatment is because of a relatively small difference in age and it said that such a claim should be subject to careful scrutiny. The case has been remitted to the tribunal for it to reconsider the respondents’ evidence for the difference in treatment.

(Citibank and others v Kirk)

CV fraud

A confiscation order under the Proceeds of Crime Act 2002 has been upheld by the Supreme Court after a CEO pleaded guilty to two counts of fraud and one count of pecuniary advantage by deception based on false claims he made in his CV. The Supreme Court held that it would be disproportionate to make a confiscation order for the employee’s full net earnings during their employment as that would not take account of the services they provided during that time. The Court noted, however, that this would be different where performance of the services is a criminal offence (such as a surgeon appointed after lying about having the necessary qualifications).

The Court held that the proportionate approach would be to identify the difference between the higher earnings that the employee obtained by securing the role through fraud and the lower earnings that he would have obtained had he not used fraud (i.e. the salary from his previous job). On the facts of this case, the Supreme Court held that a confiscation order of just under £245,000 would have been proportionate albeit a lower order was made in this case based on the amount that was recoverable (around £97,000).

The case is a useful reminder that there are various matters that could be relevant where an employer suspects that an employee has obtained employment as a result of false information provided in the application process. Alongside our business crime and regulatory investigations team, we can help employers to navigate the various employment law, criminal and/or regulatory aspects that can arise in this type of situation.

Update posted: 11 August 2022

Artificial intelligence in recruitment

The Information Commissioner's Office has recently announced that it will investigate the use of artificial intelligence systems in the recruitment process. Eilidh Wood (a senior associate at Burges Salmon) has written a blog post looking at this.

Read Eilidh’s blog post here >

Employment contract - extent of income protection benefit

In a recent judgment, the Court of Appeal found that an employer was contractually liable to pay an employee on long term sick leave the level of income protection payments ("IPP") that had been set out in their initial offer documentation. This was despite the fact that the employer had subsequently changed its IPP insurance policy to one which did not provide for the same level of cover.

A summary of benefits document appended to the claimant’s offer letter set out that the IPP would increase by 5% each year after the first year of payments. The subsequent insurance policy that the employer took out did not include cover for the 5% escalator. The Court of Appeal found that the offer letter and summary of benefits had been incorporated into the claimant’s employment contract and so amounted to a contractual benefit. It said that if there was something in the insurance provision which contradicted the express terms set out in the employee’s contractual documents, it should have been expressly and unambiguously brought to the claimant’s attention in order to be effective.

This case is a useful reminder to employers to check that PHI or income protection contractual provisions in employees’ contracts do not over promise or risk leaving the employer on the hook for benefits that are not covered by their insurer. Before renewing or changing insurance policies, employers should also carefully review new policies to ensure they are taking out adequate cover.

(Amdocs Systems Group Ltd v Langton)

Employment Bill changes after all?

We wouldn’t usually report on a Private Member’s Bill unless or until it became law. However, there are two Private Member’s Bills currently being considered by parliament that are worthy of a mention because they have received government backing. The reforms contained within the proposed legislation are on topics that had been expected to be covered in the long awaited Employment Bill, which is on pause after it did not feature in the Queen’s Speech in May this year.

There are a number of approval stages left before either Bill could become law so watch this space for further updates. In the meantime, here is a brief summary of the proposed changes:

Neonatal Care (Leave and Pay) Bill – This Bill is intended to support parents whose babies require neonatal care after birth. Eligible parents would be entitled to 12 weeks’ paid leave in circumstances when their babies have been admitted into hospital up to the age of 28 days, and who have a continuous stay in hospital of seven full days or more. This leave would be a day one right and would be in addition to any entitlement to other types of family-related leave, such as maternity or paternity leave.

Read the government’s press release here.

Employment (Allocation of Tips) Bill – This Bill would ban employers from withholding tips from workers and would give workers the right to request further information regarding their employer's tipping record. It would also create a new statutory Code of Practice to provide advice on how tips should be distributed.

Read the government’s press release here.

Public sector exit payments

The government has launched a consultation seeking views on a requirement for Secretary of State approval for certain public sector exit payments over £95,000.

A statutory cap of £95,000 had been introduced in November 2020 but this was subsequently removed in March 2021. Rather than seek to impose a formal cap, the new proposed changes set out within the consultation include a requirement for high value exits (where the total exit payments would be over £95,000) in central government to be approved by the relevant Secretary of State. For approval to be granted, the public body would need to demonstrate a number of points including that the exit is necessary for the public body and that alternatives to the exit have been fully considered.

The consultation closes on 17 October 2022.

Further details of the consultation can be found here >

Update posted: 28 July 2022

Holiday entitlement for “part year workers”

The Supreme Court has reached a decision in an important case relating to holiday entitlement and pay for part-year workers. In Harpur Trust v Brazel, the Supreme Court held that a part-year worker’s paid holiday entitlement under the Working Time Regulations should not be pro-rated to that of a full time worker to take account of weeks in which no work is done.

In this article, we consider the Supreme Court’s findings and the impact that the decision could have on employers.

Read our article here >

Industrial action changes take effect

Regulations that prevented employment agencies from providing temporary workers to cover the duties normally performed by a striking worker have now been removed. This change was announced by the government last month and came into force across England, Wales and Scotland on 21 July 2022. The trade union UNISON has reportedly written to the government stating its intention to seek a judicial review of the Regulations that brought this change into effect.

Employment status guidance

The government has issued its response to a 2018 consultation on employment status. In its response, the government recognises that the boundaries between the different employment statuses (employee, worker and self-employed individual) can be unclear for some individuals and employers. However, it has decided not to introduce new legislation on employment status as it states that the benefits of introducing a new employment status framework are currently outweighed by the cost and uncertainty for businesses that legislative reform could create.

Instead the government has issued employment status guidance for employers and individuals, as well as a guide for HR & legal professionals. These guides cover a range of topics including the different types of employment status, the key factors in determining employment status and the different employment rights that apply to employees and workers.

Read the government’s response here >

Read the government’s guidance here >

Menopause and the workplace

In its response to an independent report (commissioned by the Minister for Employment) on the menopause and employment, the government explains that it does not believe changes to the Equality Act 2010 are needed. The government notes that the menopause is not a protected characteristic under the Act but concludes that the protected characteristics of sex, age and disability provide sufficient protection against unfair treatment for employees going through the menopause.

The Women and Equalities Committee has today published its report on menopause and the workplace. In contrast to the government’s position outlined above, two of the committee’s recommendations are that:

• the government should immediately enact section 14 of the Equality Act (which is currently not in force), which protects against discrimination based on a combination of two relevant protected characteristics (sometimes referred to as ‘combined discrimination’); and
• a new protected characteristic of menopause should be created and the government should launch a consultation on how to amend the Equality Act to introduce the new protected characteristic, including a duty to make reasonable adjustments for menopausal employees.

The government is expected to respond to the committee’s report in due course. It remains to be seen whether it will change its position (outlined above) in response to the committee’s recommendations.

Read the government’s response here >

Read the committee’s report here >

Dismissal for failure to disclose bankruptcy

The Employment Appeal Tribunal (EAT) recently held that the dismissal of a financial adviser who failed to disclose that he had been declared bankrupt was fair. The EAT held that it was reasonable for the employer to expect him to disclose this information in the context of his role and the regulated industry in which he worked. This was despite there being no requirement to disclose his bankruptcy in his contract of employment, the employer’s policies or the FCA handbook.

In this blog post, James Green (a director at Burges Salmon) takes a look at the case and what it could mean to employers in the financial sector.

Read James’ blog post here >

Update posted: 14 July 2022

Industrial action - how can employers prepare?

As the pressures created by the current level of inflation mount, some employers and trade unions have reached an impasse in their negotiations over pay. As a result, an increasing number of employers across a range of sectors are facing the prospect of potential industrial action.

In this article we take a look at what employers can do on a practical level to seek to avoid industrial action taking place. We also consider what steps employers can take to minimise the impact on their operations in the event that such action does go ahead.

Read our article here >

Business immigration - getting right to work checks right

Following recent changes to the rules governing right to work checks (including the introduction of mandatory online checks for certain employees), we have prepared an updated employer’s guide on right to work checks. In our guide, we outline the main steps for employers to take to ensure that the checks they carry out are compliant and to ensure that their employees have the correct immigration permission to work in the UK.

Read the guide here >

Discrimination because of protected beliefs

In a decision that has been widely reported in the press, last week a tribunal upheld Maya Forstater’s claims of direct discrimination because of her gender critical beliefs.

After the EAT held last year that the gender critical beliefs held by the claimant (in particular a belief that biological sex is real and immutable and not to be conflated with gender identity) were protected beliefs under the Equality Act, the case returned to the tribunal in order for it to determine whether the claimant had been discriminated against because of those beliefs.

The tribunal found that the respondent had not renewed the claimant’s fellowship or offered her an employment contract in part because she posted tweets which contained comments based on her gender critical beliefs. It then considered whether the tweets were an objectionable or inappropriate manifestation of her beliefs. In particular, the tribunal noted that a mere statement of a protected belief is not inherently unreasonable or inappropriate.

After careful consideration of the tweets and other information shared by the claimant, the tribunal held that the claimant’s manifestations were not objectively offensive or unreasonable. Having reached that conclusion, the tribunal determined that the non-renewal of her fellowship and the decision not to offer her an employment contract amounted to direct discrimination because of her beliefs. The claimant also succeeded in a victimisation complaint, although her other claims were dismissed.

As a first instance decision, the tribunal’s conclusions are not binding and it is clear from the tribunal’s detailed analysis that the question of whether a manifestation of belief is objectionable or inappropriate is going to be very fact sensitive. Employers should tread with care if they are faced with competing rights of employees with different beliefs or protected characteristics and they should consider reviewing their equality and social media policies to ensure appropriate guidance is in place.

(Forstater v CGD Europe and others)

What amounts to a protected belief?

The EAT has further clarified the test to be applied to determine whether a belief is protected under the Equality Act 2010. It confirmed that beliefs that may offend others can be protected beliefs, as long as they do not have the effect of destroying the rights of others.

In this case, a Christian health assessor who refused to use the preferred pronouns of transgender service users brought a claim for discrimination based on his religious or philosophical beliefs. The tribunal had found that, whilst his Christianity was protected under the Equality Act, the specific gender critical beliefs he relied on (including a lack of belief in transgenderism) were not protected as they were incompatible with human dignity and in conflict with the fundamental rights of others.

On appeal, the EAT overturned this aspect of the tribunal’s conclusions, finding that the tribunal had applied too high a threshold for the protection of a belief. The EAT said it is necessary for the threshold to be set at a low level to allow the protection of beliefs held to be acceptable by the majority but also the protection of minority beliefs, even where those beliefs might offend. The EAT held that certain of the claimant’s beliefs were protected beliefs under the Equality Act. However, it upheld the tribunal’s decision to dismiss his claims of direct discrimination, harassment or indirect discrimination based on the facts of the case (including the fact that the employer investigated ways to accommodate his beliefs, such as moving him to a non-customer facing role).

(Mackereth v Department for Work and Pensions)

Update posted: 30 June 2022

Changes to industrial action rules

Last week, the government announced two important changes to industrial action rules. These changes (which apply to England, Wales and Scotland) are:

Removal of the rules that prevent agencies from providing temporary workers to cover the duties normally performed by a worker who is taking part in a strike or other industrial action or by any other worker who has been assigned to cover the striking worker. This change requires parliamentary approval so the exact date on which the change will take effect (if approved by parliament) is not yet known. In its announcement, the government issued a reminder that employers will need to continue to comply with their health and safety obligations and ensure that agency workers have the necessary skills and qualifications.
An increase to the maximum damages that a court can award against a trade union where strike action has been found to be unlawful. This change is due to come into effect from 21 July 2022. The exact cap that applies to each union will depend on its size. For the largest unions (with 100,000 members or more), the maximum award will rise from £250,000 to £1 million.

Read the government's announcement >

Collective bargaining

Following the recent decision of the Supreme Court in Kostal UK Ltd v Dunkley, the prohibition on employers making offers directly to employees outside of collective bargaining arrangements has been further considered by the EAT. The EAT upheld claims from two employees that the pay increase unilaterally implemented by their employers when collective bargaining with the trade union had reached an impasse was an unlawful inducement to bypass collective bargaining.

In applying the principles from the Kostal decision, the EAT found on the facts of this case that:

1. the unilateral pay increase was regarded as an “offer”, which the employees accepted by continuing to work;

2. that offer achieved the “prohibited result” (namely that the workers’ terms of employment would not (or would no longer) be determined by collective agreement with the union) when it was likely that agreement would have been reached had further collective bargaining taken place. The tribunal had noted that, at the point the offer was made, the collective bargaining process had not come to an end and the parties were not that far apart in their negotiating positions; and

3. the employer’s sole or main purpose in making the offer had been to achieve the prohibited result.

The decision further emphasises the need for employers to tread carefully whilst in the process of negotiating pay awards or other terms and conditions with trade unions.

Employers should review their recognition agreements to check there is a clear cut process with an easily identifiable end point. When conducting collective bargaining, an employer will want to ensure that there is a thorough paper trail to demonstrate that the process has been complied with and, if it wishes to make any offers to its employees direct, it should very carefully consider whether the collective bargaining process has been completely exhausted.

(Ineos Infrastructure Grangemouth Ltd v Jones and others)

Worker status

The EAT has set out a useful reminder of the test to be applied when determining worker status and has called into question the role that a genuine right of substitution can play in worker status cases.

The case concerned a dentist who was engaged under a contract with a company operating over 100 dental practices. The EAT held that the tribunal did not correctly apply the statutory test for determining whether the dentist was a worker, in part due to its failure to assess the true nature of the contract without excessive focus on the wording of the contract. The EAT provided guidance on the test to apply and made findings relating to the contract that was in place with the dentist, as well as the restrictions on the right of substitution in that contract. It sent the case back to the tribunal to make a determination on whether the company was a client or customer of the dentist (which would mean she was not a worker).

The most noteworthy aspect of this case was the EAT’s commentary on the right of substitution. It suggested that there could be a situation in which an individual is providing personal service (a key component of the worker status test) despite there being a genuine, unrestricted right for them to provide a substitute in their place. On the facts of this case, the right of substitution was restricted so the EAT did not need to come to a decision on that point but the EAT’s comments could potentially have a significant impact if applied in future worker status cases.

(Sejpal v Rodericks Dental Limited)

Long COVID

A tribunal has found that an employee with long COVID symptoms was disabled for the purposes of the Equality Act 2010. The employee reported that his symptoms included fatigue, severe headaches and difficulty sleeping and that his symptoms fluctuated from day to day.

In finding that the employee was disabled under the Act, the tribunal held that the employee suffered from a physical impairment (post viral fatigue syndrome or long COVID) which had a substantial adverse effect on his ability to carry out day to day activities and the effect was long term. The decision is a useful reminder that cases citing long COVID will be fact specific and the evidence in each case will be assessed against the usual test for determining whether the definition of disability is met.

(Burke v Turning Point Scotland)

Update posted: 16 June 2022

Potential changes to industrial action rules

The government has revealed that it is considering the removal of rules prohibiting the use of agency workers to provide cover for striking workers. The current rules prevent agencies from providing temporary workers to cover the duties normally performed by a worker who is taking part in a strike or other industrial action or the duties of someone else who is covering the duties of the striking worker.

When and whether the proposed change will go ahead is currently unclear but the transport secretary has indicated that further information will be released following a review being carried out by the government. Employers and trade unions will be keeping a close eye on developments in this area in the coming weeks.

Fit note changes

In a move designed to ease some of the pressure on GPs, the authority to sign statements of fitness for work (usually referred to as “fit notes”) is being extended to a wider range of healthcare professionals. Fit notes are usually required for SSP purposes where an individual is off work sick for more than 7 days. To date, the statutory authority to sign these notes has been limited to doctors only. From 1 July 2022, nurses, occupational therapists, physiotherapists and certain pharmacists will be able to certify and issue fit notes. In each case, the healthcare professional needs to be registered in accordance with existing legislation governing their profession. The change will apply across England, Wales and Scotland.

Employers should consider whether their contract of employment wording and sickness absence policies ought to be updated in light of this change.

Read the government’s press release here >

Four day week trial

A large-scale trial of a four day working week began earlier this month. During the trial, employees will receive 100% of their pay whilst working a four day week, rather than their usual five day week. In this blog post, Kate Redshaw (a senior associate at Burges Salmon) shares some thoughts on the trial and explores the potential advantages a four day week could bring to employers.

Read Kate’s blog post here >

The scope of the Acas Code

The EAT has considered whether an uplift to compensation can be awarded for a failure to follow the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) where the reason given by the employer for the dismissal was redundancy.

The claimant was dismissed after a reorganisation described by her employer as a redundancy exercise. However, the tribunal found that the decision to dismiss the claimant had been taken over a year earlier. Because the decision to dismiss the claimant had been taken long before, the tribunal concluded that the reason for dismissal was not redundancy and the procedure followed was a “sham”. It upheld the claimant’s claims of unfair dismissal and sex discrimination and awarded her a 25% uplift on compensation for the employer’s failure to follow the Code. The EAT held that it was implicit in the tribunal's reasoning that the decision to dismiss the claimant was due to dissatisfaction with the claimant and/or her performance, and that that was therefore a "disciplinary situation" to which the Code should apply.

The Code will not apply to a genuine redundancy dismissal – this case does not change that position. However, it is a useful reminder that tribunals will look beyond the reason for dismissal given by the employer and, if it concludes that redundancy is not the reason for the dismissal, may determine that the Code applies.

(Rentplus UK Ltd v Coulson)

Update posted: 6 June 2022

Business immigration - a guide for employers

Following recent changes (including the introduction of the Global Business Mobility route), we have updated our business immigration guide for employers. The guide includes:

a summary of the UK’s business immigration system;
the main routes for employers to consider when recruiting overseas nationals under the Points Based System; and
other key business immigration issues for employers to be aware of.

Read the guide here

Failure to provide private space for expressing breastmilk was harassment

A tribunal has upheld a claim of harassment related to sex after an employer failed to provide adequate facilities for an employee to express breastmilk at work. The employee’s claims of direct and indirect sex discrimination relating to the same issue failed.

On return from maternity leave, the claimant requested a private space to express breastmilk at work but nowhere was provided by her employer. In upholding her harassment claim, the tribunal held that the failure to provide a private space forced the claimant to express milk in the employer’s bathrooms or her car. This created a degrading and/or humiliating environment for the claimant and, because it was related to her sex, amounted to harassment.

The case is a useful reminder of the need to provide appropriate support and spaces for breastfeeding employees.

(Mellor v MFG Academies Trust)

The role of HR in ESG

As the CIPD has issued new guidance and case studies on the ‘S’ of ESG, Jamie Cameron (a director at Burges Salmon) has written a blog post exploring the key role that HR and People teams can play in helping their organisations to design and deliver their ESG strategies and to connect with their communities.

Read Jamie's blog post here

Hybrid working - here to stay

Last month the Office for National Statistics released a report looking at hybrid working trends and statistics. In this blog post, Kate Redshaw (a senior associate at Burges Salmon) considers some of the key takeaways from that report as well as discussing the different approaches employers are taking to hybrid working.

Read Kate't blog post here

Update posted: 19 May 2022

Exclusivity clauses extended

The government has announced plans to widen the ban on the use of exclusivity clauses. Exclusivity clauses are contractual clauses which prevent employees and workers from taking up work with other employers. Since 2015, their use has been prohibited in zero hours contracts. The new proposals will mean that exclusivity clauses can no longer be included in a contract where the minimum guaranteed weekly income for the employee or worker employed on that contract is on or below the Lower Earnings Limit (currently £123 per week).

The change is designed to offer lower paid workers the opportunity to increase their income and to widen the pool of talent for employers to choose from. Legislation introducing the ban is expected later this year.

Read the government’s announcement here >

The Queen’s Speech

In the Queen’s Speech last week, the government outlined its legislative plans for the next parliamentary session. As many had anticipated ahead of the event, the Employment Bill did not feature in the speech.

In this blog post, Katie Russell (a Partner at Burges Salmon) considers what the omission of the Bill means for employment law reforms that were set to be introduced under the Bill (including extension of the right to request flexible working, introduction of carers' leave, and the extension of redundancy protection for pregnant women and new mothers).

Read Katie’s blog post here >

Future of Work review

The government has announced a new review into the UK’s labour market. The government’s announcement states that the ‘Future of Work’ review, which will be led by Matt Warman MP, will build on existing government commitments. The review is expected to consider a number of areas, including:

how the government could best shape the UK labour market so it is fit for the future; and
the challenges that the labour market might face, such as the role of automation.

Automatic unfair dismissal and COVID-19

The EAT has found that an employee who refused to return to his workplace during the first lockdown in 2020 was not automatically unfairly dismissed. The claimant, whose child suffered from a medical condition putting them at higher risk from COVID-19, brought a claim alleging that the decision to dismiss him was automatically unfair because his failure to return to work was in circumstances of serious and imminent danger.

The tribunal concluded that the claimant’s concerns were general concerns about the virus, not directly attributable to his workplace. Taking this into account along with a range of other factors (including the size of the warehouse he worked in, the small number of employees on site and the claimant’s activities outside of work during the pandemic, including working in a pub), the tribunal concluded that the claimant did not reasonably believe that there were circumstances of danger that prevented him from returning to work. The claimant’s dismissal was therefore not automatically unfair and the EAT upheld this conclusion.

Although this case turns on its particular facts, it contains a useful analysis of the legal test to be applied by tribunals in these types of claim.

(Rodgers v Leeds Laser Cutting Limited)

Baldness comment amounted to harassment related to sex

In a decision that hit the headlines, an employment tribunal has held that a male employee was subjected to harassment related to sex when a colleague called him a “bald [expletive]” during an argument.

Much of the media coverage of the case has overlooked the difference between sexual harassment and harassment related to sex. As this case related to the latter type of claim only, the key point for the tribunal to consider was whether the unwanted conduct (in this case, the comment about baldness) related to the claimant’s sex. In analysing the issue, the tribunal noted that women as well as men may be bald. However, it also noted that baldness is much more prevalent in men and that it is much more likely that the person on the receiving end of a remark about baldness would be male. The tribunal found that there was a connection between the word “bald” and the protected characteristic of sex and concluded that baldness is inherently related to sex.

(Finn v (1) The British Bung Manufacturing Company Ltd and (2) King)

Update posted: 5 May 2022

Four day working week

Working practices have evolved significantly in the last few years, with the pace of change further accelerated by the pandemic. Is a standard four day working week the next big change that could be on the horizon?

Ahead of a large-scale pilot of the four day working week launching in the UK next month, Kate Redshaw (a senior associate at Burges Salmon) has written a blog post looking at findings from a research report on the topic recently published by the Henley Business School. In the blog post, Kate considers whether the four day working week is workable in practice and whether it is a realistic alternative to the standard five day week.

Read Katie's blog post here >

Algorithmic impact assessments

Artificial intelligence, algorithms and automated decision-making are increasingly prevalent in UK workplaces, but their use remains largely unregulated. Having recently attended a discussion on the subject held by the All Parliamentary Group on the Future of Work, Eilidh Wood (a senior associate at Burges Salmon) has written a blog post examining the approach taken to algorithmic impact assessments in other jurisdictions and what future regulation in the UK might look like.

Read Eilidh’s blog post here >

Employment Bill

Many employers are keen to see whether the Queen’s Speech on 10 May 2022 will include the long-awaited Employment Bill. The Bill, first proposed in December 2019, is expected to cover reforms including the right to request flexible working from day one, the right to carers' leave, and the extension of redundancy protection for women and new parents. However, the latest reports from Westminster indicate that the Bill is unlikely to feature in the upcoming Queen’s Speech.

Burges Salmon Employment team news

We are delighted that Jamie Cameron has been appointed as a director in our Employment team from 1 May 2022. Jamie joined the firm in 2003, qualifying into the Employment team in 2005. He is an experienced employment lawyer, advising national and international businesses and senior executives on all aspects of employment law. He regularly advises employers in both the public and private sectors on sensitive HR matters, strategic projects (including business restructures and outsourcing arrangements) and employment litigation.

Jamie is also the firm’s Head of Community Engagement and, as a member of the firm’s Environment, Social and Governance (ESG) committee, he is actively involved in the firm’s ESG strategy.

Update posted: 21 April 2022

COVID-19 and data protection

Following the relaxation of COVID-19 rules in England from 1 April 2022, the Information Commissioner’s Office (ICO) has published new guidance to help organisations consider the way in which they are collecting and using individuals’ personal information as a result of the pandemic. The ICO explains that organisations should review their practices to decide if the information they have been collecting is still necessary, taking into account the latest government guidance.

In a recent blog post, Katie Russell (a partner at Burges Salmon) explored some of the key recommendations contained in the new ICO guidance.

Read Katie's blog post here >

Voluntary redundancy and unfair dismissal

The EAT has found that an employment tribunal made an error when it struck out a claimant’s claim for unfair dismissal because the claimant had requested voluntary redundancy. The tribunal had said the claim had no reasonable prospect of success as the voluntary redundancy request meant the employer could establish the reason for, and reasonableness of, the dismissal. However, the claimant alleged that the redundancy exercise was a sham and that the employer had manufactured the redundancy situation by bringing in a new full-time employee to replace two existing part-time workers (the claimant and another).

In these circumstance, the EAT rejected the tribunal’s finding that the claim had no reasonable prospect of success. It said that the tribunal needed to engage with the claimant’s case (including the background matters relied on by the claimant) before it could determine her claim. The case has been sent back to the tribunal to be heard in full.

The case is a useful reminder that, when considering a complaint of unfair dismissal, tribunals can look beyond an employee’s voluntary redundancy request and can consider broader factors.

(White v HC-One Oval Ltd)

Employment Tribunal road map

The Presidents of the Employment Tribunals in England & Wales and Scotland have published a road map for 2022-2023. This road map provides an update on the different platforms used for hearings (video, hybrid and in-person) and sets out some guidelines for the preferred format for different types of hearings for the coming year.

The Presidents aim to reduce the percentage of hearings that are fully remote and to increase the number that are held in-person but the approach will depend on the tribunal resources available in each region. The following headline points are set out in the document:

Case management preliminary hearings will default to video or telephone and this is likely to become permanent.
Most other preliminary hearings are likely to default to video, with the exception of preliminary hearings on complex issues (such as the application of TUPE) requiring more detailed evidence which are more likely to be held in-person.
Other than short track claims (e.g. claims for unpaid wages), for final hearings there will be a return to more in-person hearings. This will particularly be the case where there is significant disputed evidence.
Judicial mediations will default to video and the Presidents will keep a close eye on outcomes to determine whether video should be the permanent format for judicial mediations.

Read the ET Road Map here >

Update posted: 7 April 2022

COVID-19 in the workplace – a “new normal”?

In the last week, universal free testing has come to an end in England and new guidance on ‘Living with COVID-19’ has been published. As the latest guidance puts the onus firmly onto employers to decide what measures to take, there are a number of points for employers to work through. In our article, we look at the key practical and policy questions that employers will need to consider as they look to implement any new workplace arrangements.

Read our update here >

New visa routes for Ukrainian nationals

In light of the ongoing situation in Ukraine, the government has introduced various temporary immigration arrangements for Ukrainian nationals. In our update, we take a look at the new routes available and consider the practical implications for employers.New visa routes for Ukrainian nationals

Read our update here >

Statutory Code of Practice on “fire and rehire”

The government recently announced that it will introduce a new statutory code of practice on “fire and rehire”. This follows renewed calls in recent weeks for government intervention regarding the use of “fire and rehire”, which is a practice where an employee’s contract of employment is terminated before the employee is rehired, often on new, less-favourable terms. In its announcement, the government states that the statutory code will detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms and will include practical steps that employers should follow. Importantly, Employment Tribunals will be able to take the code into account and apply an uplift of up to 25% of compensation if an employer has unreasonably failed to comply with the code.

Further details of the code, including when it will be published, are awaited.

Read the government’s announcement here >

Update posted: 24 March 2022

Redundancy processes

Redundancy and consultation processes have hit the headlines this week, in the wake of the announcement made by P&O Ferries to some of its staff terminating their employment with immediate effect. Whilst the exact legal position as it applied to P&O Ferries is currently the cause of debate, the situation has certainly put the topic of redundancy processes on to the political agenda.

By way of a brief reminder, here are some headline points for employers to be aware of when they are contemplating possible redundancies of employees employed in the UK:

Where an employer proposes to make 20 or more employees redundant at one establishment within a 90 day period, it is obliged to carry out collective consultation with appropriate representatives for a period of at least 30 or 45 days (depending on how many redundancies are proposed).
The employer is also obliged to notify BEIS of the proposed redundancies by submitting an HR1 form at least 30 or 45 days before the first dismissal (depending on how many redundancies are proposed).
The employer should ensure a fair selection process is carried out and carry out individual consultation with those provisionally selected.
For any employee ultimately made redundant, the employer will be obliged to provide them with their minimum notice periods and redundancy pay entitlements.

Failure to follow these steps could lead to claims being brought against the employer, some of which could result in significant awards of compensation.

We have also seen renewed calls in the last few days from politicians and other stakeholders for a ban on the use of “fire and rehire”. It is worth noting that the situation with P&O Ferries does not appear to be a fire and rehire situation in its usual sense. The term is usually used to describe the practice where an employee’s contract of employment is terminated before that same employee is immediately re-employed by the same employer on new terms and conditions of employment.

It remains to be seen whether we will see legislative change in this area, although it is perhaps worth noting that a recent Private Member’s bill failed to progress and no legislation was proposed following the Government’s recent review of the practice and instead ACAS issued guidance to help employers who are considering employment contract changes. This guidance was published in November 2021.

Ethnicity pay gap reporting

Last week, the Government published its response to the report issued by the Commission on Race and Ethnic Disparities in March 2021. In its policy paper titled “Inclusive Britain”, the Government sets out a range of measures it intends to implement in response to the findings from the Commission’s report including its planned approach to ethnicity pay gap reporting.

The Government confirmed that it will not introduce mandatory ethnicity pay gap reporting at this stage, in part because it wishes to avoid imposing new reporting burdens on businesses as they recover from the pandemic. Instead the Government intends to support employers with voluntary reporting. Those employers who do voluntarily report should produce a “diagnosis and action plan”, which should detail the reasons for the disparities identified and set out steps to address them. BEIS will publish guidance on voluntary ethnicity pay gap reporting in summer 2022 with the aim of giving employers the tools to understand and tackle pay gaps.

Two other key points for employers from the policy paper are:

Later in 2022, the Office for Artificial Intelligence (AI) will set out a national position on governing and regulating AI which will include plans on how to address the potential for racial bias in algorithmic decision-making.
New updated guidance on positive action will be published by the Government Equalities Office by December 2022, to help employers seeking to introduce policies to improve representation and provide opportunity to unrepresented groups in the workforce.

Read the policy paper here

Limits on anonymisation in Tribunals

In a recent case, the EAT explored the limits on a Tribunal’s ability to order redaction and anonymisation of commercially sensitive information, including details of customer names and relationships.

The respondent wanted all of its clients’ names to be anonymised in the Tribunal bundle and witness statements and for commercially sensitive information not relevant to the claim to be redacted. The Tribunal upheld the respondent’s request and issued case management orders reflecting those points but, on appeal, the EAT concluded that those orders could not stand.

The EAT said that the Tribunal had failed to properly consider the open justice principle (which, in broad terms, requires the public to be able to see court hearings and scrutinise courts’ decisions) and in particular, had not considered the importance of naming the names of people involved in legal proceedings. The EAT sent the case back to the Tribunal for it to reconsider the issue.

Although there are grounds in some situations for parts of Tribunal bundles to be redacted, this case acts as a reminder for employers that Tribunals will scrutinise any request for redaction or anonymisation carefully.

(Frewer v Google UK Ltd and others)

Update posted: 10 March 2022

Living with COVID-19 - key questions for employers

Following the UK Government’s announcement of its “Living with COVID-19” plan and the recent announcement from the Welsh Government of its aim to remove legal restrictions and change its testing regime from 28 March 2022, employers are grappling with a wide range of practical and policy questions as they consider amendments to their workplace arrangements in light of the changing rules and guidance.

1 April 2022 will be a key date for many businesses as it marks the end of free universal testing in England and is the date on which new public health guidance will take effect. That guidance (which is yet to be issued) will be eagerly awaited by employers. There is also a range of other factors that will play an important part in determining businesses’ approaches, including the employer’s health and safety obligations, workplace risk assessments, employee confidence in the workplace, customer confidence and costs. Each employer will need to balance those factors and decide on the approach that best fits its business.

Whilst we await the new public health guidance, here is our pick of the top questions for businesses to consider ahead of 1 April 2022:

Will you be putting a testing regime in place for employees, with testing paid for by the business (where free tests are unavailable)? If so, who will be tested, in what circumstances and how regularly?
When a positive case is identified, will you require the employee to stay away from site or work from home? And for how long?
What arrangements will you put in place for employees who are identified as close contacts?
What will your policy be for employees experiencing symptoms of respiratory illness? Will you require the employee to stay away from work/work from home or will you require them to take a test before attending site?
Where employees are unable to work from home and your policy requires them to stay away from site, what pay policy will you put in place for those employees (bearing in mind your legal obligations in respect of pay)?

We have been advising many employers on their workplace arrangements and policies during the pandemic and their pay obligations for affected employees. If we can help your organisation with its planning ahead of 1 April 2022, please contact a member of our Employment team.

Retirement conversations

A recent employment tribunal case has highlighted the risks for employers in holding retirement discussions with older workers, however well-meaning the intention of those discussions. In an article for Personnel Today, Ellen Goodland (a solicitor in our Employment team) considers this case and offers suggestions as to how employers can manage conversations around retirement.

Read Ellen's article here >

Webinar on-demand: Managing sickness absence successfully

Managing sickness absence can involve a tricky balancing act, with so many legal and practical challenges to contend with. Last week, Huw Cooke, a senior associate at Burges Salmon, delivered a webinar with XpertHR, guiding viewers through the nuts and bolts of effective sickness absence management before going on to discuss some of the tricky scenarios that can arise. The webinar also covered common hurdles, COVID-related pay issues and how to get the most out of occupational health referrals.

You can access the webinar on-demand for the next week, even if you are not a subscriber to XpertHR – after that access will be restricted to subscribers only.

Watch the webinar on-demand here >

Removal of vaccination requirement in health and social care settings

Following its previous announcement and a period of consultation, the Department of Health and Social Care has announced that the regulations that make COVID-19 vaccination a condition of deployment for health and care staff will be lifted from 15 March 2022. In announcing the change, the Government issued a reminder to unvaccinated health and care workers of what it described as their professional responsibility to be vaccinated.

Increase to compensation limits

With effect from 6 April 2022, the limits for certain compensation and statutory payments will increase. Two key new limits are:

a new limit on a week's pay for the purpose of calculating statutory redundancy payments and basic awards - £571 (up from £544); and
a new limit on the amount of compensatory award for unfair dismissal - £93,878 (up from £89,493).

The new rates will apply to dismissals that take place on or after 6 April 2022.

Update posted: 4 March 2022

Business immigration update

Right to work checks

As a reminder, employers are required to carry out right to work checks on all employees before they start work to ensure they have immigration permission to work in the UK. If an employee does not have valid immigration permission, the employer may be liable to pay a penalty (of up to £20,000 per employee) unless they can prove a valid right to work check was carried out in accordance with the Home Office guidance. If a valid right to work check was carried out, the employer should have what is known as a “statutory excuse” and be exempt from paying the penalty. Historically these checks have primarily been carried out manually.

From 6 April 2022

It will become mandatory for employers to conduct (free) online right to work checks on those with a biometric residence permit, a biometric residence card or a frontier work permit. Manual right to work checks carried out on or after 6 April 2022 for individuals in these categories will not be valid and will not provide employers with the “statutory excuse”.

A new optional online right to work check system, which is separate to the online right to work check system mentioned above, will come into effect for British and Irish citizens with a valid passport (or a valid Irish passport card). Individuals will be able to verify their identity and right to work status remotely, by uploading an image of their passport using a certified Identify Service Provider. Employers will have to pay a fee for using this new system. However, as it is optional, employers can continue to carry out manual right to work checks for British and Irish citizens if they prefer.

The Home Office is expected to issue further guidance on these changes, which we anticipate will be incorporated into its guidance titled “Right to work checks: an employer’s guide”. A link to the employer’s guide web page (which we would expect to contain the updated employer’s guide in due course) can be found below.

From 1 October 2022

The temporary COVID concession, which has allowed employers to check scans or photographs of right to work documents (rather than originals), is due to come to an end on 30 September 2022, after which employers must follow the right to work check process set out in updated guidance. The Home Office has extended the temporary COVID concession multiple times, so watch this space to see if there will be another extension before the end of September.

Read the Government guidance on “Right to work checks: an employer's guide” here >

New immigration routes

The Government has announced three new immigration routes, all set to be launched in Spring 2022. These routes could provide many businesses with additional options and greater flexibility when it comes to bringing overseas talent to the UK.

Global Business Mobility Route

The Global Business Mobility Route is a sponsored route, which will be available to overseas businesses (with or without a presence in the UK) who want to send existing employees to the UK for a specific business purpose. It is expected that the new route will include the following five categories of workers/assignments:

senior staff/specialist workers currently working for an overseas entity (replacing the intra-company transfer route);

graduate trainees undertaking a UK placement as part of a structured training programme;

UK expansion workers - i.e. representatives of an overseas business coming to the UK to support the expansion of that business in the UK (replacing the current sole representative of an overseas business route);

those on secondment to a UK business for a specific reason; and

service suppliers coming to the UK to deliver a service in line with a UK trade commitment.

The immigration rules and guidance are yet to be published by the Home Office, but are expected soon. Whilst this route largely appears to incorporate and update some of the routes already in place, it is hoped that it will also provide some additional flexibility for international businesses.

Scale-Up Visa

The new Scale-Up visa is an unsponsored route, offering a route to settlement, open to overseas workers with a “highly skilled” job offer (degree level or above, with a salary of at least £33,000 per year) from an eligible UK employer. In order to be eligible, businesses must demonstrate an average annual rate of growth of more than 20% over a 3-year period and show that they had at least 10 employees at the start of that 3-year period. While this means the Scale-Up visa will not be open to all businesses, it may prove to be a helpful additional option for growing businesses keen to bring in the best talent from overseas.

High Potential Individuals

Successful applicants who have graduated from a “top global university” will be able to come to the UK without a job offer and work without restriction, with the potential to settle in the UK if certain requirements are met. Crucially, employers will not need a sponsor licence to bring employees to the UK under this route, making this another attractive route for businesses looking to bring talent in from outside of the UK. Guidance is yet to be published on which universities will qualify and whether there are any limitations on degree subjects but this is expected soon.

Changes to Health and Care Worker visa

There has been a temporary relaxation of the rules governing sponsorship of health care workers. As of 15 February 2022:

the minimum skills threshold has been dis-applied for care workers. This means care workers who previously could not meet the skills threshold are now eligible to be sponsored for a Health and Care Worker visa;

the salary requirement has also been lowered to whichever is the higher of £20,480 per annum or £10.10 per hour; and

care workers have been added to the Shortage Occupation List, meaning they benefit from lower salary requirements and application fees than other skilled workers.

These changes will remain in place for an initial period of 12 months with any extension likely to depend on whether the Home Office considers there is still a shortage of care workers at the end of this period.

Update posted: 24 February 2022

COVID-19 – changes to self-isolation and testing

It’s all change for COVID-19 measures in England following the Government’s announcement of its ‘Living with COVID-19’ plan. The headline changes that impact employers are set out below.

From today

Removal of the legal requirement to self-isolate following a positive test. In its place, those testing positive will be advised to stay at home and avoid contact with other people for at least 5 full days and then continue to follow the guidance until they have received 2 negative test results on consecutive days. The Government’s strategy document states that employers and workers should follow this guidance for those with COVID-19.
Removal of the guidance for vaccinated close contacts to take daily tests for 7 days and removal of the legal requirement for close contacts who are not fully vaccinated to self-isolate, with new guidance in place detailing precautions close contacts should take.

From 24 March

Removal of the COVID-19 specific provisions relating to Statutory Sick Pay (SSP), following the closure of the SSP rebate scheme on 17 March.

From 1 April

Updated guidance on minimising contact with others to be issued for those who test positive.
The end of free universal testing. Some free testing will continue to be available to certain at-risk groups and social care staff.
The existing set of ‘Working Safely’ guidance to be replaced with new public health guidance.
Removal of the health and safety requirement for every employer to explicitly consider COVID-19 in their risk assessments (although this change will not apply to employers who specifically work with COVID-19, such as laboratories).

There are a number of practical and legal issues for employers to work through now and in the lead up to 1 April, some of which will hinge on the details provided in the additional guidance to be published by the Government. That guidance will be eagerly awaited. With updated plans also announced for Wales and Scotland in the last week, employers with locations across the UK will also need to consider how to adapt their policies to reflect the different measures in place.

Read the Government’s ‘Living with COVID-19’ plan here >

Read the Government’s guidance for people with COVID-19 and their contacts here >

COVID-19 and automatic unfair dismissal

A tribunal has found that an employee who was dismissed for refusing to return to the office due to concerns about contracting COVID-19 and transmitting it to his clinically vulnerable girlfriend was automatically unfairly dismissed. The tribunal found that the claimant genuinely and reasonably believed that there were “circumstances of serious and imminent danger” were he to return to the office and he could not reasonably have been expected to avert that danger. The employee’s proposal to work from home until the Government guidance (which at the time said that those employees who could work from home should do so) changed was an appropriate step for him to take to protect himself and his girlfriend.

The case does not out a general principle as it is first instance and is based on unusual facts, in particular given the employer’s instruction to return to work did not align with the Government guidance at the time and the claimant had only indicated he wished to continue working from home until that guidance changed. It does, however, provide a useful insight into the approach tribunals will take when assessing claims of this type and acts as a reminder to employers to carefully consider employees’ individual circumstances.

(Quelch v Courtiers Support Services Ltd)

Managing sickness absence successfully

Managing sickness absence can involve a tricky balancing act, with so many legal and practical challenges to contend with. To help you navigate those challenges, we are delighted to be joining up with leading online HR resource XpertHR for a webinar on managing sickness absence successfully. During the webinar on 2 March 2022, Huw Cooke (a senior associate at Burges Salmon) will guide you through the nuts and bolts of effective sickness absence management before going on to discuss some of the tricky scenarios that can arise.

Registration details for the webinar and more details on the topics covered can be found by following the link below. The webinar is open to all - you do not need to be an XpertHR subscriber to attend.

Register here >

Hybrid working – here to stay

With results from a recent survey of managers indicating that working from home for part of the week has become the norm for many employers, Katie Russell (a partner at Burges Salmon) takes a look at the steps employers can take to make hybrid working a success.

Read Katie’s blog post here >

Update posted: 10 February 2022

Injunction granted to prevent 'fire and rehire'

The High Court granted an injunction preventing Tesco from using termination and re-engagement (often referred to as 'fire and rehire') to remove employees’ contractual entitlements to retained pay. The retained pay was described in relevant documents as being a 'permanent feature' which could not be negotiated away by Tesco or the trade union. The Court determined that it was necessary to imply into each employee’s contract of employment a term preventing the employer from terminating the contract for the purpose of removing or diminishing the employee’s right to retained pay.

Although the case is based on an unusual set of facts (a point which the Court acknowledged) and is of most relevance to benefits which are stated to be ‘permanent’, it is also perhaps a sign of the increasing scrutiny employers might potentially face if they seek to rely on 'fire and rehire' as a route to change terms and conditions of employment.

(USDAW & others v Tesco Stores Limited)

Holiday pay for misclassified workers

In Smith v Pimlico Plumbers Limited the Court of Appeal found that a worker denied the right to paid holiday can carry over and accumulate that holiday year on year up to the termination of their engagement, at which point they are entitled to a payment in relation to that holiday. The fact that a worker chose to take unpaid leave in circumstances where they were denied the right to paid leave did not prevent carry over and accumulation of that paid leave. In non-binding comments contained within the judgment, the Court also queried the validity of the so called 'three-month break rule' relied on by many employers defending unlawful deductions claims.

In our article, we consider the impact this decision has on businesses and we take a look at the practical takeaways for employers to consider.

Read now >

Removal of vaccination requirement in health and social care settings

The Department of Health and Social Care has announced its intention to revoke the legal requirement for health and social care staff to be vaccinated as a condition of deployment. The anticipated change, which will require removal of the regulations that came into force in November last year, is subject to a period of consultation and Parliamentary approval. The consultation closes on 16 February 2022.

Reluctant returners

As more offices and workplaces open up again following the lifting of the latest working from home guidance, many employers will be faced with some employees who are reluctant to return to the workplace. In our video James Green and Kate Redshaw share their thoughts on what employers can do if they have staff who are hesitant to return to the workplace. Their discussion includes an overview of the employer’s obligations, practical tips for employers to build employee confidence and a look at whether a refusal to return can justify disciplinary action. Our video was first published in September 2021 but the issues employers are grappling with in this area remain largely unchanged.

Watch now >

Update posted: 27 January 2022

Vicarious liability

The Court of Appeal has found that an employer was not vicariously liable or directly liable for an injury suffered by an external contractor as a result of a so-called practical joke carried out by one of its employees. The employee struck two pellet targets with a hammer close to the ear of the contractor, causing him to suffer hearing loss and tinnitus. The contractor claimed that the employer was directly liable for his injury due to a breach of its own duty of care, and also that it was vicariously liable for the employee’s actions.

The Court of Appeal concluded that the practical joke was not carried out in the course of the employee’s employment and so the employer was not vicariously liable. Relevant factors considered by the Court included that the targets were not work equipment, the employee was not required as part of his job to hit such targets and his actions were not part of the activities he was authorised to do by his employer.

On whether the employer breached its duty of care to the contractor, the Court accepted that “horseplay, ill-discipline and malice” could in principle create a reasonably foreseeable risk of injury but it was not foreseeable on the facts of this case.

(Chell v Tarmac Cement and Lime Limited)

Unfair dismissal and COVID-19 vaccination

An employment tribunal has held that the dismissal in February 2021 of a care home employee who refused to be vaccinated against COVID-19 was fair. At the time, there was no statutory obligation requiring care home workers to be vaccinated, but the employer decided to introduce its own requirement for members of staff to be vaccinated.

The tribunal concluded that, in the circumstances, the employer’s decision to make vaccination mandatory for staff providing close personal care to vulnerable care home residents was a reasonable management instruction and the claimant’s refusal to be vaccinated was not reasonable. The tribunal noted that, although the claimant had a genuine fear of and scepticism about the vaccine, she had not presented any medical authority or clinical basis for not receiving the vaccine. The tribunal held that, although the claimant’s right to respect for private and family life was engaged by the employer’s policy, the decision to dismiss the claimant was proportionate in this case.

The tribunal stressed that its decision was based entirely on the facts of the particular case and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair. Although the case is not binding and it is clear that it did not establish any general rule, the case still provides a useful insight into the factors that a tribunal is likely to consider when faced with a dismissal of an unvaccinated employee.

(Allette v Scarsdale Grange Nursing Home Ltd)

Employment status

In the latest case to consider employment status in the gig economy, the Employment Appeal Tribunal (EAT) has upheld a decision that a taxi driver working through the Mytaxi app was not a worker. Although the driver was obliged to provide personal service, he did not satisfy other parts of the worker test. In particular, the tribunal found that the driver could provide his services as infrequently or as often as he wanted, could dictate the timing of those services, and was not subject to the control of the operator in the way in which those services were undertaken. It also noted that the licence for driving a taxi in the relevant area was in the driver’s name, rather than being a licence held by the app operator. The work done for the operator also constituted a relatively small proportion of the work that the driver did when compared to work he did outside of the Mytaxi app. The tribunal was entitled to find that these factors indicated that the driver was in business on his own account.

(Johnson v Transopco UK Ltd)

The right to disconnect

There is growing evidence to suggest that remote working is contributing to an increase in hidden overtime and a blurring of the lines between work life and home life. Against this backdrop, the Scottish Government has set out its approach to the “right to disconnect” in its public sector pay policy. Employment senior associate Eilidh Wood shared her thoughts on these proposals in a recent blog post.

Update posted: 13 January 2022

Discrimination

The highly publicised case in which the Supreme Court held that a bakery and its Christian owners had not directly discriminated on the grounds of sexual orientation, religious belief or political opinion by refusing to provide a cake bearing the words "Support Gay Marriage", has now reached the European Court of Human Rights (ECtHR).

However, the ECtHR has declared the case as inadmissible because the applicant had failed to invoke his rights under the European Convention on Human Rights in the proceedings before the UK courts and so had not exhausted domestic remedies. It marks a strange end to a long running and hotly contested piece of litigation, but serves as a reminder to parties to invoke Convention rights, where relevant, in domestic courts.

(Lee v United Kingdom)

Employment status

The Employment Appeal Tribunal (EAT) has upheld a decision that individual owner driver franchisees (ODFs), who provided delivery services to DPD, were neither employees nor workers.

The key issue for the EAT was whether the ODFs had to provide personal service or not. The agreement required the ODF to supply a driver to perform the services. That driver could be the ODF or another person. A non-contractual operating manual provided that, for the driver to be authorised by DPD, the ODF had to supply a copy of the driving licence of any proposed driver and complete an application form.

Although in practice the claimants had only used cover drivers who were also ODFs, or drivers of other ODFs, the EAT said that this did not detract from their broad contractual right to use any substitute at any time. The approval process was limited to ensuring that any driver was qualified, had an appropriate driving licence, was 21 or over and had undergone the relevant training. Therefore, the tribunal had been entitled to hold that this was a genuine right of substitution, inconsistent with employee and worker status.

(Stojsavljevic and another v DPD Group UK Ltd)

Fit notes

Employees can now self-certify sickness for up to 28 days (previously 7 days). This only applies to periods of sickness starting before (or on) 26 January 2022 and is envisaged as a short term measure to relieve the current burden on GPs. Employees only need to attend a GP for a ‘fit note’ if they have been ill for more than 28 days and have taken sick leave. This includes non-working days, such as weekends and bank holidays.

(The Statutory Sick Pay (Medical Evidence) Regulations 2021)

Grievances and dismissal

The EAT has upheld a tribunal decision that it was fair to dismiss an employee for gross misconduct for raising vexatious grievances.

In this case, the Claimant had raised various grievances against senior managers. The Claimant wanted to resolve his grievances informally with his line manager, despite his line manager having no authority to resolve his grievances. The Claimant refused to progress his grievances formally but also refused to withdraw them. A grievance hearing was held in his absence and the grievances were not upheld. His employer subsequently decided that his conduct throughout the grievance process was frivolous, vexatious and an abuse of process, and it dismissed him for gross misconduct accordingly.

The EAT agreed with the tribunal that, on the facts of this case, the employer had acted reasonably.

(Hope v British Medical Association)

Extension of time

The EAT has confirmed that a tribunal can extend time for issuing proceedings in a discrimination claim where the Claimant has waited to issue proceedings while pursuing grievances. A tribunal must undertake a balancing exercise when determining whether it is just and equitable to extend time.

In this case, the tribunal was entitled to attach particular weight to the fact that there was a genuine desire to use the grievance process to resolve differences (which is to be encouraged), that the grievances crystallised the allegations and put the Respondents on notice which gave them the opportunity to investigate and preserve evidence, and that there was no suggestion that the cogency of the evidence had been affected by the delay.

(Wells Cathedral v Souter)

New podcast: Recruitment Pitfalls

As the war for talent continues our head of team, Adrian Martin, discusses with XpertHR his top tips for heading off some tricky legal issues that can arise in the recruitment process. Listen in to hear about how to manage unauthorised promises to candidates, remote working arrangements, flexing the length of probationary periods and more.

Listen now >

Update posted: 16 December 2021

Festive greetings

This will be our last Employment Edit for the year – thank you for subscribing. We hope you have found our updates useful particularly during these difficult times and we look forward to being back in touch in January. Incidentally to keep up with what’s new, don’t forget to sign up for our Hot Topics in Employment webinar happening in January – details below. In the meantime may we wish you a very happy festive season.

Plan B and changes to the self-isolation requirements

You don’t need us to tell you that, in a bid to keep infection rates in check, new guidance in England means that employers should now allow employees to work from home where possible. Scotland, Wales and Northern Ireland all have similar provisions in place.

In addition Tuesday 14^th December saw changes to the rules on self-isolation. In England, those who are double vaccinated and who live in the same household as and/ or are informed by NHS Test and Trace that they are a contact of a person who has tested positive for COVID-19 (any variant) will no longer need to self-isolate. However they are ‘strongly advised’ to take daily lateral flow tests for seven days. If they test positive (or show symptoms) during that time they will need to self-isolate and take a PCR test to verify the result. Relevant guidance can found here Guidance for households with possible or confirmed COVID-19 and Guidance for contacts of people with confirmed COVID-19. Please note different rules apply in the rest of the UK.

Increases to statutory pay rates announced

The Department for Work and Pensions has published its proposed increases to various statutory weekly rates of pay. These are expected to come into effect from April 2022. Statutory sick pay will rise to £99.35 per week and statutory maternity/ paternity/ shared parental and adoption pay will rise to £156.66 per week. Increases to other statutory benefits can be accessed here: Proposed benefit and pension rates 2022 to 2023.

Flexible working requests: mind the small print

Under the statutory scheme an employer has three months from the date the employee makes a flexible working request to make their decision and notify the employee accordingly. This is known as the ‘decision period’. The decision period can be extended if employee and employer agree. If the employer fails to notify the employee of its decision within the decision period the employee may bring a claim.

In the case of Walsh v Network Rail Infrastructure, Mr Walsh appealed his employer’s decision to reject his flexible working request. The appeal date was set after the end of the decision period. Mr Walsh brought a claim before the appeal had been heard. The employment tribunal found that it did not have jurisdiction to hear the claim on the basis that Mr Walsh’s agreement to hold the appeal after the end of the decision period necessarily meant there was an agreement to extend the decision period. The EAT disagreed allowing the claim to proceed - an agreement to hold an appeal on a specific date was not an agreement to extend the decision period. This means that if you allow employees to appeal a flexible working decision, always seek the employee’s specific agreement to extend the decision period if the appeal is to be held outside the three months’ timeframe.

Hybrid working: guidance for employers

With flexible and hybrid working at the top of many ‘to do’ lists, several organisations have recently issued guidance which may be of interest. These include:

CIPD which has launched Effective hybrid working - Flexible Working Taskforce guidance to supplement Acas’ Hybrid working guidance. Both sets of guidance were commissioned by the government’s flexible working taskforce.
The House of Commons Library has also issued a briefing paper Flexible working: Remote and hybrid work which includes reviews of current laws and guidance. Of particular interest for multi-national employers will be the comparisons of practices with other European countries.

Book now: Hot Topics in Employment webinar – Thursday 27 January 2022

It’s fair to say that 2021 has been another challenging year for those in the HR and employment law community. Whilst we became more familiar with some of the difficulties Covid presented the unpredictability of it all continued to make its mark. Despite this, the courts and tribunals have continued to operate and whilst new employment legislation has for the most part remained on hold, with lots on the agenda, 2022 could be the year to change that.

At this one hour live webinar we will guide you through the need to know employment law changes over the last 12 months covering new cases, trending themes and a look at what 2022 has in store. Further detail on the topics we will be covering can be found on the website booking page.

Book here >

Update posted: 25 November 2021

Working time

The ECJ has held that time spent on standby by a firefighter, who was required to be on standby 24/7 (except during periods of annual leave), was not working time. The firefighter argued that, as he was required to participate in at least 75% of the fire brigade’s interventions, the standby time could not be considered a rest period. The employer argued that it should not be characterised as working time because he was not required to remain in a particular place, he could participate in other activities (in this case, he worked as a taxi driver during standby time), and he suffered no consequences for not arriving to the fire station at the appointed time other than not being paid.

The ECJ determined that the limitations imposed on the firefighter did not significantly affect his ability to manage his own time during the relevant period. In particular, it was significant that he was not obliged to participate in all emergency call-outs, and that he was free to carry out another professional activity during the standby time. This can be contrasted with another recent ECJ decision, XR v Dopravní podnik hl m Prahy (Prague Public Transport co), in which time spent on standby by a firefighter was classified as working time due to the restrictions placed on the worker during his standby time.

Whilst neither decision is binding in the UK, they may be taken into account by courts and tribunals applying the Working Time Regulations 1998.

(MG v Dublin City Council)

Disability discrimination

The Court of Appeal has upheld a decision that an employee who suffered from paranoid delusions did not have a disability for the purposes of the Equality Act 2010. Although the delusions had occurred over many years, the tribunal found that they had only had a substantial adverse effect during two discrete periods, each lasting a matter of months. The substantial adverse effect was therefore not 'long term'. The Court of Appeal also affirmed the tribunal’s finding that the substantial adverse effect had not been 'likely to recur'. The question of likely recurrence has to be assessed with the information available at the relevant time. The fact that the effect did subsequently recur was irrelevant, and the later delusions were themselves triggered by a specific event which was unlikely to continue.

(Sullivan v Bury Street Capital Ltd)

Trade union activities

In this case a number of pilots participated in strike action called by BALPA, the recognised trade union. Ryanair withdrew concessionary travel benefits from the pilots for a year as a result. The pilots argued that they had been subjected to detriment for taking part in industrial action at an appropriate time, contrary to s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), and that they had been blacklisted, contrary to the Employment Relations Act 1999 (Blacklists) Regulations 2010.

In a technical judgment concerning the interpretation of various provisions of TULCRA and the application of European Convention of Human Rights, the EAT held that:

protection against detriment for taking part in industrial action includes protection for participating in industrial action;
'at an appropriate time' included a time within working hours when the worker is taking part in industrial action; and
the industrial action in question did not have to be “protected” industrial action for the workers to be protected against detriment or against blacklisting.

The EAT therefore found in favour of the striking pilots.

(Ryanair DAC v Morais and ors)

It’s all change for how employers manage tips

The government has published its response to a consultation launched back in 2016 seeking views on how to ensure the fair and transparent treatment of tips, gratuities, cover and service charges. You can read about what changes employers might expect when the legislative provisions are brought in our update.

Read legal update >

COVID-19

The Department of Health and Social Care (DHSC) has published its response to the consultation on mandatory COVID-19 vaccination for health and social care workers. It confirms that vaccination will become mandatory for those with face-to-face contact with patients and service users, unless they are exempt. Implementing regulations will come into force on 1 April 2022 after a 12-week grace period.

ACAS guidance on fire and rehire

Following its review of fire and rehire practices earlier this year, ACAS has now published new advice on making changes to employment contracts. The advice stresses that fire and rehire is an extreme step and employers should exhaust all other options first. It also reminds employees of their legal rights in circumstances where employers do try to make changes to terms and conditions.

Update posted: 11 November 2021

Collective bargaining

The Supreme Court has decided that an employer is prohibited from making an offer of revised terms and conditions directly to its employees before the collective bargaining process with the trade union has been exhausted.

The employer argued that it can be difficult to know when the collective bargaining process has been exhausted, but the court did not accept that argument. It found that the recognition agreement could deal with this sufficiently (as was the case here, the Court concluding in this case that the final stage of the agreed collective bargaining process under the agreement had not been completed by the parties). The Court noted that additional protection is also afforded to employers by the statutory rules which provide that employers will not be in contravention of the law unless their purpose in making an offer directly to employees is to prevent employment terms being determined by collective agreement. If the employer genuinely believes the collective bargaining process has been exhausted then, in making offers directly to employees, the employer’s purpose cannot be to circumvent that process.

The Court did acknowledge that for an offer made directly to employees to be prohibited there needed to be at least a ‘real possibility’ that the employees’ terms would otherwise have been determined by collective agreement. However, in most instances that ‘real possibility’ will be present save, for example, where a trade union is applying to be recognised or, as above, where the collective bargaining process has been exhausted without terms having been determined.

The penalties for an employer who falls foul of this protection are severe. In this instance the original Employment Tribunal awarded a total of £421,800 in compensation.

This is an important decision that employers will need to bear in mind for pay award negotiations and any other negotiations regarding terms and conditions in the event that a negotiation does not run smoothly. Employers may also want to review their relevant recognition agreements to see how clear-cut the collective bargaining processes are as not all have clear and obvious end points.

(Kostal UK Ltd v Dunkley and Others)

Worker status

The Court of Appeal has upheld an employment tribunal decision that an individual with a right of substitution was still a “worker”.

The individual was a courier who could opt to undertake delivery “slots” via an app, each “slot” being a period of time when the individual had to be available for work in a certain place. The courier could release a “slot”, making it available to other couriers signed up with the app, but if no one accepted, the original courier remained liable to complete it. The tribunal had to determine whether this right of substitution was inconsistent with a requirement to perform services personally, as required for “worker” status.

The Court of Appeal agreed with the tribunal that the right of substitution was limited to such an extent that it was insufficient to remove the obligation on the courier to perform his work personally.

(Stuart Delivery v Augustine)

National minimum wage

The Employment Appeal Tribunal (EAT) has held that, in calculating whether a taxi driver had been paid the national minimum wage, rental payments made by the driver to hire his vehicle and uniform from his employer should have been deducted from his wage, because those payments were made in “connection with employment”. It was not relevant to the test that he could have provided his own vehicle instead and that he only needed the uniform to do a certain level of work.

(Augustine v Data Cars Ltd)

Autumn Budget 2021

The Chancellor has announced the following:

NMW increases on 1 April 2022 to £9.50 for those over 23, £9.18 for those aged 21-22, £6.83 for those aged 18-20, and £4.81 for those under 18;
Apprentice Rate increases on 1 April 2022 to £4.81;
the government will continue to meet 95% of the apprenticeship training cost for employers who do not pay the apprenticeship levy, will deliver apprenticeship system improvements for all employers, and will extend the £3,000 apprentice hiring incentive for employers until 31 January 2022; and
increased funding for the National Skills Fund to expand the Lifetime Skills Guarantee so more adults in England can access funding for in-demand Level 3 courses and Skills Bootcamps will be scaled up.

Update posted: 21 October 2021

Age discrimination

The Employment Appeal Tribunal has examined Oxford University’s use of an employer justified retirement age (EJRA) after two apparently conflicting employment tribunal decisions, one of which found that the EJRA was objectively justified and the other which found that it was not.

The EAT upheld both tribunal decisions. While acknowledging that this was undesirable, the EAT emphasised that its role was not to strive to find a single answer but to ensure the law is properly applied, and that neither tribunal had made an error of law.

The EAT did, however, give some useful pointers for employers wishing to use an EJRA. Firstly, the EAT confirmed some of the legitimate aims that can be relied upon: promoting inter-generational fairness, facilitating succession planning, and promoting equality and diversity. Secondly, the EAT stressed the importance of statistical evidence to demonstrate the achievement of the legitimate aims identified. Employers should consider this carefully and, where historic statistical data is not available (because the policy is new, for example), should make reasoned projections based on data such as workforce surveys. Thirdly, tribunals will consider what steps are taken to mitigate the discriminatory effect of an EJRA, such as extension provisions and the availability of post-retirement opportunities.

(Pitcher v Chancellor Masters And Scholars Of The University Of Oxford)

Working time

The ECJ has held that a 30-minute rest break during which a firefighter may be called back to work on two minutes' notice should be classified as "working time".

The ECJ noted that time spent by a worker on standby must either be working time or a rest period; there is no intermediate category. In this case, the short duration of the breaks, the short notice on which the worker could be required to return to work, and the likely permanent alert required of the worker meant that, on an overall assessment, the limitations imposed on the worker objectively and significantly affected their ability to manage their own time, and to devote that time to their own interests.

Under the Working Time Regulations 1998 (WTR), the entitlement to rest breaks does not apply in the UK where the working requirements of the police and emergency services conflict with the rest break provisions. However, outside of those exceptions, this decision provides a reminder of the importance of genuine, uninterrupted breaks for preserving health and safety.

Whilst this decision will not be binding in the UK, it may be taken into account by courts and tribunals applying the WTR.

(XR v Dopravní podnik hl m Prahy (Prague Public Transport co))

Collective redundancy consultation

The EAT has considered the scope of the “special circumstances” defence which allows employers to avoid liability for failure to collectively consult when proposing to make 20 of more employees redundant at an establishment within 90 days. The exception applies where there are "special circumstances which render it not reasonably practicable" for an employer to comply with the consultation requirements.

In this case the Carillion group was facing serious and increasing financial difficulties over several months. Over the weekend of 13-14 January 2018, the company’s financial stakeholders refused to approve short-term lending arrangements in the absence of Government guarantees, which the Government confirmed would not be forthcoming, resulting in Carillion entering liquidation on 15 January 2018. Carillion argued that, up to this point, it expected its backers to provide lending and that the failure to secure this lending was a “sudden intervening event” amounting to “special circumstances”.

This argument was rejected. Insolvency may or may not be a special circumstance and this will depend on the facts surrounding that insolvency. The question for the tribunal is whether the circumstances relied on are uncommon or something out of the ordinary – it is not enough that the circumstances are unforeseen. The EAT's decision confirms that the special circumstances defence will rarely be available to an employer.

(Carillion Services Ltd (in compulsory liquidation) and ors v Benson and ors)

Disability and sex discrimination

The EAT has upheld an appeal against an employment tribunal’s decision to strike out a claim for disability and sex discrimination based on the treatment of a menopausal woman. The tribunal had found that Ms Rooney's menopausal symptoms were not a disability and that there was insufficient evidence of sex discrimination for the claim to proceed. However, the EAT found that the tribunal had failed to provide sufficient reasoning to support either decision. The tribunal had not explained why Ms Rooney's condition did not meet the disability threshold and had not properly considered the evidence of sex discrimination which Ms Rooney had submitted. The claim was remitted back to the tribunal to consider these issues.

This decision, coming so close to World Menopause Day (which was on 18 October), serves as a timely reminder of the difficulties that can arise for menopausal women in the workplace and the need for employers to be aware of menopausal symptoms and to offer appropriate support to those experiencing such symptoms. The recommendations of the Women and Equalities Committee's inquiry into menopause in the workplace are currently awaited and these are expected to include whether further legislation is required to adequately protect menopausal women from discrimination at work.

(Rooney v Leicester City Council)

Update posted: 16 September 2021

COVID-19 Response - Autumn and Winter plan

The government has published the COVID-19 Response - Autumn and Winter Plan 2021. Plan A sets out the government’s plans for autumn and winter 2021/22 in England. If the data suggests the NHS is likely to come under unsustainable pressure, a contingency plan will be put into place. This Plan B includes the possibility of further advice to work from home being introduced, alongside other measures, such as legally mandating face coverings and introducing mandatory vaccine-only COVID-status certification in certain settings.

New COVID-19 Response: Autumn and Winter plan

Working time

The EAT has held that an employee who claimed that her employer’s instruction to work a shift pattern would breach her rights under the Working Time Regulations, was automatically unfair dismissed for asserting a statutory right under s.104 Employment Rights Act 1996.

In this case, the Claimant was asked to cover a manager’s pre-booked holiday. Although the Claimant initially agreed, she then raised concerns about it when she realised that it meant that she would be working for over 14 consecutive days, saying “working 14 days on the trot without a break was treating her like a slave”. She did in fact work the hours requested, but she was then dismissed after the managed returned from holiday.

Although, in order to claim automatically unfair dismissed for asserting a statutory right there must have been an infringement of a statutory right, not merely an anticipation or threat of future infringement, the EAT held that this case was not about a future or intended breach, the employer’s instruction itself was a breach of her rights under the Working Time Regulations.

Right to work checks

The temporary COVID-19 adjusted right to work check measures, which have been in place since 30 March 2020, have been extended and will now end on 5 April 2022 (inclusive), not 31 August 2021 as previously announced by the Home Office.

The temporary measures allow an employer to conduct right to work checks remotely over video calls and allow a job applicant to send a photo or scanned documents via email or a mobile app, rather than sending original documents. Provided the checks are carried out in the prescribed manner or as set out in the COVID-19 adjusted checks guidance, an employer will maintain a statutory defence against the offence of knowingly employ anyone who does not have the right to work in the UK.

Read more

Update posted: 22 July 2021

COVID-19 working safely guidance

Following the removal of most legal COVID-19 restrictions in England on 19 July 2021, and the publication of new working safely guidance, employers are again having to review their various workplace arrangements.

To help manage the return to work, the government has published new guidance for businesses on working safely during COVID-19 as well as new guidance for the clinically extremely vulnerable.

Please read our article to find out what these changes and the new guidance mean for employers.

New COVID-19 working safely guidance – what employers need to know >

COVID-19 vaccination guidance

The government has issued COVID-19 vaccination: guide for employers. The guidance recommends that employers encourage and support their staff to get vaccinated and includes information and resources, including an Employers' Communication Toolkit. The guidance suggests that employers:

Share and direct people to trusted sources of information when they ask for more details.
Share practical information about how to get vaccinated.
Consider using departmental ‘champions’ to promote vaccination.
Post articles or blog posts in company newsletters, intranet, and emails about the importance of COVID-19 vaccination, as well as how and where to get the vaccine.
Consider allowing workers to take time off to be vaccinated and review sick leave policies and procedures to ensure that they do not disincentivise workers from getting vaccinated.

Read COVID-19 vaccination: guide for employers >

Religious discrimination

The ECJ has held that a policy which requires neutral dress in the workplace and prohibits workers wearing any visible sign of political, philosophical or religious belief does not constitute direct religious discrimination under the EU Equal Treatment Directive, provided that the rule is applied in a general and undifferentiated way.

The decision relates to two German cases, one where the Claimant wore a headscarf for religious reasons, and the other case concerned an employee displaying a cross. The ECJ held that the indirectly discriminatory effect of such a policy was likely to be justified if the employer can demonstrate that it has a genuine need for the policy and, in establishing such a need, account can be taken of the rights and legitimate wishes of its customers or users and provided the prohibition covers all visible forms of expression of political, philosophical or religious beliefs. However, a prohibition which is limited only to conspicuous or large-sized signs of political, philosophical or religious beliefs is likely to constitute direct discrimination on the grounds of religion or belief, because it is likely to have more effect on certain religions which require the wearing of larger signs, such as headscarves.

Although a decision of the ECJ is no longer binding on UK courts and tribunals, they may have regard to the decision so far as it is relevant to any matter before them. Employers wishing to enforce a neutral dress code will need to carefully consider the impact and ensure that the need for the policy can be justified in terms of the nature and context of the business activities being carried out.

(IX v WABE & MH Muller v MJ)

Sexual harassment

The government has issued a response to the consultation on sexual harassment in the workplace, which states that as soon as Parliamentary time allows the government intends to introduce:

a specific duty requiring employers to prevent sexual harassment, in order to encourage employers to take positive proactive steps to make the workplace safer for everyone.
explicit protections relating to third-party harassment.
an extension of the time limit to bring a claim under the Equality Act 2010 from 3 months to 6 months.

Read more >

Since the #MeToo movement began, there has been a cultural shift in the way in which organisations have dealt with allegations of sexual harassment. Organisations are responding to allegations in a more proactive and robust manner.

We continue to see a trend for organisations to view allegations of sexual harassment or discrimination as issues requiring immediate and serious consideration and to carry out formal investigations when allegations are made. In regulated sectors, regulators are increasingly investigating allegations of sexual harassment or related misconduct.

In our latest briefing, our BCRI team review developments in the regulatory investigations space and consider the impact of #MeToo on current and future employment law and practice.

Read more >

Update posted: 8 July 2021

Indirect sex discrimination

The EAT has held that a tribunal should have taken judicial notice of the "childcare disparity" when hearing an indirect sex discrimination claim.

The Claimant was a community nurse who worked 15 hours over two fixed days and, because of her childcare commitments, she was unable to comply with a new requirement to work flexibly, including at weekends, and was dismissed. She did not produce evidence to support the argument that the new requirement put women at a particular disadvantage compared to men and there was evidence that others in her team, both men and women, were able to comply, so the tribunal dismissed her claim.

However, the EAT held that the tribunal should not have limited the pool for comparison to the team, as the appropriate pool for comparison was all the community nurses employed by the Trust. The tribunal was also wrong to find there was no group disadvantage because judicial notice allows tribunals to take notice of matters without the need for specific evidence, namely the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men. The EAT noted that the childcare disparity is so well known that it was incumbent on the tribunal, in the circumstances, to take notice of it.

(Dobson v North Cumbria Integrated Care NHS Foundation Trust)

Immigration

Applications under the EUSS closed on 30 June 2021 and from 1 July 2021 EEA/Swiss nationals are required to provide evidence of their lawful immigration status in the UK in the same way as other foreign nationals. Employers are not required to carry out retrospective Right to Work checks on EEA/Swiss nationals employed before 30 June 2021 (and should avoid any discriminatory treatment of these employees). However, if employers become aware that an EEA/Swiss national employee has failed to apply for pre-settled/settled status before the deadline, providing they were employed on or before 30 June 2021 and have reasonable grounds for missing the deadline, there are temporary transitional arrangements in place which may enable the employer to keep employing them while they make an application.

These transitional arrangements will remain in place until 31 December 2021. Please note that the default position (which now also applies in the case of EEA/Swiss nationals unless you can take advantage of the transitional arrangements above) is where you are aware or have reasonable cause to suspect than an individual lacks the right to work in the UK, for example because they are an EEA/Swiss national and they inform you that they arrived in the UK after 1 January 2021 and they do not have a visa, you may be guilty of the offence of knowingly employing an illegal worker.

Also from 1 July 2021, the UK graduate route opened. This route allows eligible international students to stay and work in the UK for two years after graduation, when their student visa expires, and allows employers to employ the graduate without a sponsor licence.

Data protection

The EU Commission has now formally adopted two UK adequacy decisions under the EU General Data Protection Regulation and Law Enforcement Directive. These adequacy decisions have been agreed for a four year period (until 27 June 2025) provided that the UK's applicable data protection regime continues.

This will be welcome news for businesses because the "bridging mechanism" in the trade agreement reached following Brexit (whereby the UK was not treated as a third country for the purposes of personal data transfers from the EU (plus EEA countries) was about to expire.

XpertHR webinar: Legal issues and discrimination risks of hybrid working

Rolling out a longer-term hybrid working model for your workforce requires considered analysis and careful planning.

Huw Cooke, senior associate at Burges Salmon, recorded a webinar recently in conjunction with online HR resource, XpertHR, which guides you through the legal issues around hybrid working, including:

the contractual challenges and how to vary contracts
long term discrimination risks
potential redundancy issues
expenses and allowances
recruitment, training and line management.

This free one-hour live webinar is now available to watch on demand. Subscribers to XpertHR can access this webinar on an ongoing basis. If you don’t subscribe you can access the webinar until Friday 9 July.

Watch webinar >>

Update posted: 10 June 2021

XpertHR webinar: Legal issues and discrimination risks of hybrid working

Rolling out a longer-term hybrid working model for your workforce requires considered analysis and careful planning.

To help you get to grips with this, Huw Cooke, senior associate at Burges Salmon, has been asked by online HR resource, XpertHR, to guide you through the legal issues around hybrid working, including:

the contractual challenges and how to vary contracts
long term discrimination risks
potential redundancy issues
expenses and allowances
recruitment, training and line management.

This free one-hour live webinar will include a Q&A session. Registration details for the webinar are below and it is open to all - you do not need to be an XpertHR subscriber to join the webinar.

Date: Wednesday, 23 June 2021

Time: 11am

Health and safety

The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 came into force on 31 May 2021. This confers on workers the right not be subjected to a detriment for leaving, or refusing to return, to their workplace in circumstances where they reasonably believe it would put themselves or others in serious or imminent danger, or for taking steps to protect themselves.

The Order extends the rights that employees have under section 44 of the Employment Rights Act 1996 not to be subjected to a detriment in certain health and safety cases to also include workers. It follows a declaration of the High Court in the case of Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another that, as the protection only previously applied to employees and not workers, the government had failed properly implement two EU Directives relating to health and safety.

Industrial action

The EAT has held that the fact that there is no protection from detriment for having participated in strike action under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is a breach of Article 11 of the European Convention on Human Rights (ECHR).

Employers are prohibited from dismissing employees for taking part in protected industrial action under section 238A of TULRCA 1992, but there is nothing in current legislation which prohibits employers subjecting employees to a detriment short of dismissal for taking part in industrial action. Therefore, because Article 11 of the ECHR sets out the right to freedom of assembly and association and the right of workers to form and join trade unions and no restrictions on these rights are allowed other than those prescribed by law, the EAT held that the legislation must be interpreted to include protection from detriment so that it is compatible with Article 11.

(Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy intervening))

EU settlement scheme

A reminder that the deadline for applications under the EU settlement scheme (EUSS) is fast approaching.

Any EU nationals who arrived in the UK before 11pm on 31 December 2020 will need to apply for settled status under the EUSS in order to retain the right to live and work in the UK. Applications must be made by 30 June 2021 otherwise the person will no longer have the right to work in the UK without obtaining alternative immigration permission.

Employers may be faced with challenging decisions if they employ any EU nationals who have failed to apply, or have made an unsuccessful application, to the EUSS before the 30 June 2021 deadline. You may want to take advice on the steps you can take to minimise this risk, including how to encourage EU employees to apply under the scheme.

Read Business Immigration – a guide for employers >

Inclusive workplace - menopause

Menopausal women are one of the fastest growing workplace demographics. Watch this video for some quick tips on how to support colleagues experiencing symptoms, taken from our internal series of events to support our own people.

Watch the video >

Update posted: 20 May 2021

Employment law proposals

The government has now published its response to the previous report prepared by the Women and Equalities Committee, ‘Unequal Impact? Coronavirus and the gendered economic impact’, which concluded that government policies during the pandemic had consistently overlooked women's caring responsibilities and the employment inequalities experienced by them.

Although the government’s response rejects many of the recommendations, the response mentions that the government is:

considering removing the 26-week service requirement for making a flexible working request and it will consult on making flexible working the default position
committed to bringing forward an Employment Bill "when parliamentary time allows” (although there was no mention of the Employment Bill in the Queen’s Speech)
intending to extend the redundancy protection period afforded to mothers on maternity leave to apply to pregnant women and for six months after a mother has returned to work, and this will also include those taking adoption and shared parental leave
considering proposals to require large employers to publish their parental leave and pay policies.

Right to work checks

The Home Office previously announced that the temporary COVID-19 process for right to work checks, which has been in place since last March, would end on 16 May 2021. The Home Office has now confirmed that the amended COVID-19 process for right to work checks will actually continue until 20 June 2021. From 21 June 2021, employers must either check the applicant’s original work documents by conducting a manual check or check the applicant’s right to work online.

We have been advising many employers on right to work checks. If we can help your organisation, please do get in touch.

Worker status

The EAT has held that the absence of any obligation on a worker to accept and perform a minimum amount of work is not fatal to establishing ‘worker’ status, where the worker had an overarching contract with the employer.

In this case, the Claimant was fee-paid panel member on the Nursing and Midwifery Council (NMC)’s Fitness to Practice Committee and there was an overarching contract for the performance of services between the parties. The NMC was not obliged to offer a minimum number of sitting dates on the Committee and the Claimant was free to withdraw from dates he had accepted. However, he was required to provide his services personally.

The EAT agreed with the employment tribunal that he was not an employee, since there was no irreducible minimum of obligation, but that he was a ‘worker’ and he was engaged under an overarching contract for the performance of services and a series of individual contracts arose each time he performed the services. The EAT also held that the absence of an irreducible minimum of obligation was not incompatible with ‘worker’ status.

The case is the latest in a series of decisions about ‘worker’ status, including the recent Supreme Court’s decision in Uber that drivers were ‘workers’ and not self-employed contractors. With this in mind, employers will need to consider such appointments very carefully and undertake a close analysis of working practices and contractual arrangements to help identify any risk areas and steps that could be taken to manage potential risks.

(Nursing and Midwifery Council v Somerville)

Data protection

The Information Commissioner's Office (ICO) has produced a new Data Sharing Code of Practice pursuant to section 121 of the Data Protection Act 2018 (DPA). This was laid before Parliament on 18 May 2021 and, in the absence of any objections, it will come into force after 40 sitting days. The Code gives practical guidance for organisations on how to share personal data in compliance with the fairness, lawfulness, transparency and accountability requirements of the UK General Data Protection Regulation (UK GDPR) and DPA.

Tackling loneliness

The Department for Digital, Culture, Media and Sport has published new guidance on what employers can do to address loneliness among their workers. The guidance was compiled following consultation with employers during the COVID-19 pandemic and recognises that the increased reliance on virtual connections has had an impact on social connections.

As more employers consider moving to hybrid working, finding ways to alleviate loneliness will become more important and the guidance provides examples of good practice and other steps that employers can take, including making loneliness awareness part of any employee wellbeing programme and having a loneliness champion who is trained in loneliness and wellbeing.

Read guidance >

Inclusive workplaces - neurodiversity

How can we better set up our workplaces to support those with neurodiverse conditions? Watch this video for some quick tips, taken from our internal series of events to educate and support our own people.

Watch the video >

Update posted: 6 May 2021

Right to work checks

On 20 April, the Home Office announced that the temporary COVID-19 right to work check concession will end on 16 May 2021. From 17 May 2021, employers must either check the applicant’s original work documents by conducting a manual check or check the applicant’s right to work online.

The Home Office has also confirmed that employers do not need to carry out retrospective checks on those who had COVID-19 adjusted checks between 30 March 2020 and 16 May 2021 (inclusive). Employers will maintain the statutory excuse provided the check made during this period was done as set out in the COVID-19 adjusted checks guidance. This is a departure from previous guidance, where employers were advised that the COVID-19 adjusted right to work checks would only provide a temporary statutory excuse and that new retrospective checks would need to be carried out within 8 weeks of the temporary measures coming to an end.

The fact that retrospective checks in these circumstances will no longer be required is likely to be of relief to employers, as this has removed a significant administrative burden. However, the changes effective from 17 May, may pose potential issues for those who cannot demonstrate a right to work using the online service (which may only be used in certain circumstances) and who will therefore need to undertake a manual check in accordance with the employer’s guide on right to work checks.

Manual checks must take place either in person or via a live video link, but in either case the employer must be in possession of the applicant’s original documents - these cannot be inspected via a live video link and cannot be scanned copies. In the current climate, it’s likely that more individuals will choose to demonstrate their right to work by posting the required documents to their employer and then conducting the required check via video link. Employers will therefore need to be alive to the practical difficulties the removal of the COVID-19 adjusted checks present to their business. They should also ensure that they do not mandate how an individual proves their right to work and provide individuals with every opportunity to demonstrate their right to work.

We have been advising many employers on right to work checks. If we can help your organisation, please do get in touch.

COVID-19 update

HMRC has issued its seventh Treasury Direction to extend the Coronavirus Job Retention (Furlough) Scheme from 1 May to 30 September 2021, reflecting the changes made in the updated guidance published on 8 April 2021. The regulations on calculating a week's pay for furloughed employees for the purpose of certain statutory payments (including redundancy and notice pay) have also been extended until 30 September 2021.

As we ease out of lockdown, many employers will be focussing on how to manage a return to the workplace. A recent employment tribunal decision is particularly interesting because it concerned an employee who was dismissed when he refused to return to work because he was worried about COVID-19.

The employment tribunal dismissed his automatic unfair dismissal claim and held that, as his employer had followed government guidance on making its workplace COVID secure and the Claimant had not raised any meaningful concerns about workplace safety, the Claimant did not hold a reasonable belief that there was serious and imminent danger, for the protection from dismissal under sections 100(1)(d) and (e) of the Employment Rights Act 1996 to apply. Please note that this decision relates to the specific facts in this case and is not binding on other employment tribunals. Please see our COVID-19 guide for employers for more information about reluctant returners.

(Rodgers v Leeds Laser Cutting Limited)

Read COVID-19: a guide for employers >

Read acas guidance on long COVID >

National minimum wage

The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the national minimum wage for sleep-in workers, following the Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The guidance now states “sleep-in workers are only working and eligible for the national minimum wage when they are ‘awake for the purposes of working’. They are not entitled to minimum wage when they are permitted to sleep. The position is different where workers are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy). In such cases it is likely that at least the minimum wage must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time.”

Read guidance >

Business immigration

The UK’s immigration system underwent significant change as a result of Brexit and the end of freedom of movement for European nationals on 31 December 2020.

UK employers wanting to recruit migrant workers need to understand the new immigration regime and, in particular, how the changes affect the recruitment and employment of EU nationals. We set out the key elements of the UK’s business immigration system and the routes available for employers who wish to recruit from overseas.

Read guide >

Update posted: 22 April 2021

Shared parental leave

The EAT has upheld an employment tribunal decision that it was not sex discrimination for an employer to pay a man on shared parental leave (SPL) less than a woman on adoption leave.

In this case, Mr Price decided not to proceed with his application to take 37 weeks SPL after his wife completed her two weeks’ compulsory maternity leave, when he was told that he would only be entitled to receive statutory shared parental pay (ShPP) and not the enhanced pay which employees on statutory maternity leave (SML) or statutory adoption leave (SAL) were entitled to receive under the employer’s family policy. He claimed that this amounted to direct sex discrimination.

Following the Court of Appeal decision in Ali v Capita Customer Management Limited, the EAT held that Mr Price’s position was materially different to someone on maternity leave because the purpose of the leave is different. The Court of Appeal in Ali had only considered SMP and not SAL, however EAT held the purpose of adoption leave is also different to SPL and goes beyond providing childcare. The EAT held that the more appropriate comparator for Mr Price was a woman on SPL and, as she would also only be entitled to statutory ShPP, there was no sex discrimination.

Although this decision may provide some reassurance to employers with policies which provide a different level of pay for SPL compared to SML or SAL, it demonstrates why the uptake of SPL has been low. The government has consulted on how to reform the parental leave and pay system but we await any further developments.

(Price v Powys County Council)

Vaccinations

The European Court of Human Rights (ECHR) has held that a compulsory childhood vaccination programme in the Czech Republic, where penalties were imposed for non-compliance, was not a breach of human rights.

The applicants complained that the compulsory vaccination programme interfered with their right to respect for private and family life under Article 8 and their right to freedom of thought, conscience and religion under Article 9. The ECHR held that, although the programme interfered with the applicants' rights under Article 8, this interference was justified as the Czech authorities had a legitimate aim of protecting against serious disease; as the vaccination also protects those who cannot be vaccinated for health reasons and are reliant on herd immunity. The ECHR held that the claim under Article 9 (which was not based on religion) lacked cogency and was inadmissable.

Despite Brexit, the UK courts are still bound by decisions of the ECHR and so this case is interesting in the context of recent discussions about Covid-19 vaccinations as it suggests that any interference with human rights could be justified. However, there are significant differences to bear in mind as this case concerned the use of common long-standing vaccines rather than recently developed Covid-19 vaccinations.

(Vavřička and others v Czech Republic)

Read COVID-19 vaccinations what does it mean for employers >

COVID-19 testing

The rollout of the COVID-19 lateral flow testing is underway and, in conjunction with other safety measures, it offers employers a further mechanism for protecting the health and safety of their staff from the risk of COVID-19 as lockdown eases and more workplaces gradually reopen. We consider some of the practical issues and other challenges that employers need to address.

Read COVID-19:a guide for employers >

Update posted: 1 April 2021

April changes

Key points to note for employers in April include:

The National Living Wage is extended to workers aged 23 and over and increases to £8.91 per hour from 1 April 2021. Increases in the National Minimum Wage also take effect on 1 April, together with a requirement for employers to keep records for 6 years (rather than the current requirement of 3 years)

Private employers should report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020 (however, enforcement action has been suspended until 5 October 2021)

New statutory rates (for example, SMP and SSP) come into effect on 4 April 2021

The maximum amount of a week’s pay (used to calculate statutory redundancy payments) increases to £544 (from £538) where the effective date of termination is on or after 6 April 2021

Off-payroll working is extended to large and medium sized private sector employers from 6 April 2021.

View employment timeline 2021 >

NMW and sleep-in shifts

The long awaited Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) was published on 19 March 2021.

The cases considered whether workers who sleep-in, and are only required to awake in the night to carry out duties if needed, are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Supreme Court took a purposive approach to the meaning of the NMW regulations and agreed with the Court of Appeal that the care workers were merely available for work during their sleep-in shift, rather than actually working, and they were therefore only entitled to the NMW for time spent awake and working.

(Royal Mencap Society v Tomlinson Blake)

(Shannon v Rampersad and another (T/A Clifton House Residential Home))

Right to work checks update

On 17 March the Home Office updated their employer’s guide to right to work checks. While only a short update, the Home Office have confirmed that there will be no mandatory requirement for retrospective checks to be undertaken on EEA nationals who were employed on or before 30 June 2021. The guidance states that employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working provided the initial right to work check was undertaken in line with right to work legislation and the guidance.

New guidance on right to work checks on EEA nationals from 1 July will be provided in due course. In the meantime, EEA nationals can continue to demonstrate their right to work by presenting their EU passport or national identity card. Alternatively, they may choose to provide proof of their status under the EU Settlement Scheme.

Read more >

Holiday pay

The EAT has held that the right of workers to carry across from year to year payment for annual leave which they have not taken because the employer has refused to pay them for it, does not apply to leave which had actually been taken.

Mr Smith worked for Pimlico Plumbers as a plumber from August 2005 to May 2011 during which he took various periods of annual leave, for which he was not paid. Following the decision of the Supreme Court that he was a worker, rather than a self-employed contractor, Mr Smith submitted an employment tribunal claim for unpaid holiday pay. However, the tribunal held that his claim was out of time.

The tribunal considered whether Mr Smith could instead succeed on the basis of the ECJ decision in King v Sash Window, which said that a worker who does not exercise their right to paid “Euro” leave because their employer refuses to pay for it, must be allowed to carry over and accumulate such leave until termination, and then receive a payment in respect of all such untaken leave. However, King did not apply, since it only covered situations where leave had not been taken owing to the refusal to pay, not situations where the leave was taken.

The EAT agreed, commenting that had the ECJ intended to extend the right to cover leave actually taken, it would have said so explicitly. This was especially so since it would have provided a ‘way round’ the usual time limit rules for holiday pay claims.

Interestingly, the EAT also made an obiter comment that the decision of the Northern Ireland Court of Appeal (NICA) in Agnew did not provide grounds for it to depart from the previous EAT decision in Bear Scotland (that a gap of three months or more between periods of unpaid holiday breaks the chain in a series of deductions). We wait to see whether the Supreme Court will uphold the decision in Agnew when it hears the appeal on 23 and 24 June 2021.

(Smith v Pimlico Plumbers Limited)

Update posted: 18 March 2021

Statutory payments

The annual increases to various statutory compensation limits have been announced. These increases are of particular relevance to those making redundancies on or after 6 April 2021 as the maximum amount for a week’s pay (used to calculate statutory redundancy payments) will increase to £544 per week (from £538 per week).

The maximum compensatory award for unfair dismissal increases to £89,493 (from £88,519) where the effective date of termination is on or after 6 April 2021.

There are a number of other changes coming into effect in April and so we have prepared a timeline of the key dates in 2021 that employers, HR professionals and in-house employment lawyers need to know.

View employment timeline 2021 >

NMW and sleep-in shifts

The long awaited Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) is expected on 19 March 2021.

The cases consider whether workers who sleep-in to carry out their duties are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Court of Appeal held that the care workers were merely available for work during their sleep-in shift rather than actually working. They were therefore only entitled to the NMW for time spent awake and working.

The cases were heard by the Supreme Court on 12 and 13 February 2020 and we await the decision with interest.

(Royal Mencap Society v Tomlinson Blake)

(Shannon v Rampersad and another (T/A Clifton House Residential Home))

Working time and stand-by

The ECJ has given its preliminary decision in two cases concerning whether time spent on stand-by should be regarded as working time under the Working Time Directive.

The ECJ held that a period of standby time must be classified as working time, even if the worker is not required to remain at their workplace, if the constraints imposed on the worker are such as to “objectively and very significantly” affect the worker’s ability to freely manage the time during which their services are not required and to pursue their own interests. Only the constraints that are imposed on the worker by the law of the Member State concerned, by a collective agreement or by the employer are relevant, not organisational difficulties that a period of standby may generate for the worker, which are the consequence of “natural factors or of his or her own free choice".

The ECJ set out various factors that will be relevant when assessing whether the constraints imposed on a worker during standby are such to warrant classifying that period as working time. These factors include the response time imposed by the employer and the frequency with which workers are called upon during standby. The higher the frequency, the less scope there is for the worker to freely manage their personal time.

Although decisions of the ECJ are no longer binding on UK employment tribunals, they can be taken into account so far as they are relevant, and so these cases may be taken into account when an employment tribunal considers the Working Time Regulations in similar cases.

(DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main)

Health and safety

The government has published the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 which will confer on workers the right not be subjected to a detriment for leaving, or refusing to return, to their workplace in circumstances where they reasonably believe it would put themselves or others in serious or imminent danger, or for taking steps to protect themselves.

This will extend the rights that employees have under section 44 of the Employment Rights Act 1996 not to be subjected to a detriment in certain health and safety cases to also include workers. It follows a declaration of the High Court in the case of Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another that, as the protection only previously applied to employees and not workers, the government had failed properly implement two EU Directives relating to health and safety. Although the gap in protection has existed since 1992 (the deadline for transposing the Directives) it has been highlighted by the Covid-19 pandemic and is particularly relevant as lockdown eases and workers return to the workplace.

The Order is currently awaiting Parliamentary approval and is due to come into force on 31 May 2021.

COVID-19

The guidance for those people categorised as extremely clinically vulnerable is changing from 1 April 2021 and they will no longer be advised to shield (and will no longer be eligible for SSP on the basis of being advised to shield). From 1 April 2021, extremely clinically vulnerable people are advised to work from home where possible and, if they cannot work from home, the guidance states that they should go to work.

As part of the Budget, the Chancellor announced that the Coronavirus Job Retention (Furlough) Scheme (CJRS), which was expected to end on 30 April 2021, will be extended across the UK until 30 September 2021 (some 19 months after its inception in March last year).

The government will continue to fund 80 per cent of the employee’s salary (subject to the cap) for unworked hours until the end of June 2021. This means that employers using the scheme will need to pay wages, NICs and pension contributions for worked hours and NICs and pension contributions only for unworked hours during this time.

From July 2021, employers will need to contribute to furlough pay for unworked hours, starting with a 10 per cent contribution in July and rising to a 20 per cent contribution from August until the Scheme closes at the end of September 2021. The government will contribute 70 per cent and 60 per cent respectively. Employers will also continue to have to pay all NICs and pension contributions for all unworked hours. Guidance for employers on the CJRS scheme has been updated to reflect the extension and the introduction of employer contributions.

Read guidance on CJRS from November 2020 to September 2021 >

Read COVID-19: a guide for employers >

Update posted: 04 March 2021

Budget 2021

The Chancellor has confirmed in the Spring Budget on 3 March 2021:

that the Coronavirus Job Retention (Furlough) Scheme will be extended until the end of September. However, from July employers will be required to pay 10% towards the hours their furloughed staff do not work, rising to 20% in August and September 2021.

NMW increases on 1 April 2021 (as we expected) to £8.91 an hour, to include, for the first time, workers aged 23 and over.

that it will modernise the immigration system and introduce a new, unsponsored visa for highly-skilled migrants and entrepreneurs to enable the UK to become “a scientific super power”.

Worker status

The Supreme Court has upheld the Court of Appeal’s decision that the Uber drivers in this case were 'workers' and were working when they had their app switched on and were ready and willing to accept trips. As ‘workers’ they would be entitled to a limited number of employment rights that are not available to self-employed contractors, including paid holiday and the national minimum wage.

Whilst the Supreme Court acknowledged that the drivers’ contracts were still relevant in determining employment status, it held that contractual terms of an engagement should not be the starting point for determining employment status as these were often subject to an imbalance of power in the first place, the very thing that legislation (such as the National Minimum Wage Act) sought to address. The focus for the Supreme Court was the fact that the drivers were asserting statutory rights (such as holiday pay) and on this basis, it held that the correct analysis of their employment status would come from an interpretation of the relevant legislation and its intention to protect vulnerable workers.

There may be ramifications for other employers using self-employed personnel and/or app based services, but it is important to realise that each case will turn on its own facts. It does not mean that you cannot successfully operate a business model whereby your labour is genuinely self-employed, although it will be necessary to consider the reality of the relationship. This will require close analysis of working practices and contractual arrangements to help identify any risk areas and to enable you to identify any steps that could be taken to manage potential risks.

(Uber BV and others v Aslam and others)

Gender pay gap reporting

The EHRC has confirmed that, unlike last year, when enforcement of gender pay gap reporting was suspended, this year employers with 250 or more employees on the relevant snapshot date must report their gender pay gap data for 2020/2021.

Private employers must report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020. However, the EHRC has confirmed that it will give employers a six month grace period and will not begin enforcement until 5 October 2021.

Certain employees should be excluded from the pay (but not bonus) calculations if they received a reduced rate of pay as a result of being on leave (for example family leave) during the pay period in which the snapshot date falls (the relevant pay period). The EHRC has published guidance which helpfully confirms that employees on furlough leave during the relevant pay period should also be excluded, unless their pay was topped up to their usual full pay.

Read guidance >

COVID-19

An employment tribunal has held that an employee who refused to wear a face mask, as required by a client when the employee was visiting the client's site, was fairly dismissed.

The tribunal held that, although other employers may have issued a warning, dismissal fell within the range of reasonable responses for the employer. The disciplinary hearing had found the employee guilty of gross misconduct for refusing to comply with the client’s instruction regarding PPE and breaching the requirements in the employer’s handbook to maintain good relationships with clients and to co-operate to ensure a safe working environment.

(Kubilius v Kent Foods)

Whilst this case relates to a time before face masks were mandatory in many premises, employers should be alert to a number of issues that may arise relating to health and safety of employees whilst the pandemic continues. Acas have published updated Guidance on working safely during coronavirus with further details about workplace testing and vaccinations. We are advising a number of businesses these issues and other challenges that arise in planning the return to work and if you need advice please do not hesitate to get in touch.

Data protection

On 18 February the European Commission published its draft adequacy decision in respect of the United Kingdom. This is a mechanism set out under both the EU and UK versions of the GDPR, to allow for data to flow freely from the European Economic Area to a third country (such as the UK following Brexit) that the EU has deemed to have an “adequate” standard of data protection law, without the need for additional safeguards. If the full decision is granted by the European Commission, this will mean that data flows from the EEA to the UK will be able to continue without any additional protection mechanisms.

Update posted: 18 February 2021

Worker status

The Supreme Court decision in Uber B.V. v Aslam and others is expected on 19 February 2021.

The Court of Appeal previously upheld the decision of the London Central Employment Tribunal that, under Uber’s business model, Uber drivers were 'workers' and were working when they had their app switched on and were ready and willing to accept trips. As ‘workers’ they are entitled to a limited number of employment rights that are not available to self-employed contractors, including paid holiday and the national minimum wage.

The Court of Appeal judges were not unanimous in their decision, with one judge disagreeing with the conclusion, and so we await with interest the outcome of the appeal to the Supreme Court.

Public sector exit payments

The government has announced that it will be revoking the Restriction of Public Sector Exit Payments Regulations 2020 that brought into force a £95,000 cap on public sector exit payments and sparked controversy when they came into force in November 2020.

After carrying out an extensive review of the application of the cap, the government states that it has concluded that it may have had “unintended consequences” and has issued a Treasury Direction to suspend the Regulations and disapply the cap with immediate effect. The government has also published guidance which encourages employers “to pay to any former employees to whom the cap was applied the additional sums that would have paid but for the cap” and states that it is HM Treasury’s expectation is that they will do so. It also states employers should always consider whether exit payments are fair and proportionate and that HM Treasury will bring forward proposals to tackle unjustified exit payments.

Read guidance >

Harrassment

The EAT has held that an employer could not rely on "stale" equality and diversity training as a defence to show it had taken all reasonable steps to prevent racial harassment.

The employer had an equal opportunity policy and an anti-bullying and harassment procedure and had carried out both equality and diversity and bullying and harassment training for employees and managers two years and 8 months before the Claimant’s dismissal. However, the EAT concluded that whatever training there had been was no longer effective as racist comments were made regularly to the Claimant, passed off as "banter", and managers took no action even though they were aware of the comments.

The EAT emphasised that merely having an equal opportunity policy and carrying out brief insubstantial training is insufficient. Employers should ensure they carry out quality training on a regular basis and if there is reason to believe that employees have forgotten the training, it should be refreshed.

(Allay (UK) Ltd v Gehlen)

COVID-19 - rapid workplace testing

In order to encourage more businesses to take up rapid workplace testing, the government has extended eligibility to businesses that remain open in lockdown and have 50 or more employees. Previously only employers with more than 250 employees were able to participate in the scheme.

Employers may register to order rapid lateral flow tests in order to test employees with no coronavirus symptoms if the business is registered in England, employs 50 or more employees and those employees cannot work from home.

The guidance on working safely during coronavirus has been updated to reflect this change.

Read guidance >

Right to work checks

Following the implementation of the UK’s new immigration system and the end of freedom of movement for EEA nationals, Huw Cooke, business immigration and employment law specialist, considers an employer’s duty to conduct right to work checks and how to ensure compliance with new obligations.

Update posted: 04 February 2021

Redundancy

To guide you through some common tricky issues in redundancy selection exercises, Luke Bowery, partner and employment law specialist at Burges Salmon, has been asked by online HR resource, XpertHR, to talk about some difficult aspects including:

devising fair selection criteria
adjusting criteria for disabled employees
conducting competitive interview processes
pooling and scoring where employees have been furloughed
assessing those on secondment.

This free on demand podcast is open to all - you do not need to be an XpertHR subscriber to listen.

Listen now >

Gender pay gap reporting

The Government Equalities Office has published guidance on the gender pay gap reporting requirements and confirmed that employers with 250 or more employees on the relevant snapshot date must report and publish their gender pay gap information this year, following the one-off suspension of the requirements relating to the data for the 2019 reporting period due to the COVID-19 pandemic.

Private employers must report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020.

Certain employees must be excluded from the pay (but not bonus) calculations if they received a reduced rate of pay as a result of being on leave (for example family leave) during the pay period in which the snapshot date falls (the relevant pay period). The guidance helpfully confirms that employees on furlough leave during the relevant pay period should also be excluded unless their pay was topped up to their usual full pay.

Read the guidance >

Right to work checks

Following the introduction of the new immigration system, employers should continue to carry out right to work checks on all new recruits using a three-stage process of obtaining, checking and copying relevant identity documents and recording the date the check was conducted. There are temporary changes in place to facilitate right to work checks during COVID-19.

Until 30 June 2021, when conducting right to work checks in respect of EU, EEA or Swiss nationals, employers must ensure they obtain the individual’s passport or national identity card, or if the individual has been granted permission under the EU Settlement Scheme, they can share evidence of right to work using an online service. From 1 July 2021 onwards, the individual must either provide proof of permission under the EU Settlement Scheme, or if they arrived in the UK on or after 1 January 2021, they must provide a visa and any other necessary ID documentation.

There is currently no requirement for retrospective checks to be undertaken on EU, EEA or Swiss nationals who were employed on or before 30 June 2021. Employers should also be alive to the risk of discrimination which may occur if an individual is required to provide proof of settled status before 30 June 2021. The government has not yet issued its new right to work guidance, which will apply from 1 July 2021 onwards.

Read the guidance >

On the same topic, Burges Salmon’s business immigration and employment law specialist, Huw Cooke, recently joined online HR resource, XpertHR, to talk about both the changes to the immigration system for employers and the potential implications of the Brexit deal on UK employment law.

Watch the webinar >

Indirect discrimination

The EAT has held that in order to consider whether British Airway’s policy of removing one paid rest day removed for each three days’ parental leave taken by its crew in any monthly roster was indirectly discriminatory, it was necessary to consider the impact of the policy on both men and women with childcare responsibilities.

The Claimant argued that the policy was indirectly discriminatory on grounds of sex because women bear the bulk of childcare responsibilities and they were therefore “more likely to apply to take parental leave” and that the policy therefore put women at a particular disadvantage. The employment tribunal rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). However, the EAT held this was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave.

The case has been remitted to a fresh employment tribunal to consider whether the policy put women with childcare responsibilities at a particular disadvantage when compared with men with childcare responsibilities.

(Cumming v British Airways PLC)

A Conversation about...reforms to IR35 and off-payroll working

Following a COVID driven delay in implementation, private sector organisations which hire contractors via intermediaries will need to restart their preparations in readiness for new rules in April on how these contractors are taxed.

In our latest Conversation, senior employment lawyer, Annelise Tracy Phillips, talks to Kate Redshaw about the changes and what practical steps organisations need to take to be ready for the deadline.

Watch now >

Update posted: 21 January 2021

Working from home

Employees working from home overseas

In light of the significant increase in homeworking brought about by the pandemic, employers have seen a rise in requests from employees to work remotely in another country. Having an employee based abroad can pose practical challenges for an employer including time differences, internet issues, how to achieve effective line management and who will cover the cost of the employee’s return to the UK, should this be needed.

In addition to these day-to-day issues, there are also significant legal and tax implications where an employee lives and works overseas. Employers should treat requests carefully, as granting an employee the right to work from another country can entail significant risk, including:

Tax, pensions and social security liabilities
Risk of permanent establishment in the overseas country
Local employment rights and obligations attaching
Immigration consequences
Data protection and
Regulatory implications.

These issues can be technical, and are highly dependent on the jurisdiction to which the employee requests to move. Further, employers should take care to handle requests as consistently and fairly as possible. You may also wish to consider introducing a policy if this is likely to represent an ongoing issue for your organisation.

We have been advising a number of employers on the implications of these requests. If you would like any assistance please get in touch.

Working from home in Scotland

The Scottish government have published statutory guidance on working from home. Although the guidance is tailored towards to the requirement to work from home during the COVID-19 pandemic, the overview states that it can also be used as a tool for an ongoing and continued shift in employer policies towards incorporating higher levels of homeworking in a post-COVID landscape.

Read Scottish government guidance >

With lockdowns in place across the United Kingdom, we have now updated our guide for employers to take into account the current advice for employers.

Read guide for employers – newly updated >

Trade union activities

The EAT has held that an employee was subjected to a detriment by his employer on the grounds of protected trade union activities when he was given an oral warning for failing to comply with a reasonable instruction to delete an email distribution list he had compiled for trade union purposes.

The EAT held that the Claimant was undertaking protected trade union activities when he created the email distribution list and also when he subsequently refused to delete it, as recruiting and communicating with members are core trade union activities.

As the employer’s ‘sole or main purpose’ of the disciplinary action was to give a warning for what the tribunal decided were trade union activities, it followed that the employer had subjected the Claimant to a detriment ‘for the sole or main purpose of preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or to penalise him from doing so’, which is contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Employers should take care when considering disciplinary action if the employee's actions may fall within the realms of trade union activity and ensure that, if disciplinary action is taken, records are kept to show the reason was other than carrying out a trade union activity.

(University College London v Brown)

Update posted: 7 January 2021

Lockdown arrangements

Following the announcement of a national lockdown for England and Scotland (Wales and Northern Ireland are already in lockdown) the Regulations have now come into force in England. Key points for employers to note are as follows:

Many businesses will be required to close during the lockdown and others will obviously suffer a downturn in demand. The Chancellor has announced a one-off lockdown grant worth up to £9,000 for businesses in the retail, hospitality and leisure sectors. The furlough scheme, which has been extended until 30 April 2021, can also be accessed by employers throughout the UK. See our guidance note on the CJRS below for more information.

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. One exemption permits people to leave their homes for work where it is ‘unreasonable for them to do their job from home’. In Scotland there is also a requirement to stay at home and people should only leave their homes for an ‘essential purpose’.

Employers should carefully consider which employees may attend their place of work with these tests in mind. With some roles it will be obvious if the tests are met. However, in other instances, for example with office-based work, the decision-making process will need to be done on an individual basis. Where a decision is taken that an individual satisfies the tests, the decision-making process should be recorded. There are criminal sanctions for non-compliance with the Regulations so employers will want to be able to demonstrate their reasons.

The closure of schools at short notice will have caused childcare issues for a number of working parents. There are a number of potential options available for employers with employees who are unable to work because of childcare issues, including the furlough scheme, temporary changes to hours of work or agreeing a period of unpaid leave or annual leave with the employee.

Read guidance on CJRS from November 2020 to April 2021 >

Read COVID-19 vaccine: what does it mean for employers >

Clinically Extremely Vulnerable

As part of the Prime Minister’s recent lockdown announcement, the clinically extremely vulnerable were advised to stay away from work even if they could not work from home. Letters are being sent to the clinically extremely vulnerable advising them to begin shielding again. Employees falling within this category may be furloughed (assuming they meet the eligibility criteria) or may be entitled to SSP (again if eligible) and the letter they receive may serve as a FIT note.

Self-isolation and SSP

The SSP regulations have been updated following the reduction in the self-isolation period from 14 to ten days for those with symptoms of COVID-19, who have tested positive or who are in a household with someone who has tested positive. The regulations now state that anyone who is symptomatic or who tests positive, as well as their household contacts, will be deemed to be incapable of work and entitled to SSP (if eligible) if they self-isolate for 11 days (this includes the day symptoms start, or the day on which they are tested, and the subsequent ten full days).

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A Conversation about...flexible working in a COVID-19 world

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