Employment law updates: important changes for employers

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

25 November 2021

COVID-19 is presenting an unprecedented challenge for business. With people at the heart of the crisis read our guide for employers on the key issues here. 

Employment law is constantly on the move. We keep track of the latest employment law changes so you don't have to. Below you'll find our regular round-up of legislation, case updates and helpful guides. For a list of key dates for 2021, see our employment law timeline. For a quick summary of the top five topics for HR teams to be thinking about in 2021, see the latest video by Adrian Martin, Head of the Employment team.

Employment law updates

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.

Read more >

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.

Read more >


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

Register >

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.

Read more about getting right to work checks right >

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.

Read more about getting right to work checks right >

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 more on COVID-19 testing in the workplace >

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.

Read more >

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.

Read more >


 

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.

Read more >


 

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).

Sponsored workers

The UK’s new immigration system came into force on 1 December 2020 and from 1 January 2021 anyone from outside the UK and Ireland (including all EU nationals) will require a visa if they want to work in the UK. Employers will need to hold a sponsor licence in order to sponsor employees for these purposes. 

The abolition of the Resident Labour Market Test was a welcome change for businesses sponsoring non-UKI employees, but the latest guidance (updated in December 2020) states that when advertising for a role that will be filled by a sponsored worker, an employer must include specific prescribed information in the job advert, keep a record of where the job was advertised and retain specified documentation from any recruitment process. These are onerous obligations and sponsors will need to ensure that their recruitment procedures are compliant with this new guidance.

The full guidance can be accessed here

Read 'what the new immigration rules mean for UK employers' >


Update posted: 10 December 2020

Non-compete and exclusivity clauses

The government has begun consultation on measures to reform post-termination non-compete clauses in contracts of employment. The proposals would be intended to allow workers greater freedom to find new or additional work and to discourage the widespread use of non-compete clauses. They include a proposal to introduce a mandatory requirement for compensation to be paid for the duration of a non-compete restriction. The consultation, which is open until 26 February, also seeks views on the possibility of making post-termination non-compete clauses unenforceable altogether.

The government is also consulting on a proposal to ban exclusivity clauses in contracts where the workers’ guaranteed weekly income is less than the Lower Earnings Limit, currently £120 a week.

Read more >

Brexit

With the uncertainty around a Brexit trade deal and the transition period coming to an end on 31 December 2020, businesses need to ensure they are ready for the changes that will take place. It will be important for employers to:

  • understand the changes to our immigration system (see below)
  • review contracts and policies to check for references to the EU and consider whether any changes are necessary
  • consider whether changes are needed to any European Works Councils
  • review the regulatory agencies you are currently working with and consider what steps might need to be taken to comply with separate UK and EU regulation. The ICO website has data protection guidance to help businesses prepare for the end of the transition period.

We have produced a number of resources that businesses may find useful when formulating their Brexit plans. If you would like any assistance please get in touch.

Statutory minimum wage increases

The government has announced that from 1 April 2021 the national living wage (NLW) will increase from £8.72 to £8.91 per hour and will apply to workers age 23 and above (whereas it currently applies to those age of 25 and above).

The national minimum wage (NMW) rates will also increase from 1 April 2021:

  • from £8.20 to £8.36 per hour for 21 to 22 year olds
  • from £6.45 to £6.56 per hour for 18 to 20 year olds
  • from £4.55 to £4.62 per hour for 16 and 17 year olds
  • from £4.15 to £4.30 per hour for apprentices.

Financial services - SMCR

The SMCR, which came into force for solo-regulated FCA firms in December 2019, requires firms to assess the fitness and propriety of their Senior Managers and Certification staff. In our latest Conversation, employment lawyer and financial services specialist, James Green, talks to Kate Redshaw about how firms should make these assessments and the key issues that might arise.

If you would like to discuss any of the points raised in this Conversation or would like advice on how to put together your assessment process, please do not hesitate to get in touch with James.

Watch the video >


Update posted: 26 November 2020

Indirect discrimination - costs

The Court of Appeal has confirmed that whilst saving costs alone cannot justify indirect discrimination, an employer’s need to reduce costs in response to financial constraints can amount to a legitimate aim in order to satisfy the justification defence.

In this case, funding cuts imposed by central government led to the Ministry of Justice making changes to the rate at which Probation Officers progressed up an incremental salary scale, which meant it would take someone three times as long to climb up the pay scale than before the changes were implemented. Although this was held to be discriminatory, as it favoured those employees over 50, the Court of Appeal held that it was justified as a proportionate means of achieving a legitimate aim.

As it is a difficult time for many businesses, this decision will be welcome news to a number of employers as it confirms that an employer’s need to live within their means and operate within a budget can be a legitimate aim that amounts to more than just saving costs.

(Heskett v Secretary of State for Justice)

Health and safety

In a recent judicial review application, the High Court has made a declaration that workers have the same protection from being subjected to a detriment on health and safety grounds, and the same right to be provided with personal protective equipment (PPE), as employees and that the government has failed to properly implement two EU Directives relating to health and safety at work. This is because the Framework Directive (on health and safety at work) and the PPE Directive, protect employees and workers, whereas UK legislation protects employees rather than the broader category of workers.

It waits to be seen whether the government will appeal the decision or simply amend the legislation. If it doesn’t appeal, employers will need to consider the implications of the extension of the protection to cover workers.

(The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others)

Collective redundancies

The ECJ has held that for the purposes of deciding whether a particular dismissal falls within the threshold for determining whether collective redundancy consultation obligations are triggered, if the threshold number of dismissals is reached at any point across the relevant 30 or 90 day reference period, the collective consultation obligations apply in respect of those dismissals, and dismissals that occur before or after the particular dismissal count towards the threshold.

This is different to the forward–looking approach currently taken in the UK under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (which implements the EU Collective Redundancies Directive). TULRCA focuses on the number of employees an employer is proposing to dismiss and does not take account of those employees in respect of whom consultation has already begun.

Whilst we are still awaiting an English version of the judgment, it is likely to be an important decision for employers as it means that during any redundancy exercise, employers will need to look both forward and back to calculate whether the threshold for collective consultation will be met over the reference period and plan accordingly.

(UQ v Marclean Technologies SLU)

Immigration

The UK’s new immigration system goes live on 1 December 2020 with the primary change for employers being the Skilled Worker route replacing the Tier (General) route. The government has just published guidance for sponsors of migrant workers under the new points-based immigration system. The system will also apply to EU nationals with effect from 1 January 2021 and employers who anticipate that they may have a requirement to sponsor workers, including EU nationals, after that date are encouraged to apply for a sponsor licence.

 

 

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Adrian Martin Partner

  • Head of Employment
  • TUPE: Business Transfers and Outsourcing
  • Restructuring and Redundancy

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