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Employment News – May 2022

  • Employment,

  • 19th May 2022

Employment Law

This month the news contains the employment highlights of the Queen’s speech, how Long COVID is affecting people, a new Health & Wellbeing report from the CIPD, a new campaign to help tackle pay disparity, government guidance for businesses employing Ukrainian refugees and new legislation covering foreign professional qualifications.

  • Queen’s Speech 2022: Implications for employment
  • COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability
  • Health & Wellbeing: CIPD publishes new report for 2022 
  • Pay Disparity: End Salary History campaign launched to tackle pay disparity
  • Ukraine: New guidance for businesses offering work to people from Ukraine
  • Qualifications: Professional Qualifications Act 2022 receives Royal Assent

Queen’s Speech 2022: Implications for employment

On 10 May 2022, the Queen’s Speech was delivered at the opening of Parliament. A key point of interest was the notable exclusion of the long-awaited Employment Bill. Although its omission was expected (after a government official suggested  it was unlikely to be included in the Queen’s speech), the TUC pointed out that the government had promised the Employment Bill to enhance workers’ rights 20 times since first announcing it in the 2019 Queen’s Speech. The head of the TUC, Frances O’Grady, said that the failure to bring forward the legislation “sent a signal that [the government is] happy for rogue employers to ride roughshod over workers’ rights“. The Employment Bill had been expected to contain measures in relation to tips, additional rights for zero hours workers and pregnant women, neonatal and paid carers’ leave and default flexible working.

The Queen’s Speech announced a new Harbours (Seafarers’ Remuneration) Bill, following the recent mass redundancies at P&O. The Bill is intended to protect seafarers working on vessels regularly visiting UK ports by giving ports the power to refuse access to ferry services that do not pay the equivalent to the national minimum wage (NMW) to seafarers while in UK waters, although no changes will be made to the NMW legislation itself. A consultation has been launched, closing on 7 June 2022. However, the British Ports Association (BPA) has already said that it has concerns about ports being made to regulate ships and that ports do not “have a core competency” in enforcing the minimum wage. The government also hopes to secure bilateral agreements on “minimum wage corridors” with France, the Netherlands, Spain, Germany, Ireland and Denmark, where seafarers on routes between either country must be paid at least the equivalent of the NMW.

In briefing notes, the government has also stated its aim to encourage greater private sector investment in employee training, including apprentices. The government will consider whether the current tax system, including the apprenticeship levy, is sufficient to incentivise businesses to invest in high-quality employee training.

Despite the absence of the anticipated Employment Bill in the Queen’s Speech, BEIS has issued a press release highlighting the actions it says the government has taken “to support workers and build a high skilled, high productivity, high wage economy“. The key measures highlighted were:

  • The increase of the national minimum wage (NMW) and national living wage (NLW) in April 2022. The government also named and shamed 208 employers in December 2021 who failed to pay the NMW.
  • An extension of the ban on exclusivity clauses for all workers whose guaranteed weekly income is below the Lower Earnings Limit.
  • A commitment to produce a statutory code of practice on fire and rehire.
  • The abolition of the Swedish derogation which had allowed agency workers to be paid less than permanent staff in certain circumstances and the introduction of the right to receive a written statement of terms on day one for all workers.
  • Recognising the importance of flexible working, including a consultation on making flexible working the default that closed on 1 December 2021 and to which the government response is awaited.
  • The introduction of a legal right to two weeks’ paid bereavement leave for those who have lost a child.
  • Support for employees during the COVID-19 pandemic, including protecting wages through the furlough scheme.

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COVID-19: Long COVID symptoms affect day-to-day activities of 1.2 million people and EHRC says it may be a disability

An estimated 1.8 million people in the UK are experiencing long COVID symptoms, according to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms. Long COVID is the term used to describe COVID-19 symptoms that persist for more than four weeks, but 44% of people self-reporting long COVID had been affected for at least a year and 13% for at least two years. 67% of those with self-reported long COVID say that their day-to-day activities are adversely affected by their symptoms, amounting to 1.2 million people, and 19% report that their ability to undertake day-to-day activities has been “limited a lot“. Long COVID is most prevalent in people aged between 35 and 49, females, people living in more deprived areas and people working in social care, teaching, education or health care. There is also increased prevalence in people who already have another activity-limiting health condition or disability.

In a tweet posted on 7 May, the EHRC stated that “without case law or scientific consensus, EHRC does not recommend that ‘long covid’ be treated as a disability“. COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement. It said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010, if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way. Employers should follow existing guidance when considering reasonable adjustments and flexible working in order to support affected workers.

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Health & Wellbeing: CIPD publishes new Report for 2022 

The CIPD has published a report on its Health and wellbeing at work survey 2022. Key findings include:

  • COVID-19 absence. COVID-19 is included among the top three causes of short-term absence for two-thirds (67%) of organisations and just over a quarter (26%) report long COVID among their top causes of long-term absence.
  • Long COVID. Nearly half (46%) of respondents reported having employees who have experienced long COVID. While most suggested only a small proportion of employees are affected, the report warns that this likely underestimates the real figure.
  • Absence management. While the majority of employers look to line managers to manage short-term and long-term absence and train them on this, only 38% agree that managers are confident to have sensitive discussions and signpost employees to expert support. Management style remains the most common cause of stress at work.
  • Health and wellbeing. Over half of employers (52%) undertook additional action around employee health and wellbeing in response to the pandemic. While figures suggest that there has been less focus on employee health and wellbeing than in the first year of the pandemic (70% of respondents agreed that employee wellbeing is on senior leaders’ agenda, a reduction of 5% since last year), the longer-term trend suggests it has been gradually rising up the corporate agenda. Half of organisations (51%) are taking a strategic approach to employee wellbeing and those organisations are much more likely to report positive outcomes. Mental health is the most common focus of wellbeing activities and the extent to which there is provision for specific groups or issues, such as for carers, bereavement, suicide risk or good sleep hygiene, is more variable. It may be of interest, amid the current cost-of-living crisis, that the most neglected area is financial wellbeing.
  • Homeworking. The survey found that almost three-quarters of employers (72%) are providing new or better support for people working from home. However, there is indication that presenteeism is more prevalent among homeworkers and the number of organisations taking steps to tackle the issue has grown over the past two years (53% in 2022, up from 45% in 2021 and 32% in 2020).

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Pay Disparity: End Salary History campaign launched to tackle pay disparity

A new End Salary History campaign to tackle pay disparity on the grounds of gender, race and disability has been launched by the Recruitment and Employment Confederation (REC) and the Fawcett Society. Fawcett Society polling has found that 58% of women and 53% of men feel that being asked about their earning history causes them to be offered a lower wage and affected their confidence when asking for better pay (61% of women and 53% of men). The campaign includes a guide for recruiters on ending the practice of asking job applicants about their salary history and an employer petition to bolster the Fawcett Society’s call on the government to ban the practice.

The government recently announced a pilot scheme which would see participants refrain from asking job applicants about salary history as well as including salary information in job advertisements. Further details of the government’s scheme are awaited.

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Ukraine: New guidance for businesses offering work to people from Ukraine

On 6 May 2022, the government published new guidance for businesses offering work to people from Ukraine. The guidance applies to businesses in England, Scotland and Wales.

While the guidance is not detailed, it provides the following:

  • Businesses offering employment opportunities to people arriving in the UK from Ukraine should complete a vacancy information questionnaire and return the completed questionnaire to a specified Home Office email address. After completion of the questionnaire, a business will be contacted by the National Employer and Partnership Team at the Department for Work and Pensions (DWP) within five working days. Job opportunities will then be shared across the DWP Jobcentre Plus network and with the Refugee Employment Network (REN).
  • Ukrainians who hold professional qualifications may need those qualifications to be recognised in the UK, if they work in a regulated profession. The UK Centre for Professional Qualifications provides a free service which explains whether a profession is regulated and any entry requirements.

There is an FAQ section at the end of the guidance which provides information on immigration status and additional support available to businesses. One of the FAQs addresses employment rights, noting that “the UK is proud to extend the same employment rights that everyone in the UK is entitled to, to people arriving in the UK from Ukraine“. Businesses are encouraged to understand these rights by reference to the employment status of a worker. The FAQ response directs businesses to GOV.UK guidance and ACAS for further information.

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Qualifications: Professional Qualifications Act 2022 receives Royal Assent

On 28 April 2022, the Professional Qualifications Act 2022 (PQA 2022) received Royal Assent. It will give UK regulators the power to make mutual recognition agreements with their counterparts in other countries where there is a UK shortage of qualified professionals.

The PQA 2022 revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 (SI 2015/2059) which implemented a reciprocal framework for the recognition of professional qualifications, enabling nationals from the European Economic Area (EEA) and Switzerland to have their professional qualifications recognised and gain access to the regulated profession in which they are qualified in another EEA member state or Switzerland. Any sector-specific legislation that established a similar interim system following the UK’s exit from the EU will also be revoked.

Under the PQA 2022, the government and, where applicable, devolved administrations, will identify and specify in regulations a priority list of professions where there is demand for skills from overseas. Considerations for those priority professions will include whether the profession is on the shortage occupation list, vacancy levels, workforce modelling and skills forecasting, and whether there are other ways that professions might address shortages, such as arrangements already in place to recognise qualifications from other countries. The government has stated that the key provisions of the PQA 2022 will come into force by autumn 2022 and that it will work closely with regulators and other stakeholders on how to prepare for the new regime.

In May 2021, the government published guidance to assist regulators in negotiating and entering into mutual recognition agreements with foreign counterparts.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – Case Update May 2022

  • Employment,

  • 19th May 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month largely centred around dismissal. We have a harassment case that looks at how employers should provide for breastfeeding mothers returning to work, and some interesting cases of dismissals showing that common sense ultimately steers the tribunals.

Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets

In the case of Mellor v The MFG Academies Trust [2022] ET/1802133/2021, the tribunal had to consider the effect of how a teacher had been treated in respect of expressing breastmilk while at school. Ms Mellor had been a teacher of Citizenship at Mirfield Free Grammar School. In July 2020, she returned to work from maternity leave and before returning to work, made a flexible working request and informed her employer she required a room in which to she would be able to express milk or possibly feed her baby during lunchtimes while at school. Having been told that due to COVID-19 restrictions, her partner was not allowed onto school premises to bring the baby to her to breastfeed, Ms Mellor again requested somewhere to express. Having  had nowhere suitable she raised the matter with her line manager, as her breasts were becoming uncomfortable from being prevented from expressing the milk and she was afraid of developing mastitis again. Through a series of requests which were not followed up properly, Ms Mellor ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets, and trying to eat her lunch at the same time.

Judge Miller found that Ms Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and had made the school aware on numerous occasions but not only was no suitable room provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” Judge Miller explained. “It is obvious that this is unacceptable.” Ms Mellor was also keen to avoid developing mastitis again and was under the impression this would be avoided by expressing during the day.

Judge Miller therefore found in favour of Ms Mellor, expressing the sentiment that the conduct did have the effect of creating a degrading or humiliating environment for the claimant on the basis that “a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.” The judge also concluded that “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so”, therefore interpreting the meaning of ‘forcing’ to include leaving someone with no realistic choice but to take a particular course of action and must be read in conjunction with ‘unwanted’ – such as expressing milk in the toilets while eating lunch and /or in the claimant’s car with the risk of being seen by pupils and others.

The claim of harassment succeeded, but the claim of direct discrimination was dismissed as the failure to provide a suitable room was more due to administrative incompetence rather than on the basis of her sex, and in any event, the same detriment could not be relied upon to make out both claims. The claim of indirect discrimination failed because the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.

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Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair

In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 63 the EAT considered the question of if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?

At first instance, the Employment Tribunal found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee on grounds of capability in that it had not allowed her an extension of time to lodge an appeal against her dismissal. It therefore upheld her claim under section 20 of the Equality Act 2010 (duty to make reasonable adjustments). However, it found that her dismissal was fair and proportionate, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 of the Equality Act 2010.

The employee’s appeal was on the basis that the Tribunal’s finding, for the purposes of the duty to make reasonable adjustments, that the employee was unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding and/or that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding and/or that the Tribunal had wrongly relied on its finding that the employee’s appeal would not have been successful in any event and had thereby committed the Polkey heresy. The ‘Polkey Deduction’ is a very well established principle that, if a dismissal is unfair on procedural grounds, the fact that the employee would have been dismissed in any event, even if a fairer procedure was followed, only impacts the remedy rather than the question of liability.

The EAT dismissed the appeal, noting that it was obvious that the legal tests involved in the three claims before the tribunal were different, and just because an employer might fail on one of the claims does not mean that the others will also fail. What matters to the tribunal is drawing conclusions under each test from the facts which the tribunal has found. The legal principles applicable to each claim should be separately applied to the findings of fact because the elements of each part of the Act are different. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.

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Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children

In Rodgers v Leeds Laser Cutting Ltd [2002] EAT 69  the EAT considered the case of Mr Rodgers who had refused to go into work during the first national lockdown, despite his work remaining open, because he was concerned that if his children caught COVID-19 they would become very ill. As a result of this refusal, Mr Rodgers was dismissed. He claimed unfair dismissal on the basis that he had exercised his right not to return to work in order to protect himself from circumstances of danger, which he had reasonably believed to be a serious and imminent threat, and which he could not have been expected to avoid (section 100(1)(d) or (e) Employment Rights Act 1999).

However, the EAT found that the employment judge had accepted that the Coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but this case failed on the facts. The circumstances of the workplace (it was large and few people worked in it, he could generally maintain social distance at work, masks were available, the tribunal rejected the claimant’s contention that he was forced to go out on deliveries) combined with Mr Rodgers’ actions (he had remained at work from the date of the announcement of the lockdown on 24 March 2020 until he left at his normal time on 27 March 2020, he had not asked for a mask, he did not say that he would not be returning when he left on 27 March 2020, he drove his friend to hospital while he was meant to be self-isolating, he worked in a pub during the lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.

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Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues

The case of Keating v WH Smith Retail Holdings Ltd ET/2300631/2019 has recently been published, which relates to a single mother working at the large retail chain. Following a drop in sales and the reduction of Saturday staff, the manager instated a rota for Saturday working – where sales assistants would have to work 1 in every 4 Saturdays. Although Ms Keating’s contract stated she would work 20 hours a week, flexible to the needs of the business, and could be required to work up to eight hours extra per week where trading patterns required it, and further, she may be required to work Saturdays. Sundays or bank holidays.  Ms Keating did not normally work weekends and explained she was unable to work Saturdays as she had no childcare for her eight year old daughter. The manager, Mr Cruikshank, told her she should arrange to swap with one of her colleagues. He also admitted to saying to Ms Keating that if he permitted her not to work the Saturday rota, everyone else would want the same. Otherwise he had not dealt with the issue nor discussed it further with her. On the first Saturday Ms Keating was rostered to work, she had to bring her daughter to work with her. She was then off sick for four weeks and resigned, giving four weeks’ notice. 

Ms Keating claimed indirect sex discrimination and constructive unfair dismissal. Ms Keating was put at a disadvantage: as a woman, with a dependent child, as a single mother and who could not afford childcare and had no family or other network she could call upon. The Judge found that while there was a legitimate business aim to introduce the Saturday rota, there was ‘no consideration’ by Mr Cruikshank of any less discriminatory ways to carry out his legitimate aim (i.e. to meet weekend staffing needs). Ms Keating was found to have resigned in response to this breach of the implied term of trust and confidence, and no potentially fair reason was advanced by the employer. The Judge held both claims to be well founded and both claims succeeded.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – April 2022

  • Employment,

  • 27th April 2022

Key personal Employment Law

This month the news is full of diversity and equality – calls to support and engage on a wide range of matters such as neurodiversity, LGBTQ+ and race and ethnicity.  There is also a focus on health – with updates on fit notes to calls for action on mental health and menopause.

  • Diversity: Neurodiversity in Business forum launched to support neurodiverse employees
  • Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage
  • Equality: Government publishes response to Commission on Race and Ethnic Disparities report
  • Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022
  • Mental Health: DHSC publishes discussion paper and call for evidence  
  • Menopause: Workplace pledge signed by over 600 employers

Diversity: Neurodiversity in Business forum launched to support neurodiverse employees

On 21 March 2022, Neurodiversity in Business (NiB) was launched at the Houses of Parliament to support neurodiverse employees in the workplace. Between 15% and 20% of the population are estimated to be neurodivergent. Dan Harris, Chief executive of NiB, states that although employers increasingly recognise the benefits of a neurodiverse workforce, neurodivergent employees need improved support. NiB and founding members, such as Accenture, AstraZeneca, Bank of England, Capita, Network Rail, Sky and Unilever, recognise that reasonable modifications can enable more neurodiversity in the workplace and also benefit sustainability. The new forum will work with organisations that support neurodiversity including Auticon, Ambitious about Autism, the ADHD Foundation, the British Dyslexia Association, Diversity and Ability and the National Autistic Society.

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Diversity & Equality: Government’s LGBT+ Business Champion issues call to engage

On 18 March 2022, the government’s LGBT+ Business Champion, Iain Anderson, issued a call to engage to employers, staff networks, trade unions and civil society organisations with practical experience of creating LGBT+ inclusive workplaces, supporting LGBT+ inclusion and improving outcomes and experiences for LGBT+ people. He is looking for practical examples that work of what businesses are doing to improve LGBT+ outcomes and experiences in the workplace. The call to engage is not for personal experiences or views.

The questions ask for information on the following issues:

  • The collection of LGBT+ diversity and inclusion data and how effective this has been.
  • How organisations have been able to improve the outcomes and experiences of LGBT+ employees in the workplace and how effective this has been. Where possible, respondents are asked to disaggregate measures taken in support of lesbian, gay, bisexual and trans employees.
  • In countries where LGBT+ people routinely experience discrimination, what organisations are doing to support the safety and advocacy of LGBT+ staff.
  • How organisations can have a positive social and economic impact on LGBT+ equality, including in countries where LGBT+ people routinely experience discrimination. In particular, comments are welcomed on impacts outside the organisation, for example, having a positive influence through supply chains, distributors and customers.

The consultation closes on 28 April 2022.

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Equality: Government publishes response to Commission on Race and Ethnic Disparities report

On 17 March, the government has published its response to the report of the Commission on Race and Ethnic Disparities made a number of recommendations to address ethnic and racial disparities across society. The response confirms that mandatory ethnicity pay gap reporting will not be introduced. However, organisations who choose to publish their figures will be required to publish a “diagnosis and action plan“, setting out reasons why disparities exist and what will be done to address them. Guidance on voluntary ethnicity pay gap reporting, to be published in summer 2022, will be designed to help employers address some of the challenges around ethnicity pay gap reporting. It will include case studies drawn from organisations which have already chosen to report on their ethnicity pay, setting a benchmark for what a good action plan might cover.

The report also tackles the use of artificial intelligence in recruitment processes and automated decision-making. A white paper, to be published later in the year, will deal with how to address potential racial bias in algorithmic decision-making. To ensure technological advances do not have a disproportionate impact on ethnic minority groups, the EHRC will advise on the safeguards needed and issue guidance that explains how to apply the Equality Act 2010 to algorithmic decision-making.

The government has accepted the Commission’s recommendation that the acronym BAME (Black, Asian and minority ethnic) is unhelpful, and it has stopped using the term in its own communications. It is more productive to consider the disparities and outcomes of specific ethnic, rather than homogenous, groups. Where it is absolutely necessary to draw a binary distinction between the ethnic majority and ethnic minorities, the government will use the term “people from ethnic minority backgrounds“. The response also states that terms such as “white privilege” can be seen as stigmatising and potentially divisive, as they have the unintended consequence of pitting groups against each other.

The response includes a package of other measures designed to improve diversity and inclusion, including additional funding for the EHRC, an “Inclusion at Work Panel” which will disseminate diversity resources to employers, and updated guidance for employers on positive action, to be published by the end of the year. 

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Health: Fit notes may be issued digitally without a wet-ink signature from 6 April 2022

In its July 2021 response to the 2019 consultation document “Health is everyone’s business: proposals to reduce ill health-related job loss“, the government committed to removing the statutory obstacles to the digital issuing of fit notes. Currently, fit notes must be signed in ink by the issuing doctor, although given the significant shift to virtual GP consultations since the outbreak of the COVID-19 pandemic, there has been increasing demand for fit notes to be provided digitally.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. They amend the Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604). The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.

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Mental Health: DHSC publishes discussion paper and call for evidence  

The Department for Health and Social Care has published a discussion paper and call for evidence on improving mental health and wellbeing, which includes the development of a ten-year plan to reduce the prevalence, incidence and recurrence of mental ill-health.

The discussion paper suggests compassionate employers are needed, who will protect and promote positive mental wellbeing by understanding and meeting physical and mental needs in the workplace. Two key challenges that were identified through the Thriving at Work are reiterated in the document:

  1. the need for a clear role for employers to prevent the onset of mental health conditions and mental ill-health, and
  2. wider implementation of workplace interventions to support mental health.

The role for employers to support mental wellbeing is further highlighted in the discussion around early intervention. Employers are identified as an important source of support for employees who may not need “clinical” early interventions. This section also highlights that in those instances, employers may need support and information to provide support for a distressed employee.

The consultation is open to all, and responses will be collected through an online survey until 11.45 pm on 5 July 2022.

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Menopause: Workplace pledge signed by over 600 employers

More than 600 employers have signed the Menopause Workplace Pledge, which is part of a campaign by Wellbeing of Women. In signing the pledge, employers recognise that the menopause can be a workplace issue for which employees need support. Signatories commit to open, positive and respectful workplace dialogue about the menopause and to taking active steps to support employees affected by the menopause and informing them of the support offered. Active measures have already been undertaken by some signatories: the Royal Mail has run an internal campaign to normalise conversations about the menopause, Tesco plans to incorporate a breathable fabric into its uniform to help with hot flushes, and News UK has said it will cover the cost of NHS HRT prescriptions and provide desk fans.

Last week, a survey of 1,000 HR professionals, (conducted by YouGov on behalf of Irwin Mitchell) revealed almost three-quarters of employers (72%) do not have a menopause policy and that only 16% of employers train line-managers on the menopause. The CIPD has reminded employers that positive action, such as engaging with this pledge and having a policy that outlines available support, must be “underpinned by a culture where people are actively encouraged to have open and supportive conversations“. It has its own Guidance for employers on how to better manage those affected by menopause at work, which can be accessed here.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

Back

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – Case Update April 2022

  • Employment,

  • 27th April 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including more definitions between workers and self-employed contractors,  indirect discrimination and harassment, unfair dismissal and TUPE.

  • Worker Status: Ryanair pilot was a worker and an agency worker, not a self-employed contractor
  • Indirect Discrimination: Comparison pool for claims must relate to precise PCP pleaded by claimant
  • Harassment: When does perception turn conduct into harassment?
  • Unfair Dismissal: Tribunal erred when striking out unfair dismissal claim by employee who volunteered for redundancy
  • TUPE: ACAS settlement was wide enough to cover transferee’s failure to provide information to transferor

Worker Status: Ryanair pilot was a worker and an agency worker, not a self-employed contractor

In Lutz v (1) Ryanair DAC and (2) MCG Aviation Ltd (2022) ET/3201452/2020, an employment tribunal has held that a pilot placed with Ryanair by MCG Aviation Ltd (MCG) was a worker of MCG and an agency worker for the purposes of the Agency Workers Regulations 2010 (SI 2010/93).

Mr Lutz applied to be a pilot for Ryanair, was successful and was then passed to MCG, which managed Ryanair’s pool of “contracted pilots” who work alongside their employed pilots. MCG organised the setting up of a service company, so that Mr Lutz could operate as self-employed. MCG entered into a five-year fixed-term contract with the service company, under which all work was exclusively for Ryanair, and Mr Lutz “or an agreed acceptable and qualified nominated substitute” would perform the work.

The tribunal held that Mr Lutz was not a self-employed pilot with Ryanair as a customer of his service company. Mr Lutz was never a shareholder, director or employee of the service company, into which MCG had installed him, and Ryanair had no dealings with the service company. Nor was he an employee of Ryanair as there was no contract of employment between them. Since he was not in business on his own account and MCG were the intermediary through which Ryanair dealt with its contracted pilots, the tribunal concluded that MCG supplied Mr Lutz to Ryanair as an agency worker. To be an agency worker, the work must be temporary. The tribunal held that the five-year fixed-term contract between the service company and MCG was not indefinite and was therefore temporary.

In deciding that Mr Lutz was an agency worker, the tribunal found that he had a contract with MCG to supply his services personally and not though the service company. The tribunal’s view was that his ability to swap shifts was not substitution but a rearrangement of the day and time when personal service was required. In any event, there was no unfettered right of substitution. Only another Ryanair pilot could take the shift and permission from Ryanair was required. The contractual documentation purporting to show that it was not a contract for personal service was a sham. Every aspect of the engagement was structured as Ryanair dictated and Mr Lutz’s independence was entirely notional, with Ryanair rostering his flights and requiring him to wear their uniform.

As the tribunal noted, this case has wide implications due to the many purportedly self-employed pilots in the aviation industry engaged under similar arrangements.

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Indirect Discrimination: Comparison pool for claims must relate to precise PCP pleaded by claimant

In Allen v Primark Stores Ltd [2022] EAT 57, the EAT has confirmed that the comparison pool for an indirect discrimination claim must be constructed by accurate reference to the precise provision, criterion or practice (PCP) pleaded by the claimant.

Ms Allen worked for Primark Stores Ltd as a department manager in the Bury store. Following her return from maternity leave, she requested flexible working for childcare reasons. Primark considered her request and offered some accommodation for it. However, it refused to agree that she would not have to work Thursday late shifts.

Ms Allen brought a claim for indirect sex discrimination. She argued that Primark applied a PCP that department managers had to guarantee their availability to work Thursday late shifts, that this PCP put women at a disadvantage because of childcare responsibilities, and that she had been put at this disadvantage. To assess the discriminatory impact of the PCP, the employment tribunal constructed a comparison pool which included all department managers in the Bury store who might be asked to work Thursday late shifts. Amongst others, this pool included two department managers, Zee and Imran, who it was accepted had an implied contractual right not to work Thursday late shifts but did so in emergencies. Having considered the pool, the tribunal concluded that the PCP affected two men (Zee and Imran) and one woman (Ms Allen) and therefore did not put women at a disadvantage. Ms Allen’s claim was rejected. She appealed to the EAT.

The EAT upheld the appeal. It found that, in constructing the pool, the tribunal had redefined Ms Allen’s complaint. The PCP she had identified was not simply that she was being “asked” to work Thursday late shifts, but that she was being required to guarantee her availability to do so. Zee and Imran were not subject to this availability requirement and therefore were in a materially different situation to Ms Allen. By failing to properly engage with the PCP, the tribunal had allowed itself to include within the comparison pool two individuals to whom the disadvantage to which the PCP gave rise did not apply. It was insufficient for the tribunal to consider whether individuals might be “asked” to work the late shift without going on to determine whether there was an element of compulsion in the making of such a request. The tribunal’s decision was set aside and the case remitted.

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Harassment: When does perception turn conduct into harassment?

In Ali v Heathrow Express and Redline Assured Security Ltd [2022] EAT 54 Mr Ali was working for Heathrow Express, and Redline Assured Security Ltd (Redline) was responsible for carrying out security checks at the airport and the stations. Part of this was to leave suspicious objects around to see how security officers responded to them. One such object was a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. Mr Ali, who is a Muslim, was among a group of Heathrow Express’s employees who were circulated with an email reporting on the results of the test and including images of the bag and the note.

Mr Ali complained to the employment tribunal that Redline’s conduct amounted to either direct discrimination against him or harassment of him, as defined in the Equality Act 2010, by reference to his religion, that Redline had acted as Heathrow Express’s agent, and that, accordingly, both parties were liable to him in that respect.

The tribunal concluded that the conduct amounted neither to direct discrimination nor to harassment by effect. As to harassment, this was because, applying section 26(4) of the 2010 Act (i.e. in deciding whether conduct has the effect of harassment each of the following must be taken into account: (a) his perception; (b) the other circumstances of the case; and (c) whether it is reasonable for the conduct to have that effect) it was not, in all the circumstances, reasonable for Mr Ali to perceive the conduct as having an effect falling within section 26(1)(b) (i.e. that the conduct has the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him).

In particular, the tribunal considered that Mr Ali should have understood that, in using this phrase, Redline was not seeking to associate Islam with terrorism, but, in the context of recent incidents in which the phrase had been used by terrorists, had used it in order to produce a suspicious item based on possible threats to the airport. The tribunal decided that it therefore did not need to determine the agency point, nor a defence which invoked section 192 (national security).

Mr Ali appealed against the decision on the harassment complaint on the grounds that it was either perverse or insufficiently reasoned. The appeal on both grounds was dismissed on the basis that a person’s perception is just one of the issues for the tribunal to consider when looking at whether conduct amounted to harassment as defined by s.26 of the Equality Act 2010.

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Unfair Dismissal: Tribunal erred when striking out unfair dismissal claim by employee who volunteered for redundancy

In White v HC-One Oval Ltd [2022] EAT 56, the EAT has held that an employment tribunal was wrong to strike out a claim for unfair dismissal on the basis that it had no reasonable prospect of success because the claimant had requested redundancy.

In September 2018, care home operator HC-One Oval Ltd announced it was reducing the number of employees carrying out reception and administrative work. Ms White was provisionally selected for redundancy. Subsequently, she requested voluntary redundancy, which was accepted.

After termination of her employment, Ms White submitted a claim for unfair dismissal. She alleged that:

  • In July 2018, she had raised a grievance about having to cover the duties of an absent colleague as well as her own, without extra pay.
  • During the redundancy process, an administrative role had become available. This should have been offered to her but was not.
  • The outcome of the redundancy process was that a receptionist recruited just before it began, who had no childcare responsibilities, had been offered a full-time role while the two part-time receptionists had been dismissed. The process had been manufactured to achieve this.

For these reasons, Ms White argued that the redundancy process was not genuine and that she had been targeted for dismissal. The employer disputed Ms White’s allegations. It contended that she had been fairly dismissed for redundancy at her own request and therefore that her claim should be struck out because it had no reasonable prospect of success.

The employment tribunal struck out the claim. It held that, because Ms White had requested redundancy, the employer would be able to establish the reason for, and reasonableness of, her dismissal. However, the EAT found that the tribunal had erred in law. Had the tribunal engaged with Ms White’s case at its highest, as required, it could not have found that there was no reasonable prospect of success. If Ms White’s account of the background to the redundancy was accepted, the facts known to the decision maker might well be found to include matters other than just Ms White’s redundancy request. In addition, Ms White alleged that the redundancy process was a sham. Even if the tribunal was satisfied with the reason for dismissal, it would still need to consider the fairness of the process. There was a factual dispute here which was not suitable for summary determination. The case was remitted to the tribunal for consideration by a different judge.

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TUPE: ACAS settlement was wide enough to cover transferee’s failure to provide information to transferor

In Clark v Middleton and another [2022] EAT 31, the EAT has held that an employment tribunal was correct to find that, in a claim for a failure to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006, no award could be made against the transferee for its failure to provide information to the transferor about measures it proposed to take in connection with the transfer, under regulation 13(4). This was because of an earlier withdrawal of claims against the transferee following an ACAS-conciliated settlement between the claimant and the transferee, which the EAT considered was wide enough to encompass the transferee’s liability for failure to provide that information.

However, the tribunal had erred in making a zero award in respect of the transferor’s failure to notify the transferring employee of the identity of the transferee company on the basis that this was merely a “technical breach”. It matters to know the name and identity of the unique legal person who will be the employer, and the tribunal should not have viewed this as a mere technicality. The EAT remitted the claim to a fresh tribunal to decide the remedy.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – Case Update March 2022

  • Employment,

  • 22nd March 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.

  • Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
  • Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
  • Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
  • Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?

Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status

In, Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, the Court of Appeal has confirmed that an “irreducible minimum of obligation” is not needed to establish worker status under the Working Time Regulations 1998 (WTR 1998). Mr Somerville, a panel member chair of the Nursing and Midwifery Council’s Fitness to Practice Committee, worked under an overarching contract. This contract did not oblige the Nursing and Midwifery Council (the Council) to offer hearing dates to him, and he was under no obligation to accept any dates offered to him. Applying Uber BV and others v Aslam and others [2021] UKSC 5, the court found that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he was a worker when he was actually working.

In addition, the fact that Mr Somerville could withdraw from an individual agreement to attend a hearing even after he had accepted a particular date did not change the Court of Appeal’s view. He entered into an individual contract for an individual assignment which existed until terminated and had to be read alongside the overarching contract. If an individual contract was not terminated and he chaired a hearing, he would, in the language of section 2(1)(b) of the WTR 1998, have worked under a contract personally to perform services. There is no indication that there must be a distinct, super-added obligation to provide services independent from the provision of the services on a particular occasion. When deciding whether a specific agreement to provide services on a particular occasion amounted to a worker’s contract, the fact that the parties were not obliged to offer, or accept, any future work was irrelevant.

The Court of Appeal’s decision confirms what was previously understood to be the position, that an “irreducible minimum of obligation” is not an essential requirement for worker status. The analysis of the Uber Supreme Court decision also adds to the often-fraught discussion of what it means to be a worker. That said, the Court of Appeal’s decision is clear: where an individual is, in fact, working or providing services personally under a contract, a finding of worker status can be made even where no overarching contract imposing an obligation to provide and accept work exists.

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Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date

In Fentem v Outform EMEA Ltd [2022] EAT 36, the EAT has held that is bound by the decision in Marshall (Cambridge) v Hamblin [1994] ICR 362. Accordingly, where an employer invokes a clause in an employee’s contract enabling it, following the employee’s resignation, to terminate their employment immediately by making a prescribed payment calculated by reference to the unexpired period of the employee’s notice, there is no dismissal under section 95(1)(a) of the Employment Rights Act 1996.

Despite reaching this conclusion, the EAT expressed misgivings about the decision in Marshall. It was strongly inclined to view Marshall as wrong and could see nothing in the reasoning that supported the conclusion that there was no dismissal in that case.

However, the EAT could only depart from its own decisions in the narrow circumstances set out in British Gas Trading v Lock [2016] ICR 503. These include where the earlier decision was not merely wrong, but manifestly wrong. It was the outcome or proposition of law for which the decision stood that had to be the focus of consideration. If there is an argument that can reasonably be advanced in defence of the outcome that is itself not manifestly wrong, then the legal outcome could not be said to be manifestly wrong.

In this case, the employer relied on authorities concerning a scenario in which an employee’s termination date was brought forward with their agreement following their dismissal. The employee argued that these were not relevant because he had not agreed to his termination date being brought forward. The EAT accepted that these authorities may not inform the approach to the issue, but it could not say that they obviously would not. Further, it might be arguable that a contractual provision could have the legal effect that, following a resignation, the employer could cause the employment to end sooner than the date given by the employee, even without the employee’s agreement, by making a contractually-prescribed payment by reference to the unexpired notice period, in a way that only alters how and when the resignation takes effect.

Since these points could not be said to be obviously unarguable, the decision in Marshall could not be said to be manifestly wrong. Therefore, the EAT could not depart from it.

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Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential

In Brake and another v Guy and others [2022] EWCA Civ 235, the Court of Appeal has dismissed an appeal in unsuccessful proceedings for misuse of private information and breach of confidence which arose in relation to a former employee’s personal emails that were sent from a business email account. The email account was used to receive enquiries about the employer’s services.

Baker LJ’s leading judgment emphasised that the success of privacy and confidentiality claims turned on the specific facts, and considered that it had been open to the judge at first instance, HHJ Paul Matthews, to find as he did. In particular, he said that it was telling that the former employee (who was the claimant in the proceedings) had shared access to the email account with two colleagues, and that her employer had set up personal accounts in the names of each of the employees at the same time as it created the business account. Baker LJ also agreed with the first instance judge that, had there been a reasonable expectation of privacy or circumstances of confidence, disclosure of the emails by the defendants for the purpose of obtaining professional advice would not have breached privacy or confidence and, even if it had, damages would have been limited.

The only point of disagreement with the earlier judgments related to HHJ Paul Matthews’ decision to split out the issue of the “iniquity defence” (that is, the public interest defence, which the judge had held was available in relation to privacy and breach of confidence claims where the defendant accessed the information unlawfully), leaving it until after his trial of other matters. Baker LJ considered that any fraudulent conduct on the part of the claimant was likely to be relevant to whether there was a reasonable expectation of privacy or duty of confidence and, if there was, whether they had been breached. He concluded, however, that this had not been determinative in the present case.

This judgment provides some guidance on ensuring that an employer will have full access to emails sent via a business account. In particular, it may be advisable to create individual email accounts for each employee who operates from the central business email address and to require them to limit private emails to the account set up in their name.

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Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?

In Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42, the EAT was had to consider whether the tribunal had asked itself the correct question when deciding whether or not the claimant had suffered a detriment, and if not, which was the correct test to use.

The claimant had applied to be a police officer with the Northamptonshire Police force. In his application email he referred to what was accepted as being a protected act, namely, proceedings he was bringing in another employment tribunal against another police force (Hertfordshire Constabulary) alleging unlawful discrimination on the grounds of disability. He had made an application to join that force, which resulted in an offer which was subsequently withdrawn. The claimant was later told by the respondent that his application form had not been accepted.

The claimant pursued a claim for victimisation. The respondent’s argument for why the claimant’s application had not been successful was not due to the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed. The tribunal found in favour of the respondent and the claimant appealed.

The appeal was predicated on the basis that the employment tribunal had erred in law by misstating the test for victimisation, and the four other claims flowed from this.

The EAT held that the tribunal had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is from the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] ICR 337: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?”  The EAT concluded that detriment is to be interpreted widely in this context and it is what a reasonable worker might think, not just the view of a tribunal, to satisfy the test. Therefore, it was not particularly difficult to establish a detriment for these purposes and but the EAT also found that the tribunal had also not applied the correct legal test to the causation or “reason why” question. The appeal was allowed and the victimisation claim was remitted for rehearing.

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment News – March 2022

  • Employment,

  • 22nd March 2022

Employment Law

This month the news raises some really interesting issues: the CIPD is providing advice on supporting employees with links to Ukraine, the EHRC has advised how to deal with employees suffering with long-covid and the Minister for Women has launched two schemes to promote women. Some eye opening reports have also been published this month: workforce reporting for FTSE 100 firms is inadequate and IPSOS finds two thirds of UK adults want a “right to disconnect” from work.

  • Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine
  • Covid-19: EHRC suggests employers should treat long COVID as a disability
  • Reporting: Inadequate quality of workforce reporting among FTSE 100 firms
  • Women: Government launches pay transparency and STEM returners pilot schemes
  • Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law

Support for employees: CIPD urges compassionate treatment of employees with links to Ukraine

On 4 March 2022, Personnel Today reported the CIPD has asked employers to treat all employees affected by the conflict in Ukraine with compassion, especially those who are Ukrainian or have links to the country. Indeed, many Russians living in this country will also find themselves in an unnerving time, with many having close family and friend links with Ukraine, or receiving unwanted attention simply as a result of where they were born, so should also be handled sensitively. More flexible work hours to help manage stress and anxiety, wellbeing checks, and bereavement leave are the types of support employees may require. This is most likely to be necessary for employees with relatives or close contacts in the country. The CIPD also suggests that managers should check in on colleagues who may be affected and could signpost them to wellbeing and mental health support. More resources from CIPD, including a video exploring how people professionals can best support their people through the crisis, can be found here.  

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Covid-19: EHRC suggests employers should treat long COVID as a disability

According to Personnel Today, (1 March 2022), the head of employment policy at the Equality and Human Rights Commission (EHRC) has suggested that organisations should treat their employees who have long COVID-19 symptoms as if they have a disability for the purposes of the Equality Act 2010. The advice is to avoid employers falling foul of equality law, in the absence of clear legislative protections for people with long COVID. Lingering symptoms, which can include cognitive difficulties and fatigue, may affect employees’ performance at work. However, because symptoms vary and can fluctuate, it is not yet certain whether all cases of long COVID will meet the legal definition of disability. The TUC and other bodies have asked the government to classify the condition as a disability. The EHRC indicates that the short amount of time that long COVID has been a condition, and the fluctuating nature of symptoms, may be a barrier to the government doing so.

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Reporting: Inadequate quality of workforce reporting among FTSE 100 firms

The CIPD’s most recent analysis of annual reports shows “inadequate” quality of workforce reporting by FTSE 100 firms: CIPD: Report, How do companies report on their “most important asset”? Only one-third of firms have reported recruitment data and just nine companies reported their ethnicity pay gap. Reporting on the cost of hiring contingent workers was identified as a key gap by the study as only 6% of FTSE 100 firms reported such data. The age of employees, the proportion who identify as LGBT+ and the number of disabled employees was reported by 10%, 5% and 4% of firms respectively. Almost all companies reported investment in skills or training, but a lack of concrete data was identified as fewer firms disclosed the hours (35%) and costs (16%) of training. To address low quality of reporting, the CIPD recommends that the Financial Reporting Council should establish a framework for workforce reporting in collaboration with stakeholders. The framework should set out a baseline of minimum standards.

Despite the inadequacy of reporting in some areas, the results of a snapshot survey of governance professionals have shown that nearly 50% of UK companies and not-for-profits have reported plans to reach gender parity at board level in the next three years. This survey was conducted by the Chartered Governance Institute for UK & Ireland in association with The Core Partnership.

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Women: Government launches pay transparency and STEM returners pilot schemes

On 8 March 2022, the government announced that the Minister for Women, Baroness Stedman-Scott, has launched two new pilot schemes to mark International Women’s Day. The first seeks to improve pay transparency by requiring participating employers to include information about salary details in their job adverts and refrain from asking candidates to disclose salary history during the recruitment process. Further details about how the pilot scheme will work and how many employers will be involved are awaited.

The second pilot scheme aims to help women return to careers in science, technology, engineering and maths (STEM). Organisations participating in the scheme will be helped to recruit and retrain candidates who may be overlooked because of a CV gap. Again, further details are awaited.

The launch comes at a time when new research published by the Chartered Management Institute (CMI) has shown a gap between “the rhetoric” employers promote about supporting gender equality and “the reality”. The CMI research found that less than two thirds of employers (61%) try to ensure that women and men receive an equal voice in meetings and decision-making, and only 41% of management positions are held by women.

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Work-Life Balance: New research shows two third of adults in UK favour a “right to disconnect” law

On 11 March 2022, IPSOS published the results of new research which shows that  a majority of UK adults aged 16-75 are in favour of introducing a law giving employees the right to ignore work-related communications, such as emails, texts and instant messages, outside of their official working/on-call hours. Sixty per cent would support the Government introducing such a law, including 34% who would strongly support it. Only around 1 in 10 (11%) would be against it. 

There is little difference in the views of workers and non-workers, nor between Conservative and Labour 2019 voters, although graduates are more in favour than non-graduates, and 16-24 year olds are also less strongly in support.

Currently, two-thirds of UK workers say they participate in work-related communications outside of their working hours (67%). Four in 10 (43%) check work-related communications while a similar proportion (40%) reply to them. A third (34%) proactively send work-related communications. Only 3 in 10 (30%) do not communicate with work outside of their official working hours. Website, People

Management, questioned Ben Willmott, head of public policy at the CIPD, who warned that a legal right to disconnect would have a limited impact, and alone would not address why people feel they cannot switch off.

He cited issues such as heavy workloads, a lack of support and unreasonable management expectations as causes for the inability to disconnect. “Simply giving [staff] the legal right to choose not to respond to calls, emails or other digital communication outside of working hours won’t resolve these issues or necessarily improve wellbeing,” he said.

“Employers should make it clear that employees don’t have to respond to digital communications outside working hours unless it suits them,” Willmott added, highlighting that managers needed to provide staff with achievable objectives and maximise flexible working opportunities to help staff balance competing work and home pressures.

Those earning upwards of £55,000 a year are more likely to be checking, replying to and sending work-related communications outside of working hours, 82% say they do this compared with 65% of workers earning up to £54,999. 

More than half of UK adults say it is not acceptable for employers to expect their employees to participate in work-related communications outside of official working/on-call hours. Fifty-five per cent say it is unacceptable for employers to expect their employees to check for work-related communications, while 58% say the same for responding to them and 57% for sending them. Younger people tend to be most likely to believe such expectations are acceptable – for example, 56% of 16-34 year olds believe it is acceptable for employers to expect their employees to check work-related communications out of hours, compared with 34% of 35-75 year olds.

Opinion is split as to whether priority should be given to the right to disconnect or flexible working. A third (32%) say it is more important to give employees the right to disconnect than it is to give them more flexibility around the time that they work. However, a quarter (24%) believe it’s more important to give employees a degree of choice over the times they work. But more, almost 4 in 10 (37%), say both are equally important. 

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Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment Law General Update – February 2022

  • Employment,

  • 24th February 2022

Strategy Guide Employment Law

This month the news highlights the following areas in need of support and reform: Levelling Up the UK, ethnicity pay reporting, sick pay disparity, unused apprenticeship levy funds and new flexi-job apprenticeship plus a spotlight on endometriosis affecting working women.

Progress: Levelling Up the UK – white paper

The White Paper ‘Levelling Up the United Kingdom’ was published on 2 February 2022 and describes the steps the government will take to achieve its objective of “Levelling Up” the UK. This will involve taking steps to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back communities and to encourage private sector investment across the UK.

The new policy regime in the White Paper comprises four key objectives and 12 UK-wide missions in a change programme to be delivered by 2030. In outline, this includes:

  • Increasing productivity, pay, jobs and living standards by growing the private sector. This is allied to maximising investment from the private sector and public investment in research and development. Other related goals include renters having a secure path to ownership, a reduction in the number of non-decent homes, improving transport connections and maximising the uptake of high-quality skills training.
  • The highest level of devolution for all parts of England that request it. This is linked to people taking pride in their areas, an increase in well-being and life expectancy and a reduction in crime.
  • The number of primary school children achieving the expected standard in reading, writing and maths significantly increasing.

The White Paper also contains a detailed policy programme which addresses the practical delivery of the objectives and missions. This is followed by a section setting out the next steps for implementation.

Although the White Paper is intended to set out the practical steps intended to achieve the goal of Levelling Up, it is predominately written at a high and aspirational level and contains more detail regarding context and the status quo than it does hard detail about what is actually going to be done (including how many of the proposals are likely to be funded). However, it is certainly arguable that the mission (to make the UK more prosperous and united by tackling the regional and local inequalities that unfairly hold back people and communities and to encourage private sector investment across the UK) is both positive and desirable.

Pay Disparity: Women and Equalities Committee recommends mandatory ethnicity pay gap reporting

The House of Common’s Women and Equalities Committee examined the case for mandatory ethnicity pay gap reporting in a one-off evidence session on 12 January 2022. In the report of the session, the committee recommends that the government should make ethnicity pay gap reporting mandatory by April 2023. While the report acknowledges the challenges of collecting ethnicity data, such as concerns over the data protection implications of small sample sizes, it states that businesses are ready for the government to act. The government consultation, which stated that it was “time to move on ethnicity pay reporting”, closed in January 2019 but a response has not yet been published.

The Committee’s chair, the Rt Hon Caroline Nokes MP, said,

 “The Government’s failure to move forwards on ethnicity pay gap reporting is perplexing. We already have the systems and structures in place to start reporting on the ethnicity pay gap, as well as a clear impetus- tackling inequality benefits not only marginalised groups, but the whole economy. The Government has no excuse. All that is lacking, it seems, is the will and attention of the current administration. 

“Last week, the Government made bold promises to ‘Level Up’ geographically. Time and again it proves itself to be blind to the importance of levelling up within our communities and address long-standing disparities along the lines of protected characteristics. By taking this small step, the Government would demonstrate its commitment to working with business to reduce inequality.” 

Sick Pay: Think tank report reveals significant age and race disparity in access to sick pay

On 4 February 2022, the Institute for Public Policy Research (IPPR) and University College London (UCL) published a report entitled ‘A Healthy Labour Market: Creating a post-pandemic world of healthier work’  highlighting the disparity in access to sick pay among different groups of workers in the UK. The report revealed that:

  • Older employees above age 65 are five times more likely to lack access to sick pay compared to younger workers aged 25 to 44.
  • South Asian workers are around 40% more likely to lack access to sick pay than white British workers. The report suggested that this could in part be caused by institutional racism, as income, occupation and employment status differences do not explain the disparity.

The report also calls for statutory sick pay (SSP) to be reformed, including the abolition of the lower earnings limit threshold, increasing the rate of SSP to 80% of earnings (up to a maximum of £2,500 per month), providing for access to SSP from day one of illness and improving enforcement against employers who do not comply with their obligations.

Apprenticeships: Nearly half of firms returned unspent apprenticeship levy funds

A new poll of more than 500 HR professionals (conducted by Survation on behalf of London First) has found that 48% of firms have returned unspent apprenticeship levy funding and only 17% of employers think the levy system is working well. This has prompted renewed calls for the system to be reformed and made more flexible to allow employers to use it to reskill and upskill employees. The poll also gathered employers’ perspectives on how the levy could be improved.

Increasing the spending deadline from two to three years, using some of the levy to contribute towards the wage cost of new apprentices and incentivising employers to convert Kickstart placements into apprenticeships were each agreed to be potential improvements by 35% of employers. A quarter of employers thought the levy would be improved if larger employers could transfer more funds to SMEs and 41% said they would be more likely to transfer more funds if they were allowed to.

Apprenticeships: New Regulations for “flexi-job” alternative apprenticeships 

On 26 January 2022, the Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022 (SI 2022/86) were made, enabling a pilot scheme of “flexi-job” apprenticeships to commence in England. The Regulations come into force on 6 April 2022.

A flexi-job apprenticeship is a new type of alternative English apprenticeship. The Regulations will allow employers taking on a flexi-job apprentice to only give a three-month commitment, instead of the usual 12-month minimum commitment under an approved English apprenticeship agreement. This will allow flexi-job apprentices to complete discrete blocks of employment with training, with different employers, throughout the course of their apprenticeship. A key barrier to taking on apprentices in certain sectors is the need for varied and flexible employment patterns, particularly in the creative and construction sectors, where employment may be short-term or project-based.

After the minimum three-month arrangement with one employer, the apprentice can either begin a new arrangement with the same employer or move to continue their apprenticeship with a new employer. Flexi-job apprenticeships may only be carried out for a limited number of approved apprenticeship standards, in the creative and construction sectors.

The flexi-job apprenticeship pilot scheme will begin in April 2022 and is intended to last for 18 to 24 months. It will be reviewed after nine, 12 and 18 months. The government will publish guidance ahead of the pilot start date. If the pilot is successful, the flexi-job scheme may be made available to other apprenticeship standards.

Women’s Health: Workplace awareness and support needed for endometriosis

On 9 February 2022, workplace support for people with endometriosis was debated in the House of Commons. Alec Shelbrooke MP, gave a particularly good description of the huge impact and variety of ways it can affect sufferers in his speech to the Commons. His main concerns being that employers need to understand the condition better to enable them to support their employees appropriately and reduce discrimination for women, and girls, suffering from this. Alex Davies-Jones MP, went on to say,

“Some 1.5 million women are dealing with symptoms ranging from chronic pain and fatigue to infertility, and the research, awareness and support for those suffering from what—as we have heard —can be an extremely debilitating condition is still lagging far behind, and is lacklustre at best.”

Paul Scully MP, Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy, confirmed that the government’s women’s health strategy, to be published later this year, will focus on workplace health as one of its six priority areas. It will include a chapter on “Menstrual health and gynaecological conditions” which will explore ways to improve awareness, care and treatment of those suffering from endometriosis and other similar conditions. Given that a taskforce was set up this month to tackle Menopause we are hopeful that endometriosis will be properly tackled so that women suffering with endometriosis can fulfil their potential in the workplace in a way that suits them best.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment Law Case Review – February 2022

  • Employment,

  • 22nd February 2022

Employment Law

A round-up of the most significant employment law cases to be published over the last month including a Covid-19 dismissal, worker status, business owner liability, fire and rehire injunction and misclassified worker’s right to holiday pay.

COVID-19: Dismissal for refusing to be vaccinated was fair

In Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 an employment tribunal has held that the summary dismissal of a care assistant employed in a nursing home for unreasonably refusing to be vaccinated against COVID-19 was fair.

In the context of the state of the pandemic in January 2021, a small nursing home’s decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. The care assistant’s refusal to be vaccinated due to concerns about the safety of the vaccine was not reasonable in circumstances where there had been a very recent outbreak and deaths of residents at the nursing home, the pandemic was growing nationally and there was widespread publicity and advice about vaccine safety.

An employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights. The employer’s aims, of protecting the health and safety of the residents, staff and visitors to the care home during the pandemic and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated, were legitimate.

An unvaccinated staff member would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home, such that the requirement for the care assistant to be vaccinated and the dismissal for unreasonably refusing vaccination was justified. Less draconian means could not have been used.

It was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. In the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, refusing to comply with the management instruction to be vaccinated amounted to gross misconduct and the dismissal was neither unfair nor wrongful.

Worker Status: London cabbie also working through Mytaxi app was not a worker of the app-operator

In Johnson v Transopco UK Ltd [2022] EAT 6, the EAT has upheld an employment tribunal’s decision that a taxi driver working through an app was not a worker, under section 230(3)(b) of the Employment Rights Act 1996.

Mr Johnson worked as a self-employed London black-cab driver. He also registered with Mytaxi, an app operated by Transopco UK Ltd (TUK). During one year, he completed 282 trips via the app at a total value of £4,560.48. In the same period, he earned £30,472.45 as a self-employed driver. Employment tribunal complaints brought against TUK failed because the tribunal found Mr Johnson was not TUK’s worker. The tribunal observed that Mr Johnson could provide his services as infrequently or as often as he wanted, could dictate the timing of those services and was not subject to control by TUK. It also took into account the small proportion of work done through the app.

The EAT held that the tribunal was entitled to analyse the split of time between income earned as a self-employed cab driver and income earned via the Mytaxi app, when considering whether Mr Johnson’s work for TUK formed part of his own business, and as pointing towards its conclusion that this was not a dependent work relationship. It was not the case that the tribunal’s analysis amounted to a “numbers game” or introduced a minimum hours threshold for worker status.

The tribunal was entitled to take the view that the essence of Mr Johnson’s business was picking up passengers and driving them to where they wanted to go, however they were obtained. This was so having regard also to the tribunal’s findings on the simultaneous nature of the activities, subordination, dependency, control and integration.

The fact that some incentives and risk-sharing were offered by TUK to reflect the risks associated with using its platform (such as the risk of fraud or cancelled jobs), in order to enhance its financial attractiveness as an option, this did not point inevitably to worker status and the tribunal did not err in holding otherwise. The tribunal’s conclusions were soundly reasoned. It followed that although the driver had an obligation of personal service, the tribunal had correctly concluded that TUK was a client or customer of Mr Johnson’s taxi-driving business.

Liability: Dental practice owner liable for alleged negligence of self-employed dentists

In Hughes v Rattan [2022] EWCA Civ 107, the Court of Appeal has held, as a preliminary issue, that a dental practice owner owed a patient a non-delegable duty of care in respect of the treatment she received from self-employed dentists who worked at the practice.

Non-delegable duties put primary liability on a person to avoid harm, to take reasonable care to avoid harm or to see that care is taken by others, rather than imposing secondary liability for the wrongdoing of another person, as with vicarious liability.   While the two are conceptually distinct from each other, they may achieve a similar outcome and liability can arise as a result of negligence of an independent contractor, but with a non-delegable duty there is no defence to show that performance was delegated to a person reasonably believed to be competent.

Ms Hughes was, in law, a patient of the practice and the dental practice owner, Dr Rattan, was named as the treatment provider in the treatment plans she had signed. Patients were described as “patients of the practice” in the agreements between the practice owner and the self-employed dentists, and the dentists were subject to stringent restrictive covenants prohibiting them from treating those patients outside the dental practice.

The factors set out in the leading case, Woodland v Essex County Council [2013] UKSC 66, were satisfied:

1. A “patient” included anyone receiving treatment from a dentist; they did not need to be especially vulnerable to qualify.

2. An antecedent relationship between the patient and the dental practice owner was established at the latest on each occasion when the patient signed the relevant treatment plan, which placed her in the practice owner’s actual care.

3. The patient had no control over whether the dental practice owner chose to perform his obligations personally or through employees or third parties.

Although the court was not required to decide whether the dental practice owner was also vicariously liable for the acts and omissions of the self-employed dentists, it expressed a view that he would not be vicariously liable because the test in Barclays Bank Plc v Various Claimants [2020] UKSC 13 was not met.

Contracts: High Court grants in junction to stop Tesco firing and rehiring employees

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201 (QB), the High Court has granted an injunction to restrain Tesco from terminating and re-engaging a group of warehouse operatives in order to remove a contractual entitlement to enhanced pay, which had been incorporated as a result of collective bargaining. The entitlement had been negotiated as a retention incentive at a time when Tesco was reorganising its distribution centres, which involved some major relocations. A collective agreement reached in 2010 stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.

In these unusual circumstances, the court granted declaratory relief, setting out the precise contractual term relating to enhanced pay that was incorporated into the contracts of employment, and held that it was appropriate to imply a term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminishing the right of each employee to receive the enhanced pay. The court noted that Tesco’s intention to terminate and re-engage on inferior terms would operate to remove a significant proportion of the remuneration currently payable to the affected employees, causing significant injury to their legal rights. Since damages would not have provided an adequate remedy, the court granted an injunction to restrain dismissal in breach of the implied term.  

Holiday Pay: Misclassified worker’s right to holiday pay for whole period of employment crystallised on termination

In Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70, the Court of Appeal has held that a worker who took unpaid leave, having been wrongly told that he was an independent contractor with no right to paid leave, could bring a claim in respect of his entire accrued holiday entitlement under Article 7(1) of the Working Time Directive (2003/88/EC), whether taken or untaken, going back to the start of his contract.

Following the principle in King v Sash Window Workshop Ltd (Case C-214/16), annual leave under the Directive is a “single composite right” to paid leave, rather than a right to leave and a separate right to payment for that leave. As the employer had refused to grant that right, the worker’s full leave entitlement under the Directive accumulated from year to year without limitation, and his right to claim a payment in lieu of that entitlement crystallised on termination of his contract. He did not need to rely on establishing a “series of deductions” under section 23(3) of the ERA 1996, and the time limit for bringing the claim ran from the date of termination, rather than the date of the last non-payment of holiday pay. It was also not necessary for the worker to specify whether the leave in question was untaken or taken but unpaid.

Although the court did not strictly need to deal with this point, it also expressed a “strong provisional view” that the EAT’s decision in Bear Scotland Ltd v Fulton [2015] ICR 221, that a series of deductions is broken by a gap of three months or more between deductions, was wrong.

A few days later the Court of Appeal added a postscript and an appendix.

The earlier judgment of the EAT had included suggested wording to be read into the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) in order to reflect holiday pay case law under the Working Time Directive (2003/88/EC), including King v Sash Window Workshop and another (C-214/16) EU:C:2017:914. In light of the Court of Appeal’s decision that the EAT had wrongly interpreted King, it invited further submissions from the parties as to the appropriate course to adopt.

Although the court acknowledged that it had “no power to draft regulations” it suggested a form of words that would best reflect EU law, as an appendix to its earlier judgment. It includes the following additional wording to be read into the WTR 1998 at regulation 13(16):

“Where in any leave year an employer (i) fails to recognise a worker’s right to paid annual leave and (ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years.”

The case has important implications for the way time limits work in holiday pay claims, particularly for workers who have been misclassified as self-employed and therefore denied any paid holiday rights. Such workers may now be able to claim holiday pay back to the start of their employment, without having to rely on the “series of deductions” rules which would otherwise limit the value of historical claims.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com

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The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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Employment Law Newsletter – January 2022

  • Employment,

  • 26th January 2022

Legal Employment Law

Here we look at some of the big issues to occur over the last 12 months and what to expect over the coming year.

Hot topics of 2021:

COVID-19

The COVID-19 pandemic continues to affect the employment landscape. While many had expected, or hoped, the changes brought by the pandemic would have plateaued in the latter half of 2021, many employees are only just returning to the workplace following a change in government guidance in December 2021. In some respects, the pandemic has acted as a catalyst, particularly around flexible and hybrid working, however the delays to key employment law developments expected to take place in 2021 continue into 2022. The pandemic has also formed the context of a number of cases that have come through the employment tribunal system as a result of remote working and the furlough scheme. There have also been a raft of cases involving unfair dismissals, where not knowing how to react to the difficulties brought by the virus sometimes led employers into trouble. Covid-19 also had a significant gendered economic impact on women.

Flexible Working

Of course, Covid-19 sent the world into a tailspin with employers and employees both having to work out how to be productive despite very challenging circumstances, nevertheless it has highlighted the myriad of possibilities that exist. There have been calls by many respected business groups to make flexible working the default position, leading to a government consultation on the subject, and the CIPD calling for it as a day one right.

Equal Pay and the Gender Pay Gap

Big cases for Morrisons and Asda determined that (female) retail workers could be compared with those of (male) logistics workers at national distribution centres. Meanwhile, enforcement of gender pay gap reporting was put back six months in 2021 due to the pandemic, with most eligible companies now complying with their reporting obligations. There have now been calls for reporting of the ethnic pay gap, especially since some big firms have voluntarily started publishing results which include other diversity metrics including class, sexual orientation, ethnicity and disability – way beyond the minimum obligation, and tying in nicely with the government’s ‘levelling-up’ agenda.

The Employment Bill

The bill was promised in the 2019-20 parliamentary session but did not get past a first reading. It was omitted from the Queen’s speech in 2021 with the government response being it will be addressed “when parliamentary time allows”, namely once all the extra pandemic work is out of the way. There do seem to be small workings taking place though – with the single enforcement body for employment rights starting to take shape, but again, this will involve more parliamentary time to flesh out its bones. We continued to see the evolution of cases involving workers in the gig economy. This is an area that is not going away just yet, and we hope to see more clarification in the Bill when it is ready.

The Big Issues for 2022:

Changes to traditional 9-5 office-based working

Whilst some employers are now requiring their workforces to return to pre-pandemic working locations, the pandemic shifted and centralised the issue of flexible working for employers, with many now normalising a return to offices on a hybrid basis. A government consultation on making flexible working the “default position” ran from September to December 2021 and set out five proposals including making flexible working a day one right. Note that the government’s proposals do not introduce an automatic right for employees to work flexibly. Rather, the proposals include a number of measures to broaden the scope of the right, while retaining the basic system involving a conversation between employer and employee about how to balance work requirements and individual needs, potentially changing the statutory business reasons for refusing a flexible working request. As the consultation closed on 1 December 2021, it is unlikely there will be a response from the government until the latter half of 2022.

Some developing themes which employers may continue to face in 2022 include requests from employees to work flexibly abroad and the impact on wellbeing of continued working from home. Following research about the significant amount of hidden overtime while working from home during the pandemic, there have also been calls for the government to introduce a “right to disconnect“. This has recently been brought into effect in some European countries and is being discussed by the Scottish Government in relation to their own employees. It was also mentioned in a briefing paper on hybrid working published by the House of Commons Library in November 2021. Most recently, several big companies have announced their intention to trial four day working weeks, with senior managers under 35 being the most enthusiastic, understanding the impact on employees as well as improving retention and happiness. Perhaps this is the year that the oft quoted “good work-life balance” statement actually rings true.

Vaccinations at work

On 1 April 2022, following a consultation, regulations come into force which will make vaccination against COVID-19 a requirement for health and social care workers in a face-to-face role. It remains to be seen how employers in this sector will deal with unvaccinated employees. Employers in other sectors, who have a duty to maintain a safe workplace, have been encouraging staff to get vaccinated. In the absence of further government requirements on mandatory vaccinations, there would be risks for employers who may want to make vaccination a requirement for new or existing staff. The key legal problem will be the risk of potential unfair dismissal and potential discrimination claims if employees are dismissed for refusing to be vaccinated and the employer is unable to justify dismissal as a proportionate means of achieving a legitimate aim.

New duty to prevent sexual harassment

On 21 July 2021, the government published its response to the 2019 consultation on workplace sexual harassment. The response confirmed a new duty for employers to prevent sexual and third-party harassment, which is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. The government will also consider the proposal to extend the time limits for claims under the Equality Act 2010, but has not yet committed to making any changes. The duty will come into force when Parliamentary time allows.

Review of gender pay gap reporting regulations

By April 2022, the government must review the gender pay gap regulations as they are obliged to do so within five years of the regulations coming into force (regulation 16(3), Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 (SI (2017/172)). The purpose of this review will be to assess the extent to which the reporting requirement achieved the objectives of the regulations, whether the objectives remain appropriate and whether any unnecessary burden is placed on employers.

Data protection

Several data protection developments are likely to impact employment practitioners in 2022. The Department for Culture, Media and Sport (DCMS) proposed data protection reforms in its consultation which closed on 19 November 2021. The primary objective of the consultation was to seek views on the proposals to reduce the burden data protection places on businesses. In addition, the government sought views on how Article 22 of the UK GDPR should be interpreted in the context of artificial intelligence (AI) in several areas, including where it related to automated decision-making.

We are also expecting to see updated data protection and employment practices guidance in 2022 from the Information Commissioner’s Office (ICO), following a call for views which ran until 28 October 2021. The new guidance will finally replace the ICO’s employment practices code, supplementary guidance and the quick guide, which have not been updated since the Data Protection Act 2018 came into force. The new guidance will cover topics including recruitment and selection, employment records, monitoring of workers, and information about workers’ health.

Human Rights Act 1998

In 2020, the government announced the launch of an independent review of the Human Rights Act 1998 (HRA 1998), while emphasising its ongoing commitment to the European Convention on Human Rights. The Independent Human Rights Act Review (IHRAR), conducted by an independent panel chaired by Sir Peter Gross, a former Court of Appeal judge, reported back to the government on 29 October 2021. On 14 December 2021, the Ministry of Justice published Human Rights Act Reform: A Modern Bill Of Rights, a consultation on replacing the HRA 1998 with a Bill of Rights. The full report conducted by the IHRAR Panel was also published on 14 December 2021. Whether the right to a jury trial should be recognised in the Bill of Rights and the introduction of a permission stage for human rights claims where claimants must establish they have suffered “significant disadvantage” or that the claim is of “overriding public importance” are key proposals included in the consultation document.

Many of the proposals are regarded as highly controversial. However, it should be recognised that the proposals are simply being consulted on at this stage and therefore whether they ultimately become law remains to be seen following the close of the consultation in March 2022.

Potential developments to look out for:

Single enforcement body for the labour market

In the Good Work Plan, the government announced an intention to bring forward proposals for a new single labour market enforcement agency. On 8 June 2021, BEIS published the government consultation response on the proposal, and confirmed they would consolidate three of the current enforcement bodies into a single agency with increased powers. On 22 November 2021, Margaret Beels OBE was appointed as the new Director of Labour Market Enforcement, and she plans to set the strategic direction for the three existing labour market enforcement bodies that will be amalgamated into the single body; the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Team. The formation of the new agency requires primary legislation and this will be brought forward when Parliamentary time allows. The joined-up approach is intended to help improve enforcement through better co-ordination and pooling intelligence.

Confidentiality and non-disclosure agreements

In July 2019, the government published its proposals to prevent the misuse of confidentiality clauses or non-disclosure agreements (NDAs) in the settlement of workplace harassment or discrimination complaints. The government reiterated that confidentiality clauses can serve a legitimate purpose in both employment contracts and settlement agreements but confirmed its intention to bring forward new legislation “when Parliamentary time allows“.

This measure has been significantly delayed due to the pandemic, but it is anticipated that the legislation (likely to be included in the long-awaited Employment Bill) will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.

In practice Employment lawyers have been ahead of the government on this matter. Since the emergence of the #MeToo movement settlement agreement have routinely included carve outs from the confidentiality provisions to allow ex-employees to report crimes, as well as seeking support from professionals providing medical, therapeutic, counselling and support services. As ever though without statutory backing the inclusion of such carve outs remains dependent on the negotiating powers of the parties involved.

Tipping, gratuities, cover and service charges

Another measure to be included in the Employment Bill, once progressed, is legislation that will see tips retained by hospitality staff in their entirety, except deductions required by tax law. Employers will also be required to distribute tips in a fair and transparent way, according to a published policy. A new Code of Practice on Tipping, to which employers will be required to have regard, is expected to replace the existing voluntary code of practice.

Neonatal leave and pay

On 16 March 2020, the government responded to a consultation on neonatal care leave, proposing the introduction of statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government will legislate to implement the new entitlements in the forthcoming Employment Bill.

Extending redundancy protection for women and new parents

On 21 June 2021, the Pregnancy and Maternity (Redundancy Protection) Bill was reintroduced to Parliament for a second time. The second reading of this Private Members’ Bill is scheduled for 18 March 2022. If passed, the Bill will prohibit redundancy during pregnancy and maternity leave and for six months after the end of the pregnancy or maternity leave, except in specified circumstances. This follows the government’s statement on 22 July 2019 that it would expand redundancy protection in response to a BEIS consultation on the matter. The government has since reiterated their intention to extend the period of redundancy protection for pregnant women and new parents would progress as part of the Employment Bill “when Parliamentary time allows“. It remains unclear whether the extended redundancy protection will be implemented through the Private Members’ Bill or the Employment Bill.

Leave for unpaid carers

On 23 September 2021 the government published a response to its consultation on carer’s leave. In the response, the government committed to introducing a right for unpaid carers to take up to a week of unpaid leave per year. There is no scheduled timetable for the introduction of this right; it will progress when Parliamentary time allows.

Ethnicity pay gap reporting

In 2018, the government launched a series of measures to tackle barriers facing ethnic minorities in the workplace, including a consultation on the introduction of mandatory ethnicity pay reporting, based on the model of mandatory gender pay gap reporting. While the government is still considering mandatory ethnic pay reporting, and has failed to respond to its consultation (which closed in January 2019), there has been a wider move towards voluntary collection of diversity data to help companies identify and address existing barriers to access or promotion.

Disability workforce reporting

The government is consulting on disability workforce reporting for large employers with 250 or more employees and is expected to publish their response on 17 June 2022, as part of the National Disability Strategy. Through the consultation the government hope to glean information on current reporting practices, arguments for and against implementing a mandatory approach and how such a mandatory approach may be implemented. The consultation also requests views on alternative approaches to enhance transparency and increase inclusivity for disabled people in the workforce. The consultation will accept submissions until 25 March 2022.

Whistleblowing review and new EU Directive

BEIS announced a review of whistleblowing legislation, following the publication of data showing that one in four COVID-19 whistleblowers who contacted the whistleblowing advice service, Protect, were dismissed between September 2020 and March 2021. The scope of the review has not yet been confirmed and whether it is to fall within the remit of the single body to enforce workers’ rights. Although the UK will not be required to implement the new EU Whistleblowing Directive (2019/1937/EU), the Directive may still influence whistleblowing practice, especially for pan-European organisations operating in multiple locations. Since 17 December 2021, EU member states have been obliged to bring into force the laws necessary to establish internal reporting channels. (For private sector entities with between 50 and 249 workers, the implementation deadline is extended to December 2023.) The Directive also requires measures to be implemented to protect a whistleblower’s identity, acknowledge disclosures within seven days and provide a response within a reasonable period.

Post-termination non-compete clauses

On 4 December 2020, BEIS opened a consultation on measures to reform post-termination non-compete clauses in employment contracts. The consultation, which closed on 26 February 2021, sought views on proposals to require employers to continue paying compensation to employees for the duration of a post-termination non-compete clause, requiring employers to confirm in writing to employees the exact terms of a non-compete clause before their employment commences, introducing a statutory limit on the length of non-compete clauses, or banning the use of post-termination non-compete clauses altogether. The government is yet to report the results of the consultation.

Extending ban on exclusivity clauses

Another consultation was launched by BEIS on 4 December 2020, on measures to extend the ban on exclusivity clauses in employment contracts to cover those earning under the Lower Earnings Limit, currently £120 a week. This would prevent employers from contractually restricting low earning employees from working for other employers. This consultation, which was launched in response to the impact of the COVID-19 pandemic on low earners, closed on 26 February 2021 but there is not currently a timetable for the next developments.

Working conditions in digital labour platforms

The European Commission has adopted a package of measures to improve working conditions in digital labour platform work and support their sustainable growth in the EU. The measures include a Directive, to which the UK will not be bound but which may prove to be influential.

Key cases:

On 20 January, the Court of Appeal heard the appeal in Kocur & Others v Angard Staffing Solutions Ltd, part of the latest instalment in long-running litigation involving agency workers supplied to Royal Mail. In the decision under appeal, the EAT concluded that the right of agency workers under regulation 13 of the Agency Workers Regulations 2010 (SI 2010/93) to be informed by their hirer of any relevant vacant posts with the hirer does not encompass a right to be entitled to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer. The EAT also held, among other things, that there was no breach of the principle of equal treatment in agency workers’ shift lengths being 12 minutes longer than those of direct recruits, nor in direct recruits being given first refusal in relation to overtime. The judgment is awaited.

On 9 November 2021, the Supreme Court heard the case of Harpur Trust v Brazel. Judgment is awaited on whether “part-year workers” (those working only part of the year, such as during school terms) should have their annual leave entitlement capped at 12.07% of annualised hours. Once the case reached the Court of Appeal, Unison was given permission to intervene as an issue of general importance was raised regarding the calculation of holiday pay. The case was widely reported at the latter stages and may lead to further claims being brought by part-time employees. Therefore, the Supreme Court judgment is highly anticipated in the hope it will provide further clarity.

In Smith v Pimlico Plumbers Ltd, the EAT found that the ECJ’s ruling in King v Sash Window Workshop Ltd (Case C-214/16) EU:C:2017:914 should not be interpreted as meaning that a worker is entitled to carry over untaken annual leave where the worker was permitted to take leave that was unpaid. Although King established that a worker is entitled to carry over annual leave that is not taken because the employer refuses to pay for it (thereby discouraging the worker from taking leave), the principle does not apply to leave that was actually taken. The worker in this case, a plumbing and heating engineer, was therefore unable to rely on King when asserting his right to be paid for holiday he had taken at the time when his employer did not accept that he was a worker within the meaning of the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998). The main issue is likely to be whether unpaid leave can properly be regarded as leave for the purposes of the WTR 1998. The Court of Appeal heard the case on 7 and 8 December 2021 and judgment is awaited.

In Baker and others v Royal Mail, 120 postmasters and sub-postmasters brought an employment tribunal claim against the Post Office. The claimants run Post Office franchises but seek recognition as workers because of the degree of control the Post Office has over the work they do. The same argument was used successfully in the landmark Uber BV and others vs Aslam and others on which the Supreme Court ruled in February 2021. A judgment is yet to be delivered in this case and could have implications beyond the specific claimants as there are thousands of sub-postmasters across the UK.

The EAT is expected to deliver judgment in Mackereth v Department for Work and Pensions and another which concerns the refusal of a Christian doctor, engaged to carry out health assessments for the Department of Work and Pensions, to address transgender patients by their chosen pronoun. The EAT will consider an employment tribunal’s finding that while the doctor’s Christianity is protected under the Equality Act 2010, his particular beliefs, that God only created males and females, that a person cannot choose their gender and his conscientious objection to transgenderism, are not protected as they amount to views incompatible with human dignity and therefore conflict with the fundamental rights of others. The EAT heard the case on 18 and 19 October 2021 and judgment is awaited.

Lastly, Chell v Tarmac Cement and Lime Ltd was heard by the Court of Appeal in November 2021 and we are awaiting the outcome. The initial decision by the County Court, upheld by the High Court, found that an employer was not negligent or vicariously liable for a contractor’s personal injury suffered in its workplace because of an employee’s practical joke. The County Court held that devising and implementing a health and safety policy which factored in horseplay, or practical jokes, was expecting too much of an employer.

Further Information:

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.

Back

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.

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