Employment Law Newsletter – January 2022
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:
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.
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.
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.
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.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.
Employment Law Newsletter – December 2021
- COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
- Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
- Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
- Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
- Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
- Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
- Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
- Guidance: CIPD publishes new Effective Hybrid Working guidance
- Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
- Workers: Government call for evidence on umbrella company market
- Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
- Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
- Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
COVID-19: SEISS was indirectly discriminatory against new mothers but was justified
Under the SEISS (Self-Employment Income Support Scheme), grants were awarded to self-employed individuals based on average trading profits (ATP) in the three full tax years preceding 2019/20. The scheme was amended in July 2020 to include those who had not qualified because of the effect of childcare, pregnancy or maternity on their trading profits or total income for the tax year 2018-2019.
In R (on the application of Motherhood Plan) v HM Treasury  EWCA Civ 1703 an application for judicial review of the scheme was brought by a self-employed mother and a maternity rights charity. They argued that, contrary to the ECHR, it was indirectly discriminatory to calculate grants based on ATP in previous tax years, since women on maternity leave during those years received smaller payments than they would otherwise have been entitled to. Alternatively, applying Thlimmenos v Greece  ECHR 162, grants for women on maternity leave in the calculation period should have been calculated differently to remove the disadvantage they suffered if treated the same as everyone else.
The Court of Appeal held that the High Court had been wrong to find that the use of ATP did not constitute prima facie indirect discrimination. The judge had found that the disadvantage to new mothers was not “caused by the scheme itself” but by their reduced earnings while on maternity leave. However, that mis-identified the alleged disadvantage, which was that recent mothers’ earnings in the measured period would be disproportionately unrepresentative of their hypothetical earnings had there been no pandemic, resulting in lower payments under the scheme for recent mothers as a group. That disadvantage was caused by the use of ATP as the relevant measure.
However, the High Court had reached the correct conclusion on justification. The indirect discrimination was justified because the SEISS was devised in the extreme and unique circumstances of the pandemic, where time was of the essence. Obtaining additional information from recent mothers would have significantly delayed the implementation of the scheme and the information would have been difficult to verify. In addition, the choice of ATP to assess profits had legitimate aims, namely: effectiveness; speed of delivery; ease of verification to reduce the risk of fraud; and the need to avoid perverse effects and costs. The requirements of speed and simplicity meant that the government was justified in introducing the scheme in a form which did not contain special provision for new mothers.
Equal Pay: Morrisons’ retail workers employed on common terms with distribution centre workers
In Abdar and others v Wm Morrison Supermarkets plc and another (2021) ET/1811283/18 an employment tribunal has held that retail workers in Morrisons and Safeway supermarkets could compare themselves for equal pay purposes with logistics workers in their employer’s regional distribution centres. At a preliminary hearing, the tribunal held that the majority of the claimants were employed on common terms with the logistics workers for the purposes of section 79(4) of the Equality Act 2010 (EqA 2010). Further, the terms on which they were employed had a single source for the purposes of their directly effective rights under Article 157 of the Treaty on the Functioning of the European Union (TFEU).
Subject to any appeal, the next stage will be for the tribunal to determine whether the retail workers’ roles are of equal value to those of the logistics workers. The tribunal noted that there is a dispute between the parties as to whether the ECJ’s decision in K and others v Tesco Stores Ltd  IRLR 699 is binding in this case, by virtue of Articles 86 and 89 of the Withdrawal Agreement and sections 6, 7A and 7C of the European Union (Withdrawal) Act 2018 (Withdrawal Act). In Tesco, the ECJ held that Article 157 of the TFEU extends to equal value claims. However, although the referral was made pre-Brexit, the decision was handed down after the UK left the EU. It is not disputed that if Tesco is not binding, the tribunal may have regard to it to the extent that it considers it relevant. It was accepted that the tribunal was bound by section 6 of the Withdrawal Act and the EAT’s judgment in Asda Stores Ltd v Brierley and others  ICR 384 that Article 157 of the TFEU has direct effect in equal value cases. The supermarkets did not therefore advance any arguments as to the binding effect of Tesco in the tribunal proceedings, but may do so on any appeal.
Disability Discrimination: Tribunal erred in focusing on adverse effects of claimant’s avoidance behaviours rather than impairments
In Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restaurants Ltd and others  UKEAT 2020-000110, the EAT has held that a tribunal erred in focusing on the behaviour adopted by a claimant in an attempt to manage her conditions when considering whether those conditions had an adverse effect on her day-to-day activities. The claimant suffered from epilepsy and vitiligo and avoided coffee, alcohol, cosmetics, cleaning products, sunlight and all medications (including those prescribed by her physicians to manage her conditions), believing that they would adversely trigger her conditions. However, there was no medical evidence to support the claimant’s beliefs, and she was acting contrary to medical advice in refusing to take medication.
The EAT held that the question of whether a claimant’s impairments had an adverse effect on their ability to carry out normal day-to-day activities was an objective one and could not be determined by a claimant’s subjective beliefs about how to manage their conditions. In this case, the claimant only relied on physical, not mental, impairments. The tribunal had to disregard the claimant’s coping mechanisms, even though her belief that they were necessary was strongly held. It should have considered the impact the actual conditions had on the claimant’s day-to-day activities, leaving aside the impact of her avoidance behaviours. The EAT remitted the question of disability to a fresh tribunal, noting that this was a novel point of law on which it believed there was no previous case law.
Disability Discrimination: Tribunal reasoning in disability case did not show critical evaluation of justification issue
In Gray v University of Portsmouth  UKEAT 2019-000891, the EAT has allowed an appeal where a tribunal failed to provide sufficient reasoning in its judgment to demonstrate that it caried out a critical ev aluation on the question of objective justification in respect of a claim for discrimination arising from disability under section 15 of the Equality Act 2010.
Mr Gray was employed by a University in its Information Service department from 2009. He was dismissed in 2017 following a two-year sickness absence related to his disability. He complained to an employment tribunal that he had suffered discrimination arising from his disability, alleging that the University had treated him unfavourably by initiating a formal meeting under their absence process, stopping his sick pay, dismissing him and rejecting his appeal against dismissal.
The tribunal rejected the claim. It determined that the University had a legitimate aim in ensuring the efficient running of the Information Service department as part of its provision to students. The Tribunal considered each of Mr Gray’s complaints and held that the actions taken were a proportionate means of achieving the legitimate aim.
Mr Gray appealed to the EAT, arguing that the tribunal had erred in its approach to objective justification under section 15 and had not adequately explained its conclusions. The EAT noted that the critical evaluation required for the purpose of section 15 means the tribunal must carry out its own assessment of objective justification. Further, the tribunal is required to make clear how it had undertaken its assessment by demonstrating that critical evaluation in its reasoning.
The EAT took issue with the tribunal’s findings on Mr Gray’s dismissal and the decision to uphold that dismissal on appeal. In its judgment, the tribunal had stated that it was “obvious” that continuing to hold Mr Gray’s job open was significantly disruptive for the University but, critically, failed to explain why it reached that finding. The judgment had not included findings about how Mr Gray’s job was being covered, whether his absence was actually causing any disruption or whether the University incurred additional cost. The EAT allowed the appeal and remitted the matter to the original tribunal.
Wrongful Dismissal: Tribunal should have weighed claimant’s oral testimony against opposing hearsay evidence
In Hovis Ltd v Louton  UKEAT 2020-000973, the claimant, a lorry driver for Hovis, was summarily dismissed for smoking while driving his company vehicle, which was a serious breach of the company’s smoking policy and a criminal offence. He denied smoking, and the investigator found no physical evidence of smoking in the vehicle. However, the evidence at his disciplinary hearing, which was accepted by the employer, included written statements by two eyewitnesses (a Hovis manager and his wife, who alleged that they saw the claimant smoking when they overtook him on the motorway). It also included dashcam footage confirming that it was indeed his vehicle.
A tribunal found the dismissal fair but wrongful. On the wrongful dismissal point, the tribunal noted that it had to undertake its own assessment of whether the claimant had been smoking. Neither of the eyewitnesses gave oral testimony, although their written statements from the internal investigation were put in evidence. The tribunal held that, without being able to assess their testimony, it could not conclude that the claimant was guilty on the balance of probabilities.
The EAT rejected Hovis’s first ground of appeal, that the tribunal had impermissibly fallen back on the burden of proof rather than making a positive finding. This was not a case where the evidence both ways had been equally compelling, leaving the tribunal unable to make a decision. Rather, the tribunal had held that there was insufficient evidence to support a finding that the claimant had been smoking.
However, the EAT upheld the second ground of appeal, namely, that the tribunal had wrongly attached no weight to the hearsay and documentary evidence. The employment judge had said that, without the eyewitnesses in attendance, she was “unable” to evaluate their credibility against that of the claimant, and therefore “cannot find” that the claimant had been smoking. In the EAT’s view the judge was wrong to say that she was “unable” to assess the credibility of the statements or that it was not open to her to find against the claimant. The statements were admissible as hearsay, and there was no rule that oral testimony must necessarily trump opposing hearsay or documentary evidence if the judge finds it more reliable or compelling.
For those reasons the EAT overturned the finding of wrongful dismissal and remitted it to a fresh tribunal.
Flexible Working: Agreeing to appeal hearing outside the three month decision period does not mean the decision period is extended
In Walsh v Network Rail Infrastructure Limited  UKEAT 2020-000724, the claimant submitted a flexible working request in February 2019, which the employer rejected in March and the claimant appealed. Following much correspondence causing a delay in arranging the date of the appeal hearing, it was eventually agreed between the parties in late June 2019 to hold the hearing on 1 July. However, this meant the appeal hearing was outside the three-month ‘decision period’ for resolving the request.
Before the appeal hearing, on 25 June, the claimant submitted a tribunal claim alleging breaches of the flexible working legislation, including that the process had not been concluded within the decision period. The tribunal held that by agreeing to attend the appeal hearing he had, by implication, agreed to extend the decision period itself meaning his claim was made prematurely and therefore the tribunal did not (yet) have jurisdiction to hear the claim.
The EAT disagreed, holding that in order to extend the decision period it must be clear that there is an agreement to extend the decision period. Agreeing to attend an appeal hearing does not necessarily mean that the employee also agrees to extend the decision period.
Equal Pay: Fawcett Society urges employers to stop asking about previous salary to reduce pay inequality
The BBC reported on 18 November 2021 that The Fawcett Society is urging employers to stop asking jobseekers about their previous salaries. The Fawcett Society is the UK’s leading membership charity campaigning for gender equality and women’s rights at work, at home and in public life and this is part of their “Equal Pay Day 2021 Briefing” campaign.
The question about past salaries is faced by almost half of working adults (47%) and affects 61% of women’s confidence to negotiate better pay. The Fawcett Society is calling on employers to stop this practice which contributes to pay inequality by replicating gaps from other organisations. Only a quarter of people surveyed believe their salary should be based on their previous rate of pay, but more than half (58% of women and 54% of men) think they have been offered a reduced salary because of this question.
Guidance: CIPD publishes new Effective Hybrid Working guidance
The CIPD (Chartered Institute of Personnel and Development) has published new guidance on 3 December 2021 around Effective Hybrid Working. The guidance was produced in partnership with the government’s Flexible Working Taskforce. The guidance focuses on the key areas of:
- People management
- Recruitment and induction
- Inclusion and fairness
- Health, safety and wellbeing.
They explain that hybrid working is a form of flexible working where workers spend some of their time working remotely (usually, but not necessarily, at home) and some of their time at their employer’s workplace. The Taskforce, which was relaunched earlier this year, is a partnership across unions, businesses, and government departments, and aims to improve public policy around flexible working. Members include the CBI, the Federation of Small Businesses (FSB), the British Chambers of Commerce (BCC) and Working Families.
The guidance was published on International Day of Persons with Disabilities, and is intended to encourage employers to train managers on how to ensure best practice in hybrid working. Inclusivity in the key to making hybrid working effective, allowing all employees access to flexible arrangements who are then treated equally regardless of how they work. It is also important to take into account people’s individual working preferences and personal circumstances. There could be unintended consequences for non-office based employees as they may miss out on things which happen in the office (such as training or learning opportunities), likewise promotions or other business opportunities may not be so obvious for those who choose to work from home more, leading to inequality. As such, hybrid working policies should be kept under regular review, with input from employees being key to maintaining working relationships.
The guidance also covers performance management, remote communication and effective collaboration, as well as ways to improve recruitment processes in order to accommodate flexible working practices.
Flexible Working: Study shows refusing to accommodate flexible working requests costs UK businesses almost £2 billion a year
Personnel Today reports that, according to a study conducted by Flexonomics, refusing to accommodate flexible working requests is costing UK businesses £2 billion a year. The cost is attributed to the link between flexible working and employee morale, boosted productivity and lower employee absence. The study found that flexible working is currently contributing £37 billion to the UK economy and a 50% increase in flexible working could result in a net contribution of £55 billion to the UK economy and create 51,200 new jobs.
The report also looks at removing the myths around flexible working only being suitable for a few sectors and highlights how the construction and other “hard-to-flex” sectors could embrace flexibility through methods such as self-rostering.
Ahead of the government’s response to the consultation into flexible working, the report calls for more to be done to ensure businesses are being clear about flexible working opportunities in its job adverts and to be more proactive about communicating the benefits of flexible working to businesses.
Workers: Government call for evidence on umbrella company market
On 30 November 2021, HM Treasury, HMRC and BEIS published a call for evidence on the umbrella company market. It follows concerns about the tax and employment rights risks posed by umbrella companies. An umbrella company is a company that employs a temporary worker (an agency worker or contractor) on behalf of an employment agency. The agency will then provide the services of the worker to their clients.
Umbrella companies currently fall outside the regulation of the recruitment sector (Employment Agencies Act 1973, Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) and Agency Workers Regulations 2010 (SI 2010/93)). In April 2020, the government sought to address transparency on employer identity and pay for assignments of agency workers supplied through umbrella companies by introducing the Key Information Document (KID). The government proposes a multi-stage process of further action. Primary legislation will bring umbrella companies into the regulatory framework. Regulations will then set out minimum requirements and address common issues, including:
- Non-payment of wages and payroll skimming (where umbrella companies “skim” money from payslips or inflate deductions to retain money that should be received by a worker).
- Non-payment of holiday pay (by failing to inform workers of their entitlement or failing to pay the correct amount).
The Employment Agency Standards Inspectorate will continue to ensure compliance with the KID and enforce the regulations. Workers are invited to share their experiences of working through umbrella companies and the KID, to identify means of better protecting workers based on the most up-to-date market practices. Specifically, views are invited on the reasons for the increased use of “joint-employment” contracts in which an umbrella company and employment business both employ the worker (making it more difficult for workers to understand the nature of their relationship with either entity).
HMRC gives examples of tax (direct and indirect) non-compliance and evasion by umbrella companies and the steps that it has taken to combat such activities. However, HMRC seeks more evidence about the specific tax risks posed by umbrellas and how these risks might be mitigated. Evidence is sought from, among others, umbrellas and entities contracting with them, on their experiences, the steps they take to ensure tax compliance in their labour supply chains and the further steps HMRC and the government should take to prevent and tackle non-compliance.
Responses are requested, where possible by email (email@example.com) by 11.45 pm on 22 February 2022.
Support for Women: Employment Minister calls on employers to provide stronger career support to stop menopause affecting careers
In a press release issued on 25 November 2021, the Minister for Employment called on employers to strengthen their support of the careers of women who suffer from serious menopause symptoms. The press release was issued alongside the publication of findings from the independent report commissioned by the government in July 2021, which found that almost one in four women are forced to leave work as a result of menopause symptoms and those who experience serious symptoms take an average of 32 weeks of leave. Without the support of employers, this could limit progression and lead to long-term unemployment. The Minister for Employment has urged employers to use a national network of advisors, “50 Plus Champions”, to support and retain their workers over the age of 50, including women experiencing the menopause.
The government will be responding to the recommendations of the report in the coming months. The recommendations of the Women and Equalities Committee’s inquiry into menopause in the workplace are also awaited.
As we have previously reported, ACAS now has guidance for employers on how to help women at work dealing with the menopause, which you can view here: Menopause at Work.
Parental Leave: Survey reveals prospect of better parental leave policies would lead six in ten employees to switch jobs
According to a survey conducted by Virgin Money, six in ten parents or expectant parents would change jobs if offered better parental leave benefits, reports Personnel Today. Virgin Money The survey revealed that employees were also worried that they would miss out on promotions or career opportunities while on maternity leave (58%) or lose their job (52%). Most of those who responded believed that parental leave policies are an important factor when considering roles at a new organisation (92%) and one in seven (14%) had already left roles due to poor parental leave entitlements, whilst almost a third (29%) of working parents feel maternity and paternity leave in the UK is generally outdated. Virgin Money goes on to report on other benefits workers and parents expect their company to offer include 30 days annual leave (55%), wellbeing days (39%), private medical insurance (31%) and the opportunity to work remotely abroad each year (28%).
The survey coincides with the launch of Virgin Money’s new parental leave policy, which offers equal family leave to all employees from the first day of employment. David Duffy, CEO of Virgin Money, said: “The pandemic has permanently changed our approach to working life. It’s clear to us that by taking a purpose-driven approach to how we work, we can help colleagues achieve a work-life balance that brings out their best.”
Statutory Pay Rates: April 2022 proposed increases to statutory maternity, paternity, adoption and sick pay announced
The Department for Work and Pensions (DWP) has published its proposed increases to a number of statutory benefit payments. The following rates are expected to apply from April 2022:
- The weekly rate of statutory sick pay (SSP) will be £99.35 (up from £96.35).
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £156.66 (up from £151.97).
- The weekly rate of statutory paternity pay (SPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory shared parental pay (ShPP) will be £156.66 (up from £151.97).
- The weekly rate of statutory adoption pay (SAP) will be £156.66 (up from £151.97).
The rates will be confirmed once an Order is made and are due to come into effect on 11 April 2022. The national minimum wage rates that will apply from April 2022 were announced in the Autumn Budget.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org
Employment Law Newsletter – July 2021
- Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
- Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
- COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
- Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
- COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
- Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
- Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
- Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
- Data Protection: European Commission adopts UK adequacy decisions
- Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
- Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
- COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
- ACAS: New guidance published on hybrid working
- Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Constructive Dismissal: EAT holds constructive dismissal can amount to an act of unlawful harassment under the Equality Act 2010
In Driscoll (née Cobbing) v V & P Global Ltd and another EA-2020-000876, the EAT has held that a constructive dismissal can constitute an act of unlawful harassment under the Equality Act 2010 (the Act), departing from its earlier contrary decision, Timothy James Consulting Ltd v Wilton  ICR 764.
The harassment provisions in the Act must be construed purposively, so as to conform with all relevant EU directives, on which the original legislative wording was based. However, in Wilton, the EAT had not referred to the European law, simply holding that harassment in the context of employment, as prohibited by section 40 of the Act, did not expressly include resignation amounting to constructive dismissal. Having examined the relevant directives, the EAT was satisfied that each of them proscribes harassment on the grounds of their respective protected characteristics, including in relation to dismissals. It was notable that, under the directives, harassment is expressly deemed to be a form of direct or indirect discrimination, and should be treated as such. Further, the ECJ has long held that the term “dismissal” is to be construed widely to include, for example, termination as part of a voluntary redundancy scheme and reaching an age limit under an employer’s general retirement policy. There was therefore no principled basis for excluding constructive dismissal from the scope of the applicable directives.
The EAT also drew support from domestic case law, namely Meikle v Nottinghamshire County Council  ICR 1, where the Court of Appeal held that a constructive dismissal could amount to a discriminatory act for the purpose of a disability discrimination claim.
In light of its analysis, the EAT held that Wilton was not correctly decided. As the decision was “manifestly wrong”, it was appropriate for the EAT to depart from its earlier decision. Accordingly, where an employee resigns in response to repudiatory conduct which constitutes or includes unlawful harassment related to a protected characteristic, the constructive dismissal is itself capable of constituting “unwanted conduct” for the purpose of section 26 of the Act.
Indirect Discrimination: Headscarf ban capable of justification only if it applies to all visible signs of political, philosophical or religious belief
In IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594, the ECJ has bolstered existing case law on religious dress bans in the workplace, holding that an employer’s policy of political, philosophical and religious neutrality may justify indirect discrimination on the grounds of religion or belief caused by a rule prohibiting the wearing of any visible sign of such beliefs. An employer’s aim of preventing social conflicts may also be a legitimate aim.
However, a dress ban limited to conspicuous, large-sized signs of political, philosophical and religious belief is likely to be directly discriminatory, which cannot be justified. As such, an employer’s ban must apply to all such signs if its indirectly discriminatory effects are to be capable of objective justification.
To objectively justify indirect discrimination on the ground of religion or belief caused by an employer’s dress code, it is necessary for the employer to show that the rule meets a genuine need, taking account of the rights and legitimate wishes of customers or users as well as the adverse impact to the employer in the absence of such a policy. The aim must be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary. In the context of a policy of neutrality, this requires it to be applied in a consistent and systematic manner, to include all visible signs of political, philosophical or religious beliefs and to be limited in application to only those workers who come into contact with customers or users.
When examining whether indirect discrimination on the grounds of religion or belief resulting from an employer’s rule is objectively justified, the rights and freedoms recognised by the Charter of Fundamental Rights and the European Convention on Human Rights must be taken into account. In addition, a national rule that lays down an additional requirement for justifying an employer’s rule must also be considered.
COVID-19: Employee who remained in Italy at outbreak of pandemic was automatically unfairly dismissed
The employment tribunal in Montanaro v Lansafe Ltd ET/2203148/2020 held that an employee is automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger (section 100(1)(e), Employment Rights Act 1996).
Mr Montanaro (M) was employed by Lansafe Ltd (L) Ltd from 17 February 2020 and provided services to L’s client, B. M believed he had permission to take holiday on 9 and 10 March for his sister’s wedding in Italy. On 9 March, Italy went into lockdown and UK government guidance stipulated 14 days’ isolation on return from Italy. On 10 March, M was told to keep his mobile and laptop on and wait for instructions. On 11 March, L sent a letter to M in London (despite knowing he was in Italy) advising that he had been dismissed with effect from 6 March for failing to follow company procedures and taking unauthorised leave. In absence of communication from L, M was told by B to continue working remotely and M sent information to L about travel restrictions in Italy. On 1 April, L sent M’s P45 and final payslip by email. M successfully claimed automatic unfair dismissal under section 100(1)(e).
The tribunal held that there were circumstances of danger, given the declaration of a pandemic and the risk of catching a contagious virus which could lead to serious illness and death, and that M reasonably believed the danger was serious and imminent. M had taken appropriate steps to protect himself and others. He had asked L for advice, instructions and assistance with documentation had L initially wanted him to fly to London. He had forwarded appropriate information about the situation in Italy. He was ready to receive communication and instructions for work on his mobile and laptop. When he didn’t hear from L he communicated direct with B and continued his work on a day-to-day basis. The purported dismissal letter had not been relevant to M’s circumstances and L’s evidence as to the reason for dismissal had not been credible. M had been dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.
Employment Status: Deliveroo riders do not fall within scope of trade union freedom right under Article 11 ECHR given lack of employment relationship with Deliveroo
The Court of Appeal in Independent Workers Union of Great Britain v Central Arbitration Committee and another  EWCA Civ 952 has unanimously held that Deliveroo riders do not fall within the scope of the trade union freedom right under Article 11 of the European Convention on Human Rights because they are not “in an employment relationship” with Deliveroo. The Central Arbitration Committee had been entitled to reach the conclusion it did given that Deliveroo riders are, genuinely, not under an obligation to provide their services personally and have a “virtually unlimited” right of substitution.
In reaching its decision, the court confirmed that the question of whether Article 11 is engaged in respect of the right to form and join trade unions should be determined having regard to the International Labour Organisation Recommendation 198 (2006). This broadly reflects the position taken in domestic law in identifying the characteristics not only of a contract of service but also a “worker contract”. In particular, it refers to the fact that work “must be carried out personally by the worker”. The absence of such an obligation, as in the case of Deliveroo riders, must therefore point away from worker status and an employment relationship. The decision reiterates the importance of personal service and the value of genuine and unfettered rights of substitution when seeking to argue that an individual is neither an employee nor a worker.
COVID-19: ET3 accepted out of time when employer argued it had not received notification of ET1 submitted in first lockdown
If a respondent wishes to defend an employment tribunal claim, it must present its response (using the prescribed ET3 form) to the tribunal office within 28 days of the date on which it was sent a copy of the claim by the tribunal. If the 28-day deadline has expired the respondent must make a written application for an extension of time, copied to the claimant, setting out the reason why the extension is sought and stating whether it requests a hearing. The application must be accompanied by either a draft of the response, or an explanation of why it is not possible to attach a draft.
In Fyfe v Arcadis Human Resources Ltd ET/4102033/2020 Mr Fyfe submitted an ET1, claiming breach of contract and age discrimination, during the initial phase of the first COVID-19 lockdown. The tribunal’s notification of the claim was not received by Arcadis Human Resources Ltd despite it having an operational post room with skeleton staff throughout lockdown. On 15 July 2020, Mr Fyfe sent Arcadis an email attaching his evidence prior to a final hearing on 17 July 2020. Arcadis immediately instructed a solicitor who contacted the tribunal to put himself on the record, request copies of the ET1 and indicate that Arcadis wished to defend the claim and apply for an extension of time to do so. On 16 July 2020, a written application and draft ET3 were sent to the tribunal. The hearing on 17 July 2020 was converted to a preliminary hearing to hear the application.
The tribunal accepted that these events occurred at an unprecedented time, when many individuals and organisations were adjusting to new working practices, and that Arcadis had not received notification of the claim. It noted the guidance on the exercise of discretion given by the EAT in Kwik Save Stores Ltd v Swain  ICR 49. Arcadis had acted swiftly once it knew of the claim. Considering the balance of prejudice, while Mr Fyfe would not now succeed on a “default judgment” basis, he might still prove his case. By contrast, if Arcadis was precluded from participating, it might have judgment against it in relation to serious matters. Given the overriding objective and interests of justice, the extension of time was allowed and the ET3 was accepted.
Compensation: Tribunal entitled to assess discrimination compensation on basis of career-long loss where claimant suffered from PTSD, depression and paranoia
The EAT, in Secretary of State for Justice v Plaistow UKEAT/0016/20 and UKEAT/0085/20, has upheld an employment tribunal’s decision to calculate compensation for direct sexual orientation discrimination and harassment on the basis of career-long loss. The employee suffered from PTSD, depression and symptoms of paranoia, as well as other functional impairments, and his conditions were likely to be life-long. His case was one of the rare cases where a career-long basis for assessment of financial loss was appropriate.
However, the EAT allowed appeals against various other aspects of the calculation, including the employment tribunal’s decision to apply only a 5% discount to reflect the possibility of employment being cut short for another reason (for example, due to early death, disability or other unforeseen circumstances) and its award of a 20% uplift for failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The EAT accepted that the employment tribunal had not demonstrated that it had considered the absolute financial value of the award it was making, despite having evidence that would have given it a clear indication of the probable level of award in issue (likely to be over £2 million).
The case is a rare example of an individual being treated so badly in their employment that the resulting injury was likely to be permanent, meaning that it was very unlikely that they would be able to return to any work before retirement age and therefore justifying compensation on a career-long basis.
Disability Discrimination: Tribunal erred in law by failing to consider claimant’s challenge to employer’s justification defence
In Brightman v TIAA Limited  UKEAT/0318/19 the EAT has held that a tribunal erred in law by failing to consider a claimant’s challenge to her employer’s justification defence in respect of her discrimination arising from disability claim.
Mrs Brightman had various long-term conditions and was disabled for the purpose of the Equality Act 2010. This was not in dispute. On 11 January 2017, she was dismissed by reason of capability on the basis of the available medical evidence, the fact that no further adjustments were possible, her unacceptable level of attendance (which her employer concluded was likely to continue) and the lack of alternative roles. She unsuccessfully appealed and brought various claims, including unfair dismissal and discrimination arising from disability. The tribunal dismissed her claims. She appealed to the EAT.
The EAT noted the following:
- Mrs Brightman’s last day of sickness absence was 24 October 2016 (two and a half months before her dismissal was confirmed), and she attended work throughout the dismissal and appeal processes.
- By the date of her dismissal, her GP report was over a year old and her OH report was based on a consultation from six months earlier (the referral being to assess her fitness to work).
- At the time of dismissal, she had a new central line, was under the care of a new medical team and was optimistic about the future.
The case was not about dismissing an employee on long-term sickness absence but dismissing a working employee because of the risk that she would have further periods of sickness absence in the future. The EAT concluded that the tribunal had impermissibly relied on employer medical evidence that post-dated the dismissal, which it had allowed to be introduced to fill the evidential “gap” and was irrelevant to the liability hearing. Regarding the discrimination arising from disability claim, Mrs Brightman’s absence record was the “something arising“. Her employer’s legitimate aim seemingly concerned the “unpredictable nature” of her absence and the need for other employees to provide cover. However, the tribunal erred by not adequately engaging with her arguments on justification (notably, in circumstances where her employer had been sustaining her absence levels for years). Employers must tread carefully before dismissing, even where an employee has had multiple periods of prolonged absence. Medical evidence relied on should be current, and the employee’s condition and prognosis at the time of dismissal considered.
Ethnic Pay Gap: CBI, TUC and ECHR sign letter calling for mandatory ethnic pay gap reporting
The Guardian reports that in a letter addressed to Cabinet Office minister Michael Gove, the Confederation of British Industry (CBI), the Trades Union Congress (TUC) and the Equality and Human Rights Commission (EHRC) have called for a clear timetable for the introduction of mandatory ethnic pay gap reporting. Citing the potential of data collection to solve racial inequality in the workplace, the signatories argue that mandatory reporting would highlight pay disparities and the lack of minority representation in senior positions with the hope that this would push employers towards action.
A government spokesperson indicated that the findings of the Commission on Race and Ethnic Disparities were still being considered and that the government would respond in due course. The Commission’s report did not recommend mandatory reporting.
Data Protection: European Commission adopts UK adequacy decisions
On 28 June 2021, the European Commission adopted the two UK adequacy decisions under the General Data Protection Regulation ((EU) 2016/679) and the Law Enforcement Directive. This means that personal data can now flow freely from the EU to the UK as the UK offers an equivalent level of protection to personal data as under EU law. The Department for Digital, Culture, Media and Sport has updated its guidance to confirm the decisions.
The decisions include sunset clauses that limit the decisions to four years, after which they will be reviewed.
The Information Commissioner, Elizabeth Denham, has welcomed the decisions as a positive result for UK businesses and organisations and a testament to the strength of the UK’s data protection regime, noting that “adequacy is the best outcome as it means organisations can carry on with data protection as usual“.
Flexible Working: CIPD warns there is a risk of developing a ‘two-tier’ workforce over access to flexible working
Website, People Management, has reported on a league table prepared by the CIPD over access to flexible working using analysis by the HR body of the Office for National Statistics’ Labour Force Survey data. It reports that “the UK is at risk of becoming a two-tier workforce when it comes to who has access to flexibility with some regions of the country already becoming flexible ‘notspots’”, because some areas of the country have much better access to flexible working than others.
Flexibility was measured by looking at 1) where employees were permitted to work, 2) how informally flexible working policies were operated, including how start and end times were determined and 3) whether employees were able to take leave on short notice.
It turns out employees in the south-east of England have the best access to flexible working options, followed by the east of England and Northern Ireland, which the CIPD states reflects the predominance of certain sectors in different parts of the country, as well as areas with a higher concentration of higher-skilled and higher-paid jobs, which are concentrated in London and the south east.
Low Pay: In-work Progression Commission report on removing barriers faced by those on low pay
On 12 October 2020, the Department for Work and Pensions (DWP) launched a call for evidence seeking views on challenges to progression in low-pay sectors, benefits of progression to employers and localities, and examples of good practice across the country. On 1 July 2021, the DWP published the In-Work Progression Commission’s report ‘Supporting progression out of low pay: a call to action’. The report notes that people in low-pay sectors find it very hard to progress to, and stay in, higher earning work. The reasons for this include a lack of skills, logistical challenges, such as a lack of suitable transport or childcare arrangements, as well as confidence and motivational barriers. It recommends that employers play their role in minimising and removing these barriers and in establishing a culture of lifelong learning to support their workforces. Developing skills and an understanding of the value of continual learning is essential to help people in low pay sustainably progress in work.
Employers should adopt the “5-point progression checklist“:
- an individualised progression and learning plan,
- shadowing and work experience, and
- supporting professional development.
They should also develop transparent progression pathways to ensure that entry-level jobs are a stepping-stone. An appropriate senior leader should be responsible for embedding support for progression into management practice. Employers should know about the transport and childcare options available to their staff and use this to inform business practice.
The report recommends that the government works with employers to consider how employers can be supported to accurately monitor individual progression over time, increasing transparency around in-work progression, with particular focus on those in the lowest-skilled roles. This could include developing an appropriate metric to track individual progression and looking at whether, in the longer term, pay reporting data should be part of annual company reports. The report recommends that care workers in England should be registered under a central body (as in the Devolved Administrations) which can manage and certify their registration, training and ongoing professional and skills development.
COVID-19: Treasury direction extending Self-Employment Income Support Scheme to 30 September 2021
On 6 July 2021, HM Treasury issued a further Treasury direction under sections 71 and 76 of the Coronavirus Act 2020, modifying and extending the terms of the Self-Employment Income Support Scheme (SEISS) to cover the period beginning on 1 May 2021 and ending on 30 September 2021. In particular, the Treasury direction provides for claims for the fifth SEISS grant (SEISS 5) to be submitted on or before 30 September 2021 in respect of that period. A claim cannot be amended after 30 September 2021. Applications for SEISS 5 will open from late July 2021.
The amount of the grant will be determined by a turnover test. Individuals whose turnover has fallen by 30% or more will receive 80% of three months’ average trading profits, capped at £7,500. However, individuals whose turnover has fallen by less than 30% will receive a 30% grant, capped at £2,850.
ACAS: New guidance published on hybrid working
On 13 July 2021, ACAS published new guidance on hybrid working to help employers consider whether it could be an option for their workplace and how to fairly introduce it. ACAS has also published the results of a survey showing that over half of employers expect an increase in employee requests for flexible working. The advice includes tips for employers on how to:
- Consult with staff on the practical considerations regarding introducing hybrid working.
- Support and manage staff who are hybrid working and ensure all hybrid workers are treated fairly.
- Create a hybrid working policy.
- Handle hybrid working requests from staff.
It advises employers to consider whether technology could assist hybrid working, and issues such as health and safety, data privacy, cybersecurity, onboarding new joiners, and how teams will communicate remotely.
The guidance was developed after consultation with the government’s Flexible Working Taskforce which previously recommended that flexible working should be the default position for all workers.
Flexible Working: SMF survey reveals that 80% of workers would be against a four-day working week in exchange for lower pay
Personnel Today reports that a briefing paper published by the Social Market Foundation (SMF) records that 80% of workers surveyed would not be in favour of a four-day working week, if it meant that they earned less. While workers in banking (14%), energy & water (13%), manufacturing (13%), transport & communication (13%), and construction (12%) were most likely to say they wanted to work less, those working in the hospitality (14%), other services (12%), and public administration sectors (8%) were most likely to say they wanted to work more hours.
The survey also found that the workers who stood to benefit most from a four-day week were more likely to be higher earners, those in higher occupational classes, and men.
The introduction of a four-day working week is one of the proposals currently being considered by the government’s flexible working taskforce following a call from cross-party MPs.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: email@example.com