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Emplaw Monthly - End of February 2021

FOCUS ON EMPLAW CONTENT

A reminder that a general note on the effect of Brexit on employment law and Emplaw content is found at  Statement on impact of Brexit on Emplaw Online content. Further background  is found in the  law card  (full content for subscribers only) The European Union (Withdrawal Agreement) Act and the legislative history and impact of Brexit

NEW FROM OUR AUTHORS

Uber drivers win in the Supreme Court

Barristers from Cloisters, one of Emplaw's key authoring chambers, represented Uber drivers who the Supreme Court has finally and conclusively determined, are workers and not independent contractors. This article explains the key points in this far reaching decision and links to the full judgement.

Read here

IR35 reforms and international issues

The new IR35 rules are on their way from April and can become quickly complex where a contractor is based outside the UK. This article from Emplaw authors Lewis Silkin looks at some of the frequently asked questions. 

Read here

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

Some flexibility for gender pay gap reporting this year

The Equality and Human Rights commission has announced enforcement action against employers failing to report their gender pay gap will start on 5 October 2021. This gives those required to meet the regulations an additional six months to report their data before legal action begins.

For more information on Gender Pay Gap Reporting please, see January’s Emplaw Monthly and  Emplaw Law card Equal pay and terms: key card

https://www.equalityhumanrights.com/en/our-work/news/gender-pay-gap-regulation-enforcement-start-october

HMRC Policy paper: supporting organisations to comply with changes to the off-payroll working rules (IR35)

HMRC has published a policy paper setting out how it will support affected organisations to comply with changes to the off-payroll working rules (IR35) from 6 April 2021 and how it will intervene if customers deliberately do not comply.

https://www.gov.uk/government/publications/hmrc-issue-briefing-supporting-organisations-to-comply-with-changes-to-the-off-payroll-working-rules-ir35

Data Protection – EC publishes draft adequacy decisions

An adequacy decision is important to continue the flow of personal data from the EU to the UK.

When the Brexit transition period ended, the UK became a third country and the GDPR restricts transfers of personal data to third countries, unless it is protected in another way, or an exception applies. One such way is an ‘adequacy decision’ which means that the European Commission has determined that a third country has an adequate level of data protection and so personal data can be sent from an EEA state to a third country without any further safeguard being necessary.

The EU-UK Trade and Cooperation Agreement contains a bridging mechanism that allows the continued free flow of personal data from the EU/EEA to the UK after the transition period until adequacy decisions come into effect for up to 6 months.

The draft decisions now need to be approved by representatives from the EU member states. The UK has urged the EU to fulfil its declared commitment to complete the technical approval process swiftly.

https://www.gov.uk/government/news/uk-government-welcomes-the-european-commissions-draft-data-adequacy-decisions 

Public sector exit payment cap revoked

The government is revoking the Public Sector Exit Payments Regulations 2020 which place a £95,000 cap on public sector exit payments. After review of the application of the cap, the government concluded that it may have had unintended consequences and that the Regulations should be revoked.

https://www.gov.uk/government/publications/guidance-on-public-sector-exit-payments

REPORTS AND CONSULTATIONS

Department for Education: Skills for jobs white paper

The Department for Education has published a white paper which sets out reforms to post-16 technical education and training to support people to develop the skills needed to get good jobs and improve national productivity.

https://www.gov.uk/government/publications/skills-for-jobs-lifelong-learning-for-opportunity-and-growth

CIPD: Inclusion at Work – perspectives on LGBT+ working lives

The CIPD has published research on the LGBT experience at work, highlighting the key barriers and enablers to help improve LGBT+ workplace inclusion.

The research notes that LGB+ and trans workers report higher levels of workplace conflict than heterosexual, cisgender workers, with 29% of heterosexual employees saying they had experienced workplace conflict in the last 12 months, compared with 40% of LGB+ employees.

When conflicts occurred, many reported the issue hadn’t been fully resolved. Close to half (44%) of LGB+ workers who had experienced being undermined or humiliated said this had not been resolved, and almost four in ten said this had only been partly resolved (38%).

https://www.cipd.co.uk/knowledge/fundamentals/relations/diversity/inclusion-perspectives-lgbt

Mental Health and Income Commission: Closing the Gap

The Mental Health and Income Commission has published a report ‘Closing the Gap’ on the connections between income and mental health. The Covid-19 pandemic has made this issue more urgent. This final report presents new research that shows that the mental health income gap is at risk of widening even further without urgent action.

https://www.moneyandmentalhealth.org/wp-content/uploads/2021/02/MMH-Closing-the-Gap.pdf

COVID-19 MATERIALS

Covid and the workplace 

BEIS: Working safely during coronavirus – updated for workplace testing and vaccination

The government has updated its guidance on working safely during COVID-19 for different workplaces, most recently for workplace testing and vaccination information. Updated guidance includes advice that it is important to follow the working safely measures, even if employees have:

  • received a recent negative test result
  • had the vaccine (either 1 or 2 doses)

And that employers can order rapid lateral flow tests, to test employees with no coronavirus symptoms. Employers can register to order tests if:

·       their business is registered in England

·       they employ 50 people or more

·       their employees cannot work from home

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

ET rules that dismissal for refusing to wear face mask was fair

The claimant is a delivery driver who refused to wear a face mask when requested by personnel at the delivery premises. The ET held that dismissal

 in the circumstances, which included the importance of maintaining good relationships with clients, fell within the range of reasonable responses.

https://www.bailii.org/uk/cases/UKET/2021/3201960_2020.html

CJRS

Treasury direction on extension of CJRS to 30 April 2021

The sixth Treasury direction on the Coronavirus Job Retention Scheme extends the scheme from 1 April 2021 to 20 April 2021.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/955806/210120_CJRS_DIRECTION_No_6___CJRS_extension_1_February_-_31_April__-_signed__2_.pdf

Publication of employers who have claimed through the CJRS

Monthly data on claims made by employers through the Coronavirus Job Retention Scheme is published but employers can ask HMRC not to publish claim details if you are an employer and publishing your claim details could leave individuals at risk of violence or intimidation.

https://www.gov.uk/government/publications/employers-who-have-claimed-through-the-coronavirus-job-retention-scheme

https://www.gov.uk/guidance/ask-hmrc-not-to-publish-your-coronavirus-job-retention-scheme-claim-details

Useful links to Government updated government guidance

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

https://www.gov.uk/guidance/steps-to-take-before-calculating-your-claim-using-the-coronavirus-job-retention-scheme

https://www.gov.uk/guidance/calculate-how-much-you-can-claim-using-the-coronavirus-job-retention-scheme

General

Women and Equalities Committee: Unequal impact?

The House of Commons Women and Equalities Committee  examines the work of the Government Equalities Office (GEO). Its remit is to hold Government to account on equality law and policy, including the Equality Act 2010 and cross Government activity on equalities. It also scrutinises the Equality and Human Rights Commission. It is currently undertaking a number of interesting enquiries and most recently  has published a report on the gendered impact of coronavirus. It notes that the job retention scheme and self-employment income support scheme overlooked the specific labour market and caring inequalities faced by women. It makes specific recommendations.

The Committee is awaiting Government's  response to its previous reports on Unequal impact? Coronavirus, disability and access to services and Unequal impact? Coronavirus and BAME people

https://committees.parliament.uk/publications/4597/documents/46478/default/

https://committees.parliament.uk/committee/328/women-and-equalities-committee/

CASES: 

Allay (UK) Ltd v Gehlen [2021] UKEAT 0031/20

Employer’s defence to liability for employee’s discriminatory actions - race discrimination training had become stale

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Chalmers v Airpoint Ltd & Ors [2014] UKEAT 0031/19

ET was entitled to hold that a reference to discrimination but not sex discrimination in grievance email was insufficient to establish a “protected act” of harassment or victimisation 

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Cumming v British Airways Plc [2021] UKEAT 0337/19

Identifying ‘particular disadvantage’  in a claim of indirect discrimination

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Gordon v J & D Pierce (Contracts) Ltd [2021] UKEAT 0010/20

Engaging with the grievance process does not affirm the contract

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Northbay Pelagic Limited v Colin Anderson UKEAT/0029/18

Unfair dismissal : Covert surveillance by employee – employer  omitted to conduct a balancing exercise between the right to privacy and employee’s  wish to protect his confidential information

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Penhallurick v MD5 Ltd [2021] EWHC 293

Employer was owner of works created during employment

In this case, Mr Penhallurick claimed ownership of copyright in eight works, all of them relating to a technique he called "Virtual Forensic Computing", or "VFC". He alleged infringement of his copyrights by his former employer ("MD5").

MD5 asserted that it owned the copyrights and counterclaimed for a declaration to that effect, also claiming that Mr Penhallurick was in breach of his contract of employment and had infringed MD5's copyrights.

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