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Emplaw Monthly - End of March 2021

NEW FROM OUR AUTHORS

Keeping it Simple… A blog on the Asda Stores v Brierley UKSC decision

An incisive article from Daphne Romney QC of Cloisters, one of Emplaw's key authoring chambers, explaining how the latest judgment in this equal pay litigation clarifies and simplifies the law concerning comparators at different establishments under s.79 EqA but leaves other questions unresolved.

https://www.cloisters.com/keeping-it-simple-a-blog-by-daphne-romney-qc-on-the-asda-stores-v-brierley-uksc-decision/

National Minimum Wage And 'Sleep-In' Shifts: What Do You Need To Know?

This article, from Emplaw authors Gowling WLG, explains the recent Supreme Court judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad t/a Clifton House Residential Home on the rights of sleep in care workers to the NMW.

https://gowlingwlg.com/en/insights-resources/articles/2021/nmw-and-sleep-in-shifts-sleeping-on-the-job/

Coronavirus vaccination – FAQs for employers

A useful set of FAQs from Emplaw author Lewis Silkin covering whether an employer can make vaccination compulsory for its employees, alternatives to a mandatory requirement, time off for vaccine appointments, dealing with vaccine objectors, data privacy concerns and other issues.

https://www.lewissilkin.com/en/insights/coronavirus-vaccination---faqs-for-employers

FOCUS ON EMPLAW CONTENT

As we confront the post Brexit realities, the Emplaw law card Employing EU citizens in the UK in the context of Brexit (including points based immigration) provides useful coverage of issues such as right to work checks in new world. Full content for Emplaw subscribers only.

The card is part of the Emplaw suite of cards on matters relating to Recruitment.

https://www.emplaw.co.uk/lawguide/recruitment

NEWS

Legislation and Regulation

National Minimum Wage Amendments

The National Minimum Wage (Amendment) Regulations 2021 have been published. The changes come into force on 1 April 2021.

The single hourly rate of the National Living Wage for working people aged 25 or over will increase to £8.91 (current rate £8.72). The NLW will now apply to workers from age 23.

Other national minimum wage increases are:

21-22 year rate £8.36 (current rate £8.20)

18-20 year rate £6.56 (current rate £6.45)

Under 18-year rate £4.62 (current rate £4.55)

Apprentice rate £4.30 (current rate £4.15)

Accommodation offset (day rate) £8.36 (current rate £8.20)

The Regulations also extend the period for which an employer must keep records sufficient to establish that it is paying a worker at a rate at least equal to the applicable minimum wage rate from three years to six years.

https://www.legislation.gov.uk/ukdsi/2021/9780348221657/contents

ET awards increase

From 6 April 2021 the limits on employment tribunal awards will increase:

  • a week’s pay will increase to £544
  • maximum unfair dismissal compensatory award will increase to £89,493.
  • basic award for certain unfair dismissals (including health and safety dismissals) will increase to £6,634.
  • there is no change to the limit to maximum guarantee payment which stays at £30.

These new rates will apply to dismissals where the effective date of termination falls on or after 6 April 2021.

https://www.legislation.gov.uk/uksi/2021/208/made

Statutory Pay Rates annual April 2021 increases

The April 2021 annual increase to statutory payments are:

  • Statutory maternity, paternity, adoption and shared parental pay will be £151.97 (up from £151.20).
  • Statutory sick pay weekly rate will be £96.35 (up from £95.85).

https://www.legislation.gov.uk/uksi/2021/162/contents/made

Off-payroll (IR35) changes

On April 6th, the changes to the off-payroll (IR35 rules) come into force. The off-payroll provisions require that, where there is a contract for personal services via an intermediary (for example a personal service company ‘PSC’) an assessment must be made as to whether, if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client.

The April changes shift the responsibility for deciding if the IR35 rules apply and accounting for the necessary taxes from an individual worker’s PSC to the end client (unless it is a small company) in the private sector.  

Key points include:

  1. The provisions apply where personal services are being provided. The rules do not cover contracts for outsourced services.
  2. The end client has to take reasonable care in making the assessment and to issue a Status Determination Statement.
  3. The party who pays the contractor must pay the Income Tax and NICs (employer’s and employee’s) to HMRC and pay the net amount to the PSC. Sometimes the end client and fee payer will be the same entity but, in other cases, they may be different, where, for example, an agency engages and pays the individual’s PSC. 
  4. The changes take effect for payments made after 5 April 2021 in respect of labour provided after that date.

For more information, please see Emplaw Law card Employee or Self Employed

There is information published on GOV.UK at Off-payroll working (IR35): detailed information

Technical changes to make sure off-payroll working legislation operates as intended

Protection from detriment in health and safety extended to workers

Following the success of the Independent Workers' Union of Great Britain in IWGU v SS for Work and Pensions [2020] EWHC 3050, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 comes into force on 31 May 2021.

The Order extends to workers the current right of employees not to be subjected to a detriment for taking steps to protect themselves in circumstances of danger which they reasonably believe to be serious and imminent.

The Order will amend section 44 of the Employment Rights Act 1996 (“the Act”) to extend the rights conferred previously in section 44(1)(d) and (e) of the Act to limb (b) workers (referred to as limb (b) as they fall within the definition of "worker" in section 230(3)(b) of the Act) as well as employees. It is Section 44(1)(d) and (e)which currently give employees the right not to be subjected to a detriment by their employer for leaving or refusing to return to their workplace or for taking steps to protect themselves in circumstances of danger which they reasonably believe to be serious and imminent. This amendment will repeal section 44 (1)(d) and (e) and insert a new provision at section 44 (1A) which will provide both employees and limb (b) workers will have the right not to be subjected to detriment in health and safety cases.

https://www.legislation.gov.uk/ukdsi/2021/9780348221657/introduction

Statement of changes to the Immigration Rules

The government has published a statement of changes to the Immigration Rules to be implemented on 1st April. The changes being made primarily deliver the new Graduate route and associated changes required to other routes, as well as changes to the EU Settlement Scheme.

https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1248-4-march-2021

Litigation

Updated guidance on compensating for pension loss in ET claims

The Third Revision of the Employment Tribunals Principles for Compensating Pension Loss has been updated and a fourth edition published.

https://www.judiciary.uk/wp-content/uploads/2013/08/Principles-Third-Revision-2021.pdf

Employment Tribunal quarterly statistics

The ET quarterly statistics October – December 2020 have been published, listing the type and volume of tribunal cases received, disposed of or outstanding.

There has been a fall in Tribunal receipts for most jurisdictions apart from Employment Tribunals, where demand rose to above pre-C19 levels in both Single and Multiple receipts; most likely due to the rise in unemployment and changes to working conditions seen during the COVID-19 pandemic. The return of face to face hearings, as well as the substantive use of remote hearings in courts, has increased ET disposals back to pre-C19 levels. 

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-october-to-december-2020

Reports, consultations and other news

Parker Review 2021 update report on ethnic diversity on boards

The Parker Review committee has published the results of its latest survey of FTSE 100 companies which shows that 74 FTSE 100 companies had ethnic minority representation on their company boards as of 2 November 2020.

https://www.ey.com/en_uk/news/2021/03/significant-process-on-improving-ethnic-diversity-of-ftse-boards-reveals-new-data

https://assets.ey.com/content/dam/ey-sites/ey-com/en_uk/news/2021/03/parker-review-appendix.pdf

FCA speech on diversity and inclusion

Nikhil Rathi chief executive of the FCA has given a speech on diversity and inclusion at the launch of the HM Treasury Women in Finance Annual Review.

https://www.fca.org.uk/news/speeches/why-diversity-and-inclusion-are-regulatory-issues

Consultation on corporate governance

BEIS has published a consultation paper on government proposals. The consultation is called , Restoring trust in audit and corporate governance, and closes on 8th July 2021

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/970673/restoring-trust-in-audit-and-corporate-governance-command-paper.pdf

Modern Slavery statement registry

The government has launched the modern slavery statement registry to find or add statements and to see what other organisations are doing to eliminate modern slavery from their operations and supply chains.

The registry follows commitment from the government to strengthen the reporting requirements under section 54 of the Modern Slavery Act 2015, following the Transparency in Supply Chains Consultation, and publication of the world’s first Government Modern Slavery Statement in March 2020.

https://modern-slavery-statement-registry.service.gov.uk

COVID-19 Materials

General

Four stage roadmap

The government has published a four-stage roadmap out of the coronavirus restrictions and published the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (SI 2021/364) (Step Regulations). These Regulations came into force on 29 March and apply in England. They implement the remainder of Step 1 and Steps 2 and 3 of the UK government's COVID-19 response roadmap.

https://www.legislation.gov.uk/uksi/2021/364/contents/made

https://www.gov.uk/government/publications/covid-19-response-spring-2021

Unlocking across the UK

Links to timetables across England, Scotland, Northern Ireland and Wales are found at the site below together with information on recent and upcoming changes.

https://www.gov.uk/coronavirus

New shielding guidance

On 18th March, the government updated its Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19.

https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19

Covid and the Workplace

Acas guidance on testing and vaccination

Acas has published very useful guidance for employers on testing for coronavirus which includes advice on resolving issues about staff testing.

Acas have also published advice on the coronavirus (COVID-19) vaccine, including time off work and whether employers can compel staff to be vaccinated.

These compliment  Acas’ existing guidance on Working safely during coronavirus

https://www.acas.org.uk/working-safely-coronavirus/testing-staff-for-coronavirus

https://www.acas.org.uk/working-safely-coronavirus/getting-the-coronavirus-vaccine-for-work

https://www.acas.org.uk/working-safely-coronavirus

CJRS

CJRS updated guidance

On 25th March, the government has updated its guidance for employees on the coronavirus job retention scheme, which includes how to access information submitted by employers under the scheme.

https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme

CASES: 

RJ v Stadt Offenbach am Main Case C580/19

Stand by time is working time when the worker’s ability to freely manage their time is constrained objectively and very significantly

This request for a preliminary ruling concerns the interpretation of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time.

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Radiotelevizija Slovenija (Periode d'astreinte dans un lieu recule) [2021] EUECJ C-344/19

Even where stand by time is not working time the employer needs to consider its broader health and safety obligations

In this case the same issues as in RJ v Stadt Offenbach am Main above (i.e.  standby and working time) were considered. The facts in this case concerned the salary claimed by D. J. for services consisting in stand-by time according to a stand-by system that he had provided. 

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Tesco Stores Ltd v K Element & Ors [2021] UKEAT 0228/20

Equal pay claim- order for disclosure and further information was permissible where the request was not for the purposes of finding a claim but in order to narrow and particularise existing ones

The issue in this appeal is whether the ET erred in making Orders against Tesco (which was defending around 9,000 claims) for the disclosure of documents and provision of information relating to comparators. Tesco claimed that the pleaded cases disclosed no prima facie case that would warrant such Orders being made and amounted to an impermissible fishing expedition.

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Page v NHS Trust Development Authority [2021] EWCA Civ 255

No discriminatory dismissal where executive director’s contract was not renewed for repeated media appearances criticising same sex adoptions

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Case Summary Tag: 

Page v Lord Chancellor & Anor [2021] EWCA Civ 254

Magistrate was fairly removed for media comments on same sex relationships

This case is on the same facts as in the case reported in Page v NHS Trust Development Authority [2021] EWCA Civ 255 but this appeal concerns the magistracy case (see above).

Mr Page was appointed as a magistrate in 1999 and signed a Declaration and Undertaking in these terms:

"I acknowledge and undertake:

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Uber BV & Ors v Aslam & Ors [2021] UKSC 5

Supreme Court rules Uber taxi drivers to be workers

The Supreme Court has ruled that a group of Uber taxi drivers are workers and are entitled to claim national minimum wage, holiday pay and whistleblowing protection.

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Greater Glasgow Health Board v Neilson [2021] UKEAT 0013/20

EAT rules that ET failed to consider practicability when considering re-engagement

Dr Neilson was dismissed by Greater Glasgow Health Board (the Board) immediately prior to a transfer from the Board to a third party under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

He brought a claim for unfair dismissal against the Board alone in which he claimed that his dismissal was unfair in terms of Regulation 7(1) of TUPE.

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Case Summary Tag: 

Independent Workers Union of Great Britain, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy & Ors [2021] EWCA Civ 260

Judicial review upholds paragraph 35 of Schedule A1 to TULRCA 1992 in declining recognition where there was in force a collective agreement under which another independent trade union was recognised

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McTear Contracts Ltd v Bennett & Ors [2021] UKEAT 0023/19

TUPE : transfer of full time contract can be split into separate part time contracts in service provision change

This case applies an ECJ decision concerning transfers of businesses under the EU Acquired Rights Directive 2001/23.

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Case Summary Tag: 

Evergreen Timber Frames Ltd v Harrington [2021] UKEAT 20/0072/20

Claimant could not accept part only of severance package and claim it as a term of the contract

This appeal concerns the ownership of a company car as part of severance terms following a termination agreement. The ET had upheld Mr Harrington’s claim and awarded him damages of £8,400 which it found to be the value of the car.

Mr Harrington’s breach of contract claim was formulated in this way:

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Case Summary Tag: 

Smith v Pimlico Plumbers Ltd [2021] UKEAT 0211/19

Worker status claims for holiday were brought out of time

This appeal concerns Mr Smith’s successful claim to worker status in the Supreme Court;  however, Mr Smith was unable to claim compensation for lost holiday pay as he was found to  have brought his claims out of time.

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