Emplaw Monthly - End of April 2021
FOCUS ON EMPLAW CONTENT
Holiday and holiday pay are always tricky issues. Indeed, only this month we report on the EAT decision that a claim for holiday pay from the Pimlico Plumbers' worker was brought out of time. The newly refreshed Emplaw law card Holiday and Holiday Pay from Morrish Solicitors provides a useful guide. Full content for Emplaw subscribers only.
The card is part of the Emplaw suite of cards on matters relating to Working Time, Holidays & Time Off Work.
Click here for the full list of cards.
NEW FROM OUR AUTHORS
Coronavirus: absences from work and entitlement to pay
A really useful summary table from Emplaw authors Lewis Silkin of legal rights to pay and suggested best practice for different types of absence.
Morrish Solicitors’ Free Webinar on employment status
Morrish Solicitors will be hosting a webinar, on Employment Status following the Uber Supreme Court ruling last month. It will be held on Thursday 27th May at 12pm.
COVID-19: Back to the Future: CJRS extension Q&A
Up to date Q&As from Emplaw authors Gowling WLG as the CJRS is extended until 30th September 2021 and the latest Treasury Direction was published on 15th April 2021.
EMPLOYER/ADVISOR NEED TO KNOW
FCA speech on Black inclusion
Sheldon Mills, FCA Executive Director of Consumers and Competition, has given a speech on why Black inclusion matters to the regulator. Mills was speaking at the launch of New Financial’s research report, Accelerating Black Inclusion. The report focuses on progression issues “as told by those who have already made it” because, as New Financial highlight, “so much of the industry’s response so far has focussed on entry level programmes. Without parallel attention on progression, the new intake cannot be converted into a sustainable executive pipeline”.
TUC Union Health & Safety Reps Survey
The TUC has published the Union Health & Safety Reps survey 2020/2021. The report is used by the TUC to understand the changing experience of safety representatives at work and to help provide more support. The survey is also used to inform public policy debates. This year’s survey also addresses the impact of COVID-19.
‘Technology Managing People – employment implications’
Cloisters chambers has produced a comprehensive report to the TUC on the legal implications of artificial intelligence systems in the post-pandemic workplace. The Report should be read in conjunction with the TUC’s own paper ‘Technology managing people: the Worker Experience’.
REPORTS AND CONSULTATIONS
Commission on Race and Ethnic Disparities Report
The Commission on Race and Ethnic Disparities has published its report, which has received some criticism in the wider media.
The Commission puts forward 24 recommendations to improve the lives and experiences of individuals and communities across the UK. The recommendations are aimed at forwarding 4 overarching aims:
- to build trust between different communities and the institutions that serve them
- to promote greater fairness to improve opportunities and outcomes for individuals and communities
- to create agency so individuals can take greater control of the decisions that impact their lives
- to achieve genuine inclusivity to ensure all groups feel part of UK society.
Homeworking hours, rewards and opportunities in the UK: 2011 to 2020 (ONS study)
The Office for National Statistics has published a study on working from home, considering the impact of the coronavirus pandemic. There has been an unprecedented increase in homeworking in 2020, driven by the coronavirus (COVID-19) but the study uses objective indicators related to productivity that are consistent before and during the pandemic. A few key findings:
- People who mainly worked from home were less than half as likely to be promoted than all other workers between 2012 and 2017, when controlling for other factors.
- People who mainly worked from home were around 38% less likely on average to have received a bonus compared with those who never worked from home between 2013 and 2020, when controlling for other factors.
- People who completed any work from home did 6.0 hours of unpaid overtime on average per week in 2020, compared with 3.6 hours for those that never work from home.
- There is considerable regional variation in homeworking, not all of which is explained by differences in the types of industries that operate in each region.
- Homeworkers were more likely to work in the evenings compared with those who worked away from home in September 2020.
- The sickness absence rate for workers doing any work from home was 0.9% on average in 2020, compared with 2.2% for those who never worked from home in their main job.
BEIS Consultation: Restoring Trust in audit and corporate governance
BEIS has published a consultation on reforming audit and corporate governance.
BEIS notes that the current framework of corporate governance and reporting is inadequate in holding the directors to account in the rare but serious case that they neglect their reporting responsibilities. The government proposes to strengthen the new regulator’s powers relating to its corporate reporting review work. The key measures proposed are:
- ARGA to have powers to direct changes to company reports and accounts, rather than having to seek a court order which is the position at the moment;
- increased transparency for the existing Corporate Reporting Review process, by enabling ARGA to publish summary findings following a review and, if necessary, full correspondence;
- the extension of the Corporate Reporting Review process to the whole of the annual report and accounts. This will ensure that ARGA can review areas that are not currently within the scope of its powers such as corporate governance statements and directors’ remuneration and audit committee reports as well as voluntary elements such as the CEO and chairman’s reports.
The consultation covers a number of areas for suggested reform and also addresses whistleblowing, noting the Brydon review recommendations that whistleblowing protections should be extended from employees to anyone with a direct economic relationship to the audited entity. The government has committed to conducting a review of whistleblowing in due course.
LITIGATION AND LEGISLATION
Vento guidelines updated
The guidelines for injury to feelings damages in discrimination claims have been increased. This Fourth Addendum to the Presidential Guidance originally issued in September 2017 applies to claims presented from 6 April 2020.
The bands are now as follows:
· Lower band: for less serious cases: £900 to £9,100
· Middle band: for cases that do not merit an award in the upper band: £9,100 to £27,400
· Upper band: for the most serious cases: £27,400 to £45,600
· Note that the most exceptional cases may exceed £45,600
Legal officers to carry out some judicial functions in employment tribunals
A new Practice direction authorises legal officers to carry out such functions as set out in S10B(3) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) (2013 Regulations), as the President of the Employment Tribunals in England ,Wales and or in Scotland shall specify from time to time. The functions must be under the supervision of an Employment Judge and a party may within 14 days after the date on which a Tribunal sends notice of any decision made by a legal officer to a party, apply in writing to the Tribunal for that decision to be considered afresh by an Employment Judge.
The Practice Direction follows the introduction of The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (S.I. 2020/1003), regs. 1(2), 4 which inserted S10B(3) into The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to provide for responsibilities for legal officers.
Covid and the Workplace
End to temporary adjustments to right to work checks
The government has announced that the temporary adjustments to right to work checks due to COVID-19 are due to come to an end on 17 May 2021. From that date, employers must check the applicant’s original documents or check the applicant’s right to work online, if they have provided their share code. Given that many employees, including those who might be responsible for carrying out the checks, will not be back in the workplace before 17th May, the announcement has faced some lobbying for it to be reversed.
DHSC consults on making COVID vaccination a condition of work
The consultation relates to proposals for a mandatory requirement for people who are deployed in care homes with older adult residents to be vaccinated. The consultation says that the regulations will allow for exemptions on medical grounds but leaves open the question of whether that would include pregnant women.
The consultation closes on 21st May.
Claim of unfair dismissal from employee who left the workplace until the lockdown eased fails
The claimant brought an unfair dismissal claim alleging that he was dismissed because he refused to return to the workplace and the reason was because he feared he would infect his vulnerable children with COVID-19 . He argued that this amounted to a reasonable belief of serious and imminent danger (dismissal on such grounds being automatically unfair dismissal under s100(1) ERA). On the very specific facts, including the precautions which the employer had taken and the actions of the claimant (which included not taking any steps to avert danger or raise concerns with his manager before absenting himself from work) , the Employment Tribunal did not uphold his claim.
Roadmap reviews and roadmap regulations
On 5th April, the government updated its roadmap reviews detailing progress on the four reviews:
The Covid-Status Certification Review,
Global Travel TaskForce,
Events research Programme,
Social Distancing Review.
The government published The Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 regulations in March setting out its roadmap out of the lockdown restrictions. The regulations came into force on 29 March 2021 and end on 30 June 2021.
Employment Tribunals road map for 2021-22
The Tribunals Judiciary has published a road map for listing and hearing cases and outlines the plans for ET video hearings, which are not simply a response to the pandemic itself.
The covid pandemic and human rights
The Equality and Human Rights Commission has issued various guidance as well as advice to government during the course of the pandemic. It has recently expressed concern over the Covid status certification (‘vaccine passports’)review
Updates from 1st May
See the up-to-date Q&As from Emplaw authors Gowling WLG as the CJRS is extended until 30th September 2021 and the latest Treasury Direction was published on 15th April 2021. The article includes links to the latest government guidance.
Under the Seventh Treasury Direction which applies to the extension of the scheme from 1 May to 30 September 2021, the scheme is available in respect of employees, on any type of contract, who were on the employer’s PAYE payroll on or before 2 March 2021. The employee does not need to have been furloughed previously under the CJRS.
Foster carers can form a union- to rule otherwise would breach Article 11 ECHR
This appeal concerns the rights of foster carers to form a trade union. At least two established trade unions have foster carers as members, the GMB and the Independent Workers Union of Great Britain ("the IWGB"), but there is no trade union exclusively for them.
Supreme Court upholds equal pay claims
This appeal concerns equal pay claims brought by (predominantly) women employed in Asda’s retail business. They brought claims seeking compensation on the basis that in the six years prior to the inception of proceedings they received less pay than a valid comparator for work of equal value to that done by the comparator.
Time spent sleeping whilst on call does not count towards calculation of the NMW
A question that has proved problematic in terms of the national minimum wage legislation is the extent to which someone should be treated as being at work when they are asleep. This is of particular concern in the care sector.
Meaning of ‘substantial’ when considering the effect of a disability
This appeal concerns an ET judgment that the claimant was not a disabled person within the meaning of section 6 Equality Act 2010.
Section 6 EqA 2010 provides:
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and