Emplaw Monthly - End of May 2021
NEW FROM OUR AUTHORS
Webinar - TUPE Back to Basics
This one hour, free, on demand webinar from Emplaw authors Gowling WLG is designed to help master the fundamental concepts of TUPE if it's not something you regularly deal with, or want a refresher on how TUPE works.
An overview of the law and current practice relating to apprentices from Emplaw authors Lewis Silkin
EMPLOYER/ADVISOR NEED TO KNOW
Key points in BEIS updated guidance on calculating National Minimum Wage for sleep-in workers
The BEIS guidance has been updated following the Supreme Court’s decision in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad ( EWCA Civ 1641). The section on ‘Special situations’ includes some examples and includes the following key points:
· That the Supreme Court has clarified that sleep-in workers are only working and eligible for minimum wage when they are ‘awake for the purposes of working’. They are not entitled to minimum wage when they are permitted to sleep .
· The position is different where workers are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy). In such cases it is likely that at least the minimum wage must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time.
· For time work and salaried hours work, the National Minimum Wage Regulations expressly require that, in order for the time spent asleep not to be eligible for minimum wage purposes, the employer must provide suitable sleeping facilities. If suitable sleeping facilities are not provided then the minimum wage must be paid for the entire shift.
· Each case may be different depending on individual circumstances, including what the contract provides and what is happening in practice.
Adjusted right to work check measures extended to 20 June 2021
The temporary COVID-19 adjusted right to work checks will now end on 20 June 2021 and from 21 June 2021 employers will revert to face to face and physical document checks as set out in legislation and guidance.
Employers and loneliness
The Department for Digital, Culture, Media and Sport has published guidance for employers on tackling loneliness. Having good quality meaningful connections is associated with better outcomes in terms of quality of work, higher wellbeing and greater engagement in work. Across work roles, a lack of social connection and loneliness can lead to less commitment and productivity and greater absenteeism and staff turnover, and employees who feel lonely appear less approachable to their colleagues.
Data Sharing Code of Practice is laid before parliament
The Data Sharing Code of Practice, which the ICO published in December 2020, was laid before Parliament on 18th May 2021.The Information Commissioner’s Office has made a statement in response. The Code of Practice will lay before Parliament for 40 sitting days before coming into force.
Data Transfer from EU - employers beware
In the absence of a confirmed adequacy decision, employers would be wise to have data transfer measures in place by the end of June 2021.
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 end of the Brexit transition period (31st December 2020) until adequacy decisions come into effect, for up to 6 months.
An ‘adequacy decision’ means that the European Commission has determined that a third country (in this case the UK) has an adequate level of data protection and so personal data can be sent from an EEA state to the third country without any further safeguard being necessary.
Whilst the European Commission have published draft adequacy decisions , MEPs are calling for the Commission to amend these.
In view of the uncertainty this creates, employers should have alternative data transfer measures in place by the end of June 2021. The ICO has extensive guidance on these alternative measures and what employers need to do.
Modern slavery: how to identify and support victims
The Home Office has issued Statutory guidance which describes the signs that someone may be a victim of modern slavery, the support available to victims, and the process for determining whether someone is a victim.
REPORTS AND CONSULTATIONS
Government response to Women and Equalities Committee Report confirms government thinking on future employment law
The government's response to the Women and Equalities Committee Report on the gendered economic impact of COVID-19 has been published. It includes confirmation of the plans for extended maternity protection and flexible working.
The Committee's Report had found that government policies have consistently overlooked women's caring responsibilities and the employment inequalities experienced by them and made a series of recommendations. On review of the recommendations, the government rejects many. The response:
- Confirms that the government is committed to consulting on making flexible working the default unless employers have good reasons not to and will issue that consultation ‘in due course’
- Confirms that the government still intends to extend the redundancy protection period afforded to mothers on maternity leave "as soon as Parliamentary time allows"
- Rejects calls for disability pay gap reporting but states that the government will respond to the ethnicity pay gap consultation "in due course"
Consultation on flexible apprenticeships closes 31st May
The government is consulting on creating new flexible apprenticeships in the creative, agriculture and construction industries.
The consultation acknowledges that as apprenticeships are at least 12 months long, the flexible employment patterns and short-term roles in these sectors have found it challenging to create enough opportunities.
The new flexi-job apprenticeship schemes would enable an apprentice to work across a range of projects and with different employers to gain the full skills and experience they need to complete their programme. This could include film, TV and theatre production, with one apprentice being able to work on different productions during their apprenticeship.
The consultation ends on 31st MAy 2021. Employers will then be invited to bid for a share of a £7 million fund to create and test new flexi-apprenticeship schemes with the first approved flexi-job apprenticeships expected to start in January 2022.
Poll says ¾ of UK public oppose fire and re-hire
A survey carried out for GMB union suggests that 75% of the UK public back a legal ban on fire and re-hire on worse terms practices (the process of dismissal and rengagement).
FRC report on workforce engagement
The Financial Reporting Council has published a report on workforce engagement and the Corporate Governance Code. Research found that many FTSE 350 annual reports appear to downplay the importance of their workforce engagement.
Covid and the Workplace
Acas advice for employers and workers on long Covid
Acas has published guidance for employers and workers suffering the effects of long COVID.
Acas top tips for businesses re-opening
Acas has published 5 top tips for businesses re-opening.
BBC survey suggests 50 of biggest employers do not envisage full return to the office
The BBC has questioned 50 of the UK’s biggest employers who state that they do not plan to bring staff back to the office full time. 43 firms state that they would embrace a mix of home and office working.
Carrying out health and safety activities in a way that caused friction was not ground for fair dismissal
Section 100(1) of the Employment Rights Act 1996 (“the 1996 Act”) provides:
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
Withholding of allowance during maternity leave did not constitute direct sex discrimination
Ms Geldart was a police constable and as such, an office holder and had no contract of employment with the Commissioner of City of London Police. Her remuneration and other terms of service were prescribed by the Police Regulations 2003 and by "determinations" made by the Home Secretary under powers conferred by those regulations.
SPIE took over the business of Garside and Laycock (G&L) pursuant to a share purchase agreement (SPA). Mr Reader was a senior manager whose employment contract transferred to SPIE under the Transfer of Undertakings Protection of Employment Regulations 2006 (TUPE).