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Emplaw Monthly - End of June 2021

NEW FROM OUR AUTHORS

EAT decision increases protection for workers taking industrial action

A note from Emplaw author's Morrish on the significance of the decision in Mercer –v- Alternative Future Group Ltd

Read the Emplaw report on the decision below and the note here

‘Gender critical’ beliefs are protected philosophical beliefs

A useful article from Emplaw author’s Lewis Silkin, on the recent Employment Appeal Tribunal decision that “gender critical” beliefs are protected philosophical beliefs for equality law purposes, while confirming that a belief in “gender identity” is also a protected characteristic.

Read here

FOCUS ON EMPLAW CONTENT

Whilst the government is considering legislating to make working from home the “default” option (reported below), the Emplaw law card on Flexible Working gives a clear explanation of the existing regime (full content for subscribers only)  

Click here

NEWS

EMPLOYER/ADVISOR NEED TO KNOW

Working from home – the default option?

Downing Street has confirmed the government is considering legislating to make working from home the “default” option. Boris Johnson’s official spokesperson emphasised there would be no legal right to work from home, adding that the prime minister still believed there were benefits to being in the office, including collaboration with colleagues.

This is in line with previous government commitments to consider making flexible working generally the default option.  The Conservative Manifesto in 2019 stated ‘We will encourage flexible working and consult on making it the default unless employers have good reasons not to’.

As reported in last month’s Emplaw Monthly, in its response to Women and Equalities Committee Report, the government confirmed:

  • that a Flexible Working Taskforce was formally restarted on 9 February 2021 designed to ‘work with business and other groups to consider how to remove obstacles to more flexible working and deepen the Government’s understanding of what is happening ‘on the ground’ within businesses.’
  • 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’

https://www.theguardian.com/business/2021/jun/17/labour-demands-clarity-on-plans-to-make-working-from-home-a-default-right

https://publications.parliament.uk/pa/cm5802/cmselect/cmwomeq/134/13402.htm

https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf

Health and Safety – DSE Workstation checklist

As working from home becomes more the norm, there is a really useful checklist on the HSE website, which covers keyboards and their use, the mouse and its use, display screen presentation, software training as well as tips on the right heights for screens and chairs.

https://www.hse.gov.uk/pubns/ck1.htm

https://www.hse.gov.uk/msd/dse/

Dismissal and re-engagement (fire and re-hire) - Acas paper published but no legislation expected

Acas has published a paper on the use of fire and re-hire practices, following a fact-finding exercise commissioned by BEIS but the government is not expected to legislate.

The Parliamentary Under Secretary of State for BEIS, Paul Scully  has stated in parliament that ‘It is unacceptable and, frankly, immoral to use the threat of fire and rehire as a negotiating tactic to force through changes to people’s employment contracts, or for employers to turn to dismissal and rehiring too hastily, rather than continue to engage in meaningful negotiations’.

As to the way forward, Mr Scully states:

‘However, having carefully considered the report, the Government want to send a clear message to employers: even if your business is facing acute challenges, all other options to save jobs and a business should be exhausted before considering the dismissal and re-engagement of staff. I believe that we can achieve this working in partnership with businesses and workers, without heavy-handed legislation.

https://www.acas.org.uk/fire-and-rehire-report

https://hansard.parliament.uk/commons/2021-06-08/debates/FD98F7E0-2697-456B-9841-B36685FA0270/EmploymentRights

New online tool for Shared Parental Leave and Pay

The government has launched an online tool for eligible employees to help them plan for SPL and to determine how much SPP they may be entitled to.

The tool can be used to find out:

  • how and when the employee can take Shared Parental Leave alongside Maternity, Adoption and Paternity Leave
  • how much Statutory Shared Parental Pay the employee is entitled to while they take leave
  • when the employee needs to give notice to their employer

https://www.gov.uk/plan-shared-parental-leave-pay

Data protection: EU Commission adopts adequacy decisions for the UK

Personal data can now flow freely from the European Union to the United Kingdom as the Commission has adopted two adequacy decisions for the United Kingdom - one under the General Data Protection Regulation (GDPR) and the other for the Law Enforcement Directive.

For background see the report in last month's Emplaw Monthly

https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3183

Trade union membership rises

BEIS has published national statistics which show that trade union membership has continued to rise. The rise has largely  been driven by female membership.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/989116/Trade-union-membership-2020-statistical-bulletin.pdf

Financial institutions – temporary long-term absences under SMCR

The PRA has published a policy statement confirming its final policy relating to temporary, long-term absences of senior managers under the senior managers and certification regime.

 https://www.bankofengland.co.uk/-/media/boe/files/prudential-regulation/policy-statement/2021/june/ps1121.pdf?la=en&hash=0D36B0BBBF5788F9CA5A2BE6ED84BEC1747AB072

ET quarterly statistics January – March 2021

In January to March 2021, single claim receipts and disposals decreased by 13% and 14% respectively, while outstanding caseload rose by 39%, when compared to the same period in 2020. Mean age at disposal was 43 weeks, 5 weeks more than in January to March 2020.

For multiple cases, Receipts rose, by 14%, this quarter when compared to the same period in 2020. Disposals decreased, by 34%, while caseload outstanding increased by 13%. Mean age at disposal fell from 164 weeks to 122 weeks over the same period.

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2021/tribunal-statistics-quarterly-january-to-march-2021#employment-tribunals

REPORTS AND CONSULTATIONS

Belated government response to consultation on single enforcement body

The  government has published its response to the consultation paper “Good Work Plan: establishing a new single enforcement body for employment rights” which was published in July 2019, with the consultation period closing on 6 October 2019.

The consultation considered the case for a new single labour market enforcement body to tackle the deeply fragmented enforcement landscape which

  • makes it difficult for both workers and employers to know where to go for hel
  • limits the visibility of the work of the bodies
  • makes it harder to have a single clear intelligence picture across the labour market

The consultation sought views on:

  • the core remit of a new bod
  • the interaction with other areas of enforcemen
  • the approach to compliance
  • the powers such a body would need

This report summarises the responses to the consultation and confirms the government’s commitment to create such a body, as set out in the government’s manifesto. The new body will bring together three existing bodies - HMRC National Minimum Wage Enforcement, the Gangmasters and Labour Abuse

Authority and the Employment Agency Standards Inspectorate into a single, recognisable organisation and it will deliver a significantly expanded remit. Primary legislation will also be required.

The report also sets out the remit of the single enforcement body which will include taking on enforcement of Statutory Sick Pay.

https://www.gov.uk/government/consultations/good-work-plan-establishing-a-new-single-enforcement-body-for-employment-rights

FRC report on employee engagement

The UK Corporate Governance Code asks companies to report on their engagement with the workforce. The Financial Reporting Council (FRC) has published research by Royal Holloway, University of London and the Involvement and Participation Association which found that many FTSE 350 annual reports appear to downplay the importance of their workforce engagement.   

Changes in workforce engagement have been more an evolution than a revolution, with many companies amending existing practices that have been in place for several years. The case studies included in the report set out innovative approaches and fresh thinking that could potentially be applied more widely. Good practice identified in the research shows how the exact mechanism of engagement is less important than companies’ desire to genuinely engage with employee views and recognise the benefits that such engagement can bring.

  • An effective feedback loop between boards and the workforce is needed to achieve meaningful dialogue.
  • Those who act as an interface between the board and the workforce, whether sitting on a panel or as worker directors, should receive appropriate support.
  • Energies should be focussed principally on the substance of the engagement, not the process.

https://www.frc.org.uk/news/may-2021/workforce-engagement-lies-at-the-heart-of-good-cor

COVID-19 MATERIALS

General

Extension of restrictions until at least 19 July

Regulation has been made to amend the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (S.I. 2021/364) (“the Steps Regulations”) to extend the expiry date to the end of 18 July 2021 and adjust some of the restrictions within Step 3 for example amending restrictions on wedding ceremonies and receptions, commemorative events and funerals, and making an amendment to the Secretary of State’s power to disapply restrictions for research purposes.

https://www.legislation.gov.uk/uksi/2021/705/regulation/1/made

Covid and the Workplace

TUC calls for long Covid to be recognised as a ‘disability’

The TUC has called for long Covid to be urgently recognised as a disability and Covid-19 as an occupational disease, to give workers access to legal protections and compensation.

https://www.tuc.org.uk/news/tuc-calls-long-covid-be-urgently-recognised-disability-prevent-massive-discrimination

Adjusted right to work check measures extended to 31st August 2021

The temporary COVID-19 adjusted right to work checks will now end on 31st August 2021 and from 1st September 2021 employers will revert to face to face and physical document checks as set out in legislation and guidance.

https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

Government confirms vaccinations will become mandatory for most people working in care homes in England - who will be exempt?

The Government response to the consultation on mandatory COVID-19 vaccination for care home workers (reported in April’s Emplaw Monthly) confirms vaccination will be mandatory for most workers in all care homes (not just those for the over 65s as the consultation originally anticipated).

It confirms that the government will be bringing forward regulations to require all CQC-regulated service providers of nursing and personal care, in care homes in England, to allow entry to the premises only to those who can demonstrate evidence of having had a complete course of an authorised COVID-19 vaccine (or evidence that they are exempt from vaccination). The requirement will only apply indoors and will exclude residents and friends or relatives of residents who are visiting.

As to exemptions, the changes ‘will provide exemptions for individuals where vaccination is not clinically appropriate, for example a pre-existing diagnosis of anaphylaxis. Guidance will give more detail about exemptions, which will reflect the Green Book on Immunisation against infectious (COVID-19: the green book, chapter 14a) and clinical advice from the Joint Committee on Vaccination and Immunisation (JCVI). ‘

In particular the Response documents ‘We have considered the concerns raised about pregnancy. We have been assured by clinicians that vaccines are safe for the majority of pregnant women, however we recognise that in some circumstances, vaccination may not be appropriate during pregnancy and we will consider that in our guidance regarding granting exemptions’.

Workers will have 16 weeks grace period  from the time regulations are approved by Parliament.

According to the BBC, Governments in Scotland, Wales, and Northern Ireland have said they have no plans to make Covid jabs mandatory for care home staff.

https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-older-adult-care-homes

https://www.bbc.co.uk/news/uk-57492264

CASES: 

Forstater v CGD Europe & Ors) [2021] UKEAT 0105/20

Gender critical belief is a philosophical belief for the purposes of Equality Act

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Robinson v Al-Qasimi [2021] EWCA Civ 862

Contract enforceable despite a period of illegality

This case concerns the doctrine of illegality of contract.

Ms Robinson was employed to work for His Highness Sheikh Khalid Bin Saqr Al-Qasimi (Sheikh Khalid) to manage his affairs in the UK.

Her letter of appointment stated that she would be paid £34,000 per annum and that she would be responsible for her own tax and national insurance on the payment. 

The full content of this page is available to subscribers only. Please purchase a subscription if you feel this content will be of use to you.

Accattatis v Fortuna Group (London) Ltd Case No. 3307587/2020 (ET decision)

No automatic unfair dismissal under s.100 ERA during COVID-19

This ET decision considers the issue of dismissal in circumstances where the claimant expressed discomfort with attending the office and commuting during the COVID-19 pandemic.

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Case Summary Tag: 

Gibson v Lothian Leisure [2021] UKET 4105009/2020 (ET decision)

Automatic unfair dismissal under s.100 ERA during COVID-19

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Case Summary Tag: 

Mercer v Alternative Future Group Ltd & Anor [2021] UKEAT 0196/20

Section 146 TULRCA to be interpreted as encompassing participation in industrial action

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Steer v Stormsure Ltd [2021] EWCA Civ 887

No interim relief available for sex discrimination claims

Background

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Tyne and Wear Passenger Transport Executive t/a Nexus v National Union of Rail, Maritime and Transport Workers & Anor [2021] EWHC 1388

Res judicata – cause of action estoppel and issue estoppel - claim for rectification not prevented from proceeding by

Nexus operated the Tyne and Wear Metro and recognised the defendants, both trades unions (the unions), for the purposes of collective bargaining. 

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Hughes v Progressive Support Limited UKEAT/0195/20

Indirect sex discrimination- PCP found despite arguments that the PCP alleged had not been applied

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