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Emplaw Monthly - End of July 2021

NEW FROM OUR AUTHORS

Key immigration action points for HR in the second half of 2021

A must read for HR and others, from Emplaw author’s Lewis Silkin, following the end of the post-Brexit grace period on 1st July.

Read here

How To Implement A Smooth TUPE Outsourcing - free Webinar

This on-demand webinar from Emplaw authors Gowling WLG  focuses on the practical issues that come up in an outsourcing involving a TUPE transfer, and how to make sure those issues are covered.

Watch here

NEWS

EMPLOYER/ADVISOR NEED TO KNOW

Government response to consultation on sexual harassment in the workplace

Proposals include imposing a positive duty on employers to prevent sexual harassment, providing explicit protections from third-party harassment and extending the time limit for more Equality Act claims to 6 months.

Following a consultation which ran from 11 July to 2 October 2019 (for background see the report in Emplaw monthly for July 2019), the government has responded that it intends to introduce a duty requiring employers to prevent sexual harassment, as it believes that this will encourage employers into taking positive proactive steps to make the workplace safer for everyone.

Additionally, in the interests of providing clarity, the government will introduce explicit protections from third-party harassment.

On extending the protections under the Act to volunteers and interns, the government believes that many of the latter group would already be protected, and that extending protections to the former could have undesirable consequences.

Finally, the government recognises the impact that extending time limits could have for those bringing sexual harassment cases and that 3 months can be a short timeframe. Therefore, it will look closely at extending the time limit for bringing Equality Act 2010 cases to the ET from 3 months to 6 months (the time limit for equal pay cases is already 6 months).  

All of the commitments made as a result of the consultation will apply to Great Britain (England, Wales and Scotland). Those which require legislative changes will be introduced 'as soon as parliamentary time allows'.

https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace/outcome/consultation-on-sexual-harassment-in-the-workplace-government-response

Acas advice on hybrid working

Acas has published new advice to help employers consider whether hybrid working could be an option for their workplace and how to fairly introduce it.

https://www.acas.org.uk/acas-publishes-new-advice-on-hybrid-working

‘Health is everyone’s business’ consultation - Government response and Green paper

The government has responded to the consultation on proposals to reduce ill-health related job loss. It explored changes to Statutory Sick Pay, Occupational Health, information and advice, and employer guidance.

The government has also published Shaping future support: the health and disability green paper to explore ways to improve support for disabled people and people with health conditions.

The consultation on ‘Health is everyone’s business’ put forward a number of proposals to minimise the risk of ill-health related job loss through better workplace support for disabled people and those with long-term health conditions. In the  government response:

Chapter 1 sets out how government will provide employers with access to good quality information and advice.

Chapter 2 outlines government plans to support employers and employees during sickness absence. The government has decided not to proceed with the consultation proposal to introduce a new ‘right to request work(place) modifications’ on health grounds but will instead take steps to increase awareness and understanding of existing workplace rights and responsibilities, in particular the duty to make reasonable adjustments under the Equality Act 2010

Chapter 3 covers Statutory Sick Pay (SSP).The government maintains that the pandemic was not the right time to introduce changes to the rate of SSP or its eligibility criteria.

Chapter 4 outlines the steps that government is taking to enable SMEs and self-employed people to access expert health and work support including OH. For example, the government will test a subsidy which would aim to gather evidence on whether targeted financial incentives improve access to OH and employment outcomes.

Chapter 5 sets out other issues raised during the consultation which include insurance, tax, Access to Work and proposals to enable better use of the fit note, a key tool which can be used to support workplace conversations and returns to work. The government is also exploring extending fit note certification to a wider group of healthcare professionals and introducing digital certifying of fit notes as well as looking towards further opportunities to make the fit note interactive.

https://www.gov.uk/government/consultations/health-is-everyones-business-proposals-to-reduce-ill-health-related-job-loss/outcome/government-response-health-is-everyones-business

https://www.gov.uk/government/consultations/shaping-future-support-the-health-and-disability-green-paper

CONSULTATIONS AND REPORTS

Home Office policy paper: Tackling violence against women and girls

The government has published a new strategy covering it’s plan to tackle violence against women and girls.

As part of the government’s plan, options will be reviewed to limit the use of non-disclosure agreements in cases of sexual harassment in higher education.

https://www.gov.uk/government/publications/tackling-violence-against-women-and-girls-strategy

Ethnic pay gap reporting - recommended in report and business, unions and the EHRC press government

A report from the Runnymede Trust entitled ‘England Civil Society Submission to the United Nations Committee on the Elimination of Racial Discrimination’ recommends that the UK government should use its powers under Section 153 of the Equality Act 2010 to impose a specific duty on all English local authorities and national public authorities to gather data on their workforce by ethnicity and by pay and grade.

Meanwhile, the CBI has joined the Trades Union Congress (TUC) and the human rights watchdog in calling for mandatory ethnicity pay gap reporting, saying data collection will help tackle racial inequalities at work.

https://www.runnymedetrust.org/cerd-2021

https://www.theguardian.com/business/2021/jun/25/cbi-tuc-and-ehrc-press-government-on-mandatory-ethnic-pay-gap-reporting?CMP=Share_AndroidApp_Other

Women and Equalities Committee inquiry into menopause in the workplace

The Committee is inviting the submission of evidence until Friday 17 September 2021.

The inquiry will investigate matters such as the nature and the extent of discrimination faced by women experiencing the menopause and how well current legislation protects these women. 

https://committees.parliament.uk/work/1416/menopause-and-the-workplace/

Acas Annual report and accounts 2020-2021

Acas has published its annual report and accounts.

There have been 18.6 million visits to the Acas website over the past year and 6 million visits to Acas’s COVID-19 advice. There have been 115,000 requests for individual consultation and 49,000 views of Acas webinars.

https://www.acas.org.uk/about-us/annual-report-and-accounts-2020-to-2021

SMCR for financial market infrastructures

The government intends to create a Senior Managers and Certification Regime (“SM&CR”) for Financial Market Infrastructures (“FMIs”) supervised by the Bank of England (“BoE”). In practice, these FMIs are: (i) Central Counterparties (“CCPs”), (ii) Central Securities Depositories (“CSDs”) and (iii) payment systems recognised under the Banking Act 2009 (“recognised payment systems”), and specified service providers to these recognised payment systems. HM Treasury has published a consultation paper.

 The key features of the proposed SM&CR for FMIs are intended to be similar to the existing SM&CR for banks, insurers and other authorised persons as set out in Part 5 of the Financial Services and Markets Act 2000 (“FSMA”), but modified to recognise the fact that FMIs are not authorised persons within the FSMA meaning of the term. The BoE would be granted new powers to implement, supervise and enforce the senior managers and certification regimes and conduct rules.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1003748/SMCR_Condoc__002_.pdf

LEGISLATION AND LITIGATION

E-Filing at the EAT

A new electronic filing system has come into operation at the Employment Appeal Tribunal. It enables parties to lodge their appeals with the EAT, upload documents and access all their appeals. Operational from 12th July, the launch is accompanied by a guidance note.

https://www.judiciary.uk/announcements/employment-appeal-tribunal-guidance-note-on-electronic-filing-of-documents-online-ce-file/

COVID-19 MATERIALS

General

Updated courts and tribunal guidance following lifting of restrictions

Courts and tribunals are open for face to face hearings, such as jury trials and some restrictions remain in place. 

From 19 July 2021, based on Public Health expert advice, courts and tribunals in England will continue to reduce the risk of the virus spreading by:

  • requiring all users to wear a face covering in public and communal parts of buildings
  • using screens or barriers to separate people from each other where they will come into close proximity with others they do not normally meet
  • assessing their estate for ventilation and continuing with their existing ventilation standards. Carbon dioxide monitors will also be used as additional assurance in building areas identified through their risk assessment process.

https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation

Guidance on volunteering

The government has updated its advice on safe and effective volunteering during COVID-19.

https://www.gov.uk/guidance/enabling-safe-and-effective-volunteering-during-coronavirus-covid-19

COVID and the workplace

England: Working safely guidance and what step 4 means for employers

The government has updated its Working safely guidance to reflect step 4 of the roadmap as from19 July 2021. The guidance covers a range of different types of work and sets out priority actions for businesses. It usefully links to the updated guidance on Coronavirus: how to stay safe and help prevent the spread  which sets out more detail on what step 4 means including that whilst the Government is no longer instructing people to work from home if they can, it would expect and recommend a gradual return over the summer.

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

HSE guidance on Working safely during the coronavirus (COVID-19) pandemic

This guidance from the Health & Safety Executive provides a really useful summary of the key points to consider and includes links to information for Scotland, Wales and Northern Ireland, as well as links to information on protecting vulnerable workers and talking with workers about preventing coronavirus (COVID-19)

https://www.hse.gov.uk/coronavirus/working-safely/index.htm

https://www.hse.gov.uk/coronavirus/working-safely/protect-people.htm

https://www.hse.gov.uk/coronavirus/working-safely/talking-to-your-workers/index.htm

Acas guidance on planning to return to the workplace

Acas has updated their Working safely during coronavirus (COVID-19) guide to include information on returning to the workplace and a section relating to people who may be reluctant, or unable, to do so. 

https://www.acas.org.uk/working-safely-coronavirus/returning-to-the-workplace

https://www.acas.org.uk/working-safely-coronavirus/if-staff-are-worried

Guidance on protecting people defined as extremely vulnerable

The government has updated the information for protecting people defined on medical grounds as extremely vulnerable from coronavirus in light of the relaxation of restrictions on 19 July 2021.

The guidance does not say that clinically extremely vulnerable individuals will have any additional rights to work from home beyond 19 July 2021. However, where they need support, they can apply for Access to Work, the government scheme to provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments.

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

Vaccination guide for employers

The government has published guidance for employers about the COVID-19 vaccination as well as a practical employer communication toolkit. The guidance recommends that employers encourage and support their staff to get vaccinated . The employer communication toolkit includes a Q&A document, scripts to inform internal conversations, links to videos and webinars, posters, screensavers, intranet banners and email signatures.

https://www.gov.uk/government/publications/covid-19-vaccination-guide-for-employers

https://coronavirusresources.phe.gov.uk/covid-19-vaccine/resources/employer-toolkit/

Regulations making vaccinations compulsory for care home staff in force from 11th November

Following consultation (for more detail see June’s Emplaw Monthly), The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 were made on 22nd July 2021. They will make COVID-19 vaccinations a condition of employment for workers deployed in care homes.

This is achieved by amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the 2014 Regulations”), to provide that the registered person for nursing and personal care in care homes must ensure that – subject to certain exceptions— a person does not enter the care home premises unless they provide evidence that they have been vaccinated with a complete course of an authorised vaccine against COVID-19.

As to ‘exceptions’, the government's response to the previous consultation suggests that Registered Providers should ‘keep a record of medical exemption for staff who are unable to receive a COVID-19 vaccine due to health reasons (as per the Green Book, JCVI guidance and medical advice)’. The Government has  stated an intention to publish operational guidance by the end of July.

The Regulations will come into force 16 weeks after they have been made, namely 11th November 2021

https://www.legislation.gov.uk/uksi/2021/891/contents/made

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

ET decision that an employee who remained in Italy at the start of the pandemic was automatically unfairly dismissed

In Montanaro v Lansafe Ltd ET/2203148/2020, the ET concluded that Mr Montanaro’s claim under the Employment Rights Act section 100(1)(e) succeeded and that he was automatically unfairly dismissed.

Section 100(1)(e) provides that an employee will be automatically unfairly dismissed if, ‘in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger’

https://assets.publishing.service.gov.uk/media/607d71cb8fa8f573570f6b53/Mr_C_Montanaro__vs_Lansafe_Limited_.pdf

CASES: 

L v K [2021] CSIH 35

SOSR dismissal of teacher for whom charges were not brought in connection with indecent images was within range of reasonable responses

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The Independent Workers Union of Great Britain v The Central Arbitration Committee [2021] EWCA Civ 952

Where right of substitution genuine, delivery riders do not qualify as ‘workers’ for purposes of union recognition and Article 11 ECHR not engaged

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IX v WABE & MH Muller v MJ Case C-804/18 and Case C-341/19

Employer’s policy of neutrality prohibiting the wearing of religious symbols was not direct discrimination and indirect discrimination may be justified 

These requests for a preliminary ruling concern the interpretation of Article 2(1) and (2)(a) and (b), Article 4(1) and Article 8(1) of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

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QH v Varhoven kasatsionen sad na Republika Bulgaria and CV v Iccrea Banca SpA.

Holiday leave must not be lost between termination and reinstatement

These requests for a preliminary ruling concern the interpretation 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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Secretary of State for Justice v Plaistow [2021] UKEAT 0016/20

Compensation for discrimination including assessment on basis of career long loss and applying a discount, and the 25% Acas uplift

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Brightman v TIAA Ltd [2021] UKEAT 0318/19

An ET is not expected to refer to every disputed issue of fact or argument but must engage with key points raised

Ms Brightman, an auditor for TIAA which provided internal audit services to organisations, was dismissed for lack of capability due to ill health. For years, Ms Brightman suffered from severe brittle asthma that required her to carry her own oxygen. She also had blood clotting problems and a slipped disc.

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University Hospital North Tees & Hartlepool NHS Trust v Ms Fairhall UKEAT/0150/20

Employee dismissed for making whistleblowing disclosures- Jhuti cases are quite rare

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Driscol & Anor v V & P Global Ltd & Anor [2021] UKEAT 000876/20

Constructive dismissal capable of constituting an act of harassment

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Case Summary Tag: