Emplaw Monthly - End of Summer 2021
NEW FROM OUR AUTHORS
‘A New Deal for Working People?’: Employment Status, Qualifying Periods, and Labour’s Proposal
A useful article from Emplaw authors, Parklane Plowden exploring some of the potential implications of Labour's policy announcement this Summer.
Coronavirus: absences from work and entitlement to pay
A helpful chart, from Emplaw authors Lewis Silkin, summarising the legal rights to pay and suggested best practice for different types of absence.
EMPLOYER/ADVISOR NEED TO KNOW
National disability strategy
Following a programme of engagement including the UK Disability Survey, the government has published a strategy setting out the actions it will take to improve the everyday lives of disabled people.
Proposals/actions include a new advice hub already launched by ACAS to help disabled people understand their rights at work. Other commitments relevant to the workplace are to:
- set out proposals to improve support for disabled people to start or stay in work
- create an Access to Work Adjustments Passport to support disabled people with their transition into employment, including disabled students leaving education
- encourage employers to recruit, retain and progress their disabled employees and to create inclusive workplaces by reviewing Disability Confident, promoting the Voluntary Reporting Framework and consulting on taking this further, and disseminating best practice to employers
- scale up supported employment services
- strengthen rights in the workplace, encouraging flexible working and introducing carers leave, and improving access to advice on employment rights for disabled people and employers
- explore with disabled people what extra help would be most useful for those wishing to start a business
- champion opportunities for disabled people in the Civil Service and ensure the support to thrive at work
- create more opportunities for disabled people to serve in the armed forces and the agencies
The government consultation on flexible apprenticeships has closed and its response document sets out how the government will take forward the development of the new flexi-job apprenticeship offer.
For background see the report in Emplaw Monthly for May 2021
Employers named and shamed for not paying national minimum wage
The Department for Business, Energy and Industrial Strategy has published a list of 191 employers who have failed to pay the minimum wage to their employees.
Modern slavery - offences sentencing guidelines published and other updates
The Sentencing Council has published new sentencing guidelines for sentencing offenders convicted of modern slavery offences in England and Wales, following consultation. The new guidelines, which come into effect on 1 October 2021, aim to promote consistency of approach in this area of sentencing.
Meanwhile, GOV.UK hosts a site which brings together information on Modern Slavery. This includes the statutory guidance, updated in June this year, on how to identify and support victims and the statutory guidance for businesses, updated in July this year, on how to ensure that slavery and human trafficking is not taking place in their business or supply chains.
CONSULTATIONS AND REPORTS
ICO calls for views on employment practices
The ICO is calling for views on data protection and employment practices to help it shape its upcoming guidance products. Its existing guidance, whilst in need of an update, has helped employers and employees get to grips with data protection issues at work including recruitment and selection, employment records, monitoring workers, and information about workers' health.
The ICO is planning to replace the existing employment practices guidance, including the employment practices code, supplementary guidance and the quick guide. It aims to introduce a more user-friendly online resource with topic-specific areas. The ICO wants to make sure that its new guidance addresses the changes in data protection law, reflects the changes in the way employers use technology and interact with staff and meets the needs of the people who use its guidance products.
The consultation closes on 21 October 2021.
ICO consultation on transfer of personal data outside the UK
The Information Commissioner’s Office has launched a consultation on its draft international data transfer agreement (IDTA) and guidance.
When organisations send personal information to a country outside the UK, they must ensure people’s data protection rights continue to be protected. An IDTA is a contract that organisations can use when transferring data to countries not covered by adequacy decisions.
The IDTA will replace the current standard contractual clauses (SCCs) to take into account the binding judgment of the European Court of Justice in a case commonly known as ‘Schrems II’. The ruling required organisations to carry out further diligence when making a transfer of personal data outside of the UK to countries without an adequacy decision.
The consultation is split into three sections, offering a selection of proposals and options to consider.
- Proposal and plans for updates to guidance on international transfers.
- Transfer risk assessments.
- The international data transfer agreement.
The consultation closes on 7 October 2021
Inquiry into workplace practices around the menopause from the House of Commons Women and Equalities Committee
Submissions can be made until 17 September 2021 to this inquiry which is considering a range of issues including the economic impact of menopause discrimination and whether legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause whilst at work.
A number of the Government guidance documents were updated during August, largely as a result of the removal of the self-isolation requirement for double-jabbed close contacts of those with COVID-19.
Coronavirus (COVID-19): courts and tribunals guidance
This advice and guidance from HMCTs and MoJ is for all court and tribunal users during the COVID-19 pandemic.
NHS Test and Trace in the workplace
This guidance, for employers and employees, covers what to do if an employee is required to self-isolate and includes information on being contacted by NHS Test and Trace, self-isolation rules and financial support.
COVID and the workplace
Extension of right to work checks
The government has extended the end date for temporary adjusted checks for right to work during the pandemic to 5 April 2022.
The following temporary changes were made on 30 March 2020 and remain in place until 5 April 2022:
- checks can currently be carried out over video calls
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
- employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
Operational guidance on vaccination of people working or deployed in care homes
The Department of Health and Social Care has published guidance (last updated 3rd September) on the vaccination of people working or deployed in care homes
From 11 November 2021, anyone working or volunteering in a care home will need to be fully vaccinated against COVID-19, unless exempt. The guidance says that there will be a clear process for staff to follow if they think they may have a clinical reason to be exempt and the process will be aligned with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. However, guidance around the medical exemption is still being developed and it is being reported that a judicial review challenge is shortly to be launched to the Regulations.
Further information on the legislation underpinning the guidance was reported in Emplaw Monthly for July
Will employers cut pay for remote workers?
There has been much debate on this issue following the announcement that Google staff who decide to work from home permanently after the pandemic will have their pay determined by their location. Introducting such a policy in the UK is fraught with risks.
Covid ET cases
Recent cases have included Mhindurwa v Lovingangels Care and Sharma v Lily Communications Ltd.:
In Mhindurwa v Lovingangels Care the ET held that a care assistant made redundant in July 2020 (when the elderly woman for whom she provided care moved to a care home) was unfairly dismissed. The ET held that ‘a reasonable employer would have given consideration to whether the claimant should be furloughed to avoid being dismissed on the grounds of redundancy.”
In Sharma v Lily Communications Ltd, an employment tribunal decided that, while an employer had acted rationally and in good faith in deferring commission payments during furlough, the decision not to pay an employee the full amount of his commission when furlough ended was irrational.
Clarity of burden of proof in discrimination cases
The main issue raised on this appeal is whether a change in the wording of equality legislation has altered the burden of proof in employment cases where discrimination is alleged.
Section 54A(2) of the Race Relations Act 1976 provided that where, on the hearing of a complaint of discrimination or harassment on grounds of race:
Claimant failed to show he was disabled
Disability is a protected characteristic. Disability is defined by section 6 of the Equality Act 2010 (EqA 2010):
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. ...
FCA were entitled to place prohibition order on financial adviser for serious conduct outside work
The Upper Tribunal , Tax and Chancery Chamber has for the first time ruled on a case where the FCA sought a prohibition order against an individual, Jon Frensham, based on his conviction for a criminal offence not involving dishonesty (sexual grooming of a minor on two occasions and breach of bail conditions) where the behaviour was unrelated to his regulated activity.