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Emplaw Monthly - End of October 2021


Thompson V Scancrown Ltd: Refusal Of Flexible Working Request Amounted To Indirect Discrimination

As employers see a sharp rise in flexible working requests since the pandemic, Emplaw authors Parklane Plowden report on this ET decision that refusing an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination, and provide some helpful tips for dealing with requests fairly.

Read here

Video on Managing Sickness Absence

In this video, Jane Fielding and principal associate Emma Bufton from Emplaw authors Gowling WLG provide tips on managing short and long-term absences with a particular focus on COVID-19 related absences.

Watch here



Budget announcements

The Chancellor announced increases to the NLW and increased funding for apprenticeships.

In his budget speech on 27th October, the Chancellor announced an increase in the National Living Wage to £8.91 from April 2022 which he calculates equates to an annual pay rise of almost £350 for someone working full time on the National Living Wage.
He also announced the increase of the incentive payments given to businesses to £3,000, for all new apprentice hires, of any age.

World Menopause Month - Acas guidance

As World Menopause Month comes to a close, it has highlighted the importance of managing the effects of the menopause at work for both employers and their staff.

Acas has issued helpful Menopause at work advice.

Good Recruitment for Older Workers: A guide for employers

This recruitment guide, from the Centre for Ageing Better, sets out five key actions, with checklists, designed to help organisations to become more age-inclusive employers.

The guide is based on the Centre’s Good Recruitment for Older Workers (GROW) project findings that 36% of 50–69-year-olds feel at a disadvantage applying for jobs due to their age. It is designed to help organisations recognise the negative role that age-related discrimination plays in recruitment processes and provide practical suggestions for employers to become more age-inclusive.

The guide is timely given that a number of organisations have warned that older workers are at greater risk of redundancy following the end of furlough.

‘Plan for jobs’ enters next stage

The Government has announced that it has moved to the next phase of its Plan for Jobs, part of a £500 million support package for the economy and has issued useful information for employers on the programmes available.

The information covers Apprenticeships, Industry placements: T Levels, Kickstart Scheme, National Careers Service, Sector-based work academy programme (SWAP), Traineeships, Free qualifications for adults and Skills Bootcamps.

ICO data sharing code of practice under DPA 2018 in force

The Information Commissioner's Office (ICO) statutory data sharing code of practice, which was first published in December 2020 and was laid before Parliament in May 2021, came into force on 5 October 2021. The ICO has issued useful guidance.

The code is produced under section 121 of the Data Protection Act 2018 and replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998.

The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation and the Data Protection Act 2018 including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements.

Resources including FAQs and guidance on particular aspects include sharing personal data with law enforcement authorities are available on the ICO’s Data Sharing Information Hub.

Tool kits for NICs and statutory payments

Not new, but the HMRC’s 'National Insurance contributions and statutory payments toolkit', is a useful resource for employers, advisers and those dealing with payments such as Statutory Sick Pay, Statutory Maternity Pay and Statutory Parental Bereavement Pay.

The toolkit is aimed at helping and supporting tax agents and advisers who operate or advise on payroll functions for National Insurance Contributions and statutory payments for clients, but also employers and others who can use the toolkit as a source of reference.

It includes guidance on the NICs and statutory payments errors that commonly occur, and the steps that can be taken to reduce the risk of those errors.


Hybrid working report

A workplace report by Poly on hybrid working notes that office culture has ‘changed forever’ but there are concerns over discrimination, career progression and noise.

TUC survey on working mothers’ flexible working requests

A TUC survey together with Mother Pukka has revealed that half of working mothers do not get the flexibility they request at work.

•             Almost 13,000 working mums responded to a new TUC and Mother Pukka survey on flexible work

•             Half (50%) said their boss had rejected their flexible working request – or only accepted part of it

•             Most (86%) mums working flexibly said that they have faced discrimination and disadvantage at work as a result

•             TUC calls for a legal right to flexible work to be advertised with every job, as government consults on new rights

Tackling Sexual Harassment in the Workplace report

The Fawcett Society has published a report into sexual harassment in the workplace. Key findings show that:

•             At least 40% of women have experienced workplace harassment, and women who are marginalised for other reasons, such as race or disability, face an increased risk and different forms of sexual harassment

•             45% of women in a recent survey reported experiencing harassment online through sexual messages, cyber harassment and sexual calls

•             Almost a quarter of women who had been sexually harassed said the harassment had increased or escalated since the start of the pandemic while they were working from home

•             Almost seven in ten (68%) disabled women reported being sexually harassed at work, compared to 52% of women in general

•             Ethnic minority workers (women and men) reported higher rates (32%) of sexual harassment than white workers (28%) over the last 12 months

•             A poll of LGBT workers found that 68% had experienced some form of harassment in the workplace

Efforts to hire black graduates require CEO backing: ISE report

Despite companies putting in more effort to recruit Black graduates, this is failing to have a meaningful impact on racial injustice in the workplace.

A new report from the Institute of Student Employers (ISE) suggests that efforts to hire Black graduates require CEO backing in order to make a tangible difference.

Over half of companies (54 per cent) were shown to have a strategy in order to attract Black candidates to their business.

However, this drops to under half (44 per cent) when accounting for the number of organisations which track retention. Half of this number (22 per cent) provide dedicated support during early careers.

PwC report on the impact of AI on UK employment

BEIS has published a report prepared by PwC on the potential impact of artificial intelligence on UK employment and the demand for skills.

The technical capabilities of artificial intelligence (AI) and related technologies such as robots, drones and autonomous vehicles have progressed substantially in the last decade. New applications of AI are transforming whole sectors of the economy via increased productivity and innovation. These technologies have the potential to boost the economy significantly but there are also concerns that these technologies could displace large numbers of human workers from their jobs over the coming decade.

This research in the report is targeted on 2 main questions:

•             whether AI and related technologies will trigger significant structural labour market change

•             how large the disruption to labour markets from AI will be, and what form it will take

The study estimates that around 7% of existing UK jobs could face a high (over 70%) probability of automation over the next 5 years, rising to around 18% after 10 years and just under 30% after 20 years. However, it  cautions that there are many uncertainties involved in any such estimates, and also recognises that AI will create many jobs through the boost it gives to productivity and economic growth. Past research suggests that AI and related technologies could boost UK GDP by up to 10% by 2030. The report suggests that the overall net effect on employment is unclear, with the most plausible assumption based on historical trends and past macroeconomic research for the UK being for a broadly neutral long-term effect.


Poll suggests 7 in 10 HR directors mandating staff Covid vaccinations

The majority of HR directors have said they will require staff to be vaccinated against Covid, research has suggested.

A survey of 400 HR directors, commissioned by Indeed Flex, found seven in 10 (70 per cent) were planning to implement vaccine mandates, including one in five (22 per cent) who said jabs would be mandatory for all workers regardless of any potential exemptions.

Just under half (48 per cent) of respondents said they would require all staff to be vaccinated excluding those with a medical exemption.

Operational guidance on vaccination of people working or deployed in care homes updated

The DHSC has updated the guidance to add information about the formal procedure for care home workers in England to apply for proof that they are medically exempt from vaccination.

Until 24 December 2021, workers can self-certify that they’re medically exempt. From 25 December, they will have to use the domestic NHS COVID Pass in the same way that people who are fully vaccinated use it. The NHS COVID Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that they have a medical exemption.

A worker will need to apply for proof that they have a medical reason why they should not be vaccinated or why they should not be vaccinated and tested. They will need to phone the NHS COVID Pass service on 119 to ask for a NHS COVID Pass medical exemptions application form.

For further background and information on the compulsory vaccination requirements please see the report in September’s Emplaw monthly.


Carillion Services Ltd v Benson & Ors [2021] UKEAT/0026/21

Redundancy consultation-insolvency not necessarily ‘special circumstances’

Section 188 TULRCA, so far as relevant, provides:  

“188 Duty of employer to consult … representatives

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Case Summary Tag: 

Rooney v Leicester City Council EA-2020-000070-DA (Previously UKEAT/0064/20/DA), EA- 2021-000256-DA (Previously UKEAT/0104/21/DA)

ET failed to properly consider menopause claim as a disability claim

Ms Rooney was a childcare social worker who resigned on 29 October 2018.

She brought claims against Leicester City Council, her former employer, for constructive unfair dismissal, non-payment of holiday pay and seeking outstanding expenses, unpaid overtime and reimbursement of university fees. The claim form included the following:

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Scott v Ralli Ltd EA-2019-000772 (previously UKEAT/0223/20)

Constructive or actual knowledge of disability in Section 15 Equality Act claims

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Pitcher v The University of Oxford & Anor Case No: EA-2019-000638-RN (previously UKEAT/0083/20/RN); EA-2020-000128-RN (previously UKEAT/0032/20/RN)

ET entitled to reach different decisions in relation to University’s compulsory retirement policy

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Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514

Court of Appeal upholds ET decision that courier was a worker- substitution terms did not remove obligation to provide services personally

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Secure Care UK Ltd v Mott [2021] UKEAT 2019-000977

ET relied on wrong test for causation in whistleblowing unfair dismissal claim

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