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Emplaw Monthly - End of January 2022

NEW FROM OUR AUTHORS

Sickness absence and sick pay during the Covid-19 pandemic - FAQs for employers

Up to date FAQS from Emplaw authors, Lewis Silkin, which cover a number of thorny issues including whether an employer can cut company sick pay for unvaccinated staff.

Read here

Looking backwards to 2021 and forwards to 2022

Our own Emplaw briefing looks back at key cases and other developments in 2021 and casts an eye forward to what is on the horizon for 2022.

Read here

NEWS 

EMPLOYER/ADVISOR NEED TO KNOW

Hybrid Working -  Practical Guidance

This new guidance is essential reading for the new world of work. It provides comprehensive information and incorporates links to other information from Acas, the CIPD, the ICO and others.

The project was commissioned by the CIPD on behalf of the government’s Flexible Working Taskforce (whose members include business lobby organisations, professional bodies, unions and key charities). The guidance is divided into sections on People Management, Recruitment and Induction, Inclusion and Fairness and Health, Safety and Wellbeing. Key points include:

Listen and review

  • Employers should seek input from workers and their representatives when developing a policy and should work in partnership with them to identify the most effective way of undertaking hybrid work in their specific context.
  • Employers should undertake ongoing listening activity to understand the early lessons of hybrid, paying particular attention to whether hybrid working is delivering the anticipated benefits to individuals and the organisation.
  • The introduction of hybrid working could be a large cultural shift for some managers and there will be a learning period whilst new hybrid working patterns settle.
  • Hybrid policies and principles should be under ongoing review including the impact on workers with protected characteristics, and ensuring that action is taken to address any negative or unintended outcomes of hybrid work.
  • Some employers may introduce hybrid working on a trial or pilot basis. Where they do so, criteria for measuring and determining success should be set out.

Clarify the criteria for hybrid working

  • Employers will need to assess whether roles are suitable for hybrid working. The CIPD has created a flowchart to help assessing roles for hybrid working (https://www.cipd.co.uk/knowledge/fundamentals/relations/flexible-working/assessing-roles-hybrid-working-flowchart).
  • Employers should use clear and consistent criteria for decisions on access to hybrid working, based on work activities, roles and individual circumstances, and following any organisational policies and principles, noting that being consistent does not mean treating everyone the same.
  • In order to ensure inclusion and equality, employers should take into account an individual's working preferences and personal circumstances and creating a level playing field regardless of whether workers are working remotely or in the workplace.

Consider additional/alternative arrangements

  • Employers should discuss other flexible working opportunities with those who are unable undertake hybrid work.
  • Employers should be open to those who work under a hybrid work arrangement requesting other forms of flexible working as well.

Practical Considerations

  • Sharing team working patterns is useful to provide clarity on who is working where and when.
  • When performance of employees cannot be easily observed, there may need to be particular reliance on metrics, outcomes and results but any surveillance of an employee needs to be necessary, justified and proportionate.
  • Employers should set up systems to conduct risk assessments for remote working and conducting these with health and safety representatives.
  • The Information Commissioner's Office (ICO) has developed guidance around protecting data while working from home which includes a 10-point checklist which is useful to share with employees (https://ico.org.uk/for-organisations/working-from-home).
  • Existing policies on home working may need to be reviewed or new polices introduced to cover matters such as health and safety at home, the company’s expectations of performance, expenses to be paid and equipment to be provided to the employees.

Effective hybrid working - Flexible Working Taskforce guidance | Guides | CIPD

https://www.acas.org.uk/flexible-working-taskforce-members-launch-hybrid-working-guidance-for-employers

https://www.cipd.co.uk/news-views/policy-engagement/flexible-working

Increases to Statutory Benefit Rates

The Department for Work and Pensions has published the proposed weekly rates for sick pay and other statutory leave 2022/23 which are expected to apply from 6th April 2022:

  • Statutory sick pay (SSP) will go up from £96.35 to £99.35.
  • Statutory maternity pay (SMP) and maternity allowance will go up from £151.97 to £156.66.
  • Statutory paternity pay (SPP) will go up from £151.97 to £156.66.
  • Statutory shared parental pay (ShPP) will go up from £151.97 to £156.66
  • Statutory adoption pay (SAP) will go up from £151.97 to £156.66

https://www.gov.uk/government/publications/benefit-and-pension-rates-2022-to-2023

Seasonal worker visa extended to 2024

The visa scheme to allow seasonal workers to come to the UK will continue, but the government has demanded a plan from the sector to cut the reliance on foreign labour.

The Home Office and DEFRA announced on 24 December 2021 that the Seasonal Worker visa route will be extended until the end of 2024, which allows foreign workers to come to the UK for up to six months to work in the horticulture sector.

https://www.gov.uk/government/news/industry-given-certainty-around-seasonal-workers-but-told-to-focus-on-domestic-workforce

Duty on employer to provide suitable PPE extended to workers 

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (SI 2022/8) come into force on 6 April 2022 and extend the duty on employers to provide suitable personal protective equipment (PPE), where required, to all workers (not just employees).

The amended Regulations follow the High Court's judgment in R (Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin), where it was held that, by excluding workers from protection, the UK had failed properly to implement Article 8(4) and (5) of the Health and Safety Framework Directive and Article 3 of the PPE Directive with respect to ‘workers' falling within the definition of 230(3)(b) in the Employment Rights Act 1996 (sometimes known as ‘limb b’ workers).

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (legislation.gov.uk)

https://www.bailii.org/ew/cases/EWHC/Admin/2020/3050.html

Employment Rights Act 1996 (legislation.gov.uk)

REPORTS AND CONSULTATIONS

Consultation on reforming the Human Rights Act

The government is consulting on reforms to the Human Rights Act and replacing it with a new Bill of Rights. Responses will be accepted online until 8 March 2022.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf

Consultation on disability workforce reporting

The government has published a consultation on workforce reporting on disability for large employers (250 or more employees). The consultation will close on 25 March 2022.

The consultation follows on from the publication of the  National Disability Strategy in July 2021 and builds on the current voluntary reporting framework. The consultation is being led by the Disability Unit, in the Cabinet Office, and responds to calls to improve data and transparency on disability in the workforce. It includes questions on current practice and how workforce reporting on disability might be stepped up, exploring both voluntary and mandatory reporting practices. The Disability Unit wishes to hear from both employers and disabled employees and their representative groups.

https://www.gov.uk/government/consultations/disability-workforce-reporting

ICO consults on Regulatory action policy and statutory guidance

The Information Commissioner's Office (ICO) is consulting on its Regulatory action policy which sets out the ICO's general approach to regulatory action and enforcement, how it promotes best practice, ensures compliance and works with other regulators. The consultation closes on 24 March 2022.

The Policy covers the 11 pieces of legislation that the ICO is responsible for, including the UK GDPR, PECR  (the  Privacy and Electronic Communications (EC Directive) Regulations 2003) and the FOIA (Freedom of Information Act 2000).

The consultation also includes the ICO's statutory guidance on its regulatory action and statutory guidance on its PECR powers. Publication of final documents is expected by the end of 2022.

The policy also provides information on how the ICO approaches its regulatory responsibilities (including aggravating and mitigating factors) and how it assesses the outcomes of its actions.

ICO consultation on the draft Regulatory Action Policy; statutory guidance on our regulatory action; and statutory guidance on our PECR powers | ICO

Gender recognition- report from the Women and Equalities Committee

The cross-party Women and Equalities Committee has called  for urgent reforms to be made to the Gender Recognition Act (GRA) 2004.

MPs have criticised the government’s response (published in 2020) to its 2018 consultation on reforming the Gender Recognition Act (GRA) 2004. They describe the Government's response as 'minimal', and say that the 17-year-old Act is no longer fit for purpose and is confusing for employers and service providers. They say it has left a gender recognition process which is unfair and overly medicalised and the Committee wants transgender rights to be strengthened within the law.

Gender recognition process urgently in need of reform, say MPs - Committees - UK Parliament

Government responds to Gender Recognition Act consultation - GOV.UK (www.gov.uk)

LEGISLATION AND LITIGATION

Practice Direction on citation of judgments in the EAT

A new practice direction from the Senior President of Tribunal sets out the arrangements for the neutral citation of judgments (which allow judgments to be cited without reference to a particular published law report )of the Employment Appeal Tribunal (EAT) from 1 January 2022.

A unique number will be issued by the EAT Office for all judgments in respect of full hearings. Judgments will be  numbered consecutively from the beginning of the year. For example, paragraph 77 in Jones v Smith Ltd, the tenth numbered judgment of the year in the EAT, would be cited: Jones v Smith Ltd [202n] EAT 10 at [77]. [202n] represents the relevant year.

Practice Direction issued by the Senior President of Tribunals: Employment Appeal Tribunal | Courts and Tribunals Judiciary

Increase in flexible working requests

The number of employment tribunal decisions relating to flexible working have increased 52% to reach a record high of 193 in the past year.

In 2019-20 the figure was 127, found research by employment law firm GQ|Littler. The previous highest figure was 160 in 2018-19.

https://www.personneltoday.com/hr/flexible-working-requests-behind-growing-number-of-tribunal-cases/

COVID HEADLINES

19th Jan 2022 – Government announced lifting Plan B in England

The Prime Minister announced the removal of working from home and face covering requirements.

From 20 January: The government no longer asking people to work from home if they can.

From 20 January: Face coverings no longer advised for staff and pupils in secondary school and college classrooms.

From 27 January: Face coverings no longer advised for staff and pupils in communal areas of secondary schools, nor for staff in communal areas of primaries.

From 27 January: No longer a legal requirement to wear a face covering. The government suggests that people continue to wear a face covering in crowded and enclosed spaces where they may come into contact with other people they do not normally meet.

From 27 January: Venues and events no longer be required by law to check visitors’ NHS COVID Pass. The NHS COVID Pass can still be used on a voluntary basis.

https://www.gov.uk/government/speeches/pm-statement-to-the-house-of-commons-on-covid-19-19-january-2022

https://www.gov.uk/guidance/covid-19-coronavirus-restrictions-what-you-can-and-cannot-do

17th Jan 2022- Covid self-isolation reduced to five days

People who receive negative LFD results on day 5 and day 6 of their self-isolation period – with tests taken 24 hours apart –no longer have to self-isolate for the full 7 days.

https://www.gov.uk/government/news/self-isolation-for-those-with-covid-19-can-end-after-five-full-days-following-two-negative-lfd-tests

21st Dec 2021- £1 billion in government support for UK businesses most impacted by Omicron

The Chancellor announced targeted support measures for businesses in the hospitality and leisure sectors, other businesses, cultural organisations and employers.

The announcements included:

  • Businesses in the hospitality and leisure sectors in England being eligible for one-off grants of up to £6,000 per premises
  • £100 million discretionary funding being made available for local authorities to support other businesses
  • The  government to cover the cost of Statutory Sick Pay for Covid-related absences for small and medium-sized employers across the UK (the reintroduction of the SSP reclaim scheme)
  • £30 million further funding to be made available through the Culture Recovery Fund, enabling cultural organisations in England to apply for support during the winter

https://www.gov.uk/government/news/1-billion-in-support-for-businesses-most-impacted-by-omicron-across-the-uk

Extension of mandatory vaccination to the wider health and social care sector

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/2015) will extend mandatory vaccination to workers in the  health and social care sector (beyond care homes) who have face-to-face contact with service users, from 1 April 2022. Supporting guidance has been published.

On 14th January the Department of Health and Social Care (DHSC) published operational guidance aimed at employers in social care settings other than care homes, while the NHS guidance published guidance for healthcare employers.

The Regulations cover volunteers, temporary and agency workers and independent contractors with direct patient contact. This includes frontline healthcare workers and  non-clinical workers such as receptionists, ward clerks, porters and cleaners.

Guidance for care homes is separate and was first published in August 2021 but has been updated this  month

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022

https://www.gov.uk/government/publications/vaccination-of-workers-in-social-care-settings-other-than-care-homes-operational-guidance

https://www.england.nhs.uk/coronavirus/publication/vaccination-as-a-condition-of-deployment-for-healthcare-workers-phase-1-planning-and-preparation/

Vaccination of people working or deployed in care homes: operational guidance - GOV.UK

ET decision - dismissal for refusing to be vaccinated was fair (ET)

In Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 an employment tribunal held that the summary dismissal of a care assistant working in a nursing home who refused to be vaccinated against COVID-19 (before it was mandatory) was not unfair dismissal or wrongful dismissal, and the interference with the worker's ECHR Article 8 right to privacy was justified.

Ms Allette’s initially stated reason for refusing the vaccine was that it was not safe and that, as she had recently contracted COVID-19, she was already immune. At the disciplinary hearing, she also sought to rely on Rastafarianism as the reason for her refusal. The information available to the employer at the time was that it was possible to contract the virus twice and the vaccine reduced the risk of contracting it and its transmissibility. The tribunal found that the  employer's legitimate aims were to protect the health and safety of the residents, staff and visitors to the care home during the COVID-19 pandemic, and that they had a legitimate concern about the withdrawal of public liability and employee liability insurance cover. There was no alternative position for Ms Allette and the employer’s response was found to be proportionate.

Ms C Allette v Scarsdale Grange Nursing Home Ltd (England and Wales : Breach of Contract) [2022] UKET 1803699/2021 (10 January 2022) (bailii.org)

CASES: 

Chell v Tarmac Cement And Lime Ltd [2022] EWCA Civ 7

Employer not liable for horseplay at work which resulted in injury

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Case Summary Tag: 

Lee v The United Kingdom [2021] ECHR 1129

ECHR rules application inadmissible in 'gay cake' case

Mr Lee, a gay man, was associated with an organisation called “QueerSpace” which is a volunteer-led organisation for the lesbian, gay, bisexual and transgender community in Northern Ireland.

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Case Summary Tag: 

Johnson v Transopco UK Ltd [2022] EAT 6

Taxi Driver not a worker when driving via app

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Stojsavljevic & Anor v DPD Group UK Ltd [2021] UKEAT 2019/000259

Franchisee drivers were not employees nor workers

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Rainford v Dorset Aquatics Ltd [2021] UKEAT 2020/000123

Director shareholder was not an employee

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Hope v British Medical Association [2021] UKEAT 2020/000187

Policy advisory was fairly dismissed for numerous vexatious and frivolous grievances which he failed to progress

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