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Emplaw Monthly - End of February 2022

NEW FROM OUR AUTHORS

Living with Covid: what this means for the workplace

This insight, from Emplaw authors, Lewis Silkin, looks at the implications for employers of the end of mandatory self-isolation and free testing in England as announced by the government as part of its new Living with Covid strategy.

Read here

Can a Worker Carry Over Holiday That Has Been Taken But Unpaid?

An article from Emplaw authors, Morrish solicitors, looking at the implication for workers of the most recent Court of Appeal decision in Smith v Pimlico Plumbers.

Read here

NEWS

EMPLOYER/ADVISOR NEED TO KNOW

Acas bereavement guidance

Acas has updated its guidance which now  includes a sample bereavement policy as well as outlining the statutory maternity and paternity leave rules for parents who have lost a pregnancy after 24 weeks, and the parental bereavement leave entitlement introduced in 2020.

Acas’s bereavement guidance includes reference to many outside support agencies and has sections  on:

  • Leave and pay when someone dies
  • If an employee's child dies
  • If an employee or their partner has a stillbirth or miscarriage
  • Parental bereavement leave and pay
  • Employees: what to do after a death
  • Supporting an employee after a death
  • If someone at work dies

See also the Emplaw law card  on Parental Bereavement Leave and Pay

Leave and pay when someone dies: Time off work for bereavement - Acas

Withdrawal of Covid- related SSP rebate scheme 

The Statutory Sick Pay Rebate Scheme will close on 17 March 2022 and employers will no longer be able to claim back Statutory Sick Pay for their employees’ coronavirus-related absences or self-isolation that occur after 17 March 2022.

Employers have until 24 March 2022 to submit any new claims for absence periods up to 17 March 2022, or to amend claims they have already submitted.

From 24th March there is a return to the normal SSP rules, which means that the special rules about statutory sick pay relating to Covid will be removed. SSP will only be payable from day 4 of a period of incapacity.

Claim back Statutory Sick Pay paid to your employees due to coronavirus (COVID-19) - GOV.UK (www.gov.uk)

TUC – changes to sick pay rules will leave Covid sufferers just £38 to get through first week of illness - Politics.co.uk

Four day week for employees in Belgium and a UK trial

Workers in Belgium will soon be able to choose a four-day week and the UK has launched a pilot programme based on the principle of 100 per cent of pay for 80 per cent of time, in exchange for a commitment to maintain at least 100 per cent productivity.

The series of labour market reforms in Belgium will also give workers the right to turn off work devices and ignore work-related messages after hours without fear of reprisal.

Belgium formally introduces four day week and creates right for employees to ignore bosses after hours (cityam.com)

https://www.cityam.com/four-day-working-week-pilot-launches-in-uk-with-100-80-model-100-per-cent-of-the-pay-for-80-per-cent-of-the-time/

FCA clarifies points about regulatory references

The FCA has received feedback on the challenges firms face when obtaining regulatory references and have clarified some key points. 

  • Employers should request, and respond to requests for, regulatory references promptly. Although SYSC 22 includes guidance that they should be provided within 6 weeks, this is a limit, not a target. 
  • When providing regulatory references, employers should use the template in SYSC 22 Annex 1. They should ensure the template is complete and the information provided is accurate, before sending it. Failing to use the correct template or sending incomplete or inaccurate information can cause delays. 
  • Firms need only take reasonable steps to obtain regulatory references. If an employer experiences difficulties obtaining regulatory references from a particular firm, they should tell the FCA. If an employer is unable to obtain regulatory references as part of an application, it should set out the steps it took to obtain references - this will help avoid delays during the application assessment. 
  • Employers should assess regulatory references on a case-by-case basis and individuals shouldn’t be automatically rejected due to a qualification in their references. Employers shouldn’t have a quota for the number of qualified references they will accept, as the FCA understands is sometimes the case. 

https://content.govdelivery.com/accounts/UKFCA/bulletins/3079711

LEGISLATION AND LITIGATION

Introducing flexi-job apprenticeships - The Apprenticeships (Miscellaneous Provisions) (Amendment) (England) Regulations 2022

These Regulations, which come into force on 6th April 2022, provide the legislative framework for introducing flexi-job apprenticeships in a listed number of sectors.

The Regulations amend the Apprenticeships (Miscellaneous Provisions) Regulations 2017 (which were made under the Apprenticeships, Skills, Children and Learning Act 2009) and which specify the conditions of an approved English apprenticeship, including the circumstances where an alternative English apprenticeship applies.

The 2022 Regulations create an additional arrangement for an alternative apprenticeship in England. This will require employers taking on a flexi-job apprentice to undertake a minimum 3-month commitment, instead of the 12-month commitment under an approved English apprenticeship agreement.

This will allow apprentices on flexi-job apprenticeships to move between different arrangements (i.e. discrete blocks of employment with training) throughout the course of their apprenticeship.

There will be a pilot of flexi-job apprenticeships beginning in April 2022. At the end of this pilot, the government will consider whether further amendments to the legislation are required.

https://www.legislation.gov.uk/uksi/2022/86/made

New President of the Employment Appeal Tribunal

From 1st February 2022, the President of the Employment Appeal Tribunal is The Honourable Mrs Justice Eady. 

She succeeds The Honourable Mr Justice Choudhury, who had served as President since January 2019.

https://www.judiciary.uk/announcements/appointment-of-the-president-of-the-employment-appeal-tribunal-eady/

REPORTS AND CONSULTATIONS

Updated Home Office code of practice on avoiding discrimination while preventing illegal working

The code is relevant to those who undertake ‘right to work’ checks and the updated version,  which follows a short consultation that closed on 25th February, will apply to any checks on or after 6 April 2022.

Amendments to the Home Office code of practice for employers - GOV.UK (www.gov.uk)

Women’s and Equalities Select Committee: 'No excuse' for lack of ethnicity pay gap statistics

Reporting the ethnicity pay gap should be mandatory, and is the first step to addressing pay disparities between employees from different ethnic backgrounds, say a cross-party group of MPs. In a new report, published on 8 February 2022, the House of Commons Women and Equalities Committee called on the Government to introduce legislation which would require large companies to publish their ethnicity pay gap data. 

https://committees.parliament.uk/committee/328/women-and-equalities-committee/news/160861/no-excuse-for-lack-of-ethnicity-pay-gap-statistics/

Fawcett Society Sex and Power Index 2022

This report sets out the statistical evidence which reveals that the pace of change in female representation is slow amongst CEOs in many sectors, politicians and high ranking positions in sport and science.

The Fawcett's Sex and Power 2022 Index is a biennial report which charts the progress towards equal representation for women in top jobs across the UK.  The report this year shows that women are outnumbered by men 2:1 in positions of power. 

Sex & Power 2022 shows: 

  • Less than 1/3 of the UK’s top jobs are filled by women. Across 5,166 positions of power in society, women make-up under a third (32%).
  • The last two Westminster elections have seen little progress with the proportion of female MPs at 34%, following the 2019 election. 
  • Women remain just 8% of FTSE 100 CEOs and there are no women of colour.
  • The sporting sector has very few women in senior roles and there has been a progressive decline in the number of female sport governing body chairs (15%) and CEOs (19%).  
  • Women account for just 34% of those serving on the Scientific Advisory Group for Emergencies (SAGE) and related subgroups advising cabinet on the coronavirus response. 

https://www.fawcettsociety.org.uk/sex-power-2022

COVID HEADLINES

Living with Covid

The government has published its plan for Living with Covid including the timetable for removing Covid measures in England.

From 24 February the legal requirement to self-isolate following a positive test was replaced with guidance to stay at home, contact tracing ended, and self-isolation support payments for those on a low income stopped. From 1 April, free Covid testing for all will end.

COVID-19 Response - Living with COVID-19.docx (publishing.service.gov.uk)

Withdrawal of compulsory vaccination across health and social care

On 31 January 2022, the Secretary of State for Health and Social Care, Sajid Javid, announced the government's intention to revoke both sets of regulations relating to mandatory vaccination in the health and social care sector and care homes, subject to a two-week statutory consultation and parliamentary approval.

The consultation took place between 9 -16 February 2022. The consultation documents make clear that while the government's intention is to revoke mandatory vaccination, it considers that workers in the health and social care sectors have a professional duty to be vaccinated against COVID-19 and it will engage with the NHS to review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status. Government feedback on the consultation is awaited.

https://www.gov.uk/government/consultations/revoking-vaccination-as-a-condition-of-deployment-across-all-health-and-social-care

https://www.gov.uk/government/speeches/oral-statement-on-vaccines-as-a-condition-of-deployment

Covid restrictions removed for eligible travellers from 11 February

All testing measures for eligible fully vaccinated travellers arriving in the UK were removed on 11 February.

https://www.gov.uk/government/news/uk-open-for-travel-with-all-restrictions-removed-for-eligible-vaccinated-arrivals

CASES: 

Smith v Pimlico Plumbers Ltd (Rev1) [2022] EWCA Civ 70

Workers entitlement to holiday pay for entire employment period crystallised on termination and Appendix to Court of Appeal judgment

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Union of Shop, Distributive and Allied Workers & Ors v Tesco Stores Ltd [2022] EWHC 201

Injunction granted restraining termination of employment for the purpose of withdrawal of contractual benefit

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Case Summary Tag: 

Hughes v Rattan [2022] EWCA Civ 107

Dentist liable under non-delegable duty of care for work carried out by associate dentists

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Case Summary Tag: 

Arvunescu v Quick Release (Automotive) Ltd (Practice and Procedure) [2021] UKEAT 2019-000698, [2022] EAT 26

Terms of COT3 were wide enough to compromise future claim as there was sufficient link with past employment

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Case Summary Tag: 

Abellio East Midlands Ltd v Thomas (Rev2) [2022] EAT 20

Quantum meruit claim should have been brought in civil court not tribunal

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