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Emplaw Monthly - End of April 2022

NEW FROM OUR AUTHORS

Employment Tribunal Road Map 2022-23

An article from Emplaw authors Morrish Solicitors summarising the next stages in HMCTS’ Reform Programme including automation of the listing process and the future of video hearings.

HMCTS’s Road Map, published by the President of the English and Wales Employment Tribunals and the President of the Scottish Employment Tribunals is found here.

Read here.

Environmental, Social and Governance (ESG)

A useful brief overview from Emplaw authors Gowling WLG on what ESG covers and why it is important for organisations.

Read here.

FOCUS ON EMPLAW CONTENT

Please see our latest Reference Law Card on Statutory Limits for Benefits and Awards 2022-2023 (full content for subscribers to Emplaw Online only).

Read here.

NEWS

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

P&O Ferries redundancies – government response

There will be no government legal action against P&O but other measures announced include a ‘fire and rehire’ statutory code of practice.

Despite earlier indicating that action would be taken against P&O, the Transport Secretary, Grant Shapps MP, told MPs on 30th March that “the government is not in a position to take court action.” It emerged that amendments in The Seafarers (Transnational Information and Consultation, Collective Redundancies and Insolvency Miscellaneous Amendments) Regulations 2018 mean that firms no longer need to inform the UK government about mass dismissals but instead must tell the governments of the countries where boats are registered. 

Mr Shapps also conceded that he would not be announcing changes to the National Minimum Wage Act 1998 on the basis that 'maritime law is governed by international conventions that would too easily override changes to domestic laws'. He did however announce the government’s intention to give British ports new statutory powers to refuse access to regular ferry services that do not pay their crew the national minimum wage.

Other measures announced included asking the Insolvency Service to consider whether the CEO of P&O Ferries should face disqualification, as well as an intention to introduce a new statutory code aiming to prevent employers who have not made reasonable efforts to reach agreement through consultation, from using ‘fire and rehire’ tactics. The code would allow a court or employment tribunal to impose a 25% uplift to a worker’s compensation if an employer fails to comply with the code,  

P&O Ferries - Hansard - UK Parliament

The Seafarers (Transnational Information and Consultation, Collective Redundancies and Insolvency Miscellaneous Amendments) Regulations 2018 (legislation.gov.uk)

P&O ferries: update from the Insolvency Service - GOV.UK (www.gov.uk)

When will a Code of Practice on ‘fire and rehire’ be introduced?

In response to a request from Labour MP Angela Rayner for further information on the introduction of the proposed code of practice referenced above, Paul Scully MP on behalf of BEIS, confirmed that ‘Legislation to lay the Code will be introduced when parliamentary time allows.'  Mr Scully also confirmed that ‘Under section 204 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Secretary of State is required to publish a draft and consider any representations. The Department will engage with trade unions as part of that consultation.’

The introduction of a Code of Practice marks a significant change of approach by the government whose response in late 2021, following the publication by Acas of evidence on the use of fire and rehire practices at work, was not to action legislative change but to ask Acas to produce guidance to help employers explore all other options first before considering fire and rehire to change employee contracts. (See Emplaw Monthly November 2021). There is a link to the ACAS guidance below.

Written questions and answers - Written questions, answers and statements - UK Parliament

https://www.acas.org.uk/changing-an-employment-contract/employer-responsibilities

EHRC guidance on the provision of separate or single-sex services to trans people

This month, the Equality and Human Rights Commission (EHRC) published guidance for those operating a separate or single-sex service and their approach to trans people's use of the service. Whilst aimed at service providers (anyone who provides goods, facilities or services to the public), it is a useful read for employers.

In particular, it suggests implementing a policy on providing services to trans people and that staff should be trained on how to apply the policy consistently.

The guidance emphasizes that a decision to provide a service on a single-sex basis must be shown to be a proportionate means of achieving a legitimate aim. It states that a person does not need to have a Gender Recognition Certificate to be protected under the characteristic of gender reassignment. The guidance reminds providers. when making and applying decisions, to treat all individuals with dignity and respect and to be aware that trans people may need access to services relating to their biological sex.

https://www.equalityhumanrights.com/en/advice-and-guidance/separate-and-single-sex-service-providers-guide-equality-act-sex-and-gender

UK enshrines mandatory climate disclosures for largest companies in law

Underlining the importance of ESG goals for companies (see the Gowling WLG article above) new legislation requires Britain’s largest businesses to disclose climate-related financial information.

The Companies (Strategic Report) (Climate-related Financial Disclosure) Regulations 2022 and the Limited Liability Partnerships (Climate-related Financial Disclosure) Regulations 2022 apply to reporting for financial years starting on or after 6th April 2022. Non-binding guidance has been published and is linked below.

The disclosure requirements apply to a company or LLP if it meets the following scope criteria:

  • All UK companies that are currently required to produce a non-financial information statement, being UK companies that have more than 500 employees and have either transferable securities admitted to trading on a UK regulated market or are banking companies or insurance companies (Relevant Public Interest Entities (PIEs));
  • UK registered companies with securities admitted to AIM with more than 500 employees;
  • UK registered companies not included in the categories above, which have more than 500 employees and a turnover of more than £500m;
  • Large LLPs, which are not traded or banking LLPs, and have more than 500 employees and a turnover of more than £500m and;
  • Traded or banking LLPs which have more than 500 employees.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1056085/mandatory-climate-related-financial-disclosures-publicly-quoted-private-cos-llps.pdf

https://www.legislation.gov.uk/uksi/2022/31/contents/made

https://www.legislation.gov.uk/uksi/2022/46/contents/made

Court and tribunal judgments now available via free caselaw service

On 19th April 2022, the Ministry of Justice and HMCTS announced that new court and tribunal decisions from the UK Supreme Court, the Court of Appeal, the High Court and the Upper Tribunals are now freely available to all on The National Archives (TNA) Find Case Law website.

The website advises that the initial collection of judgments and decisions will total 50 000 dating back to 2003 for court judgements and 2015 for Tribunal decisions. Users will be able to search by neutral citation, party name, Judge’s name, court/chamber and date.

The British and Irish Legal Information Institute (BAILII), the charity that has been contracted to publish Court and Tribunal judgments on behalf of the Lord Chancellor will continue to provide free access to English and Welsh judgments under licence from Case Law.

 https://www.nationalarchives.gov.uk/about/news/the-national-archives-to-publish-court-judgments/.

https://www.gov.uk/government/news/court-judgments-made-accessible-to-all-at-the-national-archives

CONSULTATIONS AND REPORTS

Labour Market Enforcement: call for evidence

The government’s Director of Labour Market Enforcement (a role created by the Immigration Act 2016 to improve labour market enforcement) is calling for stakeholder evidence on emerging issues around compliance and enforcement in the UK labour market. The call for evidence will remain open for responses until 31 May 2022. The responses will inform the Labour Market Enforcement Strategy for 2023 to 2024 which is due to be delivered to the government in Autumn 2022.

In particular, the Director of Labour Market Enforcement is looking for;

  • evidence of the scale and nature of the labour non-compliance threat, including whether it varies across the UK
  • challenges in terms of compliance and enforcement for the 3 enforcement bodies under her remit (HMRC’s National Minimum Wage (NMW) enforcement team, the Gangmasters and Labour Abuse Authority (GLAA) and the Employment Agency Standards Inspectorate (EAS)
  • views and ideas on how some of these challenges may be overcome

The government’s plans for uniting the 3 enforcement bodies into a Single Enforcement Body confirmed in June 2021 still require statutory implementation.

By way of background;

  • In its response to the Good Work Plan in December 2018, the government announced it would bring forward proposals in early 2019 for a new, single labour market enforcement agency to better ensure that vulnerable workers are more aware of their rights and have easier access to them
  • A consultation paper “Good Work Plan: establishing a new single enforcement body for employment rights” was published in July 2019, with the consultation period closing on 6 October 2019.
  • In June 2021, BEIS published the government’s belated response (Emplaw Monthly - End of June 2021 | Emplaw) on the proposal, and confirmed they would consolidate the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC's National Minimum Wage Team, into a single agency.

Labour Market Enforcement Strategy 2023 to 2024: call for evidence - GOV.UK (www.gov.uk)

https://www.emplaw.co.uk/article/your-essential-briefing-good-work-plan-and-subsequent-developments

Mental health and wellbeing plan: discussion paper and call for evidence

The Department for Health and Social Care’s discussion paper and call for evidence on improving mental health and wellbeing, is open for responses, including via an online survey, until 7th July 2022.

Responses will help inform a ten-year plan for mental health and wellbeing for England.

The paper references the role of employers and the 2017 review, Thriving at Work, and includes a specific question ‘Do you have ideas for how employers can support and protect the mental health of their employees?’

The paper invites answers to the following questions from everyone, including people who are affected by mental ill-health, people who volunteer in the sector and academics and experts who work on mental health:

  • how can we all promote positive mental wellbeing?
  • how can we all prevent the onset of mental ill-health?
  • how can we all intervene earlier when people need support with their mental health?
  • how can we improve the quality and effectiveness of treatment for mental health conditions?
  • how can we all support people living with mental health conditions to live well?
  • how can we all improve support for people in crisis?

https://www.gov.uk/government/consultations/mental-health-and-wellbeing-plan-discussion-paper-and-call-for-evidence

Dispute resolution in England and Wales: summary of responses

Following a call for evidence, in 2021, on “dispute resolution” outside of the litigation process, the Ministry of Justice has now published a summary of responses.

Responses relate to categories including:

  • Drivers of engagement and settlement;
  • Quality and outcomes;
  • Dispute resolution service providers;
  • Finance and economic costs / benefits of dispute resolution systems;
  • Technology infrastructure;
  • Public sector equality duty

No immediate reforms are announced in the wake of the evidence but the summary of responses states that the consultation exercise will inform the government’s developing work on how to utilise dispute resolution processes to deliver swifter, more cost-effective and more consensual access to justice.

https://www.gov.uk/government/consultations/dispute-resolution-in-england-and-wales-call-for-evidence

COVID HEADLINES

Health and Safety Executive revised advice for workplaces

Last reviewed on 20th April, the Health and Safety Executive’s Coronavirus (COVID-19)Advice for workplaces, is the go-to place for information and links to guidance for England, Scotland and Wales.

https://www.hse.gov.uk/coronavirus/index.htm

Reducing the spread of respiratory infections, including COVID-19, in the workplace

Updated as of 14th April, this guidance sets out for employers the Public health principles for reducing the spread of respiratory infections, including COVID-19, in the workplace in England. It replaces working safely during coronavirus (COVID-19).

https://www.gov.uk/guidance/reducing-the-spread-of-respiratory-infections-including-covid-19-in-the-workplace

COVID-19: guidance for people whose immune system means they are at higher risk

With regards to work, this guidance for England, updated as of 14th April states ‘If it feels right for you, work from home if you can. If you cannot work from home, speak to your employer about what arrangements they can make to reduce your risk. It may be that you are entitled to a Reasonable Adjustment under the Equality Act’.

COVID-19: guidance for people whose immune system means they are at higher risk - GOV.UK (www.gov.uk)

Data protection and Coronavirus-19 – relaxation of government measures

The Information Commissioner's Office has published guidance for organisations and employers to help them comply with their data protection obligations following the government's relaxation of the rules relating to COVID-19. 

Data protection and Coronavirus-19 – relaxation of government measures | ICO