Emplaw Monthly - End of May 2022
NEW FROM OUR AUTHORS
Data Protection and Employment
A useful reminder by Emplaw authors Lewis Silkin of the principles and requirements relevant to employment.
Is long Covid a disability?
A helpful article from Emplaw authors, Moorcrofts, discussing the evidence and the relevant factors.
EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW
Employment law update - no Employment Bill but what has the government done?
As widely reported, the anticipated Employment Bill did not feature in the Queen's Speech on 10 May 2022. Instead, BEIS issued a press release highlighting the actions it says the government has taken to support workers and the Prime Minister has launched another review into the future of work. We summarise what was expected and what has been achieved/is planned.
The Queen's Speech did announce a new Harbours (Seafarers' Remuneration) Bill, following the recent mass redundancies at P&O intended to protect seafarers working on vessels regularly visiting UK ports by giving ports the power to refuse access to ferry services that do not pay the equivalent to the national minimum wage (NMW) to seafarers while in UK waters. A consultation has been launched on the Bill, closing on 7 June 2022. However, the British Ports Association said it was “unclear” that the legislation would work and said they could not enforce it, while the TUC dismissed the plans as unworkable.
The Emplaw summary prepared earlier this year explains what was expected in the Employment Bill, including:
- Carer’s leave
- Tipping (ensuring that tips go in full to workers)
- Making flexible working the default
- Pregnancy and maternity discrimination (extending the period of redundancy protection)
- The right to request a more predictable contract
- Leave for neonatal care
The BEIS press release highlights increases to the minimum wage, its commitment to a statutory code on fire and rehire and the government’s recent announcement that it will extend the ban on using exclusivity clauses (see below).
On 12th May, it was announced that the Prime Minister has asked Matt Warman MP to lead a review into how the government can best support a thriving future UK labour market.The announcment states that the 'review will build on existing government commitments (including those made in response to the Matthew Taylor Review). For information on the Matthew Taylor 'Good Work' review and progress to the point of Coid-19 lockdown, please see the Emplaw article here.
Guidance for businesses offering work to people from Ukraine
The guidance, published on 6 May 2022, applies to businesses in England, Scotland and Wales. It links to the Employer’s Guide to Right to Work checks (which includes a new annex F specifically covering the employment of Ukrainian nationals).
The guidance confirms that people arriving in the UK under the Ukraine Family Scheme, or the Ukraine Sponsorship Scheme (Homes for Ukraine) will be granted leave to remain in the UK for 3 years. They can live in the UK, work in the UK and access benefits and public services.
Employers offering employment opportunities are asked to complete the Vacancy Information Questionnaire so that opportunities can be shared across the DWP Jobcentre Plus network and with the Refugee Employment Network.
The guidance also includes links to the Home Office fact sheet on visa support for Ukrainians, the Homes for Ukraine Scheme and the Welcome Guide for people arriving from Ukraine.
Asking job candidates about their salary history
A campaign has been launched by the Recruitment and Employment Confederation and The Fawcett Society to end the practice of candidates being asked about their earning history.
Research suggests that basing salary offers on previous income bakes in gender, race and disability inequality and perpetuates existing pay gaps.
Annual D&I disclosure requirements for listed companies
The FCA has published its final rules requiring the disclosure of data in relation to diversity on listed company boards and executive committees. Companies must disclose annually whether they meet diversity targets on a ‘comply or explain’ basis. The targets are: (i) at least 40% of the board are women; (ii) at least one senior board position is a woman; and (iii) at least one board member is from a minority ethnic background. Companies can decide how to approach data collection on the representation of women, e.g. whether to collect data based on sex or gender identity.
CONSULTATIONS AND REPORTS
Ban on exclusivity clauses to be extended
In its response to the consultation on Measures to extend the ban on exclusivity clauses in contracts of employment (which ran from December 2020 to February 2021), the government has announced that it will take forward legislation ‘in due course’ to extend the ban to low earners.
Exclusivity clauses were made unenforceable in zero hours contracts in 2015. The ban will extend to using exclusivity clauses in contracts where a worker’s guaranteed weekly income is below the Lower Earnings Limit, which is currently £123 a week. The legislation will also extend the right not to be unfairly dismissed and the right not to be subjected to a detriment for failing to comply with an exclusivity clause.
Health and wellbeing at work – research from CIPD and Simplyhealth
The research Includes interesting evidence on presenteeism, and Long Covid and includes a concise guide outlining how HR practitioners can support employees’ physical and mental health as we emerge from the acute phase of the COVID-19 pandemic.
Key findings of the research include;
- Working when ill (presenteeism) remains prevalent and is even higher for those working from home (81% versus 65% among those in a workplace). However, 52% of HR respondents are taking steps to address this trend and investigate potential causes.
- Just under half (46%) have employees who have experienced – or are experiencing – long COVID. Long COVID is now a major cause of long-term absence.
- New or better support is starting to be available for people working from home. Just under three-quarters of organisations (72%) are providing new or better support for people working from home. For example, nearly half (47%) are encouraging more responsible use of digital technologies, acknowledging that regular movement breaks and time away from screens are essential for health and wellbeing.
- There is less management focus on health and wellbeing compared with the first year of the pandemic. Seven in ten (70%) of HR respondents agree that employee wellbeing is on senior leaders’ agendas (down from 75% last year) and 60% believe that line managers have bought into the importance of wellbeing (down from 67% last year).
Disability workforce reporting
The outcome of the government's consultation (reported in January’s Emplaw Monthly) and which closed in March is awaited but the Business Disability Forum has published its research in response.
The Business Disability Forum does not feel that there is evidence to support a mandatory approach to disability workforce reporting at this time. Instead, they want to see an increased uptake of voluntary reporting.
LITIGATION AND LEGISLATION
HMCTS Vulnerability Action Plan updates
The HMCTS Vulnerability Action Plan (first published in July 2020) aims to make courts and tribunals accessible for all. Recent steps include the introduction of an Appointed Intermediary Service.
Intermediaries are communication specialists who work on behalf of HMCTS to support people participating in a court or tribunal hearing. They can provide impartial recommendations to HMCTS about a person’s specific communication needs and outline the steps needed to achieve them. The introduction of Appointed Intermediary Service is unlikely to require amends to the Employment Tribunal Rules of Procedure 2013, given the breadth of the rules (rule 29 on Case management orders and General rule 41).
Other steps taken to date by HMCTS under its Vulnerability Action Plan and relevant to the Employment Tribunal include service user testing to simplify the Employment Tribunals claim form.
Future plans include:
- introducing a new HMCTS safeguarding policy, guidance and staff training to make sure they have the skills and knowledge to support vulnerable users who may need safeguarding
- working with Employment Tribunals to improve the way reasonable adjustment requests are captured, and identifying how best to action these requests, then using research to understand service requirements to meet the support needs of users with additional or complex needs
The Judicial Review and Courts Act 2022
Whilst largely focussed on amendments to the Judicial Review process, the JRCA 2022, which received Royal Assent on 28th April, also makes some changes relevant to Employment Tribunal procedure.
- Transferring responsibility for making employment tribunal procedure regulations and employment from the Secretary of State and Lord Chancellor to the Tribunal Procedure Committee (TPC)- see link below to information on the TPC.
- Amending the Tribunal, Courts and Enforcement Act 2007 to allow for the delegation of judicial functions to legal case officers.
- Amending the Employment Tribunals Act 1996 to transfer the responsibility for the remuneration of members of the employment tribunal and employment appeals tribunal from the BEIS Secretary of State to the Lord Chancellor.
Professional Qualifications Act 2022
The Act, which creates a framework for the recognition of professional qualifications and experience from overseas by professions in the UK to meet the needs and demands for the services provided by those professions, received Royal Assent this month and the government has stated that its key provisions will come into force by autumn 2022.
By way of background, the EU Directive 2005/36/EC on the mutual recognition of professional qualifications (“MRPQ Directive”) provided a framework for the recognition of professional qualifications across the EU. Regulations post Brexit (The European Union (Recognition of Professional Qualifications) Regulations 2015 (SI 2015/2059) and The Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020 aimed primarily to implement transitional arrangements agreed for a reciprocal framework for the recognition of professional qualifications, enabling European Economic Area (EEA) and Swiss nationals to have their professional qualifications recognised and gain access to the regulated profession in which they are qualified in another EEA member state or Switzerland.
The PQA 2022 revokes the previous legislation, as well as sector-specific legislation.
The government has published guidance to assist regulators in negotiating and entering into mutual recognition agreements with foreign counterparts.
Staying away from work during COVID-19 lockdown
We have the first EAT decision on whether an employee who stayed away from work during COVID-19 lockdown was unfairly dismissed because he had a reasonable belief in "serious and imminent" danger.
In Rodgers v Leeds Laser Cutting Ltd  EAT 69 (12 April 2022), the EAT upheld the Employment Tribunal's decision that the employee's dismissal for refusing to return to the workplace because of concerns about the pandemic was not automatically unfair for a health and safety reason.
The EAT held that Mr Rodgers, who worked in a large warehouse with very few employees, had not been automatically unfairly dismissed under section 100 of the Employment Rights Act 1996 for leaving work and refusing to return at the start of the first COVID-19 lockdown. He claimed that he was concerned about catching COVID-19 and passing it to his children, one of whom had an underlying health condition.
The EAT agreed with the Tribunal that whilst Mr Rodgers had general concerns about Covid-19 , he did not hold a reasonable believe that there were serious and imminent circumstances of danger that prevented him from returning to work. They found that the employer had taken steps to avert the danger of COVID-19 in the workplace and that Mr Rodgers could reasonably have taken steps to avoid such danger, in the workplace and at large, such as wearing a mask, observing social distancing, and sanitising his hands.