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Emplaw Monthly - End of June 2022

NEW FROM OUR AUTHORS

Diversity monitoring: what to collect and how to comply with the law

This article from Emplaw authors Lewis Silkin, takes an in-depth look at what questions employers should ask employees about their individual characteristics and how that information can be handled lawfully.

Read here

White v C-ONE OVAL LTD – unfair dismissal and voluntary redundancy

A helpful article from Emplaw authors Morrish Solicitors discussing the recent EAT decision which confirmed that accepting a voluntary redundancy does not necessarily mean an unfair dismissal claim has no reasonable prospects of success.

Read here

NEWS

EMPLOYER/ADVISOR NEED TO KNOW

Agency staff could be used to replace strikers and damages for unlawful strike action to increase

On 23 June 2022, the government announced that it will the change current law to remove the restrictions on employment businesses supplying workers to cover striking staff and it will also raise the damages cap businesses can claim against a union when a court finds a strike is unlawful. Regulations have been laid before Parliament.

Currently, regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) prevents an employment business from supplying an employer with workers to perform duties normally performed by a worker who is taking part in an official strike or taking official industrial action, or the duties normally performed by any other worker who has been assigned to cover such a striking worker. The draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 revoke regulation 7 and will come into force once approved.

The increase to the cap on damages which can be awarded against a trade union by a court where industrial action is found to be unlawful require amendment of section 22 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 22 sets out current caps (which vary according to the size of a trade union's membership). The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 amends section 22 and increases the maximum amount which can be awarded  from £250,000 to £1 million for the largest trade unions. The new regulations will take effect from 21st July 2022. 

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (legislation.gov.uk)

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (legislation.gov.uk)

Trade Union and Labour Relations (Consolidation) Act 1992 (legislation.gov.uk)

The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (legislation.gov.uk)

https://www.gov.uk/government/news/government-acts-to-make-it-easier-for-businesses-to-use-temporary-staff-to-help-ease-disruptions-caused-by-strike-action

More healthcare professionals can sign fit notes

From 1st July, registered nurses, occupational therapists, pharmacists and physiotherapists will be able to sign fit notes.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No. 2) Regulations 2022 (SI 2022/630) come into force on 1st July 2022 and amend the existing legislation to expand the category of people who can sign fit notes, for the purposes of SSP and social security claims, to include these healthcare professionals.

The latest Regulations follow others which allowed the move to digital sick notes (see Emplaw Monthly for March).

https://www.legislation.gov.uk/uksi/2022/630/regulation/1/made

Changes to simplify the apprenticeships programme in England 

The government has announced some helpful amendments aiming to simplify the current apprenticeship programme for employers, training provider and apprentices. 

The Apprenticeship Funding Rules will be amended from August 2022 with a view to:

· Making it simpler for individuals to accelerate their apprenticeship, by placing a greater focus on provider assessment of prior learning and experience. The aim is that by improving how providers take account of this at the start of their apprenticeship - and funding them to do a robust upfront assessment - apprentices will be able to cut out training they do not require and complete their apprenticeship more quickly.

· Introducing a consistent baseline for off-the-job training,

· Changing English and Maths requirements so that those starting a Level 2 apprenticeship without a Level 1 English and Maths qualification will no longer need to attempt Level 2 to complete their apprenticeship, instead focusing on gaining their Level 1 qualification.

· Providing a more efficient payment service for providers by reducing the data needed to make payments and improving Apprenticeship Service financial reports to help providers understand what they are being paid for each apprenticeship and why.

https://www.gov.uk/government/news/making-our-apprenticeship-system-simpler-for-employers-training-providers-and-apprentices

Apprenticeship funding rules - GOV.UK (www.gov.uk)

Trial of four-day working week commences

The planned trial, reported in February’s Emplaw Monthly started this month and involves 70 companies and 3,300 employees across the UK for a six-month period.

The trial is led by 4 Day Week Global, and will be monitored by academics from Oxford and Cambridge Universities, alongside the think tank Autonomy and Boston College in the US. Employers taking part have agreed that workers will receive 100% of their pay for 80% of their time, in return for workers committing to 100% productivity.

Using a cross section of industries, researchers will be looking at the impact on productivity and wellbeing, alongside the impact on the environment and gender equality.

https://www.personneltoday.com/hr/four-day-week-trial/

High Potential Individual visa route open to applicants worldwide

The High Potential Individual visa route to the UK is now open to eligible graduates worldwide to come to work in the UK without a job offer. Applicants will need to have graduated from an eligible university in the five years before they apply.

High Potential Individual (HPI) visa: Eligibility - GOV.UK (www.gov.uk)

LEGISLATION AND LITIGATION

Dashboard of retained EU law published

The dashboard shows the status of over 2400 pieces of unchanged, amended, repealed or replaced retained pieces of EU law (REUL). Now that there is a comprehensive catalogue, the government states that it will ‘work to update it by amending, repealing or replacing REUL that is no longer fit for the UK’.

REUL are laws that the UK saved to ensure legislative continuity immediately after Brexit. It is a body of law made up of certain pieces of EU legislation that were ‘cut and pasted’ onto the UK statute book and also certain domestic laws that implemented EU law and were preserved as REUL on the UK statute book.

https://www.gov.uk/government/publications/retained-eu-law-dashboard

New President of Employment Tribunals (Scotland) Announced

Judge Susan Walker, the current Vice President of the Employment Tribunal (Scotland), will be appointed to the role of President of Employment Tribunals (Scotland) with effect from 16 July 2022. This follows the retirement of the previous President, Judge Shona Simon.

Judge Susan Walker to be appointed as President of the Employment Tribunal (Scotland)

Draft Bill of Rights Bill 2022-23 makes its way through the House of Commons

On 22 June 2022, the government introduced the Bill of Rights Bill 2022-23. Whilst committed to remaining party to the European Convention on Human Rights (ECHR), the Bill would repeal the Human Rights Act 1998 (HRA 1998) and create a new domestic human rights framework.

The Bill is accompanied by a Statement from Secretary of State Dominic Raab which says ‘In my view the provisions of the Bill of Rights Bill are compatible with the Convention rights’.

The Bill retains provisions from the HRA that it is unlawful for a public authority to act, or fail to act, in a way which is incompatible with a Convention right and that a court may make a declaration of incompatibility in respect of primary or subordinate legislation that is incompatible with a Convention right.

However the Bill, as currently drafted, sets out rules on interpretation which are deliberately limiting. For example, the GOV.UK website explains ‘The Bill will apply when a court considers deportation laws, especially those that may seek in the future to make it more difficult for foreign criminals to use Article 8 to appeal their deportation. It will set out that the legislation must be found compatible with those rights if it meets a new test which the Bill of Rights sets out’.

Bill of Rights: Bill documents - GOV.UK (www.gov.uk)

Bill of Rights Bill (parliament.uk)

Employment tribunal quarterly statistics for January to March 2022

The Ministry of Justice has published its quarterly report on tribunal statistics for January to March 2022 (Q4 2021/2022). For the first time since June 2021 the report contains statistics for the employment tribunal.

The report explains that employment tribunals transitioned to a new database between March and May 2021 and since then, it has not been possible to gather employment tribunal case data on a consistent basis because of differences between the two databases. Whilst there is "increasing confidence" about the Q4 figures, they are still subject to checks.

With these limitations in mind, the Q4 2021/22 figures show that there were 17,000 Employment Tribunals receipts, 47% (8,100) of which were single claims receipts, and the remaining 53% (9,000) were multiple claims receipts. The ET disposed of 18,000 cases in Q4 2021/22 an increase of 56% compared to Q4 2020/21, the highest level seen since 2014/15. At the end of the financial year, 510,000 cases were outstanding, a similar level to that at the end of 2020/21.

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2022/tribunal-statistics-quarterly-january-to-march-2022#employment-tribunals

REPORTS AND CONSULTATIONS

Report and recommendations from the EHRC on the treatment of lower-paid ethnic minority workers

The Equality and Human Rights Commission (EHRC) has published a report following its inquiry to assess the treatment and experiences of lower-paid ethnic minority workers in health and social care, particularly during the COVID-19 pandemic. Its recommendations include improving awareness of and compliance with employment rights, including bringing forward existing government proposals to introduce a Single Enforcement Body.

Findings from the inquiry include:

•          incomplete data on lower-paid ethnic minority workers, particularly in adult social care

•          different treatment and experiences at work  

•          commissioning and outsourcing leading to poor pay and insecure work       

•          low awareness of employment rights    

•          fear of raising concerns and a lack of mechanisms to do so

The report’s recommendations,  aimed at governments, local authorities, NHS providers, and health and social care regulators include:

·       improving awareness of and compliance with employment rights, including by bringing forward proposals to introduce a Single Enforcement Body. Please see April's Emplaw Monthly for more information on those proposals.

·       providing mandatory training for managers on dealing with workforce complaints, including relating to bullying and harassment on the grounds of race

https://equalityhumanrights.com/en/publication-download/experiences-health-and-social-care-treatment-lower-paid-ethnic-minority-workers

Call for evidence on future of UK labour market

The Business, Energy and Industrial Strategy (BEIS) Committee has launched a wide-ranging call for evidence into the UK labour market, prompted by the challenges faced as we emerge from the COVID pandemic. Responses to the call for evidence are invited by 8 July 2022.

Questions tabled by the Committee as part of the inquiry cover:

·       The state of play in the UK labour market post-Brexit and the impact of the covid-19 pandemic on recruitment, skills shortages and the growth of the labour market

·       Artificial Intelligence (AI) and technology in the workplace

·       Workers’ rights and protections (including what the promised statutory code to prevent employers using unscrupulous fire and rehire tactics should include)

·       Employment status and modern working practices five years on from the Taylor Review

·       The impact of an ageing population on the labour market

For an update on government actions on some of these topics so far, please see last month’s Emplaw Monthly for Employment law update - no Employment Bill but what has the government done?

https://committees.parliament.uk/committee/365/business-energy-and-industrial-strategy-committee/news/171131/business-committee-launches-uk-labour-market-inquiry/

COVID HEADLINES

Workplace measures to control Covid - HSE finds College in health and safety breach

Burnley College has been issued a notification of contravention (NoC) letter after the HSE found evidence of failures to follow social distancing requirements, to notify close contacts of those who tested positive and in monitoring and enforcing the wearing of face coverings. However, the death of an employee at the time from COVID-19 was not RIDDOR reportable.

The HSE found that the College had failed to ensure, so far as is reasonably practicable, the health, safety, and welfare of their employees at work because they had not implemented these necessary measures to prevent the spread of COVID-19.

The failures took place in December 2020. The College took steps in early 2021 to improve their control measures.

The HSE also considered whether the death of an employee of the College who died in January 2021, having tested positive for COVID-19 in December 2019, was held to be reportable under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). It considered that, to meet the reporting requirements under RIDDOR, there must be reasonable evidence linking the nature of the person's work with an increased risk of becoming exposed to COVID-19. However the HSE found that, on the balance of probabilities, it was unable to conclude that the employee's exposure to COVID-19 took place within the workplace. There was no specific, identifiable incident that led to an increased risk of exposure and no clear link between work and the exposure. Further, at the time the employee tested positive, the general levels of COVID-19 infection in the community were very high.

https://www.ucu.org.uk/media/12846/Marie-Monaghan-Burnley-College/pdf/Marie-Monaghan-Burnley-College.pdf

ET decides employee with long COVID symptoms was disabled for EqA 2010 purposes

Following the article we carried last month on whether long Covid could be a disability, we now have an ET decision that, in the specific circumstances, an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010.

The case concerned a caretaker (Mr Burke) who tested positive in November 2020 and subsequently developed variable symptoms including severe headaches, joint pain and fatigue. He was dismissed in August 2021 because of ill health. As a preliminary issue, a tribunal had to determine whether he was disabled during the relevant period.

Interestingly, whilst Mr Burke's later fit notes referred to the effects of long COVID and post-viral fatigue syndrome, two Occupational Health reports stated he was fit to return to work and that the disability provisions of the EqA 2010 were unlikely to apply. Nevertheless, the ET considered that Mr Burke was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay.

The physical impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities. This adverse effect was long-term because viewed from the date of the alleged discriminatory act, which was between 9 July and 13 August 2021 ‘it could well happen’ that the condition would subsist until 25 November 2021. ie 12 months from the end of his first period of isolation (effectively the onset of long covid).

Is long Covid a disability? | Emplaw

https://assets.publishing.service.gov.uk/media/62a1feace90e07039e31b82c/Mr_T_Burke_v_Turning_Point_Scotland_-_4112457.2021_-_Preliminary.pdf