Emplaw Monthly - End of July 2022
NEW FROM OUR AUTHORS
Is It Too Hot to Work?
In this article, Emplaw authors, Morrish Solicitors, explain the current law and guidance and link to the TUC proposal for a maximum working temperature.
‘Pro bono costs’ now claimable in the Employment Tribunal
An article from Adam Ohringer of Emplaw authors, Cloisters chambers, explaining the change in the law which means that an ET can, if appropriate, make an award of costs even if the receiving party was legally represented without charge or by way of legal aid.
INEOS v Jones - Don’t bypass the collective bargaining agreement
A note from Emplaw authors Morrish on the EAT's decision that an employer’s imposition of a pay award, at a time when pay negotiations with the recognised trade union were at an impasse, amounted to an unlawful inducement under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.
EMPLOYER/ADVISOR NEED TO KNOW
Asking and answering questions about a discrimination complaint – updated Acas Guidance
The guidance recommends that complainants submit a statement with questions to employers and that employers, whilst not legally required to answer questions, should reply as soon as possible and investigate where appropriate. A sample statement is included.
By way of background, S.138 of the Equality Act 2010 provided a statutory procedure for an employee to ask his or her employer about equality of terms in comparable contracts and to seek explanations for apparent inequalities. However the statutory procedure was repealed (as part of the then government’s drive to reduce red tape) on 6 April 2014 and Acas published subsequently issued non-statutory guidance.
What do healthcare professionals consider when writing fit notes?
It is interesting for employers and employees to understand the approach to writing fit notes and now, following Regulations allowing more healthcare professionals to sign fit notes, and the transition to digital fit notes (see last month’s Emplaw Monthly), the Department for Work and Pensions has published detailed guidance for healthcare professionals.
The guidance comprises:
- Who can issue fit notes: guidance for healthcare professionals and their employers
- Getting the most out of the fit note: guidance for healthcare professionals
- E-learning for healthcare (elfh) fit note training module for healthcare professionals
Getting the most out of the fit note: guidance for healthcare professionals includes sections on Filling in the fit note: instructions for completion and How do you assess a patient’s fitness for work? (which advises that assessment is about the patient’s fitness for work in general and is not job-specific and lists a number of factors to consider). It also explains that the new version of the fit note which was introduced in April 2022 to support digital signature (i.e. it replaced the signature in ink with the name and profession of the issuer) will be used alongside the previous 2017 version for a transitional period whilst relevant IT systems are updated and stocks of paper fit notes in hospitals are replaced.
Who can issue fit notes: guidance for healthcare professionals and their employers includes a useful FAQ section.
TUC announces new general secretary and publishes legal opinion on rail dispute
Paul Nowak has been announced as the next general secretary of the Trades Union Congress (TUC) and will officially take up the post of general secretary in January 2023. Meanwhile, more days of industrial action on the railways are announced and the TUC has published legal opinion from Michael Ford QC which suggests government has a more important part to play in resolving the disputes than it has acknowledged.
Data Protection and ICO reform
The Department for Culture, Media and Sport has published its response to the consultation on proposals to reform the UK’s data protection laws and introduced the Data Protection and Digital Information Bill. Meanwhile the ICO is consulting on its purpose, objectives and performance measures under a three-year strategic plan.
The consultation on proposals to reform the UK’s data protection laws, Data: a new direction was launched in September 2021 and closed in November 2021. The resonse is a long but informative read! The Data Protection and Digital Information Bill has had its First Reading in the House of Commons this month.
Meanwhile, the Information Commissioner, Mr John Edwards, had launched, a draft three-year strategic plan for (the ICO25) and a draft annual action plan (October 2022 to October 2023).
The draft ICO25 plan includes information on the ICO’s purpose, objectives and performance measures and consultation on these continues until 22nd September. A final version of ICO25 will be published in the autumn.
The draft annual action plan sets out the ICO's priorities for the year, which include:
- Looking at the impact of predatory marketing calls
- Looking at the use of algorithms within the benefits system
- Considering the impact the use of AI in recruitment could have on neurodiverse people or ethnic minorities, who were not part of testing for the software
LEGISLATION AND LITIGATION
Regulations banning exclusivity clauses in employment contracts for low-income workers
Draft Regulations have been published which will extend the ban on exclusivity clauses, which already applies in zero hours contracts, to contracts where a worker’s guaranteed weekly income is below the Lower Earnings Limit, which is currently £123 a week.
The Regulations follow the government’s announcement (see May’s Emplaw Monthly) in its response to the consultation on Measures to extend the ban on exclusivity clauses in contracts of employment that it would take forward legislation ‘in due course’ to extend the ban to low earners.
The Regulations make unenforceable any contractual term which prohibits a worker from doing work or performing services under another contract or arrangement, or which prohibits a worker from doing so without their employer's consent. Where they breach an exclusivity clause in their contract, all workers will be protected from detriment, and employees protected from unfair dismissal (with no qualifying period). Where an employment tribunal finds that a worker has suffered a detriment, it may make a declaration and award compensation it considers just and equitable.
The draft regulations will come into force 28 days after the day on which they are made and apply to England, Scotland and Wales.
Employment (Allocation of Tips) Bill
Legislation to ensure that tips go in full to workers was expected this year in an Employment Bill but no such Bill appeared in the Queen’s Speech in May. However, the government is now backing the Employment (Allocation of Tips) Bill, a Private Members' Bill sponsored by Dean Russell MP. The House of Commons library has issued a useful Research Briefing explaining the Bill.
Legislation was originally expected following the Government’s response in September 2021 to its consultation on tipping, gratuities, cover and service charges (see previous Emplaw Summary).
The Employment (Allocation of Tips) Bill would amend the Employment Rights Act 1996 to require employers to ensure that all tips, gratuities and service charges they receive or exercise control over must be paid to workers in full without deductions and by the end of the following month. It would also introduce obligations to ensure the fairness of arrangements to distribute those tips among workers, either when distributed by the employer or via an independent tronc. The Bill provides for the Secretary of State to be able to introduce a new code of practice about the fair and transparent distribution of qualifying tips, gratuities and service charges which would help to indicate what would count as a fair distribution for the purposes of the new legal obligations.
The House of Commons library has issued a useful Research Briefing explaining the Bill
The provisions would apply both to those working directly for hospitality and to agency workers supplied to work in those businesses. The Bill has passed its second reading this month.
Neonatal Care (Leave and Pay) Bill
Again, legislation on neonatal care leave and pay was expected this year in an Employment Bill but in the absence of such, the government has announced that it is backing the Neonatal Care (Leave and Pay) Bill, a Private Members' Bill sponsored by Stuart McDonald MP. The House of Commons library has issued a useful Research Briefing explaining the Bill.
For background on proposals for neonatal care leave and pay see the previous Emplaw Summary.
The Bill will allow parents to each take up to 12 weeks of paid leave, in addition to other leave entitlements such as maternity and paternity leave, so that they can spend more time with their baby who, having been born prematurely or sick, is receiving neonatal care. Neonatal care leave will be a day one right for employees only. It will apply to parents of babies who are admitted into hospital up to the age of 28 days, and who have a continuous stay in hospital of 7 full days or more.
The right to neonatal care pay during periods of neonatal care leave would be available to all employees with at least 26 weeks’ continuous service and whose weekly earnings are at or above the lower earnings limit (currently £123 per week for 2022-23).
The Bill will move to the Committee Stage in September.
Supreme Court rules employers cannot use 12.07% to calculate holiday for part-year workers
The Supreme Court has dismissed the appeal in the Harpur Trust v Brazel holiday pay case, upholding that the holiday entitlement of workers who work only part of the year but are engaged on a permanent contract throughout the year (‘part-year workers’) cannot be calculated by using 12.07% of the hours actually worked but must be calculated using the average hours worked over the previous 52 weeks, disregarding any weeks not worked.
Mrs Brazel is a visiting music teacher who is engaged on a zero-hours contract to work during term times and works a variable number of hours during weeks in term time and does not work for the whole year. Her employer calculated her pay for holidays (which she took during the school holidays) on the basis of 12.07% of hours worked, which was less favourable to her than a calculation based on her average week’s pay multiplied by 5.6 (the leave allowance under the Working Time Regulations). She brought a claim for unauthorised deductions from pay which succeeeded in the EAT and the Court of Appeal, and the Supreme Court has now dismissed Harpur Trust’s appeal.
The Supreme Court has held that holiday pay for part-year workers should be calculated using the averaging method (now 52 weeks), ignoring any weeks that have not been worked. Even though this is likely to result in higher rates of holiday pay for atypical workers, the Supreme Court was satisfied that this is the correct method of calculation under the Working Time Regulations.
For more information on Holiday Pay and the decsions of the lower couts in Brazel, see Emplaw law card on Holiday Pay
REPORTS AND CONSULTATIONS
Consultation on new standards for ethnicity data
The government's Race Disparity Unit has published a consultation on new standards for ethnicity data. The aim is to ensure more responsible and accurate reporting on race and ethnicity.
The standards apply to government departments or public bodies but the consultation notes that they might also be useful to other people outside of the public sector who collect or use ethnicity data.
The consultation closes on 30th August 2022.