Employment Essentials June 2022: Our top 10 recent employment law developments

20 minute read
15 June 2022

In our Employment Essentials series, we share our latest top picks of UK employment law developments that may affect your business.

This month, our top 10 picks are:

Proposed legislative changes

  1. Ban on exclusivity clauses to be extended
  2. Future restriction on rail strikes
  3. Queen's Speech – employment implications
  4. Future of work review

Latest hot topic news

  1. Right to work checks and fit notes - latest
  2. Pay gaps: ethnicity reporting, salary history and maternity penalty
  3. Flexible working

Case law updates

  1. COVID-19 fears and H&S dismissal protection - Rodgers v Leeds Laser Cutting
  2. Indirect discrimination: getting the comparison pool correct – Allen v Primark Stores Ltd
  3. Recent examples of discriminatory name-calling


Proposed legislative changes

1. Ban on exclusivity clauses to be extended

Since January 2016, exclusivity clauses that prevent workers on zero hours contracts from working for other employers have been banned. The Government has announced that it intends to extend the ban on exclusivity clauses to contracts where the worker's guaranteed weekly income is below or equivalent to the Lower Earnings Limit (LEL), which is currently £123 per week (revised annually every tax year).

Next steps - legislation for these reforms will be laid before Parliament "later this year".

2. Future restrictions on rail strikes

As the RMT announces intended strike action over pay freezes, terms and conditions, and planned job cuts, the Transport Secretary, Grant Shapps, has said the Government intends to introduce laws requiring minimum numbers of rail staff to work during a strike. The laws would make any industrial action illegal if those levels were not met. Unsurprisingly, unions are strongly opposing any such laws.

3. Queen's Speech – employment implications

As regards employment law, the Queen's Speech on 10 May 2022 was more notable for what was missing than what was included. As expected, the long-awaited Employment Bill announced back in the 2019 Queen's Speech was again missing. So what was included? Well, one Bill of limited application, but always remember to read the fine print:

  • Harbours (Seafarers' Remuneration) Bill - following the recent mass redundancies at P&O, this Bill is 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. How the practicalities of this would work are not yet clear and no changes will be made to the NMW legislation itself.
  • Apprenticeships - in the briefing notes to the Queen's Speech rather than the speech itself, the Government states it aims to encourage greater private sector investment in employee training, including apprenticeships, and is currently considering whether the current tax system, including the apprenticeship levy, is sufficient to incentivise businesses to invest in high-quality employee training. One to watch.

4. Future of work review

The Government has announced that it will conduct a (in the words of Brenda from Bristol "not another one") review on the future of work. This latest review aims to identify key questions to grow the economy after the COVID-19 pandemic. The review will be conducted in two parts. Part one will involve a high level assessment of key strategic issues, including existing commitments contained in the response to the Taylor Review of modern working practices published in 2017. Part two will then provide a more detailed assessment of selected areas of focus. The review is to be conducted over Spring and Summer 2022.

Latest hot topic news

5. Right to work checks and fit notes - latest

Right to work checks

As we reported in March, the Home Office has created a new digital right to work checking solution, launched on 6 April 2022. The digital system is intended to be used in relation to British and Irish citizens who hold valid passports (or Irish passport cards). Under this new digital service, employers can use certified identity service providers (IDSPs) to undertake digital identity checks for them.

Unfortunately, as at 6 April there were no certified IDSPs and so the Home Office extended the coronavirus-adjusted right to work manual checks concession to 30 September 2022 to give employers time "to develop commercial relationships with IDSPs, make the necessary changes to their pre-employment checking processes and carry out responsible on-boarding of their chosen provider".

On 6 June, a partnership between the Post Office and secure digital ID app Yoti has been named as the first IDSP to be certified by the Department for Digital, Culture, Media and Sport. See the updated Guidance: Digital identity certification for right to work, right to rent and criminal record checks.

The Post Office and Yoti will provide identity verification online, in-person at Post Offices, and via a digital identity app.

Fit notes

From 1 July, registered nurses, occupational therapists, pharmacists and physiotherapists will be able to sign statements of fitness for work, or "fit notes". It is hoped that this change will make it easier for patients to see GPs by reducing their workloads (The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No 2) Regulations 2022 (SI 2022/630).

6. Pay gaps: ethnicity reporting, salary history and maternity penalty

Ethnicity reporting to remain voluntary

In March, the Government confirmed that it does not intend to introduce mandatory ethnicity pay gap reporting, but instead supports voluntary reporting. Going forward, the Government discourages the use of 'unhelpful' terms such as BAME, and will pursue policies to improve inclusion at work.

While we await promised Government guidance on voluntary reporting, which is expected to be published this summer, at the end of May the 30% Club UK Investor Group published guidance for companies reporting on diversity, Reporting on Diversity: A guidance toolkit for companies by investors. This includes examples that are intended to highlight useful or innovative approaches by companies.

Recruitment: call to ban salary history questions

The Recruitment and Employment Confederation, together with the Fawcett Society, have launched a campaign calling for the end of salary history questions during recruitment. Recent research found that 60% of women believed being asked about prior earnings damaged their earning potential in a new position. The campaign is intended to help eradicate gender, ethnicity and disability pay gaps.

Maternity penalty

A new study conducted by the Social Market Foundation has found that new mothers can expect to lose out on average, earnings of £66,434 over the course of the decade following the birth of their child.

The study, based on research involving 30,000 people, found that a typical woman without a child could expect to see their earnings increase by a third over the course of a decade, whereas women with children earned around 10% less over the course of the same period. This difference was further exacerbated by childcare costs leaving women unable to work as much as they would like thereby reducing their earnings while simultaneously limiting their career progression.

7. Flexible working

As businesses move from pandemic working practices into a new normal, continued homeworking or hybrid working is the buzzword. There have been a number of recent surveys all showing a surge in the growth of 'location' flexible working:

While 'location' flexible working has had a surge, the TUC research also found that other forms of flexible working have remained largely static, such as flexi-time or compressed hours ('timing' flexible working).

While the flexible working focus is currently on 'location', 'timing' flexible working is likely to increase in future. On 6 June, around 70 companies began a trial of a four-day week. The trial will last for six months and is led by 4 Day Week Global, a group campaigning for a shorter working week with no loss of wages. The trial is based on the principle that employees receiving 100 per cent of their pay for 80 per cent of their time in exchange for a commitment to maintain 100 per cent productivity. In what is thought to be the biggest pilot of its kind, the outcome will no doubt attract much attention.

Case law updates

8. COVID-19 fears and H&S dismissal protection - Rodgers v Leeds Laser Cutting

Employment tribunal claims citing health and safety concerns were up three-fold last year. Section 100 of the Employment Rights Act 1996 provides employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger to health and safety at their place of work.

We now have the first Employment Appeal Tribunal (EAT) judgment considering s100 in a "COVID-19 fears" context. The EAT has upheld an employment tribunal's decision that an employee who was dismissed after he refused to return to the workplace during the coronavirus pandemic was not automatically unfairly dismissed under s100(d) which provides:

"…in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work."

The EAT held:

  1. It is not necessary for the circumstances of the danger to be generated by the workplace itself or that any harm that might be caused by the circumstances of danger will occur at the employee's place of work, or to the employee or fellow employees. The COVID-19 pandemic created at least some circumstances of danger at work and elsewhere and so the 'circumstances of danger' requirement under s100 may potentially be met.

BUT

  1. While conditions pertaining to COVID-19 could potentially amount to circumstances of serious and imminent danger in principle, an employee cannot rely on s100 to refuse to work in any circumstances simply by virtue of the pandemic. The employee still needs to establish that circumstances of serious and imminent danger prevented them returning to their place of work.

In this case, the employer had put in place good social distancing, ventilation and other precautions and the evidence was that the employee would not have returned no matter what precautions were put in place. The EAT upheld the tribunal's dismissal of the claim, as his employer had taken reasonable measures to reduce the risk of infection in the workplace and the employee did not believe there to be a serious and imminent danger in the workplace, but rather a serious and imminent danger in the world at large.

In addition, in this case, the employee could reasonably have taken other steps to avert the danger. He could have taken similar steps both at large and at work, such as wearing a mask, socially distancing, sanitising and washing his hands. The employee did not assert any particular difficulty about his journey from home to work that would require him to take additional steps to those available at work. In addition there was evidence of the employee not acting in a risk adverse manner, as he drove a neighbour to hospital when he was meant to be self-isolating and also chose to work in a pub during parts of the pandemic.

Takeaways

  • It is not necessary for the circumstances of the danger to be generated by the workplace itself.
  • The COVID-19 pandemic can potentially meet the 'circumstances of danger' requirement.
  • Where an employer had taken the recommended measures to address the known risks of infection, it will be harder for an employee to reasonably believe that any risk of danger is 'serious and imminent' and preventing them from returning to the workplace, though as ever each case will be fact specific.
  • There is an overlap between the reasonableness of the belief in the 'serious and imminent danger' and whether that danger could reasonably be averted. Each case will depend on the particular measures that an employer had put in place, as well as any additional measures the employee could have adopted themselves in and out of the workplace, such as following public guidance on ways to reduce the risk of infection.

9. Indirect discrimination: getting the comparison pool correct – Allen v Primark Stores Ltd

An indirect discrimination claim must point to a provision, criterion or practice (PCP) applied by the employer that puts or would put persons who share a protected characteristic at a particular disadvantage. To identify a group disadvantage, a 'pool for comparison' will need to be identified, containing both persons who are disadvantaged and persons who are not. The pool will depend on the nature of the PCP being tested. In Allen v Primark Stores Ltd, the EAT remind us that the comparison pool must be constructed by accurate reference to the precise PCP complained of.

In this case, a female retail department manager and single parent returning from maternity leave claimed that the employer's requirement that department managers be available to work late on a Thursday disadvantaged her because of her childcare responsibilities. In assessing the discriminatory impact of the requirement, the tribunal included within the pool two male employees who also had childcare commitments on a Thursday night, and concluded that the requirement did not put women at a disadvantage compared to men. However, the two men were not required to guarantee their availability for the late Thursday shifts in the same way as the claimant (due to previously agreed flexible working requests). They therefore should not have been part of the pool as they were not subject to the PCP complained of, namely being required to guarantee availability to work Thursday late shifts.

This case will now go back to the tribunal for consideration using the correct comparison pool. If when using an appropriate comparison pool, the PCP is held to be potentially indirectly discriminatory, the employer may still potentially avoid liability for indirect discrimination if it can demonstrate that the PCP is objectively justified; that is, that the PCP is a "proportionate means of achieving a legitimate aim".

The facts of this case also illustrate the issue of competing flexible working requests. Unless agreed otherwise, any agreed changes following a flexible working request will be a permanent change to terms and conditions. If an employer has already agreed flexible working arrangements with some employees, those requesting similar flexible working arrangements later may find that the business needs of the employer cannot be likewise accommodated. Provided the employer genuinely considers a flexible working request, it can be turned down due to a legitimate business need. However, where some requests are accommodated and others not, this may lead to workplace unrest that the employer will need to manage.

10. Recent examples of discriminatory name-calling

"It was just banter" - four little words that should send shivers down the spine of HR managers tasked with dealing with complaint(s) of harassment.

The Equality Act 2010 prohibits acts of harassment within the workplace related to protected characteristics. Under section 26(1) of the Equality Act 2010, a person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and that conduct has the purpose or effect of either violating the other's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Employees who use unpleasant or derogatory remarks about others often try and excuse their behaviour as 'banter' and/or accuse the person who've they've offended as "not being able to take a joke". When the remarks relate to a protected characteristic, "it was just banter" will rarely (if ever) be a sustainable defence in a discrimination claim. Tribunals will focus on the impact the words had on the person offended by them.

Although non-binding on any other tribunal, two recent tribunal decisions illustrate the type of workplace so-called 'banter' resulting in successful discrimination claims:

  • In Robson v Clarke's Mechanical Ltd, a plumber who was the employer's oldest employee was referred to by workmates and his supervisor as "half dead Dave". The tribunal accepted that calling someone 'half-dead' was an age-related epithet and was derogatory. Company witnesses tried to persuade the tribunal that it was 'banter' and the Mr Robson never complained. The tribunal concluded that the nickname was in general circulation, had been used on-site and no-one had intervened to stop it. It accepted that Mr Robson had not said anything because he was worried he would lose his job if he made a fuss. Mr Robson was awarded £7,000 for the name-calling.
  • In Finn v The British Bung Manufacturing Company Limited and King, an electrician called a "stupid bald ***" by his line-manager had been subjected to sex related harassment. The tribunal found that being called 'bald' was in connection to sex, as baldness is more prevalent in men. It also ruled that the remark was made with the intention of hurting Mr. Finn and that it amounted to unwanted conduct that violated Mr. Finn's dignity and created an intimidating environment. Compensation is to be awarded at a future remedies hearing.

These cases serve as a reminder of the importance of workplace training on equality, diversity and inclusion and the dangers that come with workplace name-calling which is not addressed.

If you have any questions about this insight, or about employment law in general, please get in touch with Jane Fielding or Connie Cliff.


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