Kent CIPD webinar: Employment law update

Industrial Action

July 2022 saw changes introduced for businesses that were impacted by industrial action, allowing employment businesses to provide temporary agency workers to fill vacant positions caused by staff striking.

This approach may not be as effective as intended due to the struggle that temporary agencies face in obtaining workers with the relevant skills and qualifications in the sectors that are most affected by strike action.

Fit Notes

Since July 2022, in an attempt to reduce the strain on NHS doctors, fit notes can now also be certified by nurses, occupational therapists, pharmacists and physiotherapists. However, some are concerned that this may lead to a loosening of the rules for providing fit notes and that they may become an ‘over the counter’ request rather than being based on assessment of fitness as it should be.

For further guidance on fit notes, take a look at the government’s Getting the most out of the fit note: guidance for employers and line managers. This focuses on up-to-date, practical advice to help employers navigate the new changes.

Right to Work Checks

The government’s relaxation of the rules around right to work checks are no longer in place as of 1 October 2022. Checks must now be:

• Online right to work checks via the Home Office (mandatory for Biometric Residence Permits)
• A digital check using the services of a third party certified Identity Service Provider (IDSP)
• A manual/ in-person right to work check – original docs and in person meeting

Checks should be carried out before an individual starts work for you. Getting this wrong can be costly with fines of up to £20,000 per employee as well as potential criminal sanctions.

Staff Suspension

New ACAS staff suspension guidance was released on 8 September 2022 with focus on:

• Confirmation of the principles set out in current case law
• Exploring alternatives to suspension, suspension not being a ‘knee-jerk’ reaction and a last resort only undertaken if necessary
• The suspension process
• How to support an employee during suspension including staying in regular contact

Risks to the employer if guidance is not followed include:

• Employee resignation and constructive unfair dismissal claims
• Damage to work relationships and productivity

Employers should ensure that those making decisions around suspension are familiar with this guidance, the options available, risks and issues.

Tribunal Statistics

The Employment Tribunal Quarterly Statistics for April to June 2022 show the following trends:

• A decrease in claims of 10%, with 19,000 claims being received
• An increase in disposed claims of 114%, either being resolved or closed
• The highest award for disability discrimination was £265,719
• The highest award for age discrimination was £243,636
• The average award was £5,664

The Courts are investing money into the tribunal system, process and procedures. There is a big push for the recruitment of more employment judges to increase the speed and number of cases being dealt with. This indicates that cases are starting to be cleared and hopefully normal levels of work will be resumed soon.

Religious and Philosophical Belief

In the case of Mackereth v Department for Work & Pensions, the EAT determined that a Christian doctor’s belief that a person cannot change their gender or sex and a lack of belief in “transgenderism” were protected beliefs under the Equality Act 2010. This case builds on existing case law in this area, and highlights that there is a relatively low bar when determining what constitutes a protected belief. However, the case is a reminder that an employee’s right to manifest that religion or belief in the workplace is subject to the protection and freedoms of others.

Holiday Pay

The Supreme Court in the case of Harpur Trust v Brazel has confirmed that the correct method for calculating holiday pay for “part year” workers (who are permanently employed but do not work all year round) should be based on average pay, ignoring weeks where an individual does not earn anything. For details of how this decision might affect employers including (but not limited to) schools please see our article: Harpur Trust v Brazel – how this case will affect employment practices in schools – Brachers.

COVID-19 Cases

Two contrasting decisions have come from the Employment Tribunal concerning whether the symptoms of long-covid can amount to a disability pursuant to the Equality Act 2010. In Burke v Turning Point Scotland (the first Employment Tribunal decision in the UK on this issue) it was held that the Claimant’s physical symptoms of long-COVID were sufficient to amount to a disability. This is because the symptoms had a substantial adverse effect on the Claimant’s ability to carry out day-to-day activities, and it was found that they “could well” last at least 12 months from his date of dismissal.

In contrast, in Quinn v Sense Scotland, the Claimant’s symptoms of long COVID did not amount to a disability under the Equality Act because, although the effects were substantial, the symptoms could not be said to be “long-term” as the employee was not diagnosed with long COVID at the date of her dismissal. These cases demonstrate that whilst each decision will turn on its own facts, it is possible for long-covid to achieve protection as a disability.

Application of ACAS Code of Practice

In the case of Rentplus UK Limited v Coulson, the EAT held that it was appropriate to award the maximum 25% uplift of compensation for an unfair dismissal claim due to the employer’s failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedure. This was despite the employer asserting that the Claimant’s dismissal was for redundancy (to which the Code does not apply). The EAT agreed with the finding that the Claimant’s redundancy was a sham, and that found that the Claimant had been in a “disciplinary situation” to which the Code applied. This case highlights the importance of following a fair process to avoid a finding of unfair dismissal and/or an uplift in compensation. It is also a reminder that the Tribunal will look beyond the reasons for dismissal given by an employer.

Legal Advice Privilege

In the case of University of Dundee v Chakraborty the EAT determined that an employer was unable to prevent the disclosure of the first draft of a grievance report, which had been subsequently amended by its lawyers. As is not uncommon, the report had been drafted by an employee and sent to the University’s solicitors for review and amendment. In subsequent Tribunal proceedings, the University argued that it did not have to include the original report within the trial bundle, however the Court disagreed and held that legal advice privilege did not extend to the first draft report and cannot be applied retrospectively.

HR professionals should be mindful that not all documents sent to a lawyer automatically benefit from legal advice privilege and may become a disclosable document within tribunal proceedings.

The Chancellor’s mini-budget was announced on 23 September 2023 as part of the government Growth Plan. We looked at some key employment law issues.

IR35

The IR35 off-payroll reforms introduced in 2017 (for the public sector) and 2021 (for the private sector) are set to be repealed. You may be aware that for individuals providing services to a third party whilst operating through a personal services company, responsibility for determining employment status for tax purposes currently lies with the engager. It is proposed that this will now fall back to the entity providing the service. This is likely to take effect from April 2023.

The proposed changes are somewhat of a surprise given that HMRC have recently given a favourable review of the current system. The aim is to free up time and money for businesses who are using contractors. However, it is questionable whether this will help businesses given the time and money that has been invested in making the necessary changes.

A key tip for businesses is to remember that this assessment is for tax purposes, not employment law purposes. Be cautious that there may still be employment law issues that could arise from  these relationships.

Bankers’ Bonus Cap

The current cap on bankers’ bonuses is no more than two times the employee’s current fixed salary. It has been argued that this does not make the UK attractive to workers, so the government wants to make it more competitive by removing the cap.

It may be difficult for businesses to make immediate changes as this could lead to issues around breach of contract, equal pay and discrimination claims if not handled fairly. Banks should be cautious of how they deal with the upcoming changes.

Retained EU Law (Revocation and Reform) Bill 2022

The government published this bill at the end of September 2022, with an aim to accelerate the removal and replacement of EU law. If passed, EU law is to either be reinstated, replaced or revoked automatically by 31 December 2023. This is unless specifically preserved before that date or the government postpones making a decision until 23 June 2026.

This could mean fundamental changes to employment law, especially if the government changes before the bill is passed, in which case this could be dropped entirely. Little detail has been provided but it is clear that a period of uncertainty for employers and employees is likely to follow.

It is anticipated that regulations such as, the Working Time Regulations 1998, Agency Workers Regulations 2020 and TUPE 2006 could be affected.  Possible changes could include clarification of the holiday pay calculation, a cap on discrimination claim compensation, TUPE consultation changes, repeal of agency worker regulations.

The UK entered into a Trade and Cooperation Agreement on 1 January 2021 which requires us to maintain a level playing field and prevent a race to the bottom on employment rights. A breach of this agreement could have trade implications and lead to the introduction of tariffs, so the government will have to manage this carefully.

Family and Care Related Leave Proposals

The government has announced that it supports laws introducing statutory leave and pay for parents whose babies require specialist care after birth. The Neonatal Care Bill has no set date for introduction but is expected to come into force in 2024 or 2025.

Other proposals put forward by the government include the introduction of bereavement leave for parents who have miscarried in the first 24 weeks of pregnancy, and a proposed law to increase support for employees going through IVF treatment. The introduction of a statutory right to unpaid leave for employees with caring responsibilities is also being debated in Parliament. There is no set date yet for the introduction of these laws, and employers should keep an eye out for further developments.

There are a number of further proposals put forward by the government in the pipeline, including:

• Creating a legal obligation on employers to allocate tips to workers without deductions
• The introduction of a new duty for employers to prevent sexual harassment in the workplace
• The introduction of a new statutory code of practice on “fire and rehire”
• Extending the redundancy protection period to six months after a return to work from maternity leave
• The introduction of new laws to allow workers with at least 26 weeks of service to request a more predictable and stable contract from their employer

It remains to be seen whether these proposals will progress to becoming law, and when this would take effect. In the meantime, employers are advised to be aware that there could be further changes on the horizon.