August Round Up
Zoe Lagadec
Founder of Mulberry's Employment Law Solicitors, ILM Accredited Coach, Trainer and Investigator.
Four day working week trial begins
Trialling of a four day working week is being led by campaign group “4 Day Week Global” https://www.4dayweek.com . They claim that the move during the 19th century from a six day to a five day week is long overdue for an overhaul and that with developments in technology there should be no reason why employees cannot work less hours without loss of productivity. The seventy companies taking part in the trial have agreed to give employees full pay for a four day week provided those employees fully meet their productivity targets.
Researchers overseeing the trial will not only review the impact on productivity but also mental and physical wellbeing, gender equality and the environment.
Landmark judgment on diplomatic immunity and human trafficking
The recent announcement by Sir Mo Farah that he was trafficked into the UK as a child to enter domestic slavery has brought new attention to this troubling issue.
Now the UK Supreme Court has delivered a landmark judgment in the case of Basfar v Wong which should remove the protection previously enjoyed by foreign diplomats in cases of alleged modern slavery.??
In 2018 the appellant, Ms Wong, brought a claim to the Employment Tribunal against Mr Khalid Basfar, a Saudi Arabian diplomat, alleging that he had trafficked her to the UK as a domestic servant, paying her insubstantial wages at first and later no wages at all. She claimed unfair dismissal, breach of the minimum wage laws and breach of the Working Time directive.
However, her claim was initially unsuccessful due to the Tribunal’s view that Mr Basfar was protected under Article 31(1) of the Vienna Convention which states that
‘1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of […]
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’.
This decision was upheld by the Employment Appeal Tribunal but on a leapfrog appeal, the Supreme Court has reached a majority verdict that whilst ordinary domestic employment arrangements are covered by the Convention, acts included within the definition of?“modern slavery” should be considered an exception to the rule.
The Court took this view on the grounds that modern slavery involves coercion, control and exploitation in order to provide the employer with a substantial financial benefit. This conduct should, the Court agreed, be considered as a commercial activity and thus exempt from protection.
?The case will now return to the Employment Tribunal in order to re-hear the original claim.
99% of Dads want Better Paternity Rights
A recent survey by parental rights charity “Pregnant then Screwed” reveals some troubling statistics. The UK’s parental leave policies are already amongst the least generous in Europe; the statutory weekly rate is ￡156.66 or 90% of average weekly earnings (whichever is lower) and many parents forgo their leave as they cannot afford this cut in pay.
The problem is compounded by workplace cultures that treat employees who take their full parental leave as “shirkers.” Eight out of ten fathers surveyed said that they were expected not to take advantage even of statutory parental leave. For those that did take leave, one in four said they were asked to work during that time, despite it being unlawful for employers to make such a request.
The survey will increase demands on the Government to keep their long-delayed promise to review the shared parental leave scheme. The charity is campaigning for the Government to provide a minimum of six week’s parental leave paid at 90% of salary for all new parents.
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Healthcare professionals can sign Fit Notes
The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No. 2) Regulations 2022 (SI 2022/630) comes into force this month, allowing registered nurses, occupational therapists, pharmacists and physiotherapists to sign fit notes for SSP and social security claims. It is hoped the new legislation, together with permission for digital signatures, will ease pressures on GPs and reduce bureaucracy.
The Government have issued useful advice on fit notes for employees and employers at the following link?https://www.gov.uk/government/collections/fit-note
Unions under Pressure
MPs have passed a controversial law (Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022) allowing employers to replace striking workers with temporary agency staff.?
In addition the The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699)?increases the maximum damages a Union can be required to pay in the case of unlawful industrial action.
Currently, employers have the right under the Trade Union and Labour Relations (Consolidation) Act 1992 to bring a claim for damages against a union which they believe has organised or authorised an unlawful strike.
The smallest unions will face an increase from ￡10k to ￡40k whilst the largest (those with over 100,000 members) will see their potential damages increase to as much as ￡1m (although tort proceedings related to acts previous to the 21st July will not be affected). The increase is intended (the Government say) to reflect the impact of RPI inflation since damages were first introduced in 1982.
Inevitably there has been criticism that these moves (which were not in the Government’s manifesto) are part of an increased move to empower employers at the expense of low-paid workers.
Research identifies increase in “microworkers” earning less than ￡4 per hour
For some years “microworking” has been a feature of the digital global economy; self employed or contracted labour working for piece rates and performing tasks such as captioning and data entry. A 2017 ILO survey found that most microworkers were in developing countries and perhaps surprisingly the largest proportion (37%) were educated to degree level. The industry expanded during the Covid pandemic and is now impacting the UK employment landscape. Along with researchers from the University of Exeter and the London School of Economics, UK thinktank Autonomy has surveyed over 1,000 UK based microworkers and found that almost two thirds earn less than ￡4 per hour. 95% of those interviewed made less than the UK minimum wage and spent unpaid time searching for work. With a growing cost of living crisis however, even these unattractive conditions offer a means of survival for some, including those who already have a main source of income.
Dashboard of Retained EU Law published
The Government has recently published a dashboard revealing the status of over 2400 elements of EU law that were retained post-Brexit to ensure legislative continuity.
The intention is to begin updating the list by amending, repealing or replacing any laws that are no longer “fit for the UK.” Much of this retained law relates to employment matters and it remains to be seen which legislation will make it onto the statute books and how the UK employment landscape will be affected.
Treatment of low paid ethnic minority workers
A recent report from the Equality and Human Rights Commission (EHRC) on the treatment of lower paid ethnic minority workers in health and social care has identified issues of poor pay (particularly in adult social care), and job insecurity. Ethnic minority workers are less likely to be aware of their employment rights and more likely to fear raising concerns.
The report recommends improving awareness of and compliance with employment rights,providing mandatory training for health managers, particularly relating to racist bullying and harassment, and calls for the Government to bring forward proposals to introduce a Single Enforcement Body.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.