TFFs ('Top Fortnightly Facts')

Every fortnight, the Knights plc Employment Team publish their Top Fortnightly Facts (TFFs), providing a summary of the key updates in the employment and HR world. Looking, first, at "what?" the fact is and then considering the "so what?" point that flows from the fact. Here are our TFFs for the period ending 12 November 2021.

Covid - Government confirms vaccinations will become mandatory for frontline health and social care workers

What?

In our TFFs of 23 July 2021, we discussed the government’s decision to make vaccinations compulsory for staff in all English care homes from 11 November 2021.

As you may have seen this week, the Department of Health and Social Care (DHSC) has published its response to the government consultation on making COVID-19 vaccination a condition of deployment in the health and wider social care sector.

The outcome is that health and social care providers in England will be required to ensure workers are fully vaccinated against COVID-19, unless they are exempt, under plans announced by the Health and Social Care Secretary. The government's decision follows a consultation which considered whether both the Covid and flu jabs should be compulsory.

The regulations will apply to health and social care workers who have direct, face-to-face contact with people while providing care (such as doctors, nurses, dentists and domiciliary care workers), unless they are exempt. They will also apply to ancillary staff such as porters or receptionists who may have social contact with patients but are not directly involved in their care. This will apply across the Care Quality Commission (CQC) regulated health and social care sector.

The government will implement the mandatory vaccination requirement for the health and social care sector by amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936), as was also done to implement mandatory vaccination of care home staff . The amended regulations, which will come into force on 1 April 2022, will be subject to a 12-week grace period to give employers and workers in the health and social care sector time to meet the new regulatory requirements.

So What?

This means that health and social care sector employers will be able to rely on a legislative basis for dismissing employees who refuse the vaccine. No one will be forced to have the vaccine, but those who choose to remain unvaccinated will not have the right to a job on the frontline of the NHS.

This brings us to some key considerations:

·????????Within the next five months, until this decision takes effect, the government and employers must continue to engage with the small minority who have chosen not to have the vaccine.

·????????If employees refuse to be vaccinated, it would mean that they can no longer work in the care sector and you may need to explore next steps, including dismissal.?

·????????When dismissing employees for this reason, a fair procedure should still be followed, and employees should be given time to reconsider their decision and potentially get vaccinated.?

·????????In the event that employees agree to have the vaccine but their second dose is after 1 April, the employee would either need to take unpaid leave, holiday or be suspended pending the second dose of vaccine.

Care should be taken at every step as dismissal brings a risk of an unfair dismissal claim. If you require specific advice or planning guidance, please get in touch.

Enormous IR35 compliance bills Developments

What?

In April 2017, public authorities became responsible for deciding if the off-payroll working rules applied where they contracted workers who provide services through their own intermediary. From April 2021, all medium and large-sized clients outside of the public sector also became responsible for deciding if the rules apply.

Recently, we have heard of some enormous bills for non-compliance in the public sector which should act as a lesson to private businesses to ensure they get their status determination of contractors right.

For example, the Home Office has recently been asked to pay ￡29.5m in relation to lost tax revenue and a further ￡4m penalty for incorrectly determining the status of its contractors. The penalty was handed down because HMRC considered that the Home Office had been “careless” in its implementation of the new rules. ?This determination was set out in its recently published 2020-21 annual report and accounts.

As reported by Contractor Weekly, the Department of Work and Pensions was also recently required to pay an eye-watering ￡88m tax bill for incorrectly determining the IR35 status of its contractors.

Complex to begin with, status determination has, arguably, become even more complex following the recent decision of the Court of Appeal in Professional Game Match Officials Ltd v HMRC. This case concerned the employment status of football referees. The First-tier Tribunal had found that the referees were not employees and the Upper Tribunal upheld that conclusion. However, the Court of Appeal has allowed HMRC’s appeal, determining that both the FTT and Upper Tribunal both erred in law in their approaches to the question of mutuality of obligation and upholding the Upper Tribunals determination that the FTT had also erred in its approach to the issue of control. The Court of Appeal has referred the case back to the Upper Tribunal to consider whether or not there was a contract of employment during each assignment. This is an important decision as this case raises the issue that each assignment may give rise to an employment status.

So what?

The question of employment status for tax purposes is complex (and, as is evident above, even large government bodies with tons of resource to get it right are getting it wrong) and the speed of change in its interpretation appears to be increasing, as cases, especially in relation to “gig” economy workers proceed to higher courts to determine employment status for both tax and employment rights purposes. It is, therefore, vital for employers to review their status determinations regularly.

What is of some concern is that in the above case, the DWP used the CEST tool to make its determinations, which many commentators still maintain is flawed.

Harpur Trust v Brazel

What?

An annual leave case found its way to the Supreme Court this week (9 November 2021). Harpur Trust (Appellants) v Brazel (Respondent) was a case that concerned the manner of calculation of annual leave and the remuneration for annual leave for those working on zero hours contracts, including those whose work doesn’t cover the full year (e.g. those working just term time in schools).?

In this case, Lesley Brazel was, and continues to be, a visiting music teacher at a school. She is engaged on a zero-hours contract and is required to work during term times. Crucially, she does not work full-time or for the whole year. She only works when the children are in school. ?She receives holiday pay at three times during the year.

In 2011, the school changed the way that it calculated holiday pay which resulted in the teacher being worse off.

She brought a claim in the employment tribunal which then considered whether or not it was necessary to pro-rate the number of hours she worked annually as against full-time hours and then, subsequently, pro-rate the amount of annual leave she was entitled to. The Court of Appeal said no. It said that the Working Time Regulations (WTR) make no provision for pro-rating. Instead, it said that the WTR simply require you to work out a week’s pay (under s.221-224 of the Employment Rights Act 1996) and then multiply that by 5.6 (being the number of weeks annual leave that an individual is entitled to each year). It said that to introduce a system of pro-rating would bring in an entirely different scheme.

In coming to this conclusion, the Court of Appeal was not persuaded by the argument that this could result in some people who are only required to work a few weeks a year (e.g. invigilators) receiving disproportionately high amounts of holiday pay. For example, on the Court of Appeal analysis this could mean that you could have a permanent employee who worked only one week of the year, for which he or she earned, say, ￡1,000, being entitled to receive 5.6 weeks (notional) annual leave for which they would receive ￡5,600.

Understandably, the Court of Appeal decision was appeal and the Supreme Court has now heard the case. Judgment is awaited.

So what?

If the appeal is successful, the principle of pro-rating the 5.6 weeks’ holiday entitlement for those who work part of the year could be confirmed. Such an outcome will clearly be welcomed by employers. The case is currently awaiting judgement and can be found on the Future judgements page of the Supreme Court website. We will update you when we know more.

Electronic monitoring of home workers

What?

Well, this is an interesting topic! A survey has suggested that electronic monitoring of home workers by companies is rising sharply and the government is being urged to toughen the rules. ?This follows reports that, last year, Barclays were being investigated on this very issue and potentially facing a $1.1B fine.

Rather creepily, the latest report identifies that some businesses have been using technology to monitor what their staff are getting up to. It says that they have been using cameras to watch people at their desk and movement sensors to track keyboard strokes and mouse movements recorded.

The trade union “Prospect” is calling for stronger regulation of the use of monitoring technology by employers and wants the government to make it explicitly illegal for employers to use webcams to monitor home workers, apart from when they are taking part in meetings and calls. Shockingly, Prospect’s latest polling suggests 32% of home workers are now being monitored by firms- up from 24% in April. The rate is highest- at 48%- among people aged 18-34.

The Information Commissioners Office (ICO) advises that employers should ensure staff are aware of monitoring at work, whether at home or in the office, before it starts. They should also explicitly be informed of the reasons for this happening.

So what?

Personal data - information about someone who is identified- is protected under the Data Protection Act (DPA). The DPA says the data should be used fairly, lawfully and transparently. It should be for a specified purpose and should not be kept for longer than necessary. Before monitoring of employees starts, employers should ensure staff are aware and told the reasons and how the information collected could be used.

There are also various other pieces of legislation dealing with the ability to monitor employees including the right to “respect for private and family life” which comes from the European Convention on Human Rights and was adopted into UK law by the Human Rights Act.

It remains to be seen whether the government will impose any sanctions and/or rules regarding electronic monitoring of employees but it is worth checking your data protection policy is up to date or ensuring that you have a clear policy in place in respect of telecommunications and monitoring of employees.

Time spent attending mandatory off-site vocational training outside of normal working hours is working time (ECJ case)

What?

In the recent case of Unitatea Administrativ Teritoriala D. Case C-909/19, the ECJ had to consider whether Article 2(1) of the Working Time Directive (WTD) must be interpreted as meaning that the period during which workers attend vocational training required by their employer, which takes place away from their usual place of work, at the premises of the training services provider, during which they do not perform their normal duties, constitutes working time within the meaning of that provision.

It held that this time did constitute working time for the purposes of the WTD.

So what?

This decision appears to go wider than regulation 2(1) of the Working Time Regulations 1998 (WTR), which expressly excludes time spent training from the definition of "working time" where the immediate provider is an educational institution or a person whose main business is the provision of training, and the training is provided on a course run by that institution or person. While the ECJ's decision was given after the end of the "transition period" following the UK's exit from the EU, under section 6(2) of the European Union (Withdrawal) Act 2018 courts and tribunals may still "have regard" to post-Brexit ECJ case law "so far as it is relevant to any matter before the court or tribunal". This case may, therefore, be taken into account by courts and tribunals applying the WTR.

And finally…

·????????New TUC research suggests 4.4 million people in England and Wales work for gig economy platforms at least once a week. This amounts to 14.7% of working adults, which is an increase from 5.8% in 2016. In relation to delivery and driving "gigs", the number has more than quadrupled from 1.9% to 8.9%. As a result, the TUC is pushing to strengthen individual rights which includes banning zero-hours contracts and allowing?right of access to workplaces for unions, like the existing right in New Zealand.

·????????Analysis by Timewise, has found that just 26% of employers are including some offer of flexible working in job adverts. This contrasts with the statistic that some 90% of employees are saying that they want access to flexible working options. The report has also found that the statistic varies between sectors: according to its research, the medical sector offers flexibility more than other sectors (one in three job adverts) with least flexibility being offered in the manufacturing sector (6%).

·????????That said, it has been reported that Charlton Morris, a specialist search firm in Leeds, has introduced a four-day week for all of its 93 staff and has allowed them to retain their normal full time pay. This followed a successful 6-month trial. It is not clear how it works in practice but we would expect that each staff members works a different four day pattern such that all five working days are covered. Read more here.

·????????It was reported yesterday (11 November 2021), that firms are said to be stepping up graduate pay amid fierce competition. According to reports, typical graduate pay has risen to ￡30,500 in 2021, up by ￡833. The number of applicants per job has also reached a record high. The Institute of Student Employers (ISE) has reported an average of 91 applications per graduate vacancy- a 17% increase on last year.

·????????Finally, Acas published guidance yesterday (11 November 2021) to help employers avoid fire and rehire practices. Acas advises that the practice of fire and rehire is an extreme step that can damage staff morale, productivity, working relations and can also lead to industrial action. This government asked Acas to produce this guidance following the evidence gathering exercise that Acas conducted last June.

Contact us

Should you require specialised legal advice on any point in this document or any other employment law assistance, please contact a member of the Knights Employment Team at?[email protected]?and we will be happy to assist you.

This document is provided for information purposes only. The list of considerations is not exhaustive and does not constitute legal advice.