TFFs ('Top Fortnightly Facts')

TFFS – 1 April 2022

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 issue is, we then consider the “So what?” point for you that flows from that.

We focus on HR/ Employment issues but also look at any Immigration, Data, Tax and Pensions points of interest.

Here are our top picks in the HR/Employment world:

A.????IN THE NEWS - DISCUSSION POINTS

In the news this week, we look at two topics: (a) firing and rehiring; and (b) an update on COVID-19.

1.?????Firing and Rehiring

What?

On 29 March 2022, Labour Markets minister Paul Scully announced a new statutory code on the practice of “fire and rehire” (the Code). The Code has not yet been released but we will update you as soon as it has. The practice of “fire and rehire” involves employers dismissing workers and rehiring them on new, less-favourable terms. The Government discourages businesses using this as a strategic tool or negotiating tactic and emphasises that it expects fair treatment of employees. The Code will provide detail on how businesses must hold fair, transparent and meaningful consultation on any proposed changes to terms of employment. Where an employer fails to comply with the Code, Tribunals will have the power to apply an uplift of 25% to an employee’s compensation. At the moment, we don’t have the detail and so we are yet to see if it will go further than the current legal position.

So what?

Last November, ACAS published guidance on firing and rehiring. That guidance makes clear that the practice of firing staff and then rehiring them on new contractual terms is a high-risk strategy that should only ever be used as a last resort, and employers are encouraged to thoroughly explore all other options first. The Code takes it one step further and gives some legal force to Government’s expectations that employers should behave reasonably and fairly when seeking to change employees’ terms and conditions.

Whilst, on the face of it, P&O Ferries did not seek to fire and rehire its workers, the lack of any consultation was cause for alarm. Accordingly, the Government is effectively issuing a warning to employers who wish to engage in similar behaviour. When you do a deeper dive into the P&O saga, it transpires that there was some behind the scenes firing and rehiring. Of the 786 people “made redundant”, it is reported by P&O’s CEO that 765 have “taken steps” to accept the settlement offer and, of those, over 500 have accepted and signed settlement agreements which, interestingly, includes 67 people who have accepted a job with the new crew provider.

Separately, in the news this week, Royal Mail has been accused by Unite of planning to fire nearly 1,000 workers and rehire them on lower rates of pay. Unite is preparing an industrial action ballot which could result in strikes. Royal Mail insists that there has been proper consultation on the restructure.

The Code will introduce an uplift on an employee’s compensation of up to 25% if the Code is not followed. We question whether it would have more “bite” if the protective award could also be increased by 25%.

Do you think the Code will be a sufficient deterrent to employers engaging in these practices? Let us know!

2.?????Updated “Living with Covid” Guidance, removal of free testing and no more SSP for those who are isolating/shielding without being ill

What?

New Guidance:

As of today (1 April 2022), the “People with Covid and their Contacts ” Guidance has been withdrawn. That guidance has been replaced with “People with symptoms of a respiratory infection including COVID-19 ” Guidance.

The new Guidance is in 2 parts: (a) actions you can take to protect other people if you are unwell with symptoms of a respiratory infection, including COVID-19, and you have not taken a test for COVID-19; and (b) advice for people who have taken a COVID-19 test and have received a positive test result.

In respect of (a- if you are unwell but have not taken a test), the advice is to try to stay home and avoid contact with people. This includes trying to work from home if you can. It advises that if you are unable to work from home, you must speak to your employer about options available. In respect of (b- if you have a positive test result), the advice is try to stay at home and avoid contact with other people for 5 days after the day you took your test. There is different advice for children and young people aged 18 and under .

There is also separate Guidance for people who have been informed by the NHS that they are at highest risk of becoming seriously unwell and who might be eligible for new COVID-19 treatments.

In addition, as of today, most people can no longer access free testing for COVID-19.

SSP changes:

During the COVID pandemic, the Government amended the Statutory Sick Pay (SSP) Regulations so that those who were isolating/shielding due to Covid but who were not ill would still be entitled to SSP. In addition, these individuals could receive SSP from the first day of incapacity as the usual 4 waiting days were disapplied. On 22?March 2022, it was announced that these temporary provisions would expire on 24 March 2022.

So what?

Given the removal of free testing, it is going to be interesting to see if people will go to the effort and cost of paying for a test to test themselves if they feel unwell. Chances are that they won’t. As such, there are going to be a lot more people out in public and attending workplaces with Covid. Businesses need to decide whether they will purchase test kits for staff to ensure that they keep them as safe as they can and reduce the amount of absenteeism. This is a huge cost but maybe one worth taking in the long-run.

The change to the SSP regulations to revoke the “deemed incapacity” provisions means that only individuals who are actually sick and incapable of work (and not those who are isolating but asymptomatic, for example) will be eligible for SSP. In addition, those who are eligible for SSP will again be subject to the waiting days and will not be entitled to SSP from day one. Note the suspension of waiting days still applies to periods of absence which commenced before 24?March 2022.

This should, in theory, reduce levels of sickness absence across businesses, as the SSP provisions are no longer as generous as they have been over the last couple of years. However, given that isolation is no longer mandatory (it is only advised) for those who contract Covid-19, and employees will not receive SSP for choosing to isolate, this may see levels of Covid rise within businesses as asymptomatic individuals (or even those with mild symptoms) will likely be present at work as normal.

We’d be interested to hear how you believe the change in these regulations will affect your business. Will you be buying test kits in bulk for your employees to use?

B.????CASE LAW UPDATE

1.?????A reminder that allegations in a protected disclosure need not be factually true

What?

Ms Dodd brought a whistleblowing claim against her employer UK Direct Solutions Business Limited. She relied on a protected disclosure she made about the fact that her employer, in her view, had fraudulently claimed furlough payments for employees who continued to work and that mis-selling had occurred. Ms Dodd applied to have specific documents disclosed because she claimed these documents would likely show that her allegations were true. The Employment Appeal Tribunal (EAT) rejected her application on the basis that the documents requested were of limited relevance given that the statutory definition of a protected disclosure does not require the allegations be factually correct; therefore, these documents were not necessary for Ms Dodd to succeed in her claim. The EAT also highlighted that the test for specific disclosure of documents is whether it is necessary for fair proceedings in accordance with the overriding objective. It was said that Ms Dodd ought to have brought a more focussed request for those documents.

So what?

This case is a reminder of the test for a protected disclosure namely, whether the worker has a reasonable belief that the information disclosed was true at the time of the disclosure, and not whether the allegations are actually true. Employers are reminded to treat disclosures made by employees with caution; even if they are confident the allegations are not factually correct.

2.?????How important is it that employees transferring under TUPE know the name of their new employer?

What?

In the EAT case of Clark v Middleton & Anor , Ms Clark’s employment was transferred under TUPE to Black Dog Hydrotherapy Limited (BDHL). Ms Clark knew her employment was transferring, and why, but had not been provided with the name of the company because the company was newly incorporated. BDHL did not provide information on its proposed measures so Ms Clark’s employer could not provide these to her. Ms Clark brought a claim against her employer for a failure to inform. She also bought a claim against BDHL for wages, holiday pay and unfair dismissal claims but settled these prior to the hearing.

Ms Clark succeeded in her claim against her employer for failure to inform, however, the employer was able to prove that this failure was due to BDHL’s failure to provide the necessary measures information. Therefore, it was the employer’s assertion that any order for compensation should be made solely against BDHL. The EAT now had to decide whether this was correct, or whether any claim against BDHL had been settled as part of the settlement mentioned above. Whilst Ms Clark argued that she had only intended to settle the wages, holiday pay and unfair dismissal claims against BDHL, the EAT found that the settlement wording was broad enough to settle all claims and did not carve out this claim.

One of Ms Clark’s claims was in relation to the fact that she was not given the name of BDHL prior to her transfer. The Employment Tribunal agreed she was entitled to this as part of the employer’s obligation to inform transferring employees but held that this was only a minor breach and therefore reduced the compensation to zero. The EAT disagreed with this and ruled that this information is of “fundamental importance” to an employee and that there should be an assessment on compensation for this breach.?

So what?

The main takeaway from this case is that, perhaps unsurprisingly, it is a crucial part of the obligation to inform that employees are notified of the name of the employer to whom they are being transferred. In addition, this is a useful reminder of the need for unequivocal wording in any settlement agreement purporting to settle only some of the live claims.

C.????QUICKFIRE POINTS

Employment & HR

-???????From 6 April 2022, we will see an increase to the limits for certain compensation and statutory payments. These include an increase to the maximum week's pay for calculating redundancy and unfair dismissal basic award - from ￡544 to ￡571, and to the maximum compensatory award for unfair dismissal - from ￡89,493 to ￡93,878. Read more here .

-???????The Vento bands, which provide guidance on the amount of compensation to be awarded by Tribunals for injured feelings in successful discrimination claims, will increase for claims issued on or after 6 April 2022:

o??A lower band of between ￡990 to ￡9,900 (for less serious cases);

o??A middle band of between ￡9,900 to ￡29,600 (for cases that do not merit an award in the upper band);

o??An upper band of between ￡29,600 to ￡49,300 (for the most serious cases, such as a lengthy campaign of discrimination); and

o??For the most exceptional cases capable of exceeding ￡49,300.

-???????It has been announced that ethnicity pay gap reporting will not be mandatory. The government has said that BEIS will produce guidance this summer for employers that want to voluntarily report. Read more here .

-???????The Employment Tribunal has produced a joint road map for 2022-23, which points to substantive hearings in person but with Preliminary Hearings and Judicial Mediations continuing to default to video meetings. Click here to read more.

-???????Radio 4 ran an interesting programme with Matthew Taylor looking at workplace bullying, suggesting adding legal protection against non-discriminatory bullying without having to resign first.

-???????Have you used AI to make someone redundant? There have been reports this week of Estee Lauder doing just that (well, partly just that). It is reported that three make-up artists had been “dismissed by algorithm” during a redundancy exercise. They brought a tribunal claim but settled out of court. It seems that Estee Lauder had used AI (specifically facial recognition technology) to interview the women but this, apparently, only accounted for 1% of its decision making. A human being conducted the rest of the process. ?You can read more here and here .

-???????We also hear of some public sector organisations that are yet to report as the gender pay gap deadline passes.

Tax

Help and support for tax agents and advisers

-???????HMRC has updated its guidance on?help and support for tax agents and advisers?including updated links to register for webinars about the introduction, admin and technical aspects of Plastic Packaging Tax and a new link to a webinar recording about the notification of uncertain tax treatment by large businesses. Read more here .

Customs easement to help Ukraine aid exports

-???????HMRC has?announced?a simplification of customs processes for goods intended to support those affected by the humanitarian crisis in Ukraine, which are exported from the UK. Provided the goods are not exported to, or through, Russia or Belarus, then these simplified processes apply to qualifying goods regardless of the destination to allow maximum flexibility to get aid to where the need is greatest. Read more here .

Guidance on dealing with VAT grouping registration

-???????HMRC have published Revenue and Customs Brief 5 (2022): ‘Revised guidance on dealing with VAT grouping registration’. This replaces guidance issued in November 2021 and explains the actions businesses should now take when filing VAT returns while waiting for a decision on their VAT grouping application. Read more here .

Spring Statement

-???????The Chancellor delivered his Spring Statement, some of the key announcements:?????????????

o??The threshold at which point people start paying National Insurance will rise from ￡9,600 to ￡12,570 in July 2022.

o??Green technology will be exempt from business rates from April, saving firms ￡35m in 2022-23. Read more here .

Pensions

Pensions Regulator powers delayed

-???????The regulations intended to implement the new Pensions Regulator notifiable events regime – which included a requirement from April 2022 on companies with a defined benefit scheme to notify the Regulator upon an ‘in principle’ decision to provide lenders with security over corporate assets above a set level, and certain disposals, have been delayed following industry commentary. These powers were defined vaguely and backed up by large fines and potential criminal liability so this delay is welcome. Read more here .

Spring Statement

-???????The Chancellor’s Spring Statement included no pension specific measures. However, the changes to the national living wage (to increase from ￡8.91 an hour to ￡9.50) will be likely to push more workers into the auto-enrolment bands. There was no change in the proposed increase to the State Pension (3.1%) despite inflation currently running at 6.1%, highlighting the need for workers to save within the workplace pensions system. Read more here .

Data Privacy

Standard Contractual Clauses Update

-???????The UK’s International Data Transfer Agreement (IDTA) and Addendum to the EC Standard Contractual Clauses (SCCs) came into force on 21 March 2022 without further changes. Any contracts concluded on or before 21 September 2022 using the previous SCCs will continue to be an adequate safeguard until 21 March 2024, provided that there is no material change to the processing. For any new transfers, organisations should use the IDTA and SCCs.

-???????The IDTA and Addendum replace the current standard contractual clauses for international transfers. Read more here .

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 plc’s Employment team at?[email protected] ?and we will be happy to assist you.

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