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 that fact. Here are our TFFs for the period ending 9 July 2021.

“Freedom Day” - The End of COVID-19 Restrictions?

What?

On 5 July, the Government announced that it intends to push on with the fourth and final step of the roadmap for lifting restrictions in England.

“Freedom Day”, which will see an end to all current COVID-19 restrictions, was initially planned for 21 June. It will now likely go ahead on 19 July, to be confirmed on 12 July following further tests and a review of the latest data.

Restrictions including social distancing and the requirement to wear face coverings will be dropped, as will the requirement for people to work from home if possible.

So what?

There are still a number of considerations for employers as they welcome employees back in to the office after 19 July.

Return to the office

It will be the first time that employers will be able to welcome back unrestricted numbers, without the need for social distancing.?Employers are still, however, under a duty to take reasonable steps to set up a safe working environment and will need to examine potential ongoing risks for both non-customer and customer facing roles, and consider any ongoing measures needed to protect employees.?This may include continuing to encourage social distancing, allowing staff to wear masks if they would prefer to do so, leaving up protective screens and leaving one-way systems in place.

Self-isolation

A welcome development for many will be the Health Secretary’s announcement that from 16 August 2021, individuals that have been fully vaccinated will no longer need to self-isolate after coming into contact with someone that has COVID-19.?They will still need to take a PCR test as soon as possible, and if that is positive then they will have to self-isolate. This development should help stabilise workplaces with fewer staff having to self-isolate.

Similarly, use of the NHS track and trace app will no longer be a legal requirement, but will still be encouraged.

Working from home

Many employers have adopted a remote working system since March 2020, and many will still be following that system.?There will be a real appetite for some staff to remain at home or to be given freedom to rotate working from home and from the office.??Employers should consider their stance on working from home going forwards and have conversations with staff so they know where they stand and what to expect.?

Another interesting development on this subject is the possibility of remote working becoming a day one right and the default position.?This was first suggested in the Queen’s Speech in 2019 which detailed plans for a new Employment Bill (although those plans now seem to have been placed on hold). The Labour party has supported this development and believes all workers should have a default right to work from home/flexibly. However, the Government has indicated that it has no immediate plans to make such changes.?Watch this space!

Flexible working requests

As already mentioned, many employees will prefer to work from home permanently going forwards.?If they aren’t given the option, staff may have a statutory right to submit a flexible working request to their employers which may include permanent remote working.?You can view our guidance on flexible working requests here.

COVID-19 Dismissal: Employee who refused to return to work to protect his vulnerable father was unfairly dismissed

What?

The Tribunal has handed down its judgment in the recent case of Gibson v Lothian Leisure.

Mr Gibson (who was represented by his father) was a chef employed by Lothian Leisure (Lothian) from February 2019 until May 2020.?He had been successful in his role and earned a promotion in that time.

Lothian was forced to close in March 2020 as a result of the national lockdown and Mr Gibson was placed on furlough leave.?At the same time, Mr Gibson’s father was advised to shield due to multiple ongoing health issues.

During his period of furlough leave, Mr Gibson was paid ￡340 less each month than he was entitled to and Lothian failed to pay the appropriate pension contributions for around five months.

In April 2020, Lothian asked Mr Gibson (who remained on furlough leave) to attend work to help prepare for its reopening.?Mr Gibson had concerns about COVID-19 and Lothian’s safety practices and, in particular, the lack of PPE and the risk that exposure to COVID-19 posed to his shielding father.?He raised these issues with Lothian but was met with a ‘shut up and get on with it attitude’.?

Then, without any discussion or process, Mr Gibson received a text message from a director of Lothian dismissing him from his role.?The text explained that his dismissal was as a result of changes they were making to the format and running of the business and because they were operating with a smaller team going forwards.?The Judge in the case noted that this wording was consistent with a redundancy or reorganisation.?Mr Gibson did not receive any notice pay or pay for his accrued but untaken holidays.

Mr Gibson brought claims against Lothian for unfair dismissal, unlawful deductions, notice pay and unlawful deductions from wages.

The Judge considered Section 100 of the Employment Rights Act 1996 (ERA) which protects employees from being unfairly dismissed when, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.?

The Judge was satisfied that Mr Gibson did reasonably believe that returning to work was a serious and imminent risk to his shielding father, and that he took steps to protect his father by not returning to work when asked to do so.?

Mr Gibson lacked the requisite 2 years’ service to claim unfair dismissal, however where an employee is dismissed for asserting a statutory right (here Section 100 ERA), then regardless of how long the employee has worked for the employer, the Tribunal can decide that it was an automatically unfair dismissal.

The Judge was satisfied that Mr Gibson was dismissed / selected for redundancy directly as a result of his refusal to return to work and that he had been automatically unfairly dismissed.

Mr Gibson was awarded:

• ￡6,562 basic award;
• ￡14,500 compensation;
• Notice pay; and
• ￡1,200 for his accrued holiday pay.

So what?

Although this case relates to the now redundant shielding exercise which was adopted across the UK last year, it is still an important case to consider and there will be many more like it in the Tribunals.

The vaccine roll out has been successful and, in turn, hospital admissions and deaths have decreased dramatically.?Cases, on the other hand, are still rife.?We also do not know how long the vaccine will last, how it will perform in the winter or whether re-vaccination will be necessary.

Some employees may be more hesitant than others to return to ‘normal’ life and get straight back in to the workplace until cases are a more controlled rate or at least until we know more about the vaccine.?Caution should be taken when deciding how to approach employees, bearing in mind the protections offered to staff who reasonably believe they may be at risk by returning to the workplace.

You can view the full judgment here.

Strike Out Applications: Scandalous, unreasonable or vexatious conduct

What?

An Employment Tribunal (ET) has the ability to strike out all or part of a claim or response at any stage of proceedings, either on its own initiative or on the application of a party, on the grounds that the manner in which the proceedings have been conducted has been ‘scandalous, unreasonable or vexatious’; or for non-compliance with an order of the ET - The Employment Tribunals (Rules of Procedure) 2013 Rule 37(1)(b) and (c) (ET Rules).

In the recent case of A v B, the Employment Appeal Tribunal (EAT) heard an appeal regarding a decision by the ET to strike out a claim because of the Claimant’s correspondence to witnesses and the Respondent’s solicitor.

The Claimant was a doctor for an NHS Trust and was dismissed by the Respondent on the grounds of misconduct. She brought claims of unfair dismissal and sex and religious discrimination against the Respondent. During her employment with the Respondent, the Claimant had an intimate relationship with a senior colleague which had broken down.

Throughout the proceedings, the Claimant had sent several emails to the Respondent’s witnesses (including the individual she was previously in a relationship with) and the Respondent’s solicitor. The emails included serious accusations of unlawful and unprofessional conduct. One of the several emails sent to the Respondent’s solicitor included accusations of involvement in sexual harassment, bullying, stalking and violence.

The Respondent made applications to the ET for strike out of the Claimant’s claim. The ET accepted that the correspondence from the Claimant were inappropriate but initially made an Order which required her to refrain from repeating allegations which the ET considered scandalous, unreasonable and vexatious, and to communicate politely with the Respondent’s solicitor.

The Claimant’s conduct continued and the ET struck out the claims on the basis that the Claimant’s correspondence were ‘scandalous, unreasonable and vexatious’ (ET Rule 37(1)(b)) and in breach of the Order that the ET had made (ET Rule 37(1)(c)) and there was no indication that she would act with restraint in the future.

On appeal to the EAT, the Claimant said that at the time she sent the further emails she was not aware of the Order that the ET had made.?The EAT took this into account but dismissed the appeal, concluding that the ET was entitled to strike out the claim and no perversity or error of law had been demonstrated.

So what?

The EAT’s decision sets a clear precedent and will act as a deterrent and stark warning to claimants.

We expect that the decision will be particularly useful for respondent employers that encounter vexatious or abusive claimants, in particular when the unreasonable conduct is aimed at witnesses or solicitors.

If you find yourself in such circumstances as a respondent in proceedings, you will be able to use the EAT’s decision as a caution to claimants, or, if necessary, reference the decision in a strike out application to the ET.

You can read the full judgment here.

Single Enforcement Body: New watchdog to protect workers’ rights

What?

The Government has confirmed its intention to establish a single enforcement body to protect workers’ rights. Business Minister Paul Scully, said “we will take action against big brands that turn a blind eye to abuses of workers’ rights”.

In July 2019, the Government launched the ‘Good Work Plan: establishing a new Single Enforcement Body for employment rights’ consultation. It proposed to unify the existing labour market enforcement bodies, in particular the Gangmasters and Labour Abuse Authority, HMRC National Minimum Wage Enforcement and Employment Agency Standards Inspectorate, into a single enforcement body for employment rights.

The Government’s report, which was published on 8 June 2021, confirms that it will proceed with plans to bring together the existing labour market enforcement bodies, in line with its manifesto commitment.

The new body will, in addition to the existing powers of the current labour market enforcement bodies, have new powers to tackle non-compliance. The new powers include the introduction of civil penalties for underpayment for breaches under the gangmasters licensing and employment agency standards regimes that result in wage arrears.

The single enforcement body will have an extensive remit to protect vulnerable workers covering:

• National Minimum Wage and National Living Wage;
• Domestic regulations relating to employment agencies;
• Umbrella companies, which employ and handle payment for agency workers but do not currently fall within the remit of the Employment Agency Standards Inspectorate;
• Licenses to supply temporary labour in high risk sectors in agriculture and the fresh food supply chain;
• Labour exploitation and modern slavery related to worker exploitation;
• Holiday pay for vulnerable workers;
• Statutory Sick Pay;
• Modern slavery statements;
• Unpaid employment tribunal awards; and
• Tackling the growing problem of umbrella companies.

The Government will press ahead with its plan and establish the single enforcement body through primary legislation “when parliamentary time allows”.

So what?

The key objective of the body is the enhancement and protection of workers’ rights. In combining the roles of the existing labour market enforcement bodies, we expect that it will deliver more effective enforcement of employment rights for vulnerable workers.

The single enforcement body, with its extensive remit, could have significant implications for employers as the proposals are very employee friendly.

The latest pre-pandemic report illustrated that nearly half a million workers are paid less than the National Minimum Wage and nearly two million employees miss out on holiday pay.

We therefore anticipate that the initial focus will be on the short falls in National Minimum Wage, Holiday pay and Statutory Sick Pay issues in the workplace. It is reasonable to expect that the change will have implications for employers who have managed to so far go under the radar in respect of these areas. The body, once established, will take over the naming and shaming scheme which calls out employers who fail to pay their workers’ correctly and will have the power to issue fines of up to ￡20,000 per worker for non-compliance with National Minimum Wage regulation.

The new body has generally been welcomed and supported, including by the FCSA (Freelancer & Contractor Services Association) who commented on Government’s announcement by saying:

“The FCSA welcomes the announcement that the proposed single enforcement body will have a remit to police the umbrella sector with a further emphasis on ensuring holiday pay for vulnerable workers is protected.”

However, it is clear that some Trade Unions are sceptical about the Government’s plans, in particular in respect of the time scales for the establishment of the body and how the Government plans to implement some of its promises. For example, one of the plans is to help vulnerable workers get the holiday and statutory sick pay they are entitled to without having to go through a lengthy Employment Tribunal process.

The RMT (National Union of Rail, Maritime and Transport Workers) has commented the following:

?“We need to see more details of the Government's proposals but we are undoubtedly seeing under payment and exploitation level down workers' rights. Seafarers, in particular, need better enforcement to protect their jobs and rights but are receiving no protection from exploitative employers, even on cross Channel ferry routes. That needs to change, and fast.”

The TUC (Trades Union Congress) also responded to the Government’s announcement by publishing the following:

“While designed to give the impression of progress, there is little sign that anything will change in the near future. There is no timetable for the necessary legislation, no promise of badly needed extra funds and overall the plans fall short of the systemic reforms that are needed to make sure workers can enforce their rights, swiftly and effectively. ?Urgent action is needed now.?For too many workers, basic workplace rights like the national minimum wage and holiday pay are illusory because there is no effective enforcement.”

The Government have not provided any time frames so it is unclear when the new enforcement body will be established. However, we recommend that employers begin to reflect on the proposals and commence reviews of their practices to ensure that they comply with workers’ rights.?Holiday pay, in particular, is likely to be a significant issue which will affect employers including those that may not yet appreciate that they have an issue, either due to error or misunderstanding.

For further information, click here to read the Government’s report.

National Employment Tribunal User Group: Employment Tribunal Update

On 2 July 2021, the minutes of the National Employment Tribunal User Group’s meeting in May 2021 were published.

The minutes contain some interesting information including an update on the general position on the listing of Employment Tribunal hearings. At the time of the meeting in May 2021, the majority of regions were currently listing 1 to 2 day hearings in the second half of 2021, 3 to 5 day hearings in the first half of 2022 and 5 to 10 day hearings in the second half of 2022.

London Central

In London Central, due to the previous closure of Victory House, tribunal staff are managing a backlog and most hearings are taking place via CVP, with limited capacity for in-person hearings. The tribunal continue to request that enquiries should be made by email rather than telephone.

London South

In London South, the tribunal is very short of salaried judges meaning they are having to turn some cases away.

South-east England

In South-east England, in particular Watford, the tribunals are also short of salaried judges.

North-west England

Tribunals in North-west England are fortunately not facing the same shortfall of salaried judges. However, the case load remains very high. ?The pilot scheme of compulsory ADR hearings is also being adopted.

Tribunals have switched their case management system from Ethos to ECM (Employment Case Management) which led to a disruption of data exported on cases received/disposed. However, the migration was successful and has since proven essential to the system’s recovery.

The full meeting minutes can be accessed here.

The next National Employment Tribunal User Group will be held remotely in late September or early October 2021.

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.