Top Fortnightly Facts (TFFs)

Every fortnight, the Knights 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 start by looking at current news headlines and discussion points, then look at recent case decisions and finish with some quickfire points to note on any other important recent events in the employment and HR world

1.????IN THE NEWS - DISCUSSION POINTS:

In the news this fortnight, we look at three issues: (a) the Queen’s Speech; (b) the widening of the ban on exclusivity clauses; and (c) pay reduction for law firm employees who choose to work remotely at home full-time.

(a)??The Queen’s Speech

What

On 10 May 2022, the Queen’s Speech was delivered by Prince Charles at the ceremony to officially reopen Parliament.

The speech highlighted some of the 38 bills that ministers intend to pass in the coming year, up from 30 last year. The bills cover a variety of topics including education, animal welfare, economic crime and energy security.

The key point of interest from an employment and HR perspective was the long-awaited Employment Bill, which was first proposed in December 2019, but has been repeatedly delayed since. As anticipated, the Employment Bill was excluded from the Queen’s Speech.

Although there was no Employment Bill announced, following the recent mass redundancies by P&O Ferries whereby 800 seafarers were sacked without notice, the Queen’s Speech did announce a new Harbours (Seafarers' Remuneration) Bill. This Bill is intended to protect seafarers working on vessels that regularly visit UK ports by sanctioning and banning ferries from docking at UK ports if workers are not being paid the equivalent of National Minimum Wage.

So what?

In October 2016, the Government commissioned Matthew Taylor to carry out an independent review into the UK employment framework. The?Taylor Review of Modern Working Practices , published in July 2017,?found that the labour market was changing due to the emergence of new business models and different forms of ‘gig economy’ working and concluded that the legislative framework must be reviewed to accommodate the reality of people’s working relationships.

The Government accepted 51 of the 53 recommendations and set out its?Good Work Plan , which outlined how it planned to implement Taylor’s recommendations. Some of the recommendations have been implemented by secondary legislation, such as the April 2020 changes to the requirements of employment contracts, but the vast majority of the changes are expected to be included in the Employment Bill.

It is almost five years since the Taylor Review was published and two and a half years since the Employment Bill was first proposed. Since it was first proposed in December 2019, many of the changes that are due to be included in the Employment Bill have become increasingly important, such as the right to request flexible working from day one, the right to carers' leave, the right to neonatal leave and pay, the extension of redundancy protection for women and new parents, additional rights for zero hours workers and the creation of a single enforcement body for employment rights.

Although the omission of the Employment Bill was expected, the TUC has accused the Government of “turning its back” on working people and of sending “a signal that they are happy for rogue employers to ride roughshod over workers’ rights”. It has also pointed out that the Government has promised the Employment Bill to enhance workers' rights 20 times since first announcing it in the 2019 Queen's Speech.

Ros Bragg, director of maternity rights charity Maternity Action, has said that pregnant women and new mothers needed "urgent legal protections from unfair redundancies" which had "dramatically increased" since the coronavirus pandemic and that she was "deeply disappointed and frustrated" that the Employment Bill did not feature in the Queen's Speech.

The Harbours (Seafarers' Remuneration) Bill has also come under scrutiny. The British Ports Association has said that it has concerns about ports being made to regulate ships and that ports do not "have a core competency" in enforcing the minimum wage, while the?TUC have dismissed the plans as unworkable.

The rights proposed in the Employment Bill, many of which are significant for those set to benefit, are once again in abeyance, and when, or whether, they will progress in time remains to be seen. Let us have your thoughts on the further delay.

(b)??The widening of the ban on exclusivity clauses

What?

On 9 May 2022, the Government announced its proposal to extend the existing ban on exclusivity clauses in employment contracts for the lowest paid workers. In 2015, exclusivity clauses were banned for workers on zero hours contracts, giving those workers freedom to work more than one job if they need or wish to.

The new proposal, which is expected later this year, is to widen the ban on exclusivity clauses to any contracts where the guaranteed weekly income is below the Lower Earnings Limit of ￡123 per week, meaning it will no longer be possible to enforce an exclusivity clause against any such worker to prevent them from doing work for other employers.

So what?

The Government’s consultation highlighted the effect COVID-19 has had on job security and guaranteed working hours.

The proposal is part of a Government drive to reduce unfair restrictions on lower paid workers.?

The Government has said that by “removing the red tape”, low-paid workers will have the ability and flexibility to reskill, boost their income by working multiple short hours contracts and make the most of new opportunities in existing sectors with growing labour demand.

It has also been billed as a way to widen the talent pool of job applicants to those who may have been prevented from applying for roles due to an exclusivity clause with another employer.

However, some may feel that the proposal does not go far enough to protect low paid workers and that its impact will be limited. The proposal will only impact a small portion of the UK workforce since the ban will only apply to any contracts where the guaranteed weekly income is below ￡123 per week, equating to an estimated 1.5 million workers and representing approximately 13 hours’ work per week at minimum wage.

Time will tell if the proposal will have any meaningful impact and benefit for the lowest paid workers, who are already struggling as the cost of living crisis takes hold. Whilst it only benefits up to around 1.5 million workers, and not all of those will want a second job, the reform could help a large number of workers, particularly vulnerable workers that have seen their hours reduced, gig economy workers, younger workers and other workers facing barriers entering the labour market.

(c)??Pay reduction for law firm employees who choose to work remotely at home full-time

What?

Stephenson Harwood has announced a 20% reduction in pay policy for employees who choose to continue to work from home on a full-time basis.

Employees who opt to work remotely on a full-time basis will, together with the 20% reduction in pay, be ineligible for a promotion to Partner level. They will also still be required to go into the office once a month, for which they will be reimbursed their travel and accommodation expenses.

One of the reasons for the salary sacrifice for full-time remote working is likely the London weighting issue that many businesses are facing. London weighted salaries are designed to help workers with the cost of living in Greater London, which is higher than that of the rest of the UK. However, during the pandemic, employees who are contractually assigned to a London office have either moved away from London or have avoided paying commuting costs, and as a result of which now prefer to work remotely outside of London. This has resulted in employees being paid a London salary, whilst being outside of London.

There are, of course, many other reasons for employees preferring to work remotely.

So what?

Over recent months we have seen a return to some pre-COVID normality in all aspects of life (*sigh of relief*). For the vast majority, this has involved a return to previous working arrangements at the workplace, albeit usually with a flexible or hybrid arrangement.

In businesses where it’s feasible, there is an expectation by employees to be able to work in a hybrid fashion, and in some cases completely from home. There remains a reluctance from some employees to return to the workplace at all. Stephenson Harwood offer a hybrid working model and all employees are permitted to work remotely for up to two days each week. The firm, therefore, does not anticipate an extensive take up of full-time remote working.?It does, however, serve as a reminder that businesses continue to tackle with these issues.

There are many benefits of having the freedom to work flexibly and remotely from home, and most businesses recognise this and allow their employees the option to work remotely usually two or three days a week.

There are, however, benefits of colleagues being in the office together, particularly in collaborative businesses or teams, and exists a fear that culture could be weakened or hindered by remote working.

Many businesses are looking at ways to entice workers that are thriving on flexible and remote working to return to the workplace, but some businesses are doing the opposite. Airbnb has announced that, in order to “hire and retain the best people in the world”, its employees can work from anywhere in the country without having to take a pay cut.

It is unlikely that we will ever see a return to pre-COVID working arrangements and, therefore, irrespective of where employees work, employee engagement is more important now than ever. It’s vital that organisations ensure that their managers and senior employees have the requisite people management and leadership skills and the tools to drive engagement, and that there is a collaborative culture and open working environment where all employees are engaged whether they are at home or at the workplace.

2.????RECENT CASE LAW:

In this edition we focus on the recent case of Rodgers v Leeds Laser Cutting Ltd.

What?

In Rodgers v Leeds Laser Cutting Ltd , the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal's decision that the employee's dismissal for refusing to return to the workplace because of concerns about the pandemic was not automatically unfair for a health and safety reason.

The case concerned the question of whether it was automatically unfair for the employer, LLC, to dismiss the employee, Mr Rodgers, for refusing to return to the workplace over concerns about the risk of COVID-19 to his vulnerable children.

LLC had carried out a COVID-19 risk assessment and put protective measures in place. The workplace was large "like a big, big garage" and there were typically only five people working on the shop floor. It was also found that Mr Rodgers could socially distance at work.

Despite this, at the beginning of the first national lockdown, Mr Rodgers left the workplace and said he would not be returning until the lockdown was eased, because of concerns on the risk to his vulnerable children.

LLC dismissed Mr Rodgers, who had less than two years’ service, and he submitted a claim to the Tribunal claiming that his dismissal was automatically unfair because he had been dismissed for leaving the workplace due to serious and imminent danger.

The Tribunal decided that Mr Rodgers did not reasonably believe that there were circumstances of danger that were serious and imminent and that his concerns regarding COVID-19 were general ones, not directly attributable to the workplace. The Tribunal also considered that he could have taken other preventative steps such as wearing a mask, social distancing, sanitising and washing his hands.?Additionally, his actions, including not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown, did not support his argument that there were circumstances of danger which he believed were serious and imminent. The case was dismissed and Mr Rodgers appealed the decision.

The EAT dismissed the appeal. The EAT held that the Tribunal correctly concluded that Mr Rodgers did not hold a reasonable believe that there were serious and imminent circumstances of danger that prevented him from returning to work. It also agreed that the employer had taken steps to avert the danger of COVID-19 in the workplace and that Mr Rodgers could reasonably have taken steps to avoid such danger, in the workplace and at large, such as wearing a mask, observing social distancing, and sanitising his hands.

So what?

The right to bring claims for unfair dismissal is, in most cases, limited to those employees with two years’ service. However, there are some exceptions to this which allow employees to claim automatic unfair dismissal where they do not have the usual requisite length of service. This includes the protections against automatic unfair dismissal in section 100 of the Employment Rights Act 1996, which broadly focuses on health and safety cases, as seen in this case. There is no two-year service qualifying period required to bring this claim, it is a "day one" right.

Section 100(1)(d) ERA, provides that an employee is automatically unfairly dismissed if the reason for dismissal is that ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work’.

As restrictions are eased and employers encourage employees to return to the workplace, we may see more challenges under section 100 ERA. This case serves as a useful reminder to employees of the importance of ensuring health and safety in the workplace, for COVID-19 health and safety issues or otherwise. On this point, in its judgment, the EAT went on to state that COVID-19 could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent.

However, this case will be welcomed by employers as it demonstrates that where an employer has taken effective steps to comply with health and safety and can demonstrate a considered and measured approach to COVID-19 in line with Government guidance, it will minimise its exposure and risk against claims.

3.????QUICKFIRE POINTS:

Below are some quickfire points to note on some important recent events in the employment and HR world.

• The Recruitment and Employment Confederation and The Fawcett Society have launched a new End Salary History campaign to tackle pay disparity on the grounds of gender, race and disability. Polling by The Fawcett Society found that a majority of both men and women felt that being asked about their earning history causes them to be offered a lower wage and affected their confidence when asking for better pay. The Government recently announced a pilot scheme which would see participants include salary information in job advertisements and refrain from asking job applicants for details of their salary history. However, further details of the scheme are awaited. The campaign includes an employer petition to push the call on the Government to ban practice of recruiters asking job applicants about their salary history and a practical guide for use by recruiters. The guide advocates that the practice of basing salary offers on previous income bakes in gender, race and disability inequality and perpetuates existing pay gaps.
• The Government previously announced plans to introduce legislation to prevent employers from deducting money given as tips for workers. However, despite pledges by minsters as recent as September last year, on 5 May 2022 it was reported that the plans to ensure workers are able to keep tips have been dropped for "the foreseeable future".
• ?The Office for National Statistics (ONS) have reported on sickness absence rates for 2021. The statistics show that 2021 saw the highest sickness absence rate in the UK since 2010. Nearly 150 million days were lost to sickness or injury, being an average of 4.6 days per person. The biggest cause for sickness absence was COVID-19 which accounted for 24% of all occurrences of sickness absence.
• HMCTS is taking steps to modernise the Tribunal system, including digital case files, interactive web-based case progression and automation of various aspects of the Tribunal system. The HMCTS Reform Employment Tribunal Project have produced a useful FAQ document to help Tribunal users navigate the reform. The document sets out the background to the reform, the progress and the design of the new online journey, and will be updated as the project continues.
• The Government has published new guidance for businesses offering work to individuals coming to the UK from Ukraine. The guidance applies to businesses in England, Scotland and Wales and provides information on immigration status, practical steps and on the additional support available to businesses. It also notes that "the UK is proud to extend the same employment rights that everyone in the UK is entitled to, to people arriving in the UK from Ukraine”, and encourages businesses to understand these employment rights.
• Menopause specialists, Health & Her, have published new research which has found that 10% of women leave the workforce due to menopause and one in four consider leaving. The Fawcett Society has also published the results of what is believed to be the largest survey of menopausal women in the UK. It found that one in 10 women have left a job due to their symptoms and 44% of women said that their ability to do their job had been affected by their symptoms.

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. This list of consideration is not exhaustive and does not constitute legal advice.

Produced by Hayden Whitman.?