Top Fortnightly Facts (TFFs)

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.

Whilst it is very stormy out there today, things are relatively calm in the HR/Employment world but here are our top picks:

1. IN THE NEWS - DISCUSSION POINTS:

In the news this week, we look at two topics: (1) the removal of COVID-19 restrictions and (2) the 4-day week trials. We have included some points to think about. Let us have your thoughts on these topics and we can share them in future editions.

The end of COVID-19 restrictions

What?

Last week, Boris Johnson announced that the government wants to end all domestic COVID-19 restrictions in England, including the legal requirement to self-isolate, on 24 February 2022,?a month earlier than planned. He said that he would present the government’s “Living with Covid” strategy when the Commons returns from its recess on 21 February 2022. The move will make England the first major nation to stand down all of its domestic COVID-19 rules.

So What?

Many employers will be glad to “get back to normal” but all employers still have a duty of care to their employees which includes taking steps to reduce the risk of transmission associated with COVID-19. The removal of restrictions will, therefore, shift the onus entirely on to you, as the employer, to devise your own rules about what happens when a member of staff tests positive.

So what will you do? Simply rely on your employees to do the right thing; that is, to stay off work if they feel ill? Alternatively, will you introduce your own company-specific rule that encourages or, perhaps, even?requires?employees to remain off work in certain circumstances - for example, if they have a positive COVID-19 test, whether or not they are symptomatic? What if they are suffering from another infectious illness (such as ‘flu or even a cold)? Either way, you should talk to staff about your expectations and keep any policy (or lack of one) under review.

Aside from company self-isolation policies, will you retain other measures in place to keep staff safe such as an ongoing requirement to wear face coverings in public spaces and other social distancing measures?

Get in touch to let us know what you are planning on doing.

The 4-day working week

What?

There has been a lot published recently about employers - and nations- testing, and introducing, a 4-day week amongst staff (without any reduction in full-time pay). The latest nation to give workers the right to?request?a 4-day week is?Belgium. It seems that the plan is to allow?companies to turn down a request, but they will need to justify their response in writing. Much of this reform has been prompted by the COVID-19 pandemic but it is not altogether new.

Four-day working weeks were trialled in?Iceland?between 2015-2019 and it is reported that it has, since, ”become?the choice of 85% of the country’s working population”. A six-month trial is due to start in 2023 in?Scotland?with a ￡10m fund made available to participating companies by the government. On Monday, the Welsh future generations commissioner, Sophie Howe, called for the?Welsh?government to offer the option in the public sector as a first step.

So What?

Is a 4-day week the answer? Will it really improve employee well-being? What do you think? Will it work in your business, or will productivity (and/or quality) suffer?

We are all for working smarter, but would a 4-day working week really achieve what we want it to?

Will it simply require the same number of hours to be worked, compressed over 4 days rather than 3 (raising health & safety questions over long working days)? The latest data from?Eurostat?indicates that the average working week in Iceland has only fallen form 44 hours a week in 2019 to 43.5 hours a week in 2020 suggesting that the length of the average working day has simply increased.

Even if hours ‘input’ haven’t fallen, though, what about ‘output’, or the quality of it?

And what about the impact on wages if hours inputted fall? Many of the trials have seen a drop in hours but no drop in pay. Is that sustainable though, if if there are no changes to the systems and methods of ‘smarter’ working introduced to offset the fall in hours and to maintain productivity??Great if a business can make it work. But if reduced hours means lower productivity, wages won’t keep pace with the full-time market rate and, over time, people will see themselves earning more of a part-time wage.

Whilst we love the idea of less work for the same money, it potentially feels too good to be true. Might the better way be to keep things fluid and to allow people the flexibility to undertake their work in a way that suits them but always with the business’ interests at heart?

Tell us what you think!

2. RECENT CASE LAW:

We focus on two cases in this edition: (1) the case of?Arvunescu v Quick Release (Automotive) Ltd [2022] EAT 26?where the EAT reminds us of the importance and value of widely drawn settlement agreements and of the little-known unlawful act of knowingly helping another to do an act of discrimination; and (2) the Court of Appeal case of?Kocur v Angard Staffing Solutions Ltd and anor?which clarifies that the right under the Agency Worker Regulations 2010 for an agency worker to be informed of any relevant vacancies does not mean that they have an automatic right to apply, and be considered for, the vacancies.

Quick Release case: drafting settlement agreement and knowingly helping anther to do an act of discrimination

What?

In the recently published judgement of the EAT in the case of?Arvunescu v Quick Release (Automotive) Ltd [2022] EAT 26, we are reminded of the importance and value of widely drawn settlement terms.

The Claimant’s COT3 was widely drafted, settling various claims, including all claims “arising directly or indirectly out of or in connection with the claimant's employment with the respondent, its termination or otherwise”. It was also expressed to apply to a claim, “even though the claimant may be unaware at the date of this agreement of the circumstances which might give rise to it or the legal basis for such a claim”.

The EAT held that this, very broad, wording in the COT3 was sufficient to preclude the Claimant from pursuing Tribunal proceedings against the Respondent in which he alleged that he had been unlawfully victimised on grounds of race, when he was rejected for a post he had applied for with a wholly-owned subsidiary of the Respondent in Germany.

So what?

Whilst the publicity surrounding the case reminds all lawyers (and HR professionals) negotiating and drafting COT3 settlement terms of the importance and value of careful (and wide) drafting, the case is also an interesting and useful reminder of a little known and infrequently used or referred to provision in the Equality Act 2010.

Under?section 112 of the Equality Act 2010, it is unlawful if one person "knowingly helps" another to do an act of discrimination.

Here, there was no dispute the Claimant did a “protected act” (for the purpose of protection against victimisation) and the Respondent knew he was applying for a post in Germany. Given the close relationship between the Respondent and the German company, the EAT held that there was a reasonable prospect of the Claimant showing that the Respondent was involved in the German company’s decision to reject him and, so, the Respondent could be liable under section 112 of the Equality Act.

Kocur case: agency worker rights

Mr Kocur worked for Angard Staffing Solutions Limited which was a wholly owned subsidiary of the Royal Mail. He was told that he was ineligible to apply for internal vacancies notified to him on the Leeds Mail Centre notice board. Instead, he was told that he could only apply for vacancies when they were advertised externally and, when he did so, he would be in competition with external applicants.

Yesterday, 17 February 2022, the Court of Appeal clarified that Angard had not done anything wrong here as the right under the Agency Worker Regulations 2010 for an agency worker to be informed of any relevant vacancies does not mean that they have an automatic right to apply, and be considered for, the vacancies.

So What?

This case is a reminder of the right for agency workers to be notified of any vacancies but that is the limit of the right. In other words, the right is no more than a limited right to information and goes no further than that.

3. QUICKFIRE POINTS:

Below are some quickfire points to note on some other cases in the news as well as some immigration, tax and pension updates.

In the News:

• UK wage growth continues to lag behind the cost of living, unemployment rates falls to 4.1% while job vacancies hit a fresh record high. See?here?and?here.
• The National Audit Office (NAO) report?recommends improvements to the off-payroll (IR35) working regime.
• Acas have introduced some new?guidance?on rights following bereavement.

Case law:

• David Mackereth, the?doctor?who lost his job after claiming that Genesis 1:27 means he can’t use a person’s chosen pronouns lost his ET case but he has appealed and the EAT will hear his case next month. Just because your belief is protected, it does not mean that your behaviour is.
• In the case of?Water v The Mote Cricket Club, the EAT upholds the ET’s decision that a cricket club groundsman operating through his own business was neither an employee nor a worker.
• A Northern Ireland worker?has been awarded over ￡500k in compensation after the army captain made repeated comments relating to her sex and religion (including being described as “the big cougar”) which left her with severe psychiatric injuries.

Immigration:

• The Health and Care Visa scheme was?expanded?on 15 February 2022, so that care workers, care assistants and home care workers are now eligible to apply for a UK visa, for the next 12 months.

Tax:

• HMRC have finally, following a review, confirmed its position in relation to the VAT treatment of termination charges and compensation. This is an important update and will likely affect a number of businesses, with the new policy coming into force on 1st April 2022. Read more?here.
• Just as a reminder, the planned changes to national insurance have been confirmed by the government and will still be implemented from April 2022, meaning there is now little time to plan for the changes. Read more?here.

Pensions:

• The Pensions Ombudsman has issued a determination confirming that where an employer fails to make contributions to a worker’s pension it may require the employer to make good missed investment returns on those contributions. Also of note, although the amount unpaid was ￡297.92, the Ombudsman ordered a ￡1000 maladministration payment. Read more?here.
• Pension savers often lose track of their pots when they move jobs. The Government has therefore been pushing the pensions industry to produce a one-stop-shop where savers can see all their pension pots in place. The FCA has now released proposed rules for Personal Pension providers on how this concept would be implemented in practice. 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.