Employment Law Review – February 2020
Welcome to our February 2020 Employment Law Review
In this bulletin we look at the new right to parental bereavement leave, more commonly known as Jack’s Law; Samira Ahmed’s equal pay claim against the BBC; the Government’s review of the forthcoming changes to off-payroll working in the private sector; a rare case of the High Court issuing an injunction enabling an employee to perform her normal duties; the introduction of Early Conciliation in Northern Ireland; a brief comment on Brexit; and a look at some interesting findings on mental health in the workplace. We also tell you a little more about our forthcoming series of national training seminars.
- Government to introduce Jack’s Law
- New proposed increases to statutory pay have been announced
- Samira Ahmed wins her equal pay claim against the BBC
- Government review of off-payroll working
- In-house solicitor awarded injunction enabling her to perform most of normal duties
- Early Conciliation NI
- Is Brexit done?
- Mental health in the workplace
- Managing the health of your employees in 2020 and beyond
The Government is to introduce two weeks’ statutory parental bereavement leave for all employees, which will be paid leave for those employees that meet the relevant qualifying criteria.
From 6 April 2020, all employees who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy, will be entitled to two weeks’ statutory leave. Leave must be taken within 56 weeks beginning with the child’s death and can be taken as one block or two separate blocks of a week. Employees with at least 26 weeks’ service, who meet minimum earnings criteria, will also qualify for Statutory Parental Bereavement Pay (at the same rate as Statutory Paternity Pay).
On 23 January the Business Secretary, Andrea Leadsom, announced that she had laid the Parental Bereavement Leave and Pay Regulations before Parliament. She also announced that the law will be known as Jack’s Law in memory of Jack Herd, whose mother – Lucy – was a leading campaigner on the issue.
The draft regulations have now been published by the Government and deal with the cold hard detail of introducing this new right. First, it should be noted that the right to leave under Jack’s Law is only available in relation to children who pass away on or after 6 April 2020. The regulations define who is a ‘parent’ for the purpose of the regulations, the notice requirements for taking the leave, and provide protection for employees from detriment and unfair dismissal in relation to exercising the new right.
Most employers are extremely sympathetic towards parents that have suffered a bereavement and will very often go beyond the rights provided by Jack’s Law. Employers should also recognise that bereavement affects people in different ways, there is no “one size fit all” solution for helping employees who have suffered the loss of a loved one. However, the introduction of a minimum basic entitlement for all parents who lose a child – which the Government says is the most generous in the world – is still to be welcomed.
In last month’s bulletin we mentioned the proposed increases in minimum wage rates. From April 2020 there have also been other proposed increases to a number of statutory benefits, including statutory sick pay, maternity, paternity, shared parental and adoption pay.
The following rates are expected to apply from April 2020:
- The weekly rate of statutory sick pay (SSP) will be £95.85 (up from £94.25).
- The weekly rate of statutory maternity pay (SMP) and maternity allowance will be £151.20 (up from £148.68).
- The weekly rate of statutory paternity pay (SPP) will be £151.20 (up from £148.68).
- The weekly rate of statutory shared parental pay (ShPP) will be £151.20 (up from £148.68).
- The weekly rate of statutory adoption pay (SAP) will be £151.20 (up from £148.68).
The rates will be confirmed once an Order is made.
What the BBC pays its male presenters in comparison to its female presenters has now been in the news for a few years. The publicity around this has reportedly led to the BBC asking some male presenters to take pay cuts. It has also been reported that the BBC has settled some equal pay claims. The recent Employment Tribunal decision in Samira Ahmed v BBC is the first high profile claim against the BBC to come before the Tribunal.
In simple terms the Equality Act 2010 requires that men and women should receive equal pay for equal work. Equal work being ‘like work’, ‘work rated as equivalent’, or ‘work of equal value’. That is unless the employer can show that the difference in pay is for a material factor which is not otherwise direct or indirect sex discrimination.
Ms Ahmed was the presenter of Newswatch and made her equal pay claim against the BBC after discovering that she was paid £440 per episode, whereas Jeremy Vine was paid £3,000 per episode for presenting Points of View. Both shows had similar formats and running times.
Whilst there was clearly a difference in pay between the two presenters, the BBC argued that the two roles were not comparable and if they were, that the difference in pay was for a material factor not related to sex. The BBC argued a number of factors such as the difference in profile of the two shows, the difference in the public recognition of the presenters, and specific market pressures when negotiating Mr Vine’s current contract in that a rival broadcaster had made an offer for his services.
The Employment Tribunal held that the work carried out by the two presenters was like work or work of equal value. The Tribunal also found that the BBC was unable to show that the difference in pay was because of a material factor which did not involve sex discrimination.
This decision is not in itself legally significant, although it could certainly have a major impact on the BBC. However, it does highlight the fact that whilst it is possible to have differences in pay between men and women, the employer must be able to show there is a good (non-discriminatory) reason for any such difference. When determining rates of pay the employer must know why it is arriving at a particular rate. If there is a difference in pay between the sexes the employer should ensure that any difference has been determined in a transparent and consistent manner. It is also important for the employer to be able to evidence how it arrived at the rate of pay.
The Government has announced a review of the new IR35 rules which are due to come into force in April 2020.
With effect from 6 April 2020 the off-payroll working rules (IR35) are to be extended to the private sector. We covered the proposed changes in our October bulletin https://www.freeths.co.uk/2019/10/03/employment-law-review-october-2019/
The changes pass the responsibility for paying employment taxes from – typically – the personal service company (PSC) of an individual contractor to the “client” organisation engaging the contractor. These changes only apply to medium and large “client” organisations but may impact all contractors working for these organisations via an intermediary such as a PSC. These rules already apply in the public sector.
Under the new rules the client is required to make a determination whether the new rules apply to a particular relationship or not. The Government have produced an online tool, the CEST Tool, designed to assist parties in determining whether the rules apply but the tool has been criticised. Concerns have also been raised about the financial burden of the new rules.
On the 7th January the Government announced a review, which is due to conclude in mid-February, into the launch of the new rules. Whilst many had hoped there may be a review into the actual implementation of the new rules there is no suggestion that this will happen and instead the review is primarily looking at whether it is necessary to take any further steps to make the implementation of the rules smoother.
Ahead of the publication of the review, on 7 February the Government announced an important tweak to the new IR35 rules. The Government announced that the new rules will only apply to payments made for services provided on or after 6 April. Previously the rules applied to all payments made on or after 6 April, regardless of when the services were carried out.
In Harrison v Barking, Havering and Redbridge University Hospital NHS Trust a solicitor – Ms Harrison – who works for the NHS Trust, has won a mandatory interim injunction permitting her to perform the majority of her normal duties after previous suspensions only allowed her to return to work if she undertook severely restricted duties.
Ms Harrison was Deputy Head of Legal Services for the Trust. Her role involved inquest work, handling claims, advisory work, and legal teaching.
Following concerns about her handling of a clinical negligence claim the Trust suspended Ms Harrison. Subsequently the Trust asked her to undertake a phased return to work on restricted duties limited to auditing files and legal teaching. However, Ms Harrison considered this a demotion and contrary to medical advice, as a result she refused to carry out the restricted duties and was suspended again by the Trust.
Ms Harrison sought an injunction from the High Court allowing her to carry out her normal duties autonomously on the basis that the Trust’s actions breached the implied term of mutual trust and confidence and was harmful to her health.
The Court granted an interim mandatory injunction, which is rare in employment cases, on the basis that:
- She had strong grounds to argue that the Trust’s actions amounted to a breach of the implied duty of trust and confidence. In particular, there was no reasonable and proper cause for suspending her from most of her normal duties.
- Criticisms of her inquest and medico-legal work, purporting to justify a restriction of her duties, had been made after the decision to suspend. She was not presented with any evidence of mismanagement of inquest work or erroneous medico-legal advice.
- Damages were not an adequate remedy.
- The balance of convenience was in her favour because there was no evidence that enabling her to undertake normal duties (except clinical negligence casework) would harm the Trust, whereas the suspensions had affected her health and were professionally to her detriment. There was also evidence that allowing her to return to work would help her regain her health.
This case is interesting for the fact it is rare for such an injunction to be granted in an employment context. However, it is also a reminder to employers that they should avoid making broad-brush decisions to suspend employees (especially those in professions), without sufficient supporting evidence. Whilst it is often said that suspension is a neutral act, this is not correct. An employer ought to have a reasonable and proper cause for suspending an employee. Normally, suspension should be an act of last resort and a proportionate response to the evidence available to the employer at the time.
Early Conciliation has been introduced for claims before the Tribunals in Northern Ireland, bringing it in line with the rest of the UK.
Before a claimant can issue a claim in the Employment Tribunal in Scotland, England and Wales they must first contact ACAS to commence Early Conciliation (EC). It is only once that process comes to an end that the Claimant can issue a claim in the Tribunal.
EC has never been a requirement to bring a claim in the Northern Ireland Tribunals but from 27 January 2020 EC comes into effect in Northern Ireland. Anyone who wishes to lodge a claim in the Industrial or Fair Employment Tribunal must first notify the Labour Relations Agency (which is the equivalent of ACAS).
With effect from 11pm on 31 January 2020 the UK officially left the EU. However, for the rest of 2020 the UK is in a transitional period. So, what exactly does this mean? Will we notice any real changes?
Although the UK is no longer a member state of the EU and does not have the right to participate in the EU institutions, it is for the most part still covered by EU laws until the end of the transitional period. Importantly, the UK is still in the customs union and single market meaning the four freedoms, including freedom of movement, still apply. The UK will also remain subject to the EU’s supervisory, judiciary and enforcement mechanisms during the transition period.
The reality is that most of us will not notice any real change until 2021 and even then it will very much depend on what future trade deal the UK and EU agree.
However, whilst there is still considerable uncertainty around what Brexit will eventually look like, we do have some certainty in relation to EU nationals and their right to live and work in the UK from 2021. Whilst still currently covered by freedom of movement, this will end on 1 January 2021. EU nationals who settle in the UK before the end of 2020 will need to obtain settled status if they wish to live and work lawfully in the UK once freedom of movement ends.
Emma Brooksbank, a partner in Freeths business immigration team, has written a blog that looks at what employers of EU nationals can be doing now to support their employees in retaining the right to live and work in the UK. It is worth reading if your organisation employs EU nationals.
Deloitte’s has published an interesting report on mental health in the workplace (Mental health and employers – Refreshing the case for investment). It last published the report in 2017. The report highlights the financial cost to employers of poor mental health in the workplace and the financial benefits of employers investing in employees’ mental wellbeing.
The report estimates that the cost to employers of poor mental health in the workplace is £42 to 45 billion per year. This is a 16% increase from the £33 to 42 bn estimate in Deloitte’s 2017 report. The figure is made up of £7bn for absenteeism, £9bn in staff turnover, and a staggering £27 to 29bn from presenteeism (i.e. coming into work despite poor mental health and underperformance).
The report notes that employers have made some improvements in how they deal with employees’ mental health but also that there are changes in the challenges employers face. The report also finds that overall employers can expect to make a return on investment into employees’ mental health of £5 for every £1 spent, with preventive large-scale initiatives yielding the biggest return.
Throughout March and April Freeths EPIC team will be running a series of interactive presentations helping guide employers through the process of dealing with staff health issues proactively.
As highlighted by the Deloitte’s report, managing employees’ health goes beyond simply managing their absence. Employers must now take a much more holistic approach to employees’ wellbeing and health in the workplace.
We will be running a number of sessions over March and April which will look at managing employees’ health in the workplace. The event will be run across nine of our office in a series of breakfast (8.30 – 10.30am) and lunchtime (12.30-2.30pm) sessions. If you are interested in attending you can find out more by following the link below.
PLEASE NOTE: This event is now fully booked in Milton Keynes
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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