Employment Law Review - March 2021

 

Welcome to our March Employment Law update.

This month there have been plenty of important decisions for HR and people managers to be aware of. We saw an Employment Tribunal (ET) conclude that dismissing an employee for refusing to attend work due to COVID-19 health and safety concerns was not automatically unfair. See our update here. There has been a significant shake-up to TUPE adding an additional layer of complexity to TUPE transfers to multiple businesses. Our practical steps to managing risk in light of this recent decision are here. The Supreme Court has also handed down two significant judgments; the first, a key decision for care providers relating to the payment of National Minimum Wage (NMW) during sleep-in shifts. The second relating to appropriate comparators for equal pay purposes; an important decision for retail businesses operating across multiple locations. There has also been a significant decision regarding reasonable adjustments in the context of online recruitment processes.As always, we bring you up to speed with the latest Coronavirus developments including the Health and Safety Executive’s reminder to businesses on workplace safety, the extension of health and safety protections to ‘workers’ and the key changes coming into force in April 2021.

• Coronavirus developments
• Reasonable adjustments in the recruitment process
• Health and safety protection extended to ‘workers’
• Review of whistleblowing protections after pandemic triggers rise in dismissals
• April 2021 changes: the HR top 5

---

Coronavirus developments   

This month’s key developments are below:

• COVID-19 testing – Where workplace testing cannot be provided, from 6 April 2021 businesses with more than 10 employees will be able to order tests for their employees to use at home twice a week. Register to order free lateral flow tests for employees here. Businesses that collect/ record test data need to consider the data privacy implications; reasons for recording data must be clear and compelling because information relating to an employee’s health is considered special category personal data.

• COVID-status certification – The Government has concluded its call for evidence regarding a potential COVID-status certification scheme. It refers to the use of testing or vaccination data to confirm that individuals carry a lower risk of becoming unwell or transmitting COVID-19 to others which could play a role in reopening the economy, reducing restrictions on social contact and improving safety. The Information Commissioner has reminded organisations that if they become involved in processing personal data as part of a COVID-status certification scheme they must comply with data protection requirements.

• COVID-secure workplaces – One year on since the first lockdown, the Health and Safety Executive (HSE) has issued a bulletin reminding businesses of the continued need to manage workplace risk by implementing COVID-secure measures and to ensure workers are following them. HSE reiterates that it will work with local authorities to carry out spot checks and inspections on businesses to check the measures they have in place to stop the spread of COVID-19. HSE highlights the importance of ventilation, revisiting risk assessments and continuing to prioritise COVID-secure measures to maintain the safety of staff, visitors and customers.

• Shielding employees – Clinically extremely vulnerable (CEV) individuals are no longer being advised to shield from 1 April 2021. If they are unable to work from home from this date they can attend work. From 1 April, CEV employees will not be eligible for Statutory Sick Pay (SSP) on the basis of being advised to shield but can participate in the Coronavirus Job Retention Scheme (furlough).

• COVID-19 vaccines – Given the low uptake of vaccines among care sector staff, the Government is considering implementing legislation which would require care workers to be vaccinated against Covid-19. Care providers will need to follow this closely and will need to consider how any such requirement will be implemented. ACAS has also updated its guidance on getting the COVID-19 vaccine for work. There is information on how to offer support to staff getting the vaccine, what employers should do if they feel it’s important for staff to receive the vaccine and how to resolve workplace issues about getting the vaccine.

 

‘Reasonable adjustments’ in the recruitment process

The Employment Appeal Tribunal (EAT) has remitted a disability discrimination claim to a freshly constituted ET after it had been struck out on the basis that it had no reasonable prospects of success. The EAT stated that striking out a disability discrimination claim should be rare and that the ET should have considered ‘physical features’ and ‘auxiliary aids’ when considering the reasonable adjustments claim.The Equality Act imposes a positive duty on employers to put in place reasonable adjustments to help disabled employees and job applicants in certain circumstances. The duty will arise if a disabled person is placed at a disadvantage by an employer’s provision, criterion or practice (PCP), a physical feature of the employer’s premises or an employer’s failure to provide an auxiliary aid.Mr Mallon claimed that his dyspraxia meant that he was unable to complete Aecom’s online application form; he was unable to interact with online forms, password characters and drop-down menus and requested that Aecom allow him to submit an oral application. Mr Mallon claimed that Aecom applied a PCP by requiring the submission of an online form which placed him at a substantial disadvantage and failed to make reasonable adjustments for him. Aecom applied for Mr Mallon’s claim to be struck out by the ET on the basis that Mr Mallon would not be able to establish that the PCP placed him at a substantial disadvantage in comparison with people who are not disabled. The ET struck out Mr Mallon’s claim. The EAT allowed Mr Mallon’s appeal stating that the ET did not consider whether Mr Mallon’s claim could be analysed as an auxiliary service claim.With most businesses using online recruitment applications, this case is an important reminder to check that recruitment processes do not place those with a disability at a disadvantage. Businesses should make it clear at the outset of any recruitment process that adjustments will be made for employees with any disabilities, including the provision of auxiliary aids. If businesses use recruitment agencies, it is important to ensure the agency is also aware of its duty to make reasonable adjustments.   

Health and safety protection extended to ‘workers’

At the moment, UK law only protects employees who when faced with a ‘serious and imminent’ danger at work are subject to a detriment (for example, reduced pay) for leaving work, proposing to leave, refusing to attend or taking appropriate steps to protect themselves or others in the workplace. In November 2020, the High Court ruled that ‘workers’ should be entitled to certain health and safety protections (such as the provision of PPE) and should also be protected from being subject to a detriment on health and safety grounds. The Government has now laid down new Regulations to ensure that workers are afforded the same health and safety protection as employees. This change will come into effect after 31 May 2021.This is a particularly significant change for workers during the pandemic, many of whom have been unable to work from home and are often in customer facing and lower paid roles. Employers will need to be aware of this extended protection and ensure that appropriate PPE is provided to both employees and workers, particularly those in the gig economy. 

Review of whistleblowing protections after pandemic sparks rise in dismissals

The Department for Business, Energy and Industrial Strategy (BEIS) is reviewing whistleblowing protections following data published by Protect which revealed that one in four Covid-19 whistleblowers was dismissed between September 2020 and March 2021. BEIS is considering the scope and timing of its whistleblowing review as it is planning to introduce a single body to enforce workers' rights (including whistleblowing protection) as part of the upcoming Employment Bill. In light of the significant rise in recent employment tribunal whistleblowing claims, it is crucially important that organisations train managers on what can amount to a protected disclosure and how to deal with protected disclosures to avoid the risk of whistleblowing claims. 

April 2021: the HR top 5

1. IR35 changes for the private sector – From 6 April 2021 changes to the off-payroll working rules (IR35) come into force for the private sector. The changes mean that responsibility for determining employment status for tax, will shift from the contractor’s personal service company to the business/end user engaging them who may also be required to pay the relevant employment taxes. It is important for businesses to audit all self-employed contractors, make a status determinations via the online Check Employment Status for Tax tool and, if relevant, pay the requisite employment taxes. Audits supported by a legal team are protected by legal privilege.

2. New statutory payments apply from April 2021 – Please see here for the new statutory payments. Employers need to increase statutory family-related pay, SSP and the NMW and National Living Wage (NLW) rates with effect from April 2021. Employers should also be aware that the NLW now applies to workers aged 23 and over (lowered from 25 and over).

3. NMW record keeping – With effect from 1 April 2021 the period for which employers must keep NMW records is being extended from three years to six years. HMRC can enforce arrears of pay for up to six years, so extending the record keeping requirement to six years avoids evidential difficulties relating to NMW underpayments.

4. Changes to statutory redundancy and exit pay calculations – Employers that dismiss employees for redundancy must pay employees with more than 2 years’ service an amount based on the employees weekly pay, length of service and age. The weekly pay is subject to a cap. This cap is increasing to £544 from 6 April 2021. For redundancy dismissals on or after 6 April 2021, employers should ensure that statutory redundancy pay calculations are made using the weekly cap of £544.

5. Discrimination: increase to injury to feelings bands – Compensation for discrimination is uncapped and can include non-financial losses known as injury to feelings. ETs use the Vento bands to determine the injury to feelings award. Employers need to be aware that injury to feelings awards in respect of any claims presented on or after 6 April 2021 will be subject to the new higher limits. The lower band (£900 - £9,100) for less serious or one off occurrences, the middle band (£9,100 - £27,400) for more serious cases and the upper band (£27,400- £45,600). It is important for employers to keep updated on the periodic increases in the Vento bands, so that they can accurately assess their potential liability in the event of a claim.