Employment Law Newsletter – Spring 2021

A warm welcome to Blake Morgan’s Spring newsletter, keeping you informed of the latest developments in Employment, Pensions and Immigration Law.

With the end of lockdown imminent, the continued success of the COVID-19 vaccination programme and the possibility of holidays overseas there are many reasons to be optimistic in the months ahead. However, these are still challenging times for employers. Many are still handling issues arising out of the furlough scheme, others are managing the return to the workplace or looking at new initiatives such as hybrid working, whilst not forgetting to ensure that EDI training is up to date – see the Webinars and bespoke EDI training section below.

Although there was no mention of the Employment Bill (announced back in December 2019) in the recent Queen’s speech, there are still plenty of issues and case law developments that employers need to be aware of.

Right to work checks

Importantly, and following employer and business group concerns, the COVID-19 right to work checks concession has now been extended until 20 June. For more details see our article.

Pandemic-related claims in the Employment Tribunals

We look at one case involving a refusal to return to a workplace on health and safety grounds and another involving a refusal to wear a face mask – both areas of particular interest in the current climate. For more details see our article.

Articles

A complete list of the articles is set out below:

Right to work checks: COVID-19 concession extended

The COVID-19 concession regarding right to work checks was due to end on 16 May but the Government recently announced a new end date, 20 June. From 21 June, employers will revert to face to face and physical document checks and this new date is aligned with the easing of lockdown restrictions and social distancing measures. For more details see our article on right to work checks.

Recent Employment Tribunal decisions on pandemic-related claims

In the months ahead we can expect an increase in pandemic-related Employment Tribunal claims in areas such as health and safety detriment and dismissal, whistleblowing and unfair redundancy dismissal. The first two reported Employment Tribunal decisions on claims arising out of the pandemic attracted a great deal of publicity. For more details see our article on pandemic-related claims.

Shared Parental Leave is not comparable with Adoption Leave for the purpose of sex discrimination claim

The EAT held that shared parental leave and adoption leave are not comparable and that the purpose of adoption leave goes beyond providing childcare. Because of material differences in their circumstances, a man on shared parental leave could not compare himself to a woman on adoption leave and his sex discrimination claim failed.

Read more on our look at the judgment and what it means for employers.

The tax implications of working abroad

Getting back to “normal” will, for many people, not involve going back to work in the way they did before COVID-19 hit. For some employees, working from home meant a return to their home countries which is an arrangement some may want to continue in the future. Understanding the tax implications of such an arrangement is essential for both employees and employers.

Read more about the tax implications of remote working abroad.

Deadline approaching for EU Settlement Scheme applications

The final deadline for applications to the EU Settlement Scheme is 30 June 2021. It is important for employers to understand the scope of the Scheme and what steps they can lawfully take to encourage their staff to make an application if they haven’t already done so.

Read more about the EU Settlement Scheme.

EAT reiterates the importance of providing up to date training to staff on harassment

Most employers have in place equal opportunity and bullying and harassment policies but many may not have provided recent training on them. In a recent judgment, the EAT upheld the Employment Tribunal decision that the employer had not taken all reasonable steps to prevent harassment occurring as the training that had been provided to staff had become stale and required refreshing. See further below for the bespoke EDI training we can offer which directly impacts on scenarios like these.

Read more about providing training for staff.

Supreme Court confirms that Uber drivers are “workers”

After years of high profile litigation, the Supreme Court unanimously held that Uber drivers are “workers” rather than independent contractors and are entitled to the national minimum wage, paid annual leave and a range of other workers’ rights. Significantly, the Supreme Court also held that the drivers were “working” whenever they were logged into the Uber app in the area where they were licensed to operate.

Read more about the Supreme Court ruling.

How COVID-19 impacted on women

A recent report highlights how long-standing gender differences and inequalities for women have been exacerbated by the Coronavirus pandemic and the furlough scheme. Although welcomed by both employers and employees, the furlough scheme has disadvantaged many women because of the effect of childcare responsibilities and the disproportionate representation of women in badly affected sectors or in insecure work.

Read more on the impact of the pandemic on women.

Clarification from Supreme Court about “sleep-in” shifts

In a recent landmark ruling, and upholding the Court of Appeal decision, the Supreme Court held that workers are not entitled to receive the national minimum wage for “sleep-in” shifts unless they are actually awake for the purposes of working. The Supreme Court noted the distinction in the National Minimum Wage Regulations 2015 between being merely available for work and actually carrying out work.

Read more on “sleep-in” shifts.

What employers can do to support lonely staff

Employers are responsible, so far as is reasonably practicable, for their employees’ wellbeing, health and safety which means both mental and physical health. The Coronavirus pandemic has had a significant impact on many people’s mental health. Whether staff are working from home because of the pandemic or are furloughed, employers still have an obligation to support their wellbeing.

Read more on how employers can support staff.

Webinars and bespoke EDI training

It was just over a year ago, in April 2020, that we held Blake Morgan’s first ever webinar which was about the brand new furlough scheme. I am pleased to let you know that we recently broke our webinar record for the number of registrants, with almost 500 individuals registering for our April 2021 webinar Employment Law Developments and Current Challenges for Employers. The feedback was very positive and there will be more webinars in 2021. Further details will be sent out in due course and I do hope you can join us.

Finally, in our latest webinar, Holly Cudbill discussed the importance of providing regular, up to date training for all staff on Equality, Diversity and Inclusion, following the case of Allay UK Ltd v Gehlen. During the webinar we carried out a survey and 28% of those who took part said that they couldn’t remember when EDI training was last given and 16% said it had been carried out 1-2 years ago. Our Employment Team is able to offer your organisation bespoke EDI Training, which is not only good practice, but can help to establish a defence in claims of harassment and discrimination. Further details will be provided shortly.

I hope you will find all the articles above informative and helpful, and if you would like any further information please do not hesitate to get in touch with your usual Blake Morgan contact.