UK & Europe
Employment, Pensions & Immigration
This is our selection of the recent developments which we think will impact on HR practice.
The roadmaps out of lockdown in England and Scotland were unveiled on 22 and 23 February 2021 respectively.
Covid-19 response – Spring 2021 outlines four steps for easing restrictions in England. Step 1 starts on 8 March 2021 with schools reopening and the easing of restrictions on childcare where necessary to enable parents to work. Some sectors of the economy, including outdoor hospitality and indoor leisure facilities, will re-open in step 2 (not before 12 April 2021), with further sectors, including indoor entertainment/ attractions and large outdoor events, re-opening in step 3 (not before 17 May 2021). People should continue to work from home where they can during steps 1-3.
Free test kits for workplaces where staff cannot work from home will continue to be provided until the end of June 2021. Organisations need to register their interest for this before 31 March 2021.
The government expects that the clinically extremely vulnerable will no longer be advised to shield after 31 March 2021, but will confirm the position nearer the time.
In Scotland, the Covid-19: Strategic Framework update-February 2021 sets out a return to a tiered system from the last week in April. Scotland's framework is staggered by three weeks, two weeks slower than in England. The five-level system should see the whole of Scotland exit Level 4 and drop down to Level 3, which would see a phased reopening of the economy - including non-essential retail, hospitality and services like gyms and hairdressers - from April 26. Until it is considered safe for workplaces to reopen, anyone who can work from home must do so.
In England, ahead of Step 4 (not before 21 June 2021), the government will complete a review of measures to limit transmission of the virus (social distancing etc) which will help inform decisions on the timing and circumstances under which these measures may be lifted, and on guidance on working from home. The review will also consider whether 'vaccine passports' could play a role in reducing risk and enabling a relaxation of the COVID-secure guidance in workplaces.
In the Budget on 3 March 2021, the Chancellor confirmed that the Coronavirus Job Retention Scheme, which was due to end on 30 April, will be further extended to the end of September 2021.
The Equality and Human Rights Commission (EHRC) has announced that employers have an additional six months within which to report their gender pay gap information for the 2020/21 reporting year.
Public sector bodies and private sector employers with at least 250 employees are required to submit gender pay gap reports annually, by 30 March and 4 April respectively.
Last year, employers were not required to report their gender pay gap data for the 2019/20 reporting year. In light of the continuing effects of the pandemic, the EHRC has confirmed that employers now have until 5 October 2021 to report their gender pay gap information for 2020/21 (which uses a snapshot date of 31 March 2020 or 6 April 2020).
Employers are encouraged by the EHRC to report before October 2021 where possible.
The EHRC has published guidance on issues around including furloughed employees in gender pay gap reporting for the 2020/21 reporting year.
In a unanimous decision, the Supreme Court has upheld an employment tribunal’s decision that the Uber drivers were workers and therefore entitled to national minimum wage (NMW), paid holiday and whistleblower protection.
The claimants were drivers for Uber. They had to establish that they were workers to bring claims for NMW, holiday pay and whistleblowing protection. The contractual documentation indicated they were self-employed and contracted directly with passengers, while Uber acted as the intermediary and just provided booking and payment services.
The Court stressed that the rights asserted by the drivers were not contractual rights but were created by legislation. So, in assessing worker status, the correct approach is to consider the purpose of the legislation, which is to protect vulnerable individuals who are in a subordinate negotiating position, with little or no say over their pay and working conditions.
The Court focused on five aspects of the tribunal’s findings that justified its conclusion that the drivers were working for and under contracts with Uber. These were that Uber dictated their rate of pay and contract terms as well as how the service was delivered, and that Uber restricted drivers’ freedom to choose when to work once logged into the app and their ability to communicate with passengers.
The correct approach to worker status is to consider all the relevant circumstances, including the relationship between the parties in practice and the general purpose of the legislation in question.
This decision has significant implications for businesses in the gig economy that operate in the same way as Uber, which are likely to face similar claims from individuals they engage as self-employed contractors.
The Employment Appeal Tribunal has ruled that an employer could not rely on the ‘reasonable steps’ defence in a claim of racial harassment where its equality and diversity training, which took place about two years earlier, had become ‘stale’ and ineffective.
Harassment is defined as unwanted conduct related to a relevant protected characteristic (such as disability, race, sex, etc) which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. However, employers can rely on the ‘reasonable steps’ defence if they can show they took all reasonable steps to prevent the employee from either committing a particular discriminatory act, or committing such acts in general.
Mr Gehlen, who describes himself as being of Indian origin, was dismissed by Allay (UK) Ltd for performance-related reasons. He subsequently complained he had been subjected to racial harassment. An investigation established that an employee had made racist comments and he was required to undertake further equality and diversity training.
Mr Gehlen subsequently brought race discrimination and harassment claims, and Allay sought to rely on the ‘reasonable steps’ defence. The Tribunal found that Allay had not taken all reasonable steps to avoid discrimination; a reasonable step would have been to provide refresher training.
The EAT dismissed Allay's appeal. It concluded that, in relation to the reasonableness of the steps the employer had taken, consideration must be given to the nature of the training and the extent to which it was likely to be effective.
There was sufficient evidence for the Tribunal to conclude that whatever training there had been, it was no longer effective, given both that the employee thought what he had said was just 'banter' and that managers did not know what to do when they observed harassment or when it was reported to them.
In considering the reasonableness of the steps an employer has taken, it is not sufficient merely that there has been training - consideration must be given to the nature of the training and the extent to which it was likely to be effective.
This decision has significant implications for employers if they do not regularly update their equality and diversity training or if they approach it as a tick box exercise.
For further details about this decision, see our update: Racial harassment claim succeeds because diversity training was 'stale'
An Employment Tribunal has ruled that an employer fairly dismissed an employee who refused to wear a face mask as required by a client when he was visiting their site.
Mr Kubilius, a delivery driver, worked at Kent Foods Ltd's Basildon depot where most of the work involved travel to and from a site of their major client, Tate & Lyle.
Kent Foods' handbook required its employees to show courteous treatment towards clients and that employees take all reasonable steps to safeguard their own health and safety and that of others while at work. Their drivers' handbook required customer instruction regarding the PPE to be followed. Due to the pandemic, Tate & Lyle required face masks to be worn on site, and all visitors were given a face mask.
In May 2020, despite being asked repeatedly by a Tate & Lyle employee to do so, Mr Kubilius refused to wear a face mask while in the cab of his vehicle. He was told that without one, droplets from his mouth were likely to land on peoples' faces due to the elevated position in his cab, and that Tate & Lyle's rules required him to wear a face mask until he left their site. Mr Kubilius refused, and so Tate & Lyle reported the incident to Kent Foods and banned Mr Kubilius from its site.
Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, but they refused, and Kent Foods was not able to redeploy him. Following an investigation, Mr Kubilius was summarily dismissed and he brought an unfair dismissal claim.
The tribunal concluded that Kent Foods had acted reasonably in all the circumstances in treating Mr Kubilius' misconduct as a sufficient reason for dismissal. That said, the tribunal noted that another, equally reasonable employer might have concluded that the incident merited a warning rather than summary dismissal - but the issue it had to decide was whether Kent Foods' decision fell within the range of reasonable responses.
This decision highlights how important it is for employers to have clear rules on health and safety and separately about the behaviour expected of employees in their relationships with clients, customers and suppliers.
Unless an employee has a legitimate reason for not wearing a face mask, failure to wear one is likely to be a refusal to follow the employer's reasonable instruction and therefore grounds for beginning a disciplinary process.