TW Autumn Employment Law Update

Most employers will be aware that employment law is always changing! To assist, we have set out a summary of recent developments in legislation, case law and best practice which employers ought to be aware of.

If you require any assistance in relation to employment law matters, please contact TW’s Employment Law Team here.

Autumn Budget – employment aspects

Rishi Sunak delivered the Autumn 2021 Budget on 27 October 2021.  The employment aspects of the budget were limited and included:

  1. Announcements regarding an increase in funding for apprenticeships and other training programmes; and
  2. Confirmation of the increases in National Minimum Wage (NMW) rates from 1 April 2022. The rates will rise as follows:

a. National Living Wage for those over 23: from £8.91 to £9.50.

b. NMW for those aged 21 to 22: from £8.36 to £9.18.

c. NMW for those aged 18 to 20: from £6.56 to £6.83.

d. NMW for those aged under 18: from £4.62 to £4.81.

e. Apprentice Rate: from £4.30 to £4.81.

f. Accommodation offset rate: from £8.36 to £8.70.

Full details of the Budget can be viewed at the following link: https://www.gov.uk/government/publications/autumn-budget-and-spending-review-2021-documents

Extension of temporary right to work checks

Since March 2020, the process for undertaking right to work checks has been temporarily adjusted to take account of the Coronavirus pandemic.  The Government has announced that the end date for the temporary adjusted checks has now been deferred to 5 April 2022. The following temporary changes were made on 30 March 2020 and now remain in place until 5 April 2022:

  • checks can currently be carried out over video calls
  • job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals
  • employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

TW is able to assist with any queries that you may have in relation to business immigration issues.

Late claims under the Coronavirus Job Retention Scheme

On 29 October 2021, HMRC published new guidance on making a late or an amended claim under the Coronavirus Job Retention Scheme (CJRS). The CJRS closed on 30 September 2021 and 14 October 2021 was the last date to make a claim for September 2021. Any amendments in respect of claims for September 2021 had to be submitted on or before 28 October 2021.  The new guidance clarifies the circumstances in which HMRC may be willing to accept a late claim or amendment and can be viewed at the following link:

https://www.gov.uk/guidance/make-a-late-coronavirus-job-retention-scheme-claim

Disability discrimination and flexible working

Many employers are familiar with the concept of discrimination by association.  It has previously been established that discrimination because of association with a person with a protected characteristic is only expressly prohibited in relation to direct discrimination and harassment (for example, dismissing an employee because they have a disabled relative).

Indirect discrimination occurs where there is a practice, policy or rule which applies to everyone in the same way, but it has a worse effect on some people than others due to their protected characteristic and the practice rule or policy cannot be objectively justified by the employer.

Until recently, the position in relation to indirect discrimination claims was that they can only be brought by a claimant who themselves has the protected characteristic, not be reference to the protected characteristic of a person they have an association with. Despite this, in  the recent case of Follows v Nationwide Building Society, an employment tribunal has ruled that UK law should be read as prohibiting a policy which indirectly discriminates against an employee who cares for a disabled person, for example due to a lack of flexibility over hours or location of work.  The employment tribunal relied on European case law which states that indirect discrimination by association was possible in principle.

In this case, the employer’s decision to require senior managers to be fully office-based put the claimant at a substantial disadvantage.  As the principal carer for her disabled mother she had previously only attended the office 2 or 3 days a week and was unable to comply with the new requirement.  The employment tribunal accepted that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments. It ruled that the employer’s aim of providing on-site supervision was not legitimate as there was no evidence of a real need for this.  The tribunal was also critical of the employer’s failure to consider and agree a hybrid arrangement.

It remains to be seen whether this decision will be followed by other tribunals, as a first instance decision it is not binding.  However, taking into account the Government’s intention to increase rights for carers by introducing carers leave and its intention to make flexible working practices the “norm” rather than the exception, it is clear that employers will need to mindful of an employee’s outside commitments when considering requests for flexible working patterns.

Carers leave

The Government has announced that legislation to introduce carer’s leave as a day 1 statutory employment right will be brought forward when parliamentary time allows.  The Government intends to introduce legislation which will give unpaid carers the right to be able to take up to one week of unpaid leave per year. To be eligible, employees must provide care for someone with a long term care need such as an illness or injury.

Further information about the Government proposals can be viewed at: https://www.gov.uk/government/consultations/carers-leave

We will keep you updated with developments on this new entitlement.

Do you have to offer the right of appeal in a redundancy dismissal?

Two recent cases have considered whether the failure to offer an appeal in a redundancy dismissal makes the dismissal unfair.

The Court of Appeal has determined that it would be wrong for an employment tribunal to find a dismissal unfair only because of a failure to provide the employee with an appeal hearing. The absence of an appeal is one of the many factors to be considered in determining fairness.

However, the Court made it clear that offering a right of appeal was best practice and that depending on the circumstances of the case, failure to offer an appeal may lead to a finding of unfair dismissal.

Employers are well advised to ensure that employees are offered the right to appeal their dismissal, regardless of the reason for dismissal.

Menopause at work – is it a disability?

Menopause is an issue that many employers are having to properly consider for the first time.   It is a topic which is being discussed regularly in the news and many large businesses and trade unions now have specific policies in place to address the issue.   Furthermore, the Women and Equalities Committee has recently conducted an inquiry into menopause in the workplace and its recommendations are awaited. These are expected to include whether further legislation is required to adequately protect menopausal women from discrimination at work.

The Employment Appeal Tribunal has also recently considered the issue of whether menopause is a disability under the Equality Act 2010.

In the case of Rooney v Leicester City Council, the Employment Appeal Tribunal (EAT) held that an employment tribunal had made a mistake in striking out an employee’s disability and sex discrimination, harassment and victimisation claims at a preliminary hearing where those claims were related to menopause.

A significant issue addressed by the EAT was whether menopause symptoms were capable on amounting to a disability.  An individual is disabled for employment law purposes where they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In this case, an employment tribunal found that the symptoms reported by Ms Rooney, which included physical and psychological symptoms, were not substantial enough to amount to a disability.  It was also considered that the issues experienced by Ms Rooney were not long term in nature despite the fact that she asserted that she had been affected for 2 years.

The EAT noted that Ms Rooney had given evidence that her symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. It also noted that Ms Rooney had advised the tribunal that her symptoms led to her forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness and joint pain. The EAT held that there was no explanation as to how the tribunal had concluded that this evidence, which it did not reject, did not demonstrate an effect on Ms Rooney’s day-to-day activities that was more than minor or trivial.

This case serves as a useful reminder to employers that women going through the menopause may need additional support at work.  Two recent surveys found that lack of support for menopausal women forced many to take time off work and some to leave their jobs, and that specific menopause support was offered by less than half employers.  Whilst it is not the case that every women affected by menopause symptoms will meet the definition of a disabled person, employers should remain alert to this as an issue.