Welcome to our March newsletter.
We have moved!
We’ve been very busy during lockdown. As well as providing our full range of legal services, we have just completed our move to newly refurbished offices at St. Nicholas House, Old Churchyard, Liverpool L2 8TX. Our offices are located just opposite the Mercure Atlantic Tower Hotel with magnificent views of St Nicholas Church, the Liver Building, the Pier Head and river and across to the Wirral. Although our new offices are not yet open (you know why!), we are looking forward to a full launch as soon as circumstances permit, and to welcoming all our clients. All our other contact details remain unaltered.
There has been a lot going on in the field of employment law over the last few weeks, so I’ll focus on the main news.
Coronavirus rapid tests to be made available for employees
The Government has announced that rapid, lateral coronavirus tests will be available for all employers with over 10 workers. Workers will need to collect the testing kits from their employer and will then carry them out at home, with results within 30 minutes. Once registered, replenishments will be provided. If you want to take advantage of this facility you should register before 12 April to access free tests until the end of June and the service is available to businesses that have not yet reopened or cannot start testing right away.
Businesses with 10 or fewer employees are encouraged to advise workers to use the community testing programme which is available from all local authorities.
You can find out more information about the scheme here and you can register for the service here. However, when I tried to so yesterday the registration process is still limited to businesses with 50 or more employees but, with fewer employees, you can still register your interest, as I have done, and found it very easy.
The Asda equal pay claim
As you may have seen in the national news, 35,000 Asda workers have succeeded in their equal pay claim that their pay in retail environments should be compared with pay in distribution environments. Putting it at its simplest, a majority of women work in retail and a majority of men work in distribution. The nub of the decision is that both met the “common terms requirement” in the legislation. According to the Supreme Court (and therefore definitive) it’s a threshold test with a limited function (https://www.supremecourt.uk/cases/docs/uksc-2019-0039-judgment.pdf).
I’ll spare you the details in the 26 pages’ judgment. In essence the judgment says that the threshold test is only likely to apply in exceptional circumstances if the workers are in the same establishment and there is no need for a prolonged factual enquiry.
In Mukoro v Independent Workers’ Union of Great Britain the Employment Appeal Tribunal considered whether a tribunal was entitled to refuse an application for an adjournment of an employment tribunal claim and strike out the claim when the tribunal was phoned on the morning of the hearing and told that the claimant had an emergency dental appointment. The claimant was unable to attend through no fault of her own and the claim was struck out. This was a denial of justice, so the strike out was set aside.
The obvious problem with this is that claimants might take fright on the morning of a hearing and seek a medical adjournment, relying on this authority. In practice, as the judgment makes clear, this was a case in which the claimant was suffering from excruciating pain requiring immediate attention so that, if this situation arises, it would be advisable to consider the full 32-page judgment which makes clear that this is not a carte blanche for adjournments.
This is a thorny problem (sorry!) for employers and the Government. As I pointed out in an earlier email newsletter, there is a precedent for medical staff who are, in certain circumstances, required to have hepatitis jabs. In the wider context, a recent survey by the Chartered Management Institute (CMI) conducted earlier this month revealed that 58% believed that employers should be allowed to make vaccinations mandatory (35% did not). Commenting on the results, chief executive of the CMI, Ann Francke, noted that, as the law stands, nobody can be forced to be vaccinated “but if an individual chooses not to be vaccinated, remote working must be an available option so as not to put colleagues at needless risk”.
I’m not sure that I agree with that. What about work which does not have a remote working option? What about care homes? What about hospitals? Compulsory vaccinations will not work unless they are mandated by the Government.
What about those who cannot be vaccinated for medical reasons? What about those who choose not to be vaccinated for religious or other similar reasons? What if someone was dismissed because they could not or would not be vaccinated? The implications from a discrimination perspective, as the law stands, are obvious.
I doubt that this Government will make vaccinations mandatory as a condition of employment, at least in those sectors which are not high risk. Whether you think that is right or wrong is an individual view but, as the law stands and pending a very bold and unexpected decision by the Government, the correct course for employers is not to mandate vaccinations pending further Government announcements (which, if they come, are likely to be confined to specific high-risk sectors).
Mixed messages concerning office workers
On 21 March Chancellor Rishi Sunak called on employers to end working from home and allow staff back in the office. Speaking in advance of the Conservative Party spring conference (which may be relevant) he said that it was crucial for young people to get to know colleagues and seek out mentors to help their career. He said, “I think you can’t beat the spontaneity, the team building, the culture that you create in a firm or an organisation from people actually spending physical time together”. He added that those employers who permanently close their offices risk losing staff who “vote with their feet” and defect to rival employers who offer them a desk at work.
He suggested that working from home was inferior to convening with colleagues in the workplace, which fosters “meetings that happen by chance” and “people riffing off each other”. Boris Johnson appeared to endorse this view, albeit typically controversially, by saying that workers had been enjoying “days off” during the pandemic. He said that workers had already had “quite a few days off” and should make a “passing stab at getting back into the office” after 21 June. Unsurprisingly, shadow employment rights secretary Andy McDonald said that the suggestion that people have simply been having “days off” was “grossly insulting” to those who have been working from home, often for very long hours and in difficult circumstances.
However, the message from the Government published on 26 March is clear: “Thinking of going in? Keep working from home if you can”. Under the roadmap, this remains the case until at least 21 June and many experts have suggested that there is a strong case for this to be extended, particularly with a third wave being more or less taken for granted this autumn if not before.
In practice, I think that most office based SMEs will adopt a hybrid arrangement with employees splitting their time between office and home working.
The Uber decision and the flotation of Deliveroo
As you will no doubt have seen, following last month’s landmark decision of the Supreme Court that Uber drivers are workers and therefore entitled to the minimum wage, holiday pay and rest breaks, Uber has announced that it will comply with the ruling. As a result, drivers will earn at least the minimum wage (due to rise to £8.91 in a few days). They will also be paid holiday time based on 12.07% of their earnings and paid out every two weeks. Drivers will also be automatically enrolled into a pension scheme and will be provided with free insurance to cover sickness and injury.
There remains the significant matter of dealing with past failures to meet their obligations and when these payments will be made. It is also notable that Uber have decided to pay drivers when they are driving, rather than when they log in to the app, which was what the Supreme Court held should be the trigger point.
No doubt the details will be ironed out in the coming weeks and months but what is clear is that other businesses operating in the “gig economy” need to take note and, where necessary, change their procedures in order to avoid potentially very costly and damaging claims.
Very large companies such as Deliveroo, which floated on the stock exchange this morning, also need to be aware of the views of investors. Several large pension fund investors announced that they would avoid Deliveroo because of concerns about their working practices and it is no great surprise that share prices dropped by as much as 30% on the commencement of trading which is a highly inauspicious start. They have stabilised at the time of writing but still with an early loss of between 20-25%.
Claiming for unpaid holidays
In Smith v Pimlico Plumbers, the Employment Appeal Tribunal confirmed that if an employee or worker takes unpaid holidays, they are not entitled to a payment in lieu on termination where the claim would otherwise be out of time. This effectively puts paid to the idea of claims going back as far as 1996 where holidays were taken but not paid for. However, claims may still be made by those who did not take holidays that they should have been entitled to.
Payment for sleep-ins
In Royal Mencap Society v Shannon and others the Supreme Court has held that workers who carry out sleep-ins so that they are on call cannot claim the minimum wage for their full shifts. This is on the basis, primarily, that those who formulated and approved the Regulations could not have envisaged that people who were sleeping could at the same time be “working” or engaged in “time work”. This overturns the previous guidance pursuant to British Nursing v HMRC which, the Supreme Court confirmed, should not be followed.
Discrimination awards for injury to feelings
The Presidents of the Employment Tribunals in England, Wales and Scotland have issued their updated guidance for awards for injury to feelings, commonly referred to as the Vento bands.
The lower band (for less serious cases) is £900-£9100. The middle band (more serious but not meriting an award in the upper band) is £9,100 to £27,400 and the upper band (which can be exceeded in appropriate cases) is £27,400 to £45,600.
It should be remembered that this guidance relates only to the award for injury to feelings and overall awards in successful cases are likely to be much higher.
Surgeon sues Spire for £2.7 million over “lovely biscuits” row
The Times has reported (behind paywall) that surgeon Simon Payne has been suspended and subsequently banned from working for Spire Healthcare after he “sexually assaulted” a nurse by commenting on her “lovely biscuits”. The comment is alleged to have been made when an anaesthetist practitioner lifted a box of biscuits from a shelf. Notably, an investigation into his conduct determined that the incident did not amount to sexual harassment, sexual behaviour, or sexual assault. However, notwithstanding the finding, Spire decided that it needed to act because it was the latest in a sequence of matters of concern. The nurse said that she saw it as “a sexual assault, coming in my personal space, talk to me and trying to be nice uninvited and not permitted in the context of a sexual harassment history”.
It has been alleged that Mr Payne also called her a “hot Romanian girl” and that he spoke to her in a “sensual” voice. Another woman has said that he would stand close to her, making her feel uncomfortable, and made inappropriate sexual comments”, while another said that while she crouched on the floor, he said “while you’re down there”, sprayed her with irrigation fluid and told a male colleague that she had “lovely breasts”.
Mr Payne denies all the allegations, some of which date back as far as 2014, maintaining that he has lost more than £2.7m in income and that private insurers will no longer provide him with cover.
The claim is proceeding in the High Court.
April 2021 changes
From 6 April 2021:
- The maximum week’s pay for redundancy and basic award purposes increases from £538 to £544. This means that the maximum statutory redundancy pay and unfair dismissal basic award increases to £16,320. The maximum overall unfair dismissal award increases to £89,493.
- Statutory sick pay increases to £96.35 per week. The lower earnings limit for eligibility remains at £120 per week.
- The rates for statutory family leave (e.g. maternity, paternity etc.) increase from £151.20 per week to £151.97 per week.
- The minimum wage increases to £8.91 (£8.36 for workers aged 21-23; £6.56 for 18 to 20 year olds, £4.62 for 16 to 17 years olds and £4.30 for apprentices under 19 or over 19 and in their first year of apprenticeship).
- IR35 now requires medium and large businesses to determine the status of employees and contractors. Smaller businesses remain exempt from this obligation.
Kind regards and, as I have said for over a year now, very best wishes during this difficult time.