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Education briefing - Quarterly UK employment update

  • United Kingdom
  • Education - Briefings

26-09-2022

 

Sun / Clouds a short range forecast

 June to September 2022 – a backward glance

Development Impact on institutions
The Gov’t repealed restrictions which prevented temporary agency workers backfilling employees who take part in industrial action, and it raised the maximum damages that courts can award against a trade union when strike action has been found to be unlawful.
Hiring agency workers to replace those on strike may assist some employers with their contingency planning. However, this may not be appropriate for certain skilled roles and is not without risk, including a potential escalation of a dispute.
The Gov’t decided against reforming employment legislation governing employment status, preferring to publish new guidance. Read our update.
This means that the current three-tier approach of employee, worker and independent contractor will continue unchanged.
As a temporary measure brought in during the pandemic, employers have been able to create a statutory excuse through an adjusted right to work check process. The end of the validity of this adjusted process is 30 September 2022, requiring a return to a physical check on documents or the use of the new Identification Document Validation Technology where an online check is not possible for the candidate in question.
Penalties may be imposed or prosecution may take place by UK Visas and Immigration if employers are found to be employing workers illegally. Read our Immigration update.
In Harpur Trust v Brazel, the SC confirmed that an employer was wrong to cap holiday pay at 12.07% of annualised hours for a zero hour contract worker working on a term-time-only basis at a school.
While the case involved unusual facts and contractual terms, the CA decision appears to make it extremely difficult for workers and unions to obtain injunctions to prevent ‘fire and rehire’ dismissals. Read our update.
In a number of recent cases employers and tribunals are having to balance competing religious or philosophical beliefs and their interface with other equality rights. For example, where employees hold gender critical views and claim discrimination.
As the threshold for establishing a protected belief is relatively low, the focus in such cases is increasingly on whether the employer’s action is taken not because of the belief, but because the employee manifested it in a way that is “objectively offensive”. This is an evolving area of employment law and institutions should take advice.
From 1 July 2022, healthcare professionals including nurses, occupational therapists, pharmacists and physiotherapists have been able to certify fit notes (in addition to GPs).
The change, which applies across England, Scotland and Wales and is mirrored in Northern Ireland, is intended to relieve GP workloads but also to support access to healthcare advice for employers and employees with a view to keeping people in work. Employer guidance has also been updated.
Sun / Clouds a short range forecast

 October to December 2022 – short range forecast

Development Impact on institutions

The new Prime Minister, Liz Truss, has indicated support for employment law reform including: changing industrial action law; reviewing, with a view to removing, retained EU law by the end of 2023; and the repeal of IR35 rules. Media reports have also suggested a willingness to review the 48 hour week and holiday pay/leave entitlements. Read our update for further information.

Until details are announced, it is unclear which of these proposals may be pursued and their impact upon employers. However, trade unions have promised to resist any legislative change which further regulates strikes. In addition, given the breadth of EU employment law which continues to apply after Brexit, any change in this area could have repercussions in the workplace.
The appointment of Liz Truss throws doubt on workplace proposals previously supported by Boris Johnson’s Cabinet. These include: banning exclusivity contractual clauses for low paid workers; creating a single enforcement body for employment rights; introducing carers’ leave; and expanding modern slavery reporting requirements. In addition, earlier this summer his Gov’t had supported draft legislation, currently before Parliament, to: regulate the allocation of tips: strengthen redundancy protections for pregnant employees and adopters; introduce neonatal leave/pay.

 

Given widespread support for many of these developments (and a 2019 Conservative manifesto promise for an Employment Bill), some may be expected to proceed under a Truss Gov’t. However, we await confirmation

Current case law decisions have acted to limit holiday pay claims presented as an unauthorised wage deduction in England and Wales if gaps of more than three months have occurred between each claimed deduction. However, there is a divergence of decisions in Northern Ireland and this question is due to be considered by the UK SC in Chief Constable (NI) v Agnew.
If the SC were to reverse the "three month gap rule" for unlawful holiday pay reductions, this could pave the way to backdated holiday pay claims, including those for misclassified workers.
The CA will hear the appeal in Rodgers v Leeds Laser Cutting Ltd. The ET held that the dismissal of an employee who declined to come into work, believing that COVID-19 presented circumstances of serious and imminent danger “all around” but not specifically in his workplace, was not automatically unfair. The EAT dismissed his appeal.
Although specific on its facts, the EAT judgment provided useful clarifications concerning automatically unfair dismissal related to H&S, including that a reasonable belief in risk of serious harm can relate to circumstances outside of the workplace. Employers should note the CA decision, when available, when formulating their H&S policy
The Gov’t may publish a new Statutory Code of Practice to detail practical steps, including the need for meaningful consultation, when employers change employment terms by dismissing and re-engaging (termed 'fire and rehire'). Acas has also published guidance.
The outcome of this appeal will have implications for those workers who have no normal working hours - particularly for those who work on a term-time basis or intermittently throughout the year and therefore will be of particular interest to education institutions. (read our Alert)
Telescope - a long range forecast

   January to June 2023 - long range forecast

Development Impact on institutions

The 2019 manifesto committed to increasing the National Living Wage to two thirds of median earnings and widening its reach to workers over 21 by 2024. New minimum wage rates will apply from 1 April 2023.

Reflecting current economic challenges, employers paying at or near the minimum wage should prepare for the new April 2023 rates (typically they are announced in the preceding October or November). Read our guidance on minimum wage pitfalls.
Legislation to reform the UK’s data protection framework, introduced in July 2022, is expected to be finalised in 2023, although the detailed provisions may differ reflecting the new Prime Minister.
Easing the burden of compliance, such as introducing more flexibility, will be welcomed by employers. However, many will wish to avoid repercussions for international data transfers (such as if the EU decides that new UK law has unacceptably diverged from the EU’s GDPR).

Resources aimed at supporting employers in improving fairness, diversity and inclusion are expected to be published following the Gov’t Response to a report by the Commission on Race and Ethnic Disparities. This may include guidance regarding voluntary ethnicity pay gap reporting.

The Gov’t (under Boris Johnson) committed to publishing employer guidance on these issues. In addition, having rejected mandatory ethnicity pay gap reporting, their Response confirmed support for voluntary reporting and guidance to support employers is expected to include case studies. Read our update.
The EAT is due to consider the fairness of an employer’s decision to effect redundancies rather than place an employee on furlough in the case of Mhindurwa v Lovingangels Care Ltd. The ET held that dismissal was procedurally unfair.
ET claims, and appeals, related to the COVID-19 pandemic continue to filter through the system. It will be some time before a clearer picture emerges, including employer decisions over the use of furlough. Retaining records of decisions and decision-making processes will be particularly important for employers facing such claims.

 

Key        
Key
CA Court of Appeal
EAT
Employment Appeal Tribunal
ET Employment Tribunale
Gov't
The UK Government
HMRC Her Majesty’s Revenue and Customs
Gov't The UK Government
HMRC Her Majesty’s Revenue and Customs
NLW National Living Wage
NMW National Minimum Wage
H&S Health and Safety
SC

Supreme Court

 

Current case law decisions have acted to limit holiday pay claims presented as an unauthorised wage deduction in England and Wales if gaps of more than three months have occurred between each claimed deduction. However, there is a divergence of decisions in Northern Ireland and this question is due to be considered by the UK SC in Chief Constable (NI) v Agnew.