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Education briefing - Quarterly UK employment update

  • United Kingdom
  • Education - Briefings

29-03-2022

Sun / Clouds a short range forecast

 January to March 2022 – a backward glance
Development Impact on institutions
In “Living with Covid”, the Gov’t announced the phased ending of COVID-19 legal restrictions in England,  including removing the requirement to self-isolate following a positive test (although it remained advisory) and withdrawing special SSP provisions. The devolved nations also relaxed their restrictions but at a slightly different pace. All nations maintained official  COVID-19 employer guidance.

Key changes to the education sector guidance published by the DfE was:

• the removal of the recommendation for staff and students in most education and childcare settings to undertake twice weekly asymptomatic testing. It remains for staff and pupils in specialist SEND settings, Alternative Provision, and SEND units in mainstream schools.

• the replacement of the requirement for staff or students testing positive or with symptoms to self-isolate with guidance that they should stay at home and avoid contact with other people for up to 10 full days – though they may stop doing that and return to their normal routine earlier with 2 negative LFTs on 2 consecutive days no earlier than the 6th and 7th day beginning with when they were advised to stay at home. It also advises those who live in the same household as someone with COVID-19 to work from home if they are able to do so.

The rules on testing and self-isolation in Scotland and Wales remained unchanged
The Government revoked regulations in England which provided for the mandatory vaccination of health and care sector staff. The legal requirement for health and social care staff to be vaccinated has been removed.
In Smith v Pimlico Plumbers, a case involving a backdated holiday pay claim, the CA decided that a worker may carry over and accumulate holiday pay indefinitely both for leave which is taken but which was not paid, and for leave which is untaken. The CA also stated that annual leave is a fundamentally important H&S right and employers are required to set up and maintain a facility to enable paid leave to be taken. This decision is particularly significant in status misclassification cases (where workers have been misclassified as independent contractors), as workers are unlikely to have taken holiday or, if they have done so, it would not have been paid (read our Alert - Important development for holiday pay entitlement).
In Kocur v Angard Staffing Solutions & Royal Mail, the CA confirmed that the right of agency workers to be informed of any relevant vacant posts with the hirer does not include an entitlement to apply, and be considered, for vacancies on the same terms as employees recruited directly by the hirer (read our Alert - Court of Appeal limits agency workers’ equal treatment rights). The decision makes it clear that the law provides only a right to information. The obligation is satisfied if agency workers are informed of relevant vacancies, even if they are not given the opportunity to apply for them. This provides helpful certainty for any institutions hiring agency workers.
In USDAW v Tesco Stores Ltd, the High Court granted an injunction to prevent an employer from removing employees’ right to a contractual entitlement by dismissal and reengagement. While based on unusual facts, the case illustrates the need to check closely all communications during restructuring and to take advice when planning to change contractual terms.

Sun / Clouds a short range forecast

 April to June 2022 – short range forecast
Development Impact on institutions

In England, there are further changes to COVID-19 restrictions from 1 April, including: ending free testing for the public; removing the duty to explicitly consider coronavirus in employer H&S risk assessments; introducing new public health guidance.

A removal of certain restrictions in Scotland and Wales will also take place although at a slower pace than in England.

 Institutions should continue to meet their statutory H&S obligations, reflecting their circumstances, and ensure that precautions are taken to manage risk and to support employees, including those at greater
NLW and NMW rates increase from 1 April, with the NLW increasing from £8.91 to £9.50 and the 21-22 year old rate from £8.36 to £9.18. The last few years have seen a significant increase in these statutory wage rates and new resourcing for enforcement.

 

Many institutions assume, given their levels of pay, that they will not fall foul of the legislation, often overlooking the complex rules regulating how it is applied in practice and the risks of a shortfall in relation to certain categories of their workforce. HMRC’s enforcement policy makes no distinction between deliberate and accidental breaches and HMRC investigations are expected to increase.
A SC judgment is expected in Harpur Trust v Brazel which will decide what amounts to appropriate holiday pay for part-time term-time workers and whether the CA was correct to rule that a 12.07% cap of annualised hours was unlawful. 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 many education institutions (read our briefing- Court of Appeal decision on calculating holiday pay for term-time only staff).
From 6 April, employers are no longer able to carry out a legally compliant manual right to work check on those who hold a biometric residence permit, biometric residence card or a frontier worker permit (biometric card holders), and must instead carry out an online check using a specific gov.uk portal. Penalties may be imposed or prosecution may take place by the UK Visas and Immigration service of those employers who do not follow the requirements - read our briefing - UK Immigration: Right to Work check changes from 6 April 2022 on this and our further briefing on the extension of the adjusted right to work check process.
In Northern Ireland, parental bereavement legislation has been introduced giving employees two weeks’ leave and pay following the loss of a child under the age of 18 to fall in line with the existing rights in GB. The entitlement is effective from April and also includes working parents who suffer the loss of a child through miscarriage.
Telescope - a long range forecast

   July to December 2022 - long forecast
Development Impact on institutions

Having confirmed that it will not introduce mandatory ethnicity pay reporting, the Gov’t is expected to publish guidance this summer (read our Alert - Government publishes proposals to address racial and ethnic disparities). Pay reporting is, however, likely to be introduced in Northern Ireland.

 The guidance is expected to assist employers in understanding and tackling pay gaps within their organisations and in building trust with employees.
Despite being delayed, it appears that the Gov’t remains committed to introducing an Employment Bill late 2022/early 2023. The scope of the Bill is expected to be wide-ranging, including provisions on: a single enforcement body (SEB); unpaid carer leave; neonatal leave/pay; a right to request a more predictable contract; flexible working as a day one right; the fair distribution of tips; and strengthening redundancy protection for employees taking maternity/adoption leave. Institutions should be prepared to review existing processes and policies, for example, to ensure that during redundancy exercises alternative employment is offered for those with enhanced protection or risk an automatically unfair dismissal. They should also consider whether their approach to the new neonatal and carer leave rights will mirror the statutory entitlement, or will be enhanced, and whether existing their flexible working practices need amending to reflect any changes to the current legislation.
Follow up actions on various Gov’t consultations, postponed due to the pandemic, are expected in the following areas: exclusivity clauses; non-compete clauses; confidentiality clauses; prevention of harassment; and strengthening modern slavery reporting. Some of these consultations could prove significant. For example, the new duty to prevent sexual harassment will require employers to take ‘all reasonable steps’ to prevent harassment, requiring them to be proactive, to not only have a policy but to engage in staff training and to offer regular reminders and updates.

NB. Employment law is a devolved matter in Northern Ireland and the issues set out above may not all apply in NI. For NI specific advice contact our Belfast office.

 

Key        
 Key
CA Court of Appeal
CAC Central Arbitration Committee
CJEU European Court of Justice
EAT Employment Appeal Tribunal
ECHR European Convention on Human Rights
EHRC Employment & Human Rights Commission
ET Employment Tribunal
Gov't The UK Government
HMRC Her Majesty’s Revenue and Customs
NMW National Minimum Wage
SMP Statutory Maternity Pay

 

 

Nicola Bennison, Partner

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