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Education briefing - UK quarterly employment update

  • United Kingdom
  • Education - Briefings

30-09-2020

 

 

 

Changing direction? Employment update

 

July to September 2020 - a backward glance

Development

Impact on institutions

The furlough scheme has continued to evolve over this period with: flexible furlough; employer contributions; a bonus scheme; and confirmation that the scheme ends in October.  With ongoing pressure on employers, the Government has announced a replacement wage subsidy scheme from November.

While flexible furlough has been welcomed, the Gov’t has remained under pressure to support employers beyond the end of October. As a result, the new wage Job Support Scheme, which will support up to 2/3 of wage costs for those able to work, was announced on 24 September. For further information, read our briefing on flexible furlough or visit our Covid-19 information hub.

As workplaces have gradually reopened, reflecting differing rules across sectors and devolved governments, employee health and safety (H&S) has remained a key priority. Shielding from workplaces was paused in August (with some exceptions).

The DfE’s guidance for education which is  regularly updated, provides key H&S principles. Separate guidance has been issued for HE, FE and schools.  Institutions should also revisit H&S measures for those continuing to work remotely.

Brexit talks between the UK and EU regarding a future relationship once the transition period ends in December 2020 have continued but remained difficult and inconclusive. Further information on new Immigration arrangements has been published and detailed rules are promised for “later this year”. Read our briefing.

No immediate and significant Brexit-related changes are expected to employment law in 2021. However, employers are concerned to understand the new immigration system from 1.1.21. In the meantime, they should use the EU Settlement Scheme, where possible, and review the need for a sponsor licence (if they do not have one) before the end of the transition period.

The Gov’t announced a new visa route for British National Overseas (BNO) Citizens.

This will allow BNO citizens and their close family members to come to the UK to live and work or study. Read ourAlert.

The EAT has held that a worker, K,  supplied by a temporary work agency to its sole client over a four-year period retained the status of a “temporary” agency worker under the Agency Workers Regulations 2010. Although K's contract with the agency was open-ended, each of K's assignments with the client was defined by reference to a particular period and shifts, with a defined end date.

Many workers are supplied under long-term flexible arrangements, whereby they are notified periodically of available shifts to cover additional demand or staff absences. Employers should be careful not to assume that these individuals are unable to assert their rights under the 2010 Regulations as temporary agency workers: Angard Staffing Solutions Ltd and another v Kocur and Others.

 October to December 2020 - short range forecast 

Development

Impact on institutions

The Employment Bill was announced last year and, after a COVID-19 delay, is expected to be published before the end of the year and to include provisions on: carers’ leave; neonatal leave/pay; a right to request a more predictable contract; flexible working as a default unless employers have good reasons not to allow it; a new single enforcement body; tips; extending maternity redundancy protection.

Timing for implementation is unknown although indications are that neonatal leave will be April 2023. Employers reliant on casual workers should anticipate a new right to request a stable contract and all employers should assess the potential impact of making flexible working the default position, given the recent rise in remote working during the pandemic.

The Commission on Race and Ethnic Disparities, established by the Prime Minister after BLM protests, is due to report before the end of 2020. This may include proposals on ethnicity pay reporting. The Gov’t previously consulted on ethnicity pay reporting and a response is awaited.

How data must be collated and presented are fundamental questions which remain outstanding for employers. Inevitably, a raft of communications, policies and procedures will need to precede pay reporting, to reassure and encourage staff to share ethnicity data.

The pandemic is increasing modern slavery and other exploitation risks in UK and global supply chains. The Gov’t has confirmed that it will legislate to strengthen modern slavery reporting requirements to increase transparency and compliance and extend reporting to public bodies.

Recent allegations involving potential worker exploitation in parts of domestic supply chains show that this is not the time to divert resources away from anti-slavery training, risk assessments, due diligence and other capability-building initiatives.

A SC judgment is expected on Uber’s appeal against the decision that its drivers were “workers”, entitled to holiday pay, the minimum wage and whistleblowing protection. Uber BV v Aslam.

If Uber’s appeal is rejected, it will be an important decision for the gig economy and may provide further legal clarification on worker status. Institutions should risk assess their workers’ specific circumstances and status.

A SC judgment is also expected on what counts as work for minimum wage purposes for workers whose role involves “sleep-in” shifts at their place of work. Royal Mencap Society v Tomlinson-Blake.

The CA has previously ruled that someone undertaking a sleep-in shift must be awake and working to receive NMW. A reversal by the SC would have significant cost implications for some employers.

A further SC judgment will decide whether workers in retail stores are able to compare their pay with that of workers based at separate distribution depots for purposes of equal pay claims. ASDA Supermarkets v Brierley and others.

A decision in favour of the retail workers will be significant for the retail sector. However, this hearing is not the final outcome in the litigation and it may be months, or years, before we reach that point.

Draft regulations introducing changes to the criminal records disclosure regime are expected to be approved by Parliament. They include removing the requirement for automatic disclosure of youth cautions, reprimands and warnings.

The regulations will impact employers by filtering out some information provided previously in certain DBS certificates. Scottish criminal convictions disclosure rules are also due to change from 30 November 2020.

 January - June 2021 - long range forecast 

Development

Impact on institutions

A financial limit on public sector termination payments is expected to be brought into force (although no date has been given, as yet), placing a cap on most exit pay in the sector of £95,000 and reflecting a manifesto commitment, July’s consultation response and draft regulations. Various exemptions will apply.

The intention is that the regulations will apply to schools and academies but not higher or further education institutions. Pension payments are likely to prove particularly contentious, if not exempt. Gov’t guidance, will accompany the final regulations.

The SC will hear an appeal on whether trade union legislation has been breached when  an employer seeks changes to collective terms without trade union consent, provided it does not ask employees to relinquish collective bargaining. Kostal UK v Dunkley.

The CA decided that the employer had not breached the legislation (read our briefing). A SC to the contrary will potentially restrict an institution’s ability to change employment terms in a unionised workplace without collective agreement.

SC appeal hearings have also been scheduled, or will be, during 2021 concerning:

  • holiday payin Chief Constable of the Police Service of Northern Ireland v Agnew and, also, East of England Ambulance Service NHS Trust v Flowers; and
  • discriminationin Efobi v Royal Mail Group Ltd.

The extent of employer liability for holiday pay remains contentious, particularly whether a three month break acts as a cut off to prior claims. If SC decides the three month rule is unlawful, significant liability for backdated claims could arise. The SC is also due to clarify whether voluntary overtime should be included in holiday pay calculations. Finally, the SC will also clarify the extent to which a complainant must demonstrate their basis of a claim for discrimination.

Before COVID-19, the Gov’t committed to increasing the National Living Wage to two thirds of median earnings (forecast to be £10.50 per hour) and widen its reach to workers over 21 by 2024, “provided economic conditions allow”.

The next NLW increase is due to take effect from April 2021. The Low Pay Commission will be advising the Gov’t on whether to reduce or delay NLW increases in response to the economic consequences of the pandemic.

The Gov’t is expected to respond to its harassment consultation which included proposals on: introducing a new legal duty to prevent harassment; extending the protections of the Equality Act to volunteers and interns; changing the law in relation to third party harassment and extending ET time limits. It has already committed to  introducing a new statutory Code of Practice (based on the EHRC technical guidance – read our briefing).

The Gov’t had expected to respond in Spring 2020, but it has been delayed. The cautious tone of the consultation suggests that a new legal duty to prevent harassment appears unlikely. However, institutions should take heed of proposals to bring back third party harassment protection, which seem more likely to be confirmed, and of the new EHRC technical guidance being developed into a statutory Code which courts and tribunals must take into account.

The Gov’t promised new legislation which will: provide that a confidentiality clause cannot prevent disclosures to the police and regulated health, care, legal professionals; require that limitations imposed by confidentiality clauses are clearly set out in contracts/settlement agreements and explained by legal advisers; and, provide for enforcement.

Implementation had been expected in 2020 and may be delayed into next year due to COVID-19. In the meantime, institutions should review their contracts and settlement agreements to ensure the use of confidentiality clauses is managed on a case-by-case basis and is clearly explained. Both Acas and EHRC have published guidance.

The Gov’t may respond to its summer 2019 consultation proposals regarding ill-health at work, including a new right to request workplace modifications; improved guidance and simplification of/ increased access to SSP. Detailed proposals were promised before end 2020 but are expected to be delayed.

These proposals aim to extend good practice but, if confirmed, will also require careful resourcing by employers. The most significant proposal is the right to request workplace modifications, given concerns over how this sits alongside the duty to make reasonable adjustments.

 Key

BLM - Black Lives Matter

Gov’t - The UK Government

CA - Court of Appeal

NLW - the national living wage

DfE - Department for Education

NMW - the national minimum wage

EAT - Employment Appeal Tribunal

SC - Supreme Court

EHRC - Employment & Human Rights Commission

SSP - statutory sick pay

ET - Employment Tribunal

 

 

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