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As we start the summer holidays, the Supreme Court’s judgment on holiday pay is a timely reminder of the complexities of calculating holiday pay for certain workers.

Holiday pay has been a hot topic in UK employment law over recent years, with the latest Supreme Court decision in Harpur Trust v Brazel addressing the calculation of pay for workers who work irregular hours for part of the year on permanent contracts. Dismissing the appeal, the Supreme Court agreed with the earlier decisions that holiday pay should not be pro-rated, but instead calculated by looking at average earnings over the relevant reference period prior to leave being taken, even if it meant that the worker received proportionately more paid holiday than a full time worker.…

Continue Reading Holiday Pay: the latest instalment

With train strikes scheduled for next week, and flight cancellations now a regular occurrence, UK workers seem set for a summer of travel disruption. This blog explores the implication for employers, particularly where workers may be stuck abroad, or otherwise unable to get to their place of work.

Flight cancellations

After two years of restricted travel due to the pandemic, summer 2022 finally provides an opportunity for well overdue holidays, yet with scores of flights being cancelled daily, not everyone will get away as planned, or return when they are meant to. Notwithstanding an argument that flight cancellations or being stuck abroad is not an exceptional circumstance in present times, workers will inevitably feel like it is something outside of their control, and employers are generally advised to act pragmatically.

For those stranded abroad after a cancelled flight home, getting back to work may prove problematic (unless they have booked extra annual leave as a contingency). Those who are able to work, albeit abroad due to a cancelled flight, should be paid in the normal way – working remotely is commonplace in a post-pandemic world, and provides a practical short-term solution where the circumstances permit. However, this approach assumes that a worker has the means to continue working. Although some diligent or senior employees may have taken their work phone and laptop with them so that they can work even if they are out of the country, requiring or expecting all workers (to the extent that the option is available) to do so is not particularly conducive or consistent with the idea that annual leave is a period of rest and relaxation. 

Unless a contract or policy states otherwise (which is unlikely), workers stuck abroad who cannot work remotely, or have no means to do so, have no entitlement to be paid for their absence once their annual leave comes to an end. However, assuming employees are making all reasonable efforts to get back to the UK as soon as they can, and being empathetic to the anxiety and administrative burden that workers will be facing in making alternative arrangements, employers could consider treating it in the same way as they would an ‘emergency’ situation, so if this is paid for a set number of days in other circumstances, to do so here too. Alternative possibilities are to require the days to be taken as paid annual leave, or otherwise as authorised unpaid absence. Options should be discussed in conjunction with the affected employee to find a mutually convenient solution depending on their specific circumstances, although employers also need to be mindful of treating workers consistently.…

Continue Reading Strikes and cancellations: The impact of travel chaos on employers

The Queen’s Speech at the State Opening of Parliament sets out the UK government’s legislative agenda for the year ahead. This year’s speech took place on 10 May, and in addition to the Queen’s absence, there was notable absence of any employment law reform.

In particular, the long-awaited Employment Bill, which was included in the Queen’s Speech in December 2019, was not one of the new Bills announced. Its omission was not unexpected, having been excluded from the legislative agenda during 2020 and 2021 too, but it is perhaps now even clearer that employment law is not a priority for the current government.

When first announced, the Employment Bill was expected to contain a plethora of new or enhanced rights including: carer’s leave; neonatal pay and leave; enhanced redundancy protection during pregnancy and maternity; an ability to retain tips; making flexible working the default; and increased contract predictability for workers. It was also expected to legislate to create a new single enforcement body. …

Continue Reading Queen’s Speech 2022: What next for UK Employment Law?

Covid-19 related reluctance or refusal to attend the workplace is nothing new, but as we enter a new phase of the pandemic, ‘Living with Covid’, developing case law will be of interest to employers who require or expect workers to attend the workplace on a full or hybrid basis. This blog considers the current guidance on workplace attendance, the recent Employment Appeal Tribunal’s (EAT) decision in Rodgers v Leeds Laser Cutting (a case looking at whether an employee had protection against unfair dismissal when refusing to attend work due to Covid related concerns), and some practical considerations for employers.

The UK government’s ‘Living with Covid’ plan came to full fruition in England on 1 April 2022, with remaining Covid-specific guidance now largely obsolete, and replaced with general public health guidance. This essentially treats Covid like other respiratory illnesses for individuals and business to manage, leaving employers with discretion on how to manage ongoing Covid risks in the workplace, and individuals encouraged to exercise personal responsibility. 

Employers are no longer required to consider Covid specifically in their risk assessments, nor have specific Covid mitigation measures in place, although they must continue to comply with their general health and safety obligations. Similarly, ‘work from home if you can’ guidance has been removed, although individuals with symptoms of a respiratory infection (including Covid), and who have a high temperature or do not feel well enough to work, or anyone with a positive Covid test, are advised to try and stay at home, working from home if possible, and to avoid others. Individuals who cannot work from home are advised to discuss options with their employer. …

Continue Reading Covid-19 related refusal to attend the workplace

The practice of ‘fire and rehire’ (i.e. dismissal of an employee and offering re-engagement on new, usually lesser, terms) as a way to facilitate a change to terms and conditions of employment has been under the spotlight in recent years. It is not a new strategy as a way of making changes to employment contracts, nor is it unlawful if handled properly, but the tactic has been subject to increased scrutiny in recent years as cases of misuse by some employers have hit the headlines.

In autumn 2021, legislation curbing dismissal and re-engagement was shelved by the government and replaced with a commitment for updated and more detailed Acas guidance. That guidance (which is not binding) focusses on the importance of thorough and constructive consultation with staff to explore all alternative options to terminating employment, describing fire and rehire as ‘a last resort’.

Fast forward a few months, and the government has announced that we can now also expect a new Statutory Code of Practice on fire and rehire intended to crackdown on the inappropriate use of the tactic, with increased punitive financial sanctions for non-compliance.

As always, the devil will be in the detail. The new Code is expected to set out the consultation process to be followed where there are proposed changes to terms and conditions, and to give practical steps for employers to follow. It is also expected that an additional 25% penalty (on top of the existing punitive sanctions) will be levied where an employer deploys fire and rehire tactics without first having made reasonable efforts to reach agreement through consultation, or where there is otherwise unreasonable non-compliance with the Code.
Continue Reading Fire & rehire clampdown: will a new Statutory Code of Practice help?

It is hard to avoid the media furore following the events at P&O Ferries last week, where approximately 800 staff were reportedly dismissed for redundancy, without notice and without prior consultation, before being replaced with cheaper staff. Leaving aside the specifics and merits of P&O’s actions (which are complicated by international and seafaring considerations), the…

Next up in our Real Time Video Chat series, David Ashmore, Carl De Cicco and Alison Heaton explore the latest trends and issues regarding workplace vaccination policies in the UK. The group discusses the current statutory position on mandatory COVID-19 vaccinations, sick pay policies affecting the unvaccinated and what the term “fully vaccinated” means…

Whether employers can require evidence of vaccination as a condition of employment or attendance in the workplace has been a hot topic in recent months, with many employers (having weighed up various legal obligations and risks) introducing a policy featuring vaccination status to some extent. Yet vaccination status is not stable and the dilemma now facing these employers in the UK is whether to revisit their policy requirements due to the rollout of booster jabs. Put simply, should employers with a vaccine policy now require vaccinated individuals to have the booster?

Full vaccination is currently seen as having completed the full course of an approved vaccine (i.e., being ‘double jabbed’, unless in receipt of an approved one-dose vaccine). At the moment there is no mention of the booster on the NHS Covid pass, receipt of the booster is not a pre-requisite for activities such as travel or attendance at venues, nor is it a requirement of deployment for care home staff (where there is a legal requirement for full vaccination, unless exempt, in England). On this basis, employers may be minded to maintain the same stance and ignore the boosters for any workplace policies too.

It will certainly be appealing to employers to maintain the status quo from a practical perspective. The administration of assessing whether staff eligible for a booster have had it is likely to be a particular challenge, both keeping track of who is eligible when (as although all UK adults have been offered the full course of an approved vaccine, the booster is only currently available to vulnerable groups and to those aged over 40, six months after their final jab), and what ‘evidence’ an individual has of a booster (as until this appears on the NHS Covid pass the individual will have little by way of proof that they have received it). Further, employers are likely to want to avoid having to update and communicate a change in policy so soon after introducing it, and dealing with any engagement issues or disputes arising from a change in approach.
Continue Reading What does the booster jab mean for vaccine policies in the UK?

Despite menopause being a natural part of the ageing process, there is a general lack of awareness of its symptoms and effects, often resulting in menopausal women* experiencing a lack of support, as well as discrimination and harassment. This blog looks at the legal issues, and what employers can and ought to be doing to create a supportive and empathetic workplace culture.

Some of these issues were highlighted in a recent Employment Appeal Tribunal (EAT) decision, Rooney v. Leicester City Council, which was handed down shortly ahead of World Menopause Day on 18 October 2021. This case acts as a timely reminder of the challenges that menopausal women face in the workplace and the fact that more can be done to raise and demonstrate understanding and awareness of what remains a taboo subject.

Mrs Rooney was a childcare social worker for Leicester City Council until she resigned from her post. She brought a number of claims against her employer, including a claim for disability discrimination, relying on menopause as her disability. She cited symptoms including insomnia, fatigue, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, joint pain, migraines and hot flushes that left her physically and mentally unable to cope over a couple of years, and having to spend prolonged periods in bed. She received hormone replacement therapy and was under the care of a specialist menopause clinic.
Continue Reading Menopause in the workplace

With the lifting of COVID-19 legal restrictions in England on 19 July 2021, David Ashmore (Partner) and Alison Heaton (Knowledge Management Lawyer) from the Reed Smith employment team comment on the key issues/hot topics for employers.

What is changing on 19 July for employers?

The instruction to work from home if you can is being lifted from 19 July 2021. From this date it will be up to employers to decide whether employees should return to working in line with pre-COVID arrangements, retain the current work-from-home set-up, or move towards hybrid working.

Can an employer impose new arrangements from 19 July?

Although employers could require a return to a contractual place of work from 19 July, mandating an immediate change to current work-from-home arrangements is not recommended – not only does it run contrary to the government’s advice to implement any return to the workplace gradually, but is unlikely to be well-received by employees. Instead, employers are advised to prepare for a transition to new/previous arrangements over a period of weeks and months. Having a clear, robust and well-communicated health and safety and return-to-work plans, and adopting a flexible approach wherever possible, will allow for an easier adjustment. Where the employer wants to make changes to contractual arrangements, they will need the employee’s consent.

What if an employee does not want to return to the workplace – is that redundancy?

No. Where the employee is not willing to return to work, and alternative arrangements cannot be agreed, this will not be a redundancy situation (as redundancy only arises if the business closes, there is a closure of the workplace, or where there is a reduced need for employees).

How should employers deal with return-to-office anxiety?

Numerous circumstances may make some individuals reluctant to return to the workplace or previous working arrangements, certainly in the near term. Employers are encouraged to have an open dialogue with staff, taking time to understand each individual’s unique challenges and preferences, and to provide a supportive and flexible approach to find a mutually agreeable solution. They will need to be particularly vigilant in circumstances where the reluctance to return is linked to concerns about health and safety, and act reasonably when responding to concerns. Where it is not being offered, employers can perhaps expect to see a surge in flexible-working requests, and will need to treat these with care – where employees have successfully worked from home and/or flexibly during the pandemic, it may be harder to justify rejecting requests seeking to make that a more permanent arrangement.   …
Continue Reading Preparing for a return to the workplace in the UK after 19 July 2021