Employment (UK)

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The 2022 winter work party season is upon us, providing the first real opportunity in a few years for end-of-year celebrations. Whether at company, location, or team level, seasonal gatherings provide a chance for employers to thank staff for their hard work and for everyone to relax, socialise and have some fun with their colleagues. Yet without careful thought and planning, they can be problematic for employers who can find themselves faced with fallout from the festivities.

Here are our top tips and reminders for UK employers:

  1. See the party as an extension of the workplace: Just because an event is taking place outside working hours or at an external venue does not mean it is not ‘work’. Workplace policies continue to apply, and employers may find themselves vicariously liable for the actions of their employees, particularly in respect of discrimination and injury. 
  1. Work parties should not be compulsory: Inclusivity should be at the core of party organisation (see below) but there are a variety of reasons why someone may not want to, or be able to, attend (and for many events it could be impossible to schedule something which works for everyone). Any concerns about attendance should be addressed, and no-one should be put under pressure to go along or be treated differently as a result of attending (or not).
  1. Beware of discrimination risks when organising events: When planning events, organisers should be as inclusive as possible, remembering for example that days or times chosen may preclude certain people (e.g. with childcare or caring responsibilities or religious observances) from attending; locations will need to accommodate any disabled workers; and food and drink options should meet all religious, cultural and dietary requirements. 
  1. Respect different religions and cultures: Employers should remain mindful that the winter period coincides with festivals and events for different religions (e.g. Christmas and Hanukkah) but that not everyone will celebrate these for religious or other reasons. Employers should avoid focussing on any particular celebration, and be careful with language to promote inclusivity. 

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Continue Reading Get the party started: Preventing HR issues at work events

The football World Cup takes place in Qatar between 20 November and 18 December 2022, and many workers across the UK will want to follow the tournament. However, with many of the matches taking place during the working day or on a weekday evening, there are potential implications in the workplace. Here are our top tips for employers:

  1. See the tournament as an opportunity: Handled correctly, embracing the World Cup could help with employee engagement without having a detrimental impact on productivity. Actively addressing how the tournament sits along work commitments means that a balance can be struck between getting work done without the football acting as a distraction.
  1. Be flexible: Where possible, and within reason, allow employees to adjust their hours or place of work to accommodate them watching certain matches. This may necessitate longer or later lunch breaks, adjusting start and finish times, tweaking rotas, or switching work from home days. The requirements for approval should be made clear, as should whether (and if so, how) any lost hours should be made up, or taken out of annual leave entitlements.
  1. Accommodate annual leave: Managers should be prepared for short notice requests for (or cancellations of) annual leave, particularly in the later stages of the tournament, and be timely, understanding and consistent when considering such requests, even if they fall outside any usual holiday approval protocols.
  1. Monitor sickness absence: Absence on days of, or the day after, certain matches may give rise to concerns about whether the sickness is genuine, or has been brought about by e.g. excess alcohol. While employers should not be quick to make assumptions, and a one-off may be tolerated, inappropriate, repeated or regular absences demonstrating a pattern of behaviour may need to be addressed through sickness or, if appropriate, disciplinary policies.

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Continue Reading Avoiding an own goal: Managing employment issues during the World Cup

In mid-October 2022, Parliament has debated, for the first time, a proposal to implement a four-day working week in the UK. The bill, proposed by Labour, would reduce maximum working hours per week to 32 with no corresponding reduction in pay. Whilst it is unlikely that the bill will get very far (it is not supported by the government), it marks an interesting development in the case for a four-day working week, which is continuing to gain momentum.

In the UK, this increasing momentum is currently focused on a major six-month trial run by 4 Day Week Global involving over 3,000 employees across 70 organisations. The trial involves employees working 80% of their contractual hours for 100% pay with the expectation of achieving 100% productivity. Whilst the trial isn’t due to end until December 2022, the mid-term reported results are positive, with the majority of the companies which responded to the interim survey saying it worked for their businesses and 86% saying they planned to continue with a four-day working week after the trial.…

Continue Reading Is a four-day working week the future for UK employers?

On 23 September 2022, the new Chancellor, Kwasi Kwarteng, unveiled the Growth Plan 2022 detailing the UK government’s set of economic policies aimed at, as the name suggests, boosting economic growth in the UK by improving competition and improving living standards by allowing people to retain more income. Much has been said in recent days on the merits and dangers of the plan and whilst we have seen an immediate impact on the value of the pound, it remains to be seen whether in the longer term the plan meets its aims and supports the country in navigating the likely impending recession. In the meantime, we summarise below the key elements of the plan from a UK employment perspective:

  • National Insurance cuts: On 6 April 2022, national insurance contributions (NICs) were increased by 1.25 percentage points, with a plan that this would make way for a new health and social care levy at the same level from April 2023. These have now both been scrapped. The NIC increase will be reversed from November 2022 and the health and social care levy will no longer be introduced next year. This is intended to make it cheaper for employers to employ staff, and allow more workers to keep more of what they earn.
  • Income tax cuts: The basic rate of income tax will reduce by 1 percentage point, from 20% to 19%, from April 2023, a year earlier than planned, and the highest income tax band of 45% for income over £150,000 is being abolished, again from April 2023. As with the NIC changes, this is intended to enable workers to retain more of their earnings.It is also hoped that the abolition of the top income tax band will attract more high earning talent to the UK.
  • Banker bonuses: A cap on banker’s bonuses was introduced by the EU following the 2008 financial crisis as it was believed that unlimited bonuses encouraged high-risk taking behaviour, and that a cap would limit the behaviour, which resulted in the crash. However, the cap came in for criticism for pushing up base salaries and bank’s fixed costs without allowing for adjustment for financial performance. Following Brexit, and the UK’s freedom to depart from the EU rules, that cap (of up to 2 times fixed salary) is now being removed. The thinking is that without the cap, the UK can be more competitive globally, being able to align pay practices with other markets, promoting UK economic growth, and to allow the UK to attract and retain talent in the UK.

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Continue Reading UK Employment Law: key messages from the UK Government’s Growth Plan

On 22 September 2022, the Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons, and if passed could give rise to the most significant shake up of employment rights since Brexit. 

In summary, the Bill acts to automatically repeal all retained EU law, and remove the principle of the supremacy of EU law, on 31 December 2023 (with the power to extend the revocation date to 23 June 2026) unless specific legislation is introduced to retain it.

What this means for UK employment law is unclear at the moment, but as employment rights relating to the transfer of undertakings (TUPE), annual leave and working time, discrimination and equal pay, and agency, part time and fixed term workers are derived from the EU, the potential for changes in these areas looms large.

We can only speculate at this stage, but there does not seem to be any current indication or suggestion of a radical overhaul of UK employment laws that have their origin in the EU. The UK has a strong track record of high employment standards, on occasion ‘gold-plating’ the minimum criteria required of it by the EU, and although the promised strengthening of rights through the Employment Bill are yet to materialise, the current political landscape is not conducive to a government looking to significantly reduce rights. In addition, trade unions and worker organisations would certainly be likely to vehemently challenge any proposed changes that are to the detriment of workers.…

Continue Reading What next for EU derived employment rights in the UK?

Speedread

From 1 October 2022, the requirement for employers to physically check their new hires’ right to work (RTW) documents will return unless they opt to use one of the new government ‘Identification Document Validation Providers’ (IDSP) to validate RTW evidence online.

Background

Prior to the pandemic, all RTW checks had to be carried out face-to-face.

As a temporary measure brought in during the pandemic, the Home Office allowed employers to carry out RTW checks over video call and to accept scanned documentation (as opposed to having face-to-face checks and then copying and retaining original documents, as was the pre-pandemic requirement). This temporary measure will end on 30 September 2022. 

Reminder of requirements

All UK employers must carry out certain RTW checks for new recruits (regardless of nationality) and also use reasonable steps to ensure their current employees have and maintain a RTW in the UK. While there is no standalone liability for employers who fail to correctly carry out RTW checks, failing to do so exposes employers to fines of up to £20,000 per breach in the event that they employ someone illegally (plus criminal liability, disqualification of directors, reputational damage, among other risks). Compliant RTW checks secure a statutory excuse to civil liability for the hiring of illegal workers.

Continue Reading UK employers, are you ready for October? Change in Right to Work Check Requirements

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

The recent case of Dafiaghor-Olomu v Community Integrated Care [2022] EAT 84 is a good demonstration of the rough justice that is occasionally dispensed by the Employment Tribunal system.

It is well known that the amount of compensation that an employer can be ordered to pay for a straightforward unfair dismissal claim is subject to a statutory maximum amount of 52 weeks’ pay (commonly referred to as the “statutory cap”).  In Dafiaghor-Olomu v Community Integrated Care, Mrs Dafiaghor-Olomu won her unfair dismissal claim against her employer. At the remedies hearing, the tribunal awarded her £46,153.55 in compensation and the employer paid this amount in full. The claimant successfully appealed the outcome of the remedies hearing and her award was subsequently increased to £128,961.59 following a second remedies hearing. The claimant appealed again to the EAT in respect of the remedy.

The key question for the EAT to determine was how the statutory cap should be applied in this unusual scenario in light of the earlier payment of £46,153.55. In particular, the EAT had to decide whether:

  1. The employer should be given credit for the earlier payment of £46,153.55 before the statutory cap was applied leaving the employer with an outstanding balance to pay of £74,200 (the statutory cap at the time of dismissal); or
  2. The statutory cap should be applied to the total award first, and then the employer given credit for the earlier payment of £46,153.55, leaving the employer with an outstanding balance to pay of £28,046.45.

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Continue Reading Unfair Dismissal Compensatory Awards – The Cost of Compliance

The outcome of Swiss Re Corporate Solutions v Sommer [2022] EAT 78, (which we reported in this month’s newsletter) provides an interesting illustration of the scope of the ‘without prejudice’ privilege rules in the context of settling an employment tribunal claim.

The ‘without prejudice’ rule (the “Rule”) allows parties to have a full and frank exchange of views about a dispute or litigation, and even to make concessions about weaknesses in their own case, when discussing settlement. The parties can do this safe in the knowledge that anything said or done will be “without prejudice” and therefore cannot be relied on and would not be disclosable if settlement is not achieved and the matter goes to court/tribunal. The courts recognise that without prejudice privilege is important for the efficient operation of the legal system, as it facilitates parties to resolving disputes outside of court/tribunal.

There are only a small number of narrow exceptions to this Rule and the Sommer case is a good illustration of that. One exception is that the Rule cannot be abused or weaponised as a disguise or excuse for “perjury, blackmail or other unambiguous impropriety”. Case law has established that this ‘unambiguous impropriety’ exception should be construed narrowly – it should only be applied in the clearest cases of abuse. In 2021 the Court of Appeal ruled it would only be lost in “truly exceptional” circumstances.…

Continue Reading Sailing close to the wind: ‘without prejudice’ and the thresholds of ‘unambiguous impropriety’

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