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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?

2021 marks the start of a new era for the UK, the Brexit transition period having ended at 11pm on 31 December 2020. After endless rounds of negotiation, the parties reached a last-minute agreement over the ongoing relationship between the UK and EU, and the European Union (Future Relationship) Act 2020 (which gives legal effect in the UK to the agreements reached) received royal assent on 30 December 2020. But what impact does this have on UK employment rights derived from the EU?

The short answer is that while Brexit provides the UK with some freedom to deviate from EU derived employment law, we should not expect to see any radical changes to UK employment laws or employment rights.

The Trade and Cooperation Agreement reached between the UK and EU incorporates level playing field commitments that seek to prevent either the UK or the EU gaining a competitive advantage in a variety of contexts. These include rights at work, namely fair working conditions, employment standards (including in respect of workplace health and safety), information and consultation rights and the restructuring of undertakings. The commitments given by both the UK and EU are intended to ensure that neither will weaken or reduce labour or social rights and standards below the levels in place at the end of the transition period where this affects trade or investment between the UK and EU, including by way of a failure to enforce those laws and standards.
Continue Reading Implications of Brexit for UK employment law

Welcome to our monthly newsletter, with a summary of the latest news and developments in UK employment law. A PDF version of this newsletter can be accessed here.

This issue will provide recent case law updates, law reform and legislative developments, COVID-19 updates and any other news over recent weeks.

Case law updates

Collective redundancy consultation: The European Court of Justice (ECJ) has ruled on the reference period and threshold numbers required for the Collective Redundancies Directive, and has concluded that where the threshold number of dismissals is met at any point across the relevant reference period, then dismissals occurring both before and after that point are subject to collective consultation rules. This raises questions as to whether section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), which applies the Directive in the UK (and which excludes the need to count employees whose proposed dismissal consultation has started) is compatible with the Directive. In the absence of amendments to TULRCA to clarify the situation, employers planning redundancies will need to have this case in mind, with an understanding of past redundancies as well as anticipated ones, when assessing whether the relevant thresholds for collective consultation are met. [UQ v. Marclean Technologies – NB: no English transcript is currently available]

Discrimination: The Court of Appeal has upheld the ‘cost plus’ basis for seeking to justify indirect discrimination, i.e., cost savings alone cannot be a legitimate aim and will rarely succeed as a defence, although it may be a factor where there is ‘something else’ (including where an employer is subject to financial constraints and is required to reduce its costs). Although not changing established principles, this case acts as a reminder that cost in itself should not be relied upon to rationalise potentially discriminatory practices. Incidentally the court also said that the phrase ‘cost plus’ should be avoided as inelegant. [Heskett v. Secretary of State for Justice]

Health and safety detriments: Following a judicial review, the High Court has held that the UK failed to properly implement the EU Health and Safety Framework Directive in the Employment Rights Act 1996 when only providing protection against detriment on health and safety grounds to employees and not also to workers. The Independent Workers’ Union of Great Britain, which initiated the proceedings, is calling for the government to urgently amend UK legislation to reflect this decision, which would significantly expand the scope of protection at a time when health and safety is particularly pertinent. [HC: IWUGB v. DWP]

Settlement agreement – COT3: Where arguments are being made to set aside a COT3 settlement due to misrepresentation, it is permissible for the tribunal to consider without prejudice communications. [Cole v. Elders Voice]

Summary termination: A firm was entitled to rely on a self-employed stockbroker’s repudiatory breach of contract to summarily terminate their relationship, notwithstanding the firm also having committed a repudiatory breach. [HC: Palmeri v. Charles Stanley & Co]

Tribunal hearings: An appeal against a decision to hold a merits hearing in person rather than remotely during the pandemic has been dismissed, reiterating the strong case management discretion held by judges. [Omooba v. Michael Garrett Associates]

Tribunal procedure – applications to amend pleadings: The Employment Appeals Tribunal has provided detailed guidance on the procedure to be followed when considering applications to amend, including how arguments in support of such an application should be approached, the matters to consider before such an application is made, and the importance of showing the consequences of the amendment being refused. This also reminds us that the tribunal has wide case management powers, and the appellant courts will seldom interfere. [Vaughan v. Modality Partnership]

Whistleblowing: The Court of Appeal has upheld the principle that multiple separate communications taken together could amount to a protected disclosure even if none of them, taken separately, would do so. Whether it is appropriate to take this approach is a matter of common sense and fact dependent, and it is not necessarily an error for the tribunal to fail to consider the composite approach. In the present case, the claimant failed to clarify which of his 37 communications should be grouped together, and the specific protected disclosure which arose from that combination. [Simpson v. Cantor Fitzgerald Europe]Continue Reading UK Employment Law update – December 2020

A quick reminder that new rules in place as of 11 January 2016 give greater protection to zero-hours workers, protecting them from dismissal and suffering from a detriment if they seek to work for another employer while engaged under a zero-hours contract.

Background

A great deal of debate took place at the time of the 2015 UK General Election regarding the status of zero-hours workers. These are individuals who are engaged under a contract with the employer, under which they are not guaranteed any hours of work. Concern was expressed during the General Election that employers were exploiting these contracts. One of the concerns was the use by employers of exclusivity clauses in zero-hours workers’ contracts which meant that, even though the employer was not required to provide workers with any work, those same workers were prevented from working for another employer.
Continue Reading New Rights for Zero-Hours Workers