Autumn 2022 – Employment Law update

In this update, we provide an overview for schools of the latest employment law developments following the Queen’s Speech, government announcements and recent Tribunal decisions.

The Employment Bill – what happened to it?

The Employment Bill (which was originally proposed by the government in 2019 to bring in changes such as extending redundancy protection for new parents and pregnant women, introducing carer’s leave, as well as measures aimed at protecting vulnerable workers in the gig economy) was missing from the Queen’s Speech in May this year. However, a couple of days later, the government announced a new “Future of Work” review, which would “build on existing government commitments” and ensure the UK labour market is fit for the future. It is not clear whether this means introducing the changes previously expected in the Employment Bill, or whether different aspects of the bill will be introduced separately, but we will keep schools updated on any developments in this area.

Response to employment status consultation published

Four years after the consultation took place, the response to the 2018 employment status consultation (which formed part of the Good Work Plan) concludes that no legislative reforms will be introduced (at least for now).

The consultation sought views on the current employment status framework, focusing on its complexity, the fact that it was open to interpretation, the difficulty in resolving disputes and alignment between the frameworks for tax and employment rights. Many of the respondents were supportive of employment status reform, but there was no  consensus on what action should be taken.

The government’s response confirms that, whilst there are problems with the current system, including that the distinction between employee, worker and self-employed status can be unclear, it has concluded that the benefits of creating a new system are currently outweighed by the risks associated with legislative reform. Although reform may bring clarity in the long term, it might create costs and uncertainty for businesses in the short term, at a time when they are focusing on recovering from the pandemic and facing new economic pressures.

The government has issued three pieces of non-statutory guidance on employment status for both individuals and employers but has emphasised that this is guidance only.

In short, it is “business as usual” for schools regarding employment status.

The full response can be accessed here.

Changes to fit notes

Since 1 July 2022, a wider group of registered health professionals (including occupational therapists, physiotherapists, nurses and pharmacists) can certify and issue fit notes. For further details, read our note on the changes here.

Menopause and discrimination

In recent years, women have brought successful claims against their employers for disability, age and sex discrimination relating to the impact of menopause symptoms within the workplace and, in November 2021, a report was published by a “roundtable of older workers” to look at the important issue of the menopause and employment.

The government has now published its response to the report and, in doing so, confirmed that it will not amend the Equality Act 2010 to include the menopause as a protected characteristic.

In the light of the recent government confirmation, employees will have to continue to rely on the existing protected characteristics when bringing tribunal claims relating to the menopause.

The report does not require employers to make any particular changes, but it emphasises the importance of the menopause as a workplace issue. A guide for employers on helping employees to manage the menopause can be found here.

Ethnicity pay gap reporting

Recent data suggests that the number of UK companies voluntarily disclosing ethnicity pay gap data has declined sharply, bolstering calls for a mandatory approach as for gender pay gap reporting. The government consulted on this back in 2018 and, earlier this year, the House of Commons Women and Equalities Committee urged it to make ethnicity pay gap reporting mandatory for large employers from April 2023.

The government has recently confirmed that, whilst it will ‘help’ organisations with ethnicity pay gap reporting, it will not make it a mandatory obligation for employers. Instead, it will pursue policies to improve inclusion at work. In reaching this decision, the government were keen to avoid imposing new reporting burdens on businesses as they recover from the pandemic. Instead, they will support employers with voluntary reporting.

The Department of Business, Energy, and Industrial Strategy (BEIS) was expected to publish guidance for employers on voluntary ethnicity pay gap reporting over the summer but is yet to do so.

Changes to the rules on industrial action

In the wake of recent industrial action, on 21 July 2022, the government introduced new legislation to increase the maximum damages which may be ordered against a trade union for unlawful industrial action and to allow employers to hire agency staff to provide cover during strikes. Unison has indicated that it intends to seek judicial review of the provisions on using temporary staff.

For schools with a unionised workforce, these changes will give greater flexibility on how to react to industrial action which may arise as a result of, for example, consultation with teachers regarding membership of the Teachers’ Pension Scheme. Schools will, of course, need to think carefully from both an employee relations and public relations perspective before invoking these new rights and specialist advice should always be sought.

Ban on exclusivity clauses extended to low-income workers

In a press release in May 2022, the government announced its intention to widen the ban on exclusivity clauses (a contractual clause which prevents an individual from working for another employer during an employment relationship) to all workers who earn £123 per week or less (i.e. the weekly lower earnings limit for National Insurance purposes). This represents approximately 13 hours’ work per week at the current national living wage.

In our experience, exclusivity clauses within contracts for jobs that pay below the lower earnings limit are rare in the sector. That said, in anticipation of the change, schools should check the terms of their existing staff contracts with this category of staff. Read our note on the change here.

Neonatal care leave and pay

On 15 July 2022, the government announced that it is backing a Private Members’ Bill to provide additional paid leave to parents whose babies require specialist care after birth. Further details are available in the  press release.

Human rights reform

In June 2022, the government published a draft Bill of Rights, which is intended to replace the Human Rights Act 1998 and make fundamental changes to the human rights framework in the UK. Proposed changes will affect how human rights are enforced, including a permissions stage for claimants to demonstrate that they have suffered “significant disadvantage” and a renewed emphasis on the importance of freedom of expression.

Data protection reform

On 17 June 2022, the Government at the time published its response to its consultation on data protection reform. This confirmed its intention to relax parts of the Data Protection Act 2018, as well as to require employers to have a complaints-handling procedure that an individual must use before complaining to the Information Commissioner’s Office. The Data Protection and Digital Information Bill was published subsequently but has been withdrawn from a second reading in the House of Commons that was due on 5 September 2022. The move followed the appointment of a New Prime Minister and Culture Secretary (who sponsored the Bill). No new date has yet been set for the second reading of the Bill. We expect the new Government will take forward reform in this area but it remains to be seen whether there will be a change of approach. We will update schools once we know more on this.

Part-year workers are entitled to the statutory 5.6 weeks’ holiday

On 20 July 2022, the Supreme Court (SC) handed down its much-awaited judgment in the case of The Harpur Trust v Brazel giving clarity on the calculation of holiday pay for those who work irregular hours over part of the year but have a continuing contract throughout that year (“part-year workers”).

Essentially, it is now clear that part-year workers should receive, as a minimum, 5.6 weeks’ paid holiday per holiday year (regardless of the fact that they only work for part of the year). In order to calculate holiday pay for staff who work varying hours, employers should, at the time the holiday is to be taken, determine a week’s pay in accordance with the calculation method set out in the Employment Rights Act 1996 by looking back over the last 52 weeks of work, and effectively taking an average of pay received. Weeks where the employee carried out no work must not be taken into account when looking at the last 52 weeks. This may mean taking account of weeks in the previous year, (going back no more than 104 calendar weeks).I If fewer than 52 weeks of work were undertaken in the last 104 weeks, the week’s pay should be calculated on the basis of these weeks only.

Our detailed guidance for schools which addresses key staffing considerations following the SC’s decision, the potential risks and liability, and explores practical steps which schools need to consider taking, can be found here.

Tribunal finds that long-Covid can be a disability

In the recent case of Burke v Turning Point Scotland, the Employment Tribunal found that a caretaker experiencing symptoms of long-Covid was protected as having a ‘disability’ for the purpose of the Equality Act 2010. Although the case is only a first instance decision and is not binding on other Tribunals, it is likely that we will see further case law in this area.

The decision reflects a statement from the Equality and Human Rights Commission on 9 May 2022 that, although long-Covid is not a condition, like cancer or HIV, that is automatically treated as a disability under the Equality Act, it could amount to a disability for particular individuals.

For an employment law perspective on long-Covid, read our article here.