Posted by Gemma Ospedale, Partner
Employment legal update #41 | January 2021
Our Employment & HR team brings its monthly review of new legislation, guidance and case law.
In this month’s legal update, our Employment & HR team cover:
• Covid-19 update: homeworking, homeschooling and the furlough scheme.
• Employment law news, including ACAS redundancy survey results; discrimination protection for gender fluid and non-binary people; a report regarding hybrid working during lockdown; guidance on dealing with subject access rights under the GDPR; legislation on EU case law after Brexit; an update on the new immigration rules; and extension of deadlines for solo-regulated firms under the Senior Managers and Certification Regime.
• Commentary on recent employment law tribunal cases, including an employer’s liability for injury caused by a practical joke; a charity’s discriminatory housing policy found to be lawful.
Following this week’s (w/c 4 January 2021) announcement of the most recent lockdown, employers and workers alike have raised important questions around the practical implications of the school closures. Our article explores the most pertinent issues.
ACAS has published the results of a survey which make interesting reading and reveal the following:
- 37% of employers are likely to make redundancies over the next three months.
- 56% were unlikely to make redundancies.
- 7% did not know.
Of the businesses surveyed employing more than 250 employees, 60% were likely to make redundancies, 33% were unlikely to do so and 7% did not know.
One in four stated that they were unaware of the law around consulting staff before making redundancies; this rose to one in three where there were fewer than 50 workers.
Following the decision in Taylor v Jaguar Land Rover Ltd regarding gender equality, an Employment Tribunal has awarded the successful claimant, a gender fluid employee, £180,000 in compensation following the judgment in September. The case held that gender fluid and non-binary people were protected from discrimination in the workplace under the Equality Act 2010.
Management Today recently produced a report regarding hybrid working during lockdown, which has found that 55% of employers surveyed are now more likely to hire an employee to work fully or predominantly from home. Additionally, 33% of respondents stated they were actively advertising jobs as either partly or fully based at home, while 65% stated they are expecting to do the same in the future.
The ICO has published detailed guidance for organisations on how to deal with subject access rights under the GDPR. Three key issues arising from feedback received on the draft version of the guidance have been addressed as follows:
- Stopping the clock for clarification. The ICO has identified the circumstances in which a SAR may be considered complex and allow a pausing of the response period of a month from receipt while the data controller waits for requested clarification.
- Identifying when a SAR is excessive. The controller must consider whether the SAR is clearly or obviously unreasonable. He/she is recommended to take account of the circumstances of the SAR and determine, by reference to them, whether the response required is proportionate set against the burden or costs involved in dealing with the SAR.
- Costs which can be included when charging a reasonable fee for excessive, unfounded or repeat SARs. These may include the costs of staff time, copying, postage and other expenses involved in transferring the data to the individual, including the costs of discs, envelopes and USB devices.
On 15 October 2020, the Government laid the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 before Parliament, accompanied by a draft explanatory memorandum. These Regulations:
- Extend the power to depart from retained EU case law after the Implementation Period completion day (31 December 2020 at 11.00 pm) to specific appeal courts including the Court of Appeal in England and Wales, the Inner House of the Court of Session and the Court of Appeal in Northern Ireland.
- If the relevant courts decide to depart from retained EU case law, they must apply the same test as the Supreme Court in deciding whether to depart from its own case law – to do so where it considers it “right to do so”.
- Confirm the existing rules of precedent between decisions of the domestic courts.
These provisions, and any departure from retained EU case law after the Implementation Period completion day, are subject to the terms of the withdrawal agreement, EEA EFTA separation agreement and the Swiss citizens’ rights agreement and come into force on the IP completion day.
The draft notes explain that, in expanding the power to depart from retained EU case law to the relevant courts, the risk will be mitigated that retained EU law will continue to be tied in with interpretations from the CJEU after the IP completion day when it will not be appropriate for it to do so. The rationale behind this is to enable more litigants to seek a change to retained EU case law in circumstances where they are adversely affected by it.
On 22 October 2020, the Government published the Statement of Changes to the Immigration Rules HC813, which sets out the full details of the new UK immigration system. Most of its changes were effective from 9 am on 1 December 2020.The key changes are as follows:
Tier 2 (General) will be replaced by the new Skilled Worker route. To qualify under the new category, applicants must have:
- received a confirmed job offer for a specific job, which meets minimum skill and salary requirements,
- by an employer that is registered as a licensed sponsor with the Home Office.
- The minimum skill level and salary rates are lower than those required for a visa under Tier 2
- Sponsors will no longer need to carry out a resident labour market test.
- The number of migrants able to enter the UK under the Skilled Worker category is now unlimited.
- The “cooling off period” and 6 year maximum length of stay have been removed.
- The minimum salary required to qualify for indefinite leave to remain in this category is lower than under Tier 2.
The new Intra-Company Transfer (ICT) route provides increased flexibility for short-term assignments to the UK for employees working at overseas linked companies.
The new cooling off requirements and more flexible provisions allow migrants in the UK to switch into the ICT category.
There is greater flexibility on the activities that individuals on Visit visas can carry out in the UK
A new immigration route to the UK for Hong Kong British Nationals (Overseas) will be introduced effective from 31 January 2021.
As a result of the pandemic, and following consultation, the FCA has confirmed the extension of various deadlines for solo-regulated firms under the Senior Managers and Certification Regime (SM&CR). These are now extended from 9 December 2020 to 31 March 2021 in respect of the following:
- The coming into force of the conduct rules for staff who are not senior managers, certification staff or board directors.
- The date by which relevant employees must have received training on the conduct rules.
- The submission of information about directory persons to the Financial Services Register.
- References in the FCA’s rules to the statutory deadline for assessing certified persons as fit and proper.
The implementation deadlines for claims management companies (CMC) are also being extended by the same period. A CMC which receives full authorisation on or after 9 December 2019 will have just over 15 months after the date of its full authorisation to meet the same set of requirements as above.
Notwithstanding the extended deadlines, the FCA is nonetheless encouraging all firms to meet the original deadline of 9 December 2020 where they can.
No vicarious liability for horseplay causing injury
In Chell v Tarmac Cement and Lime Ltd the High Court upheld a County Court decision and in doing so, followed the vicarious liability decision in Morrisons v Various Claimants, that the employer was not vicariously liable for the practical joke played by an employee which resulted in the injury of a contractor. The court considered that it was too onerous to expect employers to devise health and safety policies to take account of employees playing practical jokes in case any of these resulted in harm. In this case, the employer was aware of rising tensions between the employee concerned and the contractor, but there was nothing to suggest that this might escalate into the kind of incident that ultimately caused injury to the contractor, and so place on the employer the responsibility of implementing health and safety and disciplinary policies to cover such an event. As such, the employer was found to be not vicariously liable because what had taken place was in no way connected to work or progressed the work undertaken; the workplace was merely the forum in which the incident concerned took place, and nothing more.
Charity’s discriminatory housing policy lawful
In R (Z and another) v London Borough of Hackney and another the Supreme Court has unanimously dismissed an appeal against the Court of Appeal’s decision that a charitable housing association (Agudas Israel Housing Association (AIHA)) had not unlawfully discriminated against non-Orthodox Jewish applicants or breached the Equality Act by allocating social housing only to members of the Orthodox Jewish community.
AIHA is a charity set up to provide housing specifically for the Orthodox Jewish community. It is almost always full. It has capacity of 1% of its housing to be offered to London Borough of Hackney which, conscious of the AIHA objectives as a charity, ensures that only those who are of the Orthodox Jewish community are put forward for any remaining housing. A single mother who was not a member of the Orthodox Jewish community was not offered available property and complained that this was discriminatory on the basis of precluding anyone not a member of the Orthodox Jewish community from being housed even where housing is available, contrary to the Equality Act.
The Equality Act allows charities to restrict the provision of benefits to those sharing the same protected characteristics provided they act in pursuance of their charitable instrument and the provision of the benefits is either:
- a proportionate means of achieving a legitimate aim; or
- for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.
However, it is unlawful for charities to restrict the beneficiaries of a charity on the basis of colour.
- Upheld the lower courts’ findings that AIHA’s housing allocation policy was proportionate and lawful.
- Held that the Court of Appeal was correct to find that the High Court’s finding of proportionality could only be set aside if it had misdirected itself or reached a decision that was wrong. This approach identified that the High Court had been entitled to make its finding, and as such its decision should be upheld on appeal.
The decision provides much needed clarification of the law for charities whose benefits and services are in aid of those who share a protected characteristic, in keeping with their governing document. It also confirms that charities with purposes that favour those with a protected characteristic can use “bright line” criteria to decide how best to distribute their resources; and using blanket policies may be proportionate.
Our Employment & HR team is on hand to steer businesses through the minefield that lies ahead. Contact Partner Gemma Ospedale:
020 7842 1496 Email us
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