Employment law alert UK - July 2021

Despite the wet weather, Boris Johnson has confirmed that Step 4 of the Summer Roadmap. in England should go ahead on 19 July 2021, as planned. We await final confirmation next week but revised government guidance published on 5 July no longer contains an instruction to work from home.  Rather "employers can start to plan a return to workplaces".  The working safely guidance will be updated with "sensible precautions". The Roadmap also suggests (section 3) that people may use regular asymptomatic testing to "help manage periods of risk such as returning to the workplace, after close contact in a high risk environment or when spending prolonged time with a more vulnerable individual".  Companies will need to manage concerns in relation to public transport and ventilation in offices, as well as decide what safety measure to take and the approach to Covid-testing, as part of return to office planning.

Gender-critical beliefs are protected as a philosophical belief. The EAT has ruled that Forstater's "gender-critical" beliefs are protected as a philosophical belief under the Equality Act. Her beliefs include that sex is immutable (e.g. it is biologically determined at birth). The EAT ruled that the Tribunal had wrongly applied the test in Grainger: a belief would only be deemed "not worthy of respect in a democratic society" if it was akin to Nazism or totalitarianism. This is an important development on how the law in this area is evolving and reminder of the tensions which can arise between conflicting beliefs. (Maya Forstater v CGD Europe & ors)

Not granting interim relief on discrimination claims does not breach the ECHR. The Court of Appeal has ruled that the lack of availability of interim relief as a remedy in discrimination claims does not breach the European Convention on Human Rights. The fact that a whistleblowing claimant can apply for interim relief whereas a discrimination claimant cannot does not amount to discrimination. The Court also said that an extension of interim relief to discrimination claims would be a matter for parliament, not the courts. (Steer v Stormsure Ltd)

Deliveroo riders are not workers with right to form trade unions. The Court of Appeal has confirmed that riders did not have rights under article 11 of the ECHR to form trade unions. Such rights are only available to those in an employment relationship. The riders had a genuine right of substitution and so did not have to provide services personally to Deliveroo, and therefore could not be in an employment relationship. They still have the right to join unions, but not to organise as a trade union. (The Independent Workers Union of Great Britain v CAC  & Roofoods Ltd t/a Deliveroo)

COVID-19: employee nervous about attending the office not unfairly dismissed. The ET found that an employee who felt uncomfortable commuting and attending the office, pushed to be furloughed and was dismissed was not automatically unfairly dismissed contrary to s.100(1)(e) ERA (the "serious and imminent" danger provision). The ET accepted that "subjectively" he believed the danger to be serious or imminent but he did not take appropriate steps himself to protect him from the danger and that in any event the real reason for dismissal was that the employer wanted to prevent a challenging employee from having two years' service. (Accattatis v Fortuna Group (London) Ltd)

Flowers and Agnew Supreme Court hearings on holiday pay cancelled. The Supreme Court was due to hear the appeal in East of England Ambulance Trust v Flowers on 22 June 2021 regarding whether holiday pay must include regular overtime. However, the case was removed from the list after it was settled due to an NHS-wide deal on holiday pay. This means that the Court of Appeal decision stands: holiday pay must include regular voluntary overtime. Similarly, the appeal of Chief Constable of the Police Service in NI & ors v Agnew was due to take place in the Supreme Court on 23-24 June 2021 regarding series of deductions, but removed from the list in light of settlement discussions.

Government publishes response to consultation on single enforcement body. Following its consultation back in 2019, the Government has published its response confirming that it will bring forward legislation to create a new single enforcement body when parliamentary time allows. The new body will consolidate existing enforcement bodies. Its remit will also include tackling modern slavery, enforcement of statutory sick pay, minimum wage and tribunal awards and protecting agency workers. It also aims to support employers to comply with the law and provide guidance.

No plan to ban "fire and rehire" practices following Acas report. On 8 June 2021, Acas published its report "Dismissal and re-engagement (fire and rehire): a fact-finding exercise". It reports mixed views on the use of fire and rehire and there was no consensus over how the practice could be reformed, although suggestions were made. In a debate in the House of Commons on the same day, Paul Scully MP confirmed that the Government would not introduce "heavy-handed legislation" for fear of unintended adverse consequences (e.g. more redundancies) but would work with Acas to develop new guidance. However, further reform is still possible - particularly in light of Barry Gardiner's private members bill which had its first reading on 16 June 2021.

CBI, TUC, ECHR call for mandatory ethnic pay reporting. Following the recent report from the Commission on Race and Ethnic Disparities (which did not recommend mandatory reporting), the CBI, TUC and Equality and Human Rights Commission have written to Michael Gove asking for a clear timetable for introducing mandatory ethnicity pay gap reporting. They argue that it would help to better understand and address racial inequalities at work.

BEIS launches new tool to help parents understand and use Shared Parental Leave and pay. We recently reported on the push for reform of Shared Parental Leave in light of its low uptake. In a bid to make it more accessible, the Government has launched this new tool to help parents check their eligibility and calculate their pay entitlement. Employers may wish to flag to staff. Maternity Action is calling for the scheme to be scrapped in favour of a new scheme which gives both parents an equal amount of leave. Interestingly this month, John Lewis has announced that they will offer equal paid leave for all parents.

EU Commission announces UK adequacy decision. The Commission has formally approved adequacy decisions for the UK. This means that the EU has determined the UK's data protection laws to be robust enough to ensure data can safely flow to the UK from the EU (and EEA). It is good news for businesses because they can continue to receive data from the EU without having to make changes to their data protection practices. (ICO statement).