James Mallon, our HR Business Partner, provides an employment law update for September 2021.
Employers may know that during the Covid-19 pandemic, the Government relaxed the rules on Right To Work checks. We have previously written about the importance of these checks, being accompanied as they are, in extreme cases, with penalties of £20,000 fines per worker who does not have the right documents, and Director imprisonment. The Government made temporary changes on 30 March 2020 stating that Right To Work checks could be completed over video calls and accepted via email. Prior to this, employees were required to check the employee’s document in person. These relaxed rules have now been extended until 5 April 2022: This means that employers can:
Employers should use the Home Office Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
If you have a part-time employee who is working under six hours, and so they do not get a break, are they being treated less favourably than a full-time worker, who does work over six hours and always gets a break?
No, held the Employment Appeal Tribunal (EAT) in Forth Valley Health Board v Campbell.
The EAT found that sole reason why the Claimant did not always receive paid breaks was not his part-time status and that the tribunal had erred in applying a ‘but for’ test. The correct approach was to look at why the Claimant was treated less favourably. On the facts, this was not ‘because of’ his part-time status but was instead due to the length of particular shifts that he worked. This was demonstrated by the fact that he did sometimes receive the paid break. It was, in fact, possible for part-time workers to always receive the paid break if they worked longer shifts.
This is good news for employers, who may be facing arguments from part-time workers that they are being treated less favourably than full-time workers. That law, of course, still stands, and employers must ensure that part-time workers enjoy the same rights and privileges as a full-time worker. However, if a part-time worker has different rights to a full-time worker, and the employer can objectively demonstrate that this is not because they are part-time, the employer will be protected.
If you are unsure of the rights you need to afford your part-time workers, please speak to your consultant at HPC today.
Are employers legally compelled to offer an appeal in a redundancy process? What about in a normal disciplinary process?
The two recent cases, from the Employment Appeal Tribunal in Moore v Phoenix Product Development Limited, and the Court of Appeal in Gwynedd Council v Barratt & others, have both held that the lack of an appeal will not automatically make the process or the dismissal unfair. However, employers should treat this news with caution. The value of an appeal is that it allows the employer to ‘put right’ the failings in the earlier process. An employer who did not offer an appeal would have to be very confident that it did everything else perfectly. Equally, our advice at HPC is that an appeal can be useful for catching any new issues. Whilst an employee should raise everything in their disciplinary hearing or redundancy consultation, sometimes it is not until they have received the employer’s decision to dismiss that employees raise new arguments. For example, an employee may not ever mention that they have an underlying health condition, until they are dismissed, when they suddenly raise it at appeal. Whilst it is a shame the employee did not raise it earlier, the employer still needs to consider it, and it is better the employee can tell the employer, rather than an Employment Law solicitor.
If you want guidance on your disciplinary or redundancy procedures, or just reassurance that you are doing everything correctly, please contact your consultant at HPC and we will be happy to assist.
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If you have any concerns or would like to discuss the Employment Law Update | August 2021 further, please get in contact with the HPC team today.
T: 0844 800 5932