employment law update

Employment Law Update | April 2021

Employment Law Update | April 2021

James Mallon, our HR Business Partner, provides us with an Employment Law Update for April 2021.



1. “Workers” Given Additional Health and Safety Protections


From 31 May 2021, “workers” will gain the right not to be subjected to a detriment in health and safety cases.  This right presently only applies to employees.


Currently, Sections 44 and 100 of the Employment Rights Act 1996 protect employees, and not workers.  This is set to change with the advent of the Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021.


Historically, Sections 44 and 100 were unfrequently relied upon by employees. However, this has changed with the Covid19 pandemic.  This law says that if an employee reasonably thinks they are in serious or imminent danger in the workplace, from a health and safety concern, (say, catching Covid19), then they can stay at home.   They will not be paid for this time, but these Sections protect employees from being dismissed, or being subjected to disciplinary action, for choosing to stay at home.  The Government introduced this new law following the High Court’s decision in IWGB v Secretary of State for Work and Pensions, which held that the Government had failed properly to implement the Health and Safety Framework Directive.


Practically, our advice at HPC would be to ensure not just that you are following all of the Covid-Safe guidance to make your workplace safe, but also to make sure that your employees and workers know this too.  We would recommend opening a dialogue with employees and workers, so that they too can feel assured that you are taking the necessary steps to protect them.  That way, we should avoid any employees (or from May 31st, workers) wanting to rely on Sections 44 and 100.


If you are in anyway unsure as to what your Health and Safety obligations are, please contact us and we will be happy to help.  We are currently offering free Health and Safety checks for our clients, and it may be that you could benefit in this regard.



2. Shielding


The guidance for those people categorised as extremely clinically vulnerable changed from 1 April 2021. Those people will no longer be advised to shield (and will no longer be eligible for Statutory Sick Pay on the basis of being advised to shield). From 1 April 2021, extremely clinically vulnerable people are advised to work from home where possible and, if they cannot work from home, the guidance states that they should go to work.


3. Furlough


Furlough, as many employers will already know, has been extended until 30th September 2021. The Government will continue to fund 80 per cent of the employee’s salary (subject to the cap) for unworked hours until the end of June 2021. Employers will still have to pay the NICs and pension contributions for employees. At HPC, we have noticed that there is often a misconception in the mind of employees, who see furlough as free money from the Government.  In reality, we have a lot of sympathy for the many small businesses using their personal savings to pay the NI and tax contributions, despite not having any income.


From July 2021, employers will need to contribute to furlough pay for unworked hours at a 10 per cent contribution.  This will rise to a 20 per cent contribution from August 2021, until the Scheme closes at the end of September 2021. The government will contribute 70 per cent and 60 per cent respectively. Employers will also continue to have to pay all NICs and pension contributions for all unworked hours.


4. Discrimination and Shared Parental Leave


A man on Shared Parental Leave cannot successfully claim discrimination if he is being paid less than a woman on Adoption Leave.  This was the Employment Appeal Tribunal’s recent decision in Price v Powys County Council.  The Court’s reasoning?  Adoption Leave is fundamentally different to Shared Parental Leave and its purposes go beyond providing childcare.   This is a useful decision for employers worried that their enhanced Adoption Leave policy may lead to complaints from fathers on Shared Parental Leave.   If you want to review your Benefits Packages, or even create one anew, but are wary of discrimination legislation, please speak to us and we will be happy to help you navigate the legal frameworks.


5. Constructive Unfair Dismissal and Affirming the Breach


Constructive Unfair Dismissal is often misunderstood.  At HPC, we find it helpful to read the word ‘constructive’ in Constructive Unfair Dismissal’ simply as “judges pretend it is a.”   If an employee has two years’ service and the employer fundamentally breaches their terms of employment, the employee can resign, and judges will simply pretend the employee has been dismissed.


Often a hot topic in the law of Constructive Unfair Dismissals is the issue of “affirming the breach.”  Simply put, this means that if an employee indicates with their conduct that they do not intend to resign as result of the employer’s alleged breach of contract, they cannot later do so and claim Constructive Unfair Dismissal.   To take a clear-cut example, imagine the employer who unilaterally changes an employee’s conditions so that instead of paying the employee £40,000 per year, they are suddenly only paid £20,000 per year.   An employee is unlikely to be able to work for that employer for five years, knowing they are receiving the pro rata equivalent of £20,000 each month and not £40,000, and then later resign claiming that five years ago, the employer fundamentally breached their terms of conditions.  They would likely be taken to have “affirmed the breach.”


Employers often think that the length of time is important in determining whether an employee has affirmed the breach.    This can be a factor, but often the employer’s conduct (what they say and do) is more indicative.     This was the issue examined in the recent Employment Appeal Tribunal decision of Gordon v J&D Pierce (Contracts). 


The Employment Appeal Tribunal held that the employee had not affirmed the contract by engaging the right of appeal from his disciplinary hearing, or by raising a grievance. It held that taking part in these processes should not be regarded as an indication that the contract has been affirmed. Appeal and grievance provisions in a contract had to be recognised as severable from the remainder of the contract, so that they could be engaged even where for all other purposes the employment contract has been brought to an end.


This case serves as a reminder to employers to be careful not to assume that by not resigning and following the employer’s internal appeals systems, the employee has lost their right to claim Constructive Unfair Dismissal.




Nothing on this site constitutes legal advice. Specialist advice should be taken in relation to specific circumstances. The contents of this site are for general information purposes only. Whilst we endeavour to ensure that the information on this site is correct, no warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission. We shall not be liable for any damage (including, without limitation, damage for loss of business or loss of profits) arising in contract, tort or otherwise from the use of, or inability to use, this site or any material contained in it, or from any action or decision taken as a result of using this site or any such material.  Some of the material on this site may have been prepared some time ago. Please contact us if you need a comprehensive and up-to-date statement of the relevant law.


If you have any concerns or would like to discuss the Employment Law Update | April 2021 further, please get in contact with the HPC team today.


T: 0844 800 5932

E: contact@highperformanceconsultancy.com

Twitter: @HPC_HRServices


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