James Mallon, our HR Business Partner, provides us with an Employment Law Update for August 2021.
As employers may know, from Monday 16th August 2021, a person who:
Will no longer be legally required to self-isolate if they are identified by NHS Test and Trace as a “close contact” of a positive Covid-19 case. Instead, these people “will be provided with advice on testing and given guidance on preventing the spread of Covid-19”. They must take a PCR test as soon as possible to check if they have the virus and for variants of concern. The government press release confirms that individuals “will not be required to self-isolate while they wait for the results of the PCR test”.
Additionally, the government has issued a COVID-19 vaccination guide for employers. It recommends that employers encourage and support their staff to get vaccinated and includes an Employers’ Communication Toolkit. The guidance encourages employers to:
Employers will surely be pleased that we are nearing the end of the media-dubbed “ping-demic”, so long as employees have had both vaccinations. Those without both vaccinations will still need to isolate for 10 days.
Employers will be relieved to learn that it will very rarely ever be a reasonable adjustment to protect an employees pay, when their disability means they cannot do the role, and they have stepped down to a more junior role.
This was the recent Employment Appeal Tribunal decision of Aleem v E-Act Academy. The Claimant, a science teacher, was no longer able to teach and was placed in a more junior position. His rate of pay was protected for a limited time, as a goodwill gesture by the employer. He argued he should be paid it permanently as a reasonable adjustment. Quoting O’Hanlon v HM Revenue and Customs UKEAT/0109/06, the Court made clear that this would require exceptional circumstances. That was, in part, because it is not for the Courts to dictate a Company’s expenditure. But it was also because “the purpose of the legislation is to assist the disabled to obtain employment and to integrate them into the workforce.” It was not “simply to put more money into the wage packet of the disabled” but to “enable them to play a full part in the world of work.”
Although it confirms previously settled law, this will nevertheless be a relieving decision for employers. If you have an employee requesting adjustments and are unsure what would be reasonable, please call your adviser at HPC, who will be happy to advise.
The Labour Party has announced plans to create a single status of ‘worker’ to include employees and workers. Self-employed would retain their self-employed status.
This would stop the uncertainty faced by employees and employers over what their employment status is, and consequently what their rights are. Labours proposals go further and would remove the qualifying periods for some basic employment rights to give workers day one rights in the job. All Labour’s proposed “workers” would receive rights and protections including Statutory Sick Pay, National Minimum Wage entitlement, holiday pay, paid parental leave, and, crucially for employers, protection against unfair dismissal.
Presently, some employers, knowing employees cannot claim unfair dismissal without two years qualifying service, dismiss employees without any or any significant process. If Labour was elected, and this proposal passed through Parliament, these employers would find themselves needing to change their dismissal procedures, or risk lawsuits.
The Court of Justice for the European Union (CJEU) recently held in IX v WABE & MH Muller v MJ that it is not direct discrimination, under EU law, for an employer to have a policy that prohibits employees from wearing anything which shows their religious belief in the workplace. A policy that required a ‘neutral’ dress from all employees was found to be legal.
The case concerned a school prohibiting employees from displaying any signs of religious belief. One employee wore a headscarf for religious reasons, whilst the other displayed a cross. The CJEU held that it was not direct discrimination for an employer to impose a policy requiring neutral dress in the workplace, where the policy is applied in a general and unconditional way. Even if the policy is capable of causing inconvenience to certain workers who observe religion-based clothing rules, it did not mean that the Claimant suffered a difference in treatment that was inextricably based on religion or belief as compared to other workers.
This is the latest in a series of confusing judgments about religious dress in the workplace. If you want guidance on how to make sure your dress codes are not discriminatory, please speak to HPC today.
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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.
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