What

On 10 May 2022, the Queen’s Speech was delivered by Prince Charles at the ceremony to officially reopen Parliament.

The speech highlighted some of the 38 bills that ministers intend to pass in the coming year, up from 30 last year. The bills cover a variety of topics including education, animal welfare, economic crime and energy security.

The key point of interest from an employment and HR perspective was the long-awaited Employment Bill, which was first proposed in December 2019, but has been repeatedly delayed since. As anticipated, the Employment Bill was excluded from the Queen’s Speech.

Although there was no Employment Bill announced, following the recent mass redundancies by P&O Ferries whereby 800 seafarers were sacked without notice, the Queen’s Speech did announce a new Harbours (Seafarers' Remuneration) Bill. This Bill is intended to protect seafarers working on vessels that regularly visit UK ports by sanctioning and banning ferries from docking at UK ports if workers are not being paid the equivalent of National Minimum Wage.

So what?

In October 2016, the Government commissioned Matthew Taylor to carry out an independent review into the UK employment framework. The Taylor Review of Modern Working Practices, published in July 2017, found that the labour market was changing due to the emergence of new business models and different forms of ‘gig economy’ working and concluded that the legislative framework must be reviewed to accommodate the reality of people’s working relationships.

The Government accepted 51 of the 53 recommendations and set out its Good Work Plan, which outlined how it planned to implement Taylor’s recommendations. Some of the recommendations have been implemented by secondary legislation, such as the April 2020 changes to the requirements of employment contracts, but the vast majority of the changes are expected to be included in the Employment Bill.

It is almost five years since the Taylor Review was published and two and a half years since the Employment Bill was first proposed. Since it was first proposed in December 2019, many of the changes that are due to be included in the Employment Bill have become increasingly important, such as the right to request flexible working from day one, the right to carers' leave, the right to neonatal leave and pay, the extension of redundancy protection for women and new parents, additional rights for zero hours workers and the creation of a single enforcement body for employment rights.

Although the omission of the Employment Bill was expected, the TUC has accused the Government of “turning its back” on working people and of sending “a signal that they are happy for rogue employers to ride roughshod over workers’ rights”. It has also pointed out that the Government has promised the Employment Bill to enhance workers' rights 20 times since first announcing it in the 2019 Queen's Speech.

Ros Bragg, director of maternity rights charity Maternity Action, has said that pregnant women and new mothers needed "urgent legal protections from unfair redundancies" which had "dramatically increased" since the coronavirus pandemic and that she was "deeply disappointed and frustrated" that the Employment Bill did not feature in the Queen's Speech.

The Harbours (Seafarers' Remuneration) Bill has also come under scrutiny. The British Ports Association has said that it has concerns about ports being made to regulate ships and that ports do not "have a core competency" in enforcing the minimum wage, while the TUC have dismissed the plans as unworkable.

The rights proposed in the Employment Bill, many of which are significant for those set to benefit, are once again in abeyance, and when, or whether, they will progress in time remains to be seen. Let us have your thoughts on the further delay.

What?

On 9 May 2022, the Government announced its proposal to extend the existing ban on exclusivity clauses in employment contracts for the lowest paid workers. In 2015, exclusivity clauses were banned for workers on zero hours contracts, giving those workers freedom to work more than one job if they need or wish to.

The new proposal, which is expected later this year, is to widen the ban on exclusivity clauses to any contracts where the guaranteed weekly income is below the Lower Earnings Limit of £123 per week, meaning it will no longer be possible to enforce an exclusivity clause against any such worker to prevent them from doing work for other employers.

So what?

The Government’s consultation highlighted the effect COVID-19 has had on job security and guaranteed working hours.

The proposal is part of a Government drive to reduce unfair restrictions on lower paid workers. 

The Government has said that by “removing the red tape”, low-paid workers will have the ability and flexibility to reskill, boost their income by working multiple short hours contracts and make the most of new opportunities in existing sectors with growing labour demand.

It has also been billed as a way to widen the talent pool of job applicants to those who may have been prevented from applying for roles due to an exclusivity clause with another employer.

However, some may feel that the proposal does not go far enough to protect low paid workers and that its impact will be limited. The proposal will only impact a small portion of the UK workforce since the ban will only apply to any contracts where the guaranteed weekly income is below £123 per week, equating to an estimated 1.5 million workers and representing approximately 13 hours’ work per week at minimum wage.

Time will tell if the proposal will have any meaningful impact and benefit for the lowest paid workers, who are already struggling as the cost of living crisis takes hold. Whilst it only benefits up to around 1.5 million workers, and not all of those will want a second job, the reform could help a large number of workers, particularly vulnerable workers that have seen their hours reduced, gig economy workers, younger workers and other workers facing barriers entering the labour market.

What?

Stephenson Harwood has announced a 20% reduction in pay policy for employees who choose to continue to work from home on a full-time basis.

Employees who opt to work remotely on a full-time basis will, together with the 20% reduction in pay, be ineligible for a promotion to Partner level. They will also still be required to go into the office once a month, for which they will be reimbursed their travel and accommodation expenses.

One of the reasons for the salary sacrifice for full-time remote working is likely the London weighting issue that many businesses are facing. London weighted salaries are designed to help workers with the cost of living in Greater London, which is higher than that of the rest of the UK. However, during the pandemic, employees who are contractually assigned to a London office have either moved away from London or have avoided paying commuting costs, and as a result of which now prefer to work remotely outside of London. This has resulted in employees being paid a London salary, whilst being outside of London.

There are, of course, many other reasons for employees preferring to work remotely.

So what?

Over recent months we have seen a return to some pre-COVID normality in all aspects of life (*sigh of relief*). For the vast majority, this has involved a return to previous working arrangements at the workplace, albeit usually with a flexible or hybrid arrangement.

In businesses where it’s feasible, there is an expectation by employees to be able to work in a hybrid fashion, and in some cases completely from home. There remains a reluctance from some employees to return to the workplace at all. Stephenson Harwood offer a hybrid working model and all employees are permitted to work remotely for up to two days each week. The firm, therefore, does not anticipate an extensive take up of full-time remote working.  It does, however, serve as a reminder that businesses continue to tackle with these issues.

There are many benefits of having the freedom to work flexibly and remotely from home, and most businesses recognise this and allow their employees the option to work remotely usually two or three days a week.

There are, however, benefits of colleagues being in the office together, particularly in collaborative businesses or teams, and exists a fear that culture could be weakened or hindered by remote working.

Many businesses are looking at ways to entice workers that are thriving on flexible and remote working to return to the workplace, but some businesses are doing the opposite. Airbnb has announced that, in order to “hire and retain the best people in the world”, its employees can work from anywhere in the country without having to take a pay cut.

It is unlikely that we will ever see a return to pre-COVID working arrangements and, therefore, irrespective of where employees work, employee engagement is more important now than ever. It’s vital that organisations ensure that their managers and senior employees have the requisite people management and leadership skills and the tools to drive engagement, and that there is a collaborative culture and open working environment where all employees are engaged whether they are at home or at the workplace.

What?

Employment lawyers across the UK have had a field day since the Reserved Judgment was published on 11 May 2022 as the press have pretty much all mis-reported it. It is quite clear that most news reporters do not really understand what they are talking about

By way of factual background, Mr Finn worked as an electrician for a small family business which employed around 30 people. The workforce is predominantly, if not exclusively, male. It was not in dispute that banter (or, as it is described in the Judgment, “industrial language”) is commonplace upon the shop floor. Mr King works at the electrical firm as a shift supervisor

There was an altercation towards the end of July 2019 between Mr Finn and Mr King. In an earlier witness statement to the company, Mr Finn claimed that Mr King called him a “stupid old bald c***” and he said that Mr King threatened to “deck him”. This was later changed in a later witness statement from Mr Finn before the Tribunal to Mr King calling him, “a fat old bald c***”

So, the Tribunal was tasked with considering whether Mr Finn could provide sufficient evidence to persuade the Tribunal that harassment had taken place. First, the Tribunal had to consider what they believed was said. As part of his evidence, Mr King accepted that he called Mr Finn a “bald c***” and also accepted that he was going to “knock him out”. Whilst the words he said he used were slightly different to what Mr Finn alleged, they were close enough and so there was no real dispute there. The next stage of the test was whether those words were sufficient to be classed as harassment. Under section 26 of the Equality Act 2010, a person harasses another if they engage in “unwanted conduct related to a relevant protected characteristic” and that conduct has “the purpose or effect of violating the others’ dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for them. The EHRC Code of Practice on Employment notes that the word “unwanted” is essentially the same as “unwelcome” or “uninvited” and this should be looked at from the employee’s point of view.  Interestingly, the Code gives the example of what it says is “self-evidently unwanted conduct” of sexist remarks made to a female electrician that she should go home and cook and clean for her husband.

So, were Mr King’s words enough to constitute harassment? And, if so, were they related to a relevant protected characteristic (in this case, Mr Finn’s male sex)?

The Tribunal decided that the answer to both was yes. First, the Tribunal found that the comment met the test for harassment: it was unwelcome and uninvited and, therefore, they held, it was “unwanted”. Upon his own admission, Mr King says that his intention was to threaten Mr Finn and to insult him, which meant that the rest of the harassment definition was also met (i.e. it was a violation of his dignity, it created a hostile environment etc and it was done for that purpose). Next, the Tribunal held that Mr Finn had shown a causal link between the unwanted harassing words, on the one hand, and the protected characteristic of sex, on the other.  It was argued that women as well as men may be bald (think Jada Pinkett Smith). However, the all-male Tribunal panel concluded, with reference to their own follicular challenges, that baldness is much more prevalent in men than women. As such they said that it was “inherently related” to sex. It was also noted that it was a stand-alone comment (which, as we know, is sufficient) and that the claim was brought against not just the employer but also Mr King himself as a Second Respondent.

So What?

We await the remedy hearing to find out how much compensation Mr Finn is awarded for this act of sex-related harassment. In the meantime, many news reports are reporting that this decision is “outrageous” and one (bald) reporter from the Times (ex-GQ), even commented that this must surely be an “April Fool’s joke” and described it as a “licence to print money”.  Other reporters are seeing it as funny.

We see it as an example of the Tribunal taking a common-sense approach not least as it is no surprise that comments made in the workforce that were either intended to be, or were received as being, offensive are very risky. That said, in reality, might it be the case that the “c word” was actually more offensive than calling him bald? We would hazard a guess that most of you might agree. However, you will most likely appreciate that (putting aside the fact that someone in this situation may have a separate claim for constructive unfair dismissal (if they were to resign) and/or for PI) there is no free-standing claim of bullying (for being sworn at or otherwise) and so Mr Finn had to attach the comment to his sex. Had the comment just been one of baldness, we wonder whether the claim would indeed have been brought. Let us know your thoughts!

Interestingly, the company took no disciplinary action against Mr King for what he said which is a whole other issue…

What?

In Rodgers v Leeds Laser Cutting Ltd, the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal's decision that the employee's dismissal for refusing to return to the workplace because of concerns about the pandemic was not automatically unfair for a health and safety reason.

The case concerned the question of whether it was automatically unfair for the employer, LLC, to dismiss the employee, Mr Rodgers, for refusing to return to the workplace over concerns about the risk of COVID-19 to his vulnerable children.

LLC had carried out a COVID-19 risk assessment and put protective measures in place. The workplace was large "like a big, big garage" and there were typically only five people working on the shop floor. It was also found that Mr Rodgers could socially distance at work.

Despite this, at the beginning of the first national lockdown, Mr Rodgers left the workplace and said he would not be returning until the lockdown was eased, because of concerns on the risk to his vulnerable children.

LLC dismissed Mr Rodgers, who had less than two years’ service, and he submitted a claim to the Tribunal claiming that his dismissal was automatically unfair because he had been dismissed for leaving the workplace due to serious and imminent danger.

The Tribunal decided that Mr Rodgers did not reasonably believe that there were circumstances of danger that were serious and imminent and that his concerns regarding COVID-19 were general ones, not directly attributable to the workplace. The Tribunal also considered that he could have taken other preventative steps such as wearing a mask, social distancing, sanitising and washing his hands.  Additionally, his actions, including not wearing a facemask, leaving his home during self-isolation, and working in a pub during lockdown, did not support his argument that there were circumstances of danger which he believed were serious and imminent. The case was dismissed and Mr Rodgers appealed the decision.

The EAT dismissed the appeal. The EAT held that the Tribunal correctly concluded that Mr Rodgers did not hold a reasonable believe that there were serious and imminent circumstances of danger that prevented him from returning to work. It also agreed that the employer had taken steps to avert the danger of COVID-19 in the workplace and that Mr Rodgers could reasonably have taken steps to avoid such danger, in the workplace and at large, such as wearing a mask, observing social distancing, and sanitising his hands.

So what?

The right to bring claims for unfair dismissal is, in most cases, limited to those employees with two years’ service. However, there are some exceptions to this which allow employees to claim automatic unfair dismissal where they do not have the usual requisite length of service. This includes

the protections against automatic unfair dismissal in section 100 of the Employment Rights Act 1996, which broadly focuses on health and safety cases, as seen in this case. There is no two-year service qualifying period required to bring this claim, it is a "day one" right.

Section 100(1)(d) ERA, provides that an employee is automatically unfairly dismissed if the reason for dismissal is that ‘in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work’.

As restrictions are eased and employers encourage employees to return to the workplace, we may see more challenges under section 100 ERA. This case serves as a useful reminder to employees of the importance of ensuring health and safety in the workplace, for COVID-19 health and safety issues or otherwise. On this point, in its judgment, the EAT went on to state that COVID-19 could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent.

However, this case will be welcomed by employers as it demonstrates that where an employer has taken effective steps to comply with health and safety and can demonstrate a considered and measured approach to COVID-19 in line with Government guidance, it will minimise its exposure and risk against claims.

• From 6 April 2022, there will be a new form of fit note. The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2022 (SI 2022/298) were made on 14 March 2022 and come into force on 6 April 2022. The new Regulations prescribe a new form of fit note, which will be used in parallel with the existing version of the form. The Regulations remove the requirement for the fit note to be signed in ink and the new form of fit note no longer contains a signature box.
• Next month there will be the April 2022 rate changes. This will see limits for certain compensation and statutory payments increase. Two of the key new limits are a week’s pay for the purpose of calculating statutory redundancy payments and basic awards will increase from £544 to £571 and a new limit on the amount of compensatory award for unfair dismissal (£93,878 from £89,493).
• National Statistics figures show 250,000 more over-50s are economically inactive compared to before the pandemic. Many workers over the age of 50 have decided to leave the workplace since the pandemic.
• The UK has recently ratified the International Labour Organisation’s Violence and Harassment Convention which means employers will have a duty to protect employees from all types of harassment, including from third parties.
• It has been announced that ethnicity pay gap reporting will not be mandatory. The government has said that BEIS will produce guidance this summer for employers that want to voluntarily report.

• Higgs v Farmor’s School – It was ruled in an Employment Tribunal that a Christian school assistant was not unlawfully sacked after being dismissed for sharing Facebook posts which criticised the introduction of teaching about LGBTQ+ relationships in primary schools. The school assistant has been granted permission to appeal this and this decision will be something to look out for in the near future.
• Victor Nwosu, a solicitor and owner of a law firm, was fined £20,000 and ordered to pay £23,500 costs for unprofessional conduct whilst conducting an interview. He asked the interviewee whether she had a boyfriend and told her she was beautiful, amongst other comments. The tribunal was ‘deeply concerned’ at the comments and stated his behaviour was a ‘grave departure’ from that expected of a solicitor.
• The Employment Appeal Tribunal has ruled that Mr D Taheri was to receive a ban from using the employment tribunals service after making more than 40 ‘vexatious’ claims against numerous companies. He has been given a Restriction Proceedings Order (RPO) of indefinite notice meaning he is not able to make claims against employers without permission of the EAT.