Part 3: What’s new for in-house counsel —  employment update

Part 3: What’s new for in-house counsel —  employment update

In our May 2021 monthly session for in-house counsel, over 190 professionals came together to hear Iain Larkins, Radius Law’s founder and CEO and Sandra Martins, Radius Law’s head of employment, provide an update on essential topics.

Iain spoke of what’s new in the corporate and commercial sphere, as well as providing listeners with an update on ESG (see part 1) and data security (see part 2) trends and decisions.

Sandra gave listeners an overview of topical issues in the employment sector, covering the postponed deadline to report on the gender pay gap, the Uber case and other decisions on worker status, IR35, looming Brexit deadlines and coronavirus (COVID-19) uncertainties.

Gender pay gap reporting

Sandra reminded listeners that private organisations with 250 or more employees have until 5 October 2021 to report their gender pay gap information for the 2020/2021 reporting year. This uses snapshot dates of 31 March 2020 (most public authority employers) and 5 April 2020 (private, voluntary and other public authority employers), see: LNB News 24/02/2021 10.

For a summary of the key things employers need to know about reporting obligations see Practice Note: Gender pay gap reporting, which includes section ‘Coronavirus: 2020/21 reporting’.

Workers or contractors?

Sandra then touched on the recent decisions that have been made in relation to worker status.

She gave a rundown of Uber BV and others v Aslam and others, flagging the five key factors that were relevant to the Supreme Court’s conclusion of ‘worker’ status. These were:

  • Uber dictates the drivers’ rate of pay by setting the fare calculated by the app
  • Uber imposes the contractual terms on which the drivers perform their services
  • Uber restricts drivers once they are logged into the app about whether or not to accept a request for a ride (imposing a penalty if too many requests are declined)
  • Uber exercises significant control over how services are delivered, including the use of a ratings system
  • Uber restricts communications between drivers and passengers, preventing drivers from establishing a relationship with customers beyond a single journey

We also spoke about this case in our February session for in-house counsel. Read more about it here.

For the full story and practical implications of this judgment to consider, you can read our News Analysis on it here.

Another ride-hailing company with a similar set up, Addison Lee, has recently had its application to appeal to the Supreme Court on this issue denied. This confirms that Addison Lee drivers are also workers. See News Analysis: Addison Lee denied permission to appeal finding that its drivers are workers (Addison Lee v Lange, Morahan and Olszewski).

Sandra remarked that these cases have highlighted the need for all companies to carry out an audit of their contractors, to ensure their status is clarified. Although the majority of our listeners had either carried out an audit of their staff/consultant base or were in the process of doing so, 13% said they had yet to start one.

Even though these cases are very specific and based on the gig economy, the issues raised in them can also apply to other areas. Sandra highlighted the decision of 5 May 2021 in Nursing and Midwifery Council v Somerville (UKEAT/0258/20/RN), in which the claimant was held to be a worker.

For an overview of the judgment, as well as its practical implications, see News Analysis: Worker status does not require minimum obligation on both parties (Nursing and Midwifery Council v Somerville).

Holiday pay and ‘sleep-in’ shifts—what’s new for workers’ rights

In March 2021 the Employment Appeals Tribunal (EAT) handed down judgment in Smith v Pimlico Plumbers (UKEAT/0211/19/DA), which limited the effect of King v Sash Window Workshop [2018] IRLR 142 to claims for holiday pay where the worker did not take leave/holiday.

Sandra emphasised that Bear Scotland v Fulton [2015] IRLR 15, which held that deductions that are more than three months apart cannot be said to form part of a series of deductions for the purposes of a claim for unlawful deductions from wages, is still good law.

Read our News Analysis: Holiday taken but unpaid cannot be carried forward for holiday pay claim (Smith v Pimlico Plumbers) for a breakdown of all you need to know about this, and related, cases and see Practice Note: Holiday and sickness absence to clear up queries in relation to practical issues which arise in relation to the entitlement to annual leave and holiday pay of workers who are, or have been, absent on sick leave.

Sandra moved on to consider Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2021] UKSC 8.

The Supreme Court held that When a sleep-in worker is either asleep, or awake but not for the purposes of working, that time does not count for national minimum wage (NMW) purposes. Hence the whole shift will not count for NMW purposes, but only the period(s) for which the worker is actually awake for the purposes of working; this remains the case no matter how many times the worker is woken during the shift, and even though the worker (while asleep) can be woken up and asked to work.[SM1] 

It is unclear whether the same rule applies to home workers, whether asleep or awake, so keep an eye out for further clarification.

See further:

 

IR35

As we spoke of in our February 2021 in-house counsel session, IR35 reforms were implemented on 6 April 2021.

Although only medium and large businesses must carry out status determinations to assess whether IR35 applies, Sandra advises all businesses to audit their staff, whether or not IR35 applies to them.

See also our blog post: IR35 – your key questions answered.

The Brexit clock is ticking

30 June 2021 is the deadline for those who are EU, EEA and Swiss nationals living in the UK as at 11pm on 31 December 2020 to apply for the EU Settlement Scheme. UK nationals living and working in the EU may also apply for residence in the relevant EU Member State by 30 June and mobile employees can apply by the same date to have their status as ‘frontier worker’ preserved.

On 18 May 2021 the Immigration Minister, Kevin Foster, finally confirmed that:

A person may come to the UK under the visitor route for a job interview. However, if successful they must leave the UK and obtain an entry clearance under a route which grants the right to work in the UK before starting the role.

Sandra also spoke of the announcements made at the Spring Budget 2021 on immigration reforms, including the new Graduate Visa and the reforms to the Global Talent Visa. See: LNB News 03/03/2021 123 for all the key immigration announcements made in this year’s Budget.

No jab no job?

The final topical issue Sandra spoke of related to employers’ coronavirus (COVID-19) policies.

She urged everyone to be very careful if they are thinking of putting coronavirus vaccination policies in place, as this may lead to issues of discrimination and data protection.

As the government is not mandating NHS staff to be vaccinated, it will be tricky for most employers to justify such policies. However, Sandra felt that mandating vaccinations for specific job roles is more likely to be permitted—for example if staff travel to other countries for work and need vaccinations to do so.

Sandra pointed listeners to the Chartered Institute of Personnel and Development’s (CIPD) guide for employers.

See also our News Analysis: Acas updates coronavirus (COVID-19) advice on workplace testing and vaccination and the related guidance.

It has not yet been confirmed whether long covid counts as disability under the Equality Act 2010 but Acas has published useful guidance on the issue (see: LNB News 30/04/2021 106), which recommends engaging with employees early, planning how to manage the impact of long covid and putting into place reasonable adjustments.

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About the author:
Gloria is a Paralegal in the Lexis®PSL Paralegal Hub. She graduated in International Law and Globalisation from the University of Birmingham in 2019 and has been at LexisNexis UK since March 2020. She has experience working for US, UK and Italian law firms on a range of matters, including IP, financial services and immigration law.