Employment Law Update – November 2021

Carer’s leave

In September 2021, the government confirmed that it will introduce a new statutory right of up to one week (five working days) of unpaid carer leave per year.

The right to carer’s leave will:

  • Be a “day one” right, available to employees regardless of how long they have worked for their employer.
  • Rely upon the relationship of the employee with the person being cared for. This relationship will broadly follow the definition of “dependant” which applies in relation to the right to take time off for dependants i.e. a spouse, partner, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of the being their employee, tenant, lodger or border) or a person who reasonably relies on the employee for care.
  • Depend upon the person being cared for having a long-term care need. This will be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010. There will be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.

Carer’s leave may be used for providing care or making arrangements for the provision of care for a dependant who requires long-term care. This may include providing care for someone who reasonably depends on the employee for care while their primary unpaid carer is taking respite. The government has said that it will not impose strict rules around the length of care need, but emphasises that it is important for carer’s leave to focus on long-term care needs.

The carer’s leave entitlement will be able to be taken flexibly, in either individual days or half days, up to a block of one week.

Employees will be required to give notice of carer’s leave which is twice the length of the leave being requested, plus one day. This is the same notice a worker must give to take statutory annual leave. Employers will be able to postpone, but not deny, a request for carer’s leave. However, they may only do so where they consider that the operation of their business will be unduly disrupted. Counter-notice will be required. The government’s view is that a notice period is reasonable, given that the leave is intended for planned caring responsibilities and that there is a separate right to time off for dependants which can be used in emergency situations.

Employees will be able to self-certify their entitlement to carer’s leave without needing to provide evidence. If a false application is submitted, employers can deal with this in the same way as a false claim for sickness absence or any other disciplinary matter.

Employees taking carer’s leave will be protected from detriment. Dismissals for reasons connected with exercising the right to carer’s leave will be automatically unfair.

The statutory right to carer’s leave will be brought forward “when Parliamentary time allows”.

 Tips, gratuities, cover and service charges

In September 2021, the government responded to a 2016 consultation on tipping, gratuities, cover and service charges and confirmed its intention to legislate to provide that tips left for workers are retained by them in full.

Measures to be included in the forthcoming Employment Bill, which the government has said will be brought forward when Parliamentary time allows, will include:

  • Requirements for employers in all sectors not to make any deductions from tips received by their staff, including administration charges, other than those required by tax law.
  • Requirements for employers to distribute tips in a way that is fair and transparent, with a written policy on tips, and a record of how tips have been dealt with. Employers will be able to distribute tips via a tronc, and a tip must be dealt with no later than the end of the month following the month in which it was paid by the customer.
  • Provisions to allow workers to make a request for information relating to an employer’s tipping record. Employers will have flexibility in how to design and communicate a tipping record, but should respond within four weeks.
  • Requirements for employers to have regard to a statutory Code of Practice on Tipping.

Workers will be able to enforce these rights in the employment tribunals.

ICO data sharing code of practice

On 5 October 2021, the Information Commissioner’s Office (ICO) statutory data sharing code of practice Data sharing: a code of practice | ICO, produced under section 121 of the Data Protection Act 2018, came into force.

The code provides practical guidance for organisations on how to share personal data in compliance with the requirements of the UK General Data Protection Regulation and Data Protection Act 2018, including transparency, the lawful basis for processing, the accountability principle and the need to document processing requirements.

The new code replaces the previous version of the data sharing code of practice, published in 2011 under the Data Protection Act 1998.

A failure to act in accordance with the code does not of itself make a person liable to legal proceedings in a court or tribunal, but the code is admissible in evidence in legal proceedings.

The ICO has updated its data sharing information hub Data sharing information hub | ICO.

Sexual harassment at work

The Fawcett Society has published new research suggesting sexual harassment is widely experienced at work, and providing recommendations for employers on how to deal with reports of sexual harassment and reduce the risk in their workplace.

The report Tackling Sexual Harassment in the Workplace, shows that at least 40% of women experience sexual harassment during their career. Twenty-three per cent of those surveyed said that the sexual harassment increased or escalated while they were working from home during the COVID-19 pandemic. Disabled women surveyed were more likely to have experienced sexual harassment (68%) than women in general (52%). Employees from ethnic minority backgrounds, both men and women, reported experiencing sexual harassment at a higher level than white employees, with rates of 32% and 28% respectively. The report also found that 68% of LGBT employees had experienced harassment in the workplace.

Culture, policy, training, reporting mechanisms and the way employers respond to reports are five critical elements, it recommends, to help create a workplace intolerant of sexual harassment. It recommends that employers should:

  • Take all forms of sexual harassment seriously.
  • Treat employees who report sexual harassment with respect and empathy and ensure women feel able to report harassment, including facilitating anonymous reporting.
  • Increase gender equality within the organisation, especially at senior levels.
  • Demonstrate leadership commitment to tackling harassment.
  • Measure their organisational attitudes towards sexual harassment by conducting an employee survey.
  • Provide managers dealing with reports with guidance and support.
  • Have a clear and detailed sexual harassment policy that is separate to their general harassment and bullying policy.

The recommendations in the report will form the basis of a sexual harassment toolkit for employers which will be published next January.

Policy on homosexual behaviour constituted unlawful discrimination

The Court of Appeal has held that an independent fostering agency’s recruitment policy that required carers to refrain from homosexual behaviour was discrimination on grounds of sexual orientation and incapable of being justified.

The fostering agency, in this case, which operates as a charity adhering to evangelical Christian principles, had a recruitment policy requiring foster carers to refrain from “homosexual behaviour”. The regulator, Ofsted, determined that the recruitment policy should be amended because it was a violation of the Equality Act 2010 and the European Convention on Human Rights. The agency unsuccessfully applied for judicial review of Ofsted’s decision, the High Court holding that it was subject to the Equality Act 2010 and the European Convention on Human Rights as a hybrid public authority, and that the policy unlawfully discriminated, directly and indirectly, against gay men and lesbians.

On appeal the Court of Appeal held that the policy was a clear instance of direct and indirect discrimination because of sexual orientation. The Court of Appeal considered whether the policy could be justified, under section 19 of the Equality Act 2010 for indirect discrimination and under section 193(2)(a) in respect of direct discrimination, an exception which allows charities to restrict the provision of benefits to persons who share a protected characteristic where that is a proportionate means of achieving a legitimate aim.

The Court of Appeal held the policy was not capable of being justified as a proportionate means of achieving a legitimate aim. It emphasised that courts should be slow to accept that prohibiting fostering agencies from discriminating against homosexuals was a disproportionate limitation on their right to manifest their religion. The requirement that discrimination on the ground of sexual orientation required weighty reasons to justify differential treatment was heavily underscored by statute in the case of a religious organisation that provided services to the public. The agency had failed to provide credible evidence to justify the policy.

Case reference: R (Cornerstone (North East) Adoption and Fostering Services Limited v Chief Inspector of Education, Children’s Services and Skills (Ofsted)

Hybrid working

A new report on hybrid working Poly Newsroom – Poly Evolution of the Workplace Report Highlights Need for Work Equity and Total Meeting Equality for Hybrid Workers has found that it is here to stay and highlights the benefits and negatives of this way of working.

The report found that 71% of UK workers surveyed believed that traditional 9 to 5 working hours have been replaced by “anytime working”, with workers working flexibly around their other commitments. While this was seen as a benefit (the top three benefits being avoiding lengthy commutes, achieving a better work-life balance and feeling less stressed), 60% felt this left them unable to relax or switch off from work. The main drawbacks of working from home were stated to be difficulty collaborating, lack of IT support and lack of equipment to enable home working.

Most workers were hoping to only return to the office two (30%) or three (24%) days a week. They reported looking forward to having more person-to-person interactions. Office banter, going for lunch with clients/ colleagues and office camaraderie were listed as the top three things workers miss about the office. 64% believed they got more work done working from home and 60% were concerned that noise from colleagues would break their concentration if they returned to the workplace.

46% of UK workers were concerned that working remotely would have a negative impact on their career development and progression, increasing to 52% for 16- to 24-year-olds. 54% were concerned that working remotely would mean that they missed out on learning from peers and senior colleagues, and 48% were concerned that it adversely impacted their ability to effectively communicate and work with colleagues. 57% believed that hybrid or home workers could be discriminated against, or treated differently, to full-time office workers. The report concludes that equality of experience is key to the success of a long-term hybrid working model, with all workers being given the proper IT resources, equipment and support necessary.

Temporary visa scheme launched

On 11 October 2021, the Home Office amended the Immigration Rules to allow poultry workers and people undertaking haulage driving work involving transportation of food goods to come to the UK on the Seasonal Worker immigration route on a temporary basis. The visa scheme was launched on an emergency basis and came into effect at 4.00 pm on 11 October 2021.

Under the scheme, the Seasonal Worker route will now be open to:

  • The poultry production sector. This means one of the following roles:
    • butcher (occupation code 5431);
    • bird or game dresser (occupation code 5433);
    • killer and plucker (occupation code 5433);
    • plucker (occupation code 5433);
    • poulterer (occupation code 5433);
    • poultry processor (occupation code 5433);
    • poultry sticker (occupation code 5433);
    • trusser (occupation code 5433);
    • food operative (occupation code 8111);
    • poultry catcher or handler (occupation code 9111);
    • poultry vaccinator (occupation code 9119); and
    • poultry meat packer (occupation code 9134).
  • Haulage driving involving transportation of food goods, which means:
    • a role as a large goods vehicle driver (occupation code 8211); and
    • the work involves the transportation of food goods.

Temporary visas will be available for 5,500 poultry workers and 4,700 HGV food drivers. To recruit temporary workers under the scheme, employers must request workers from one of four named scheme operators.

Poultry workers under the temporary visa scheme must apply by 15 November 2021 and, if successful, will be granted permission until 31 December 2021. HGV drivers under the temporary visa scheme must apply by 1 December 2021 and, if successful, will be granted permission until 28 February 2022.

The government has published guidance for employers GOV.UK: Guidance: Recruit a poultry worker or HGV food driver with a temporary visa.

Proof of medical exemption from vaccination

On 19 October 2021, the Department of Health and Social Care updated its operational guidance on vaccination of people working or deployed in care homes Vaccination of people working or deployed in care homes: operational guidance – GOV.UK (www.gov.uk) to confirm the procedure that care home workers in England should use to apply for proof that they are medically exempt from vaccination.

The application procedure is set out in Guidance: COVID-19 medical exemptions: proving you are unable to get vaccinated COVID-19 medical exemptions: proving you are unable to get vaccinated – GOV.UK (www.gov.uk), to which a link is now provided in the operational guidance. This procedure applies to anyone who is unable to be vaccinated for medical reasons, and is not limited to care home workers. If an application is granted, the individual will be able to use the NHS COVID Pass to prove their COVID-19 status wherever necessary in England.

The temporary self-certification procedure for care home workers will end on 24 December 2021. From 25 December 2021, those who are medically exempt will need to verify their status using the NHS COVID Pass in the same way as those who are fully vaccinated.

To apply for an exemption, an individual must call the NHS COVID Pass service on 119 to ask for a medical exemption application form. It will not be possible to obtain this form from a GP. The possible reasons for medical exemption are limited. However, if eligible, the individual will receive an application form by post. The form must be returned to the GP or clinician specified in it and it will be clinically reviewed by the individual’s doctor, specialist or midwife. The individual will receive the result of the application automatically by post within two to three weeks.

The NHS COVID Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. It will not show that the user has a medical exemption. However, alongside the NHS COVID Pass, the individual will receive a confirmation letter which explains that they are unable to be vaccinated for medical reasons. The Exemptions guidance states that they must keep this letter and use it if they work or volunteer in a care home after 11 November 2021.