Welcome to the July edition of the AdviserPlus newsletter.
This month’s newsletter will be looking at a further update to the ‘fire and re-hire’ debate and some other interesting cases coming out of the tribunals including; how individuals holding gender-critical beliefs may be protected under the Equality Act 2010 and how holiday pay for term-time workers should not be calculated as 12.07% of their annual earnings.
We will also take a look at what important changes are taking place in the EU from 1st August and how that may impact on us here in the UK in regard to transparent and predictable working conditions. In other news we will touch upon the High Potential Individual visa route impacting immigration and what Baroness Stedman-Scott, the Minister for Work and Pensions and Minister for Women, has to say regarding introducing menopause as a protected characteristic under the Equality Act 2010,
The Fire and Rehire Debate update
Last month the Court of Appeal (CA) overturned an injunction imposed by the High Court (HC) which had permanently prevented an employer proceeding with ‘fire and rehire’ proposals to remove a pay enhancement. While the case involved unusual facts and contractual terms, the CA decision appears to make it extremely difficult for workers and unions to obtain injunctions to prevent ‘fire and rehire’ dismissals, leaving workers with claims for wrongful dismissal and unfair dismissal. The case, (USDAW & Ors v Tesco Stores Ltd), highlights the legal, political and moral complexities surrounding ‘fire and rehire’.
‘Fire and rehire’ exercises are continuing to attract scrutiny and publicity for employers, and it is likely that litigation will continue to explore and develop the legal remedies available to workers and unions. Further legal changes are expected in the form of a Statutory Code proposed by Government, which is likely to detail how employers must hold “fair, transparent and meaningful consultations” on proposed contract changes or face a 25% uplift in compensation.
In the meantime, employers will need to continue to be mindful of the reputational and industrial relations risks in this area, as well as the potential legal liabilities.
Recent Case Law
Individuals holding gender-critical beliefs may be protected under the Equality Act 2010
In a recent tribunal case, an individual posted a series of opinions on her personal social media accounts in relation the amendments to the Gender Recognition Act. Her belief was that ‘biological sex is real, and not to be conflated with gender identity’. Her colleagues complained and stated that her comments were offensive and as a result her consultancy agreement was not renewed.
The tribunal found her beliefs amounted to a genuine philosophical belief for the purpose of the Equality Act and therefore the act protected her from being discriminated against, which they found, by her not having her consultancy agreement renewed because she voiced her beliefs, she had been discriminated against.
What can we learn from this finding? The freedom of expression needs to be balanced with respect for others’ beliefs and employers can try and address this through training and clear policies and most of all good communication including continual reminders around dignity at work and the ability to signpost and highlight to employees what to do and where to go for support if they have any concerns.
In a recent case the Supreme Court has ruled that holiday pay for a term-time worker with a year-round contract (a ‘part-time worker’) should not be calculated as 12.07% of their annual earnings. The case was Harpur Trust v Brazel, whereby the claimant claimed unlawful deduction of wages as the employer in 2011, changed the way they calculated holiday pay from an average of 12 weeks’ pay x 5.6 weeks to 12.07% of termly earnings which worked out as less money. Whilst the claimant initially lost the decision, this has been overturned at the EAT, the Court of Appeal and now the Supreme Court.
The correct method of calculation of weekly pay for a ‘part-year worker’ is as set out in s224 Employment Rights Act 1996. Weekly pay should be calculated as an average of the most recent 12 weeks of earnings, ignoring any weeks where earnings were zero (e.g. school holidays in this case). The Supreme Court noted that there is nothing in the Part-Time Workers Regulations which prohibits part-time workers from being treated more favourably than someone working throughout the year.
What’s coming up next Month
1st August 2022
Member States of the EU have until 1 August 2022 to implement the EU Directive on transparent and predictable working conditions to provide rights for workers to more foreseeable and secure working terms and arrangements.
Its provisions include a right to receive certain written terms within a week of engagement, a limit on the duration of probationary periods, restrictions on the use of exclusivity clauses, and a right to refuse a work assignment outside previously defined reference hours/days without suffering adverse consequences. Additionally, the EU Directive will introduce an obligation for employers to provide cost-free mandatory training to workers.
As the UK is no longer an EU member, the UK is not required to implement the EU Directive however, the UK does have existing legislation requiring employers to provide employees and workers with a written statement of particulars of employment at the outset of the employment relationship, the EU Directive goes further than the UK legislation in several respects. For example, the EU Directive requires employers to provide the key information within 7 days of the start of employment and any secondary information within the first month, whereas UK employers have two months to provide secondary information. Further, in the UK there are no limits on the duration of probation periods and generally no right to request to transition to a more predictable and secure position.
Once the EU Directive is implemented across the EU, the UK position will therefore be out of kilter with the rest of Europe. Businesses with European operations looking for consistency of approach to contractual arrangements with workers may therefore seek to “level-up” obligations across all operations, resulting in changes to UK practices.
The High Potential Individual visa route is a new visa route, which opened on 30 May 2022 and is designed to attract the most highly skilled individuals to come to the UK.
Individuals don’t need a job offer or a sponsor to apply. Instead, they will be eligible if they have graduated from a non-UK university on the UK Visas and Immigration (UKVI) global universities list for the relevant period and meet the English language and financial/maintenance requirements. This visa provides temporary permission to work for a period of 2 years (or 3 years for those with a PHD).
Applicants do need to have graduated from a qualifying university in the five years before they apply, meet English language requirements and, depending how long they have been in the UK, hold sufficient funds.
Baroness Stedman-Scott, the Minister for Work and Pensions and Minister for Women, has confirmed that the government is not currently planning to introduce menopause as a protected characteristic under the Equality Act 2010, or to implement dual discrimination. Stedman-Scott’s letter stated: “Our key objective is to ensure that women going through the menopause are treated fairly at work by ensuring that employers are fully aware of the challenges faced by these women and their current legal obligations, including under the act. Introducing menopause as a new protected characteristic in the act would require primary legislation and we have no current plans to revise the Equality Act 2010.”
Note: The above guidance was correct at the time of writing this article on 27/07/22. This does not constitute legal advice and is for information purposes only.
If you have any questions regarding the content of this newsletter or would like more information to support your business with the changes, please get in touch.