Welcome to the October edition of the AdviserPlus newsletter.
In this month’s newsletter we highlight some of the key legislative developments around retained EU law and the Revocation and Reform Bill, as well as the repeal of the IR35 legislation.
We also explore some recent case law, including in more detail the ruling in the USDAW & Others vs Tesco Stores Ltd case, which has provided significant precedent regarding ‘fire and rehire’ dismissals and will make it extremely difficult for unions and workers to prevents these from happening moving forward.
Finally, there are some important key dates coming up in November that would be interesting and beneficial for businesses to explore, including National Stress Awareness Day, Islamophobia Awareness Month and Transgender Awareness Week.
Retained EU Law (Revocation and Reform) Bill:
This bill intends to revoke EU-derived legislation and hopefully reduce costs to the UK of up to £1 billion. Current timescales are to have this completed by 31st December 2023, unless the laws are otherwise retained.
There are multiple facets that need to be considered when dealing with this bill – not least of which is that there are pieces of EU-derived legislation that are deeply entwined with UK law, and it will be difficult to start separating these out. The UK also needs to be conscious of the Brexit Trade Agreement terms that were made with the EU. Whilst the UK are not obliged to keep track of future EU law, it is unclear how revoking certain employment rights introduced via EU-derived legislation would sit in that agreement.
For employers, this is one to watch as it could potentially have large consequences moving forward. Legislation such as Working Time Directive, which governs maximum working hours and holiday entitlements, and TUPE rules are EU-derived. Other familiar and embedded practices revolving around family friendly policies, diversity and inclusion and the protection rights of agency workers could all be affected dependant on the outputs of the bill.
Repeal of IR35
IR35, the off payroll working rules, have been around since the early 2000s. They were brought in to bring a sense of balance to workers who provide services via a third party (such as contactors, consultants, and freelancers) to ensure they were paying a similar amount of income tax and national insurance contributions as other employees. Reforms were made in 2017 and 2021 to put more responsibility on the client rather than the worker.
It has now been announced that from 6th April 2023, these reforms will be overturned, and the onus will once again be on the individual to be liable for accurately declaring their tax status and paying contributions appropriately.
Recent Case Law
Fire and rehire dismissals
The Court of Appeal has overturned a decision by the High Court to put a permanent injunction on an employer completing ‘fire and rehire’ dismissals. The decision will make it difficult for both unions and workers to prevent these types of dismissals from occurring.
This specific case (USDAW & Others vs Tesco Stores Ltd) involved the employer completing ‘fire and rehire’ dismissals to remove enhanced pay arrangements from contracts, with the contract stating the clause could only be removed by mutual agreement or if there was a promotion or shift change. The arrangement was described in collective agreements as a ‘permanent feature of an individual’s contractual eligibility’ and effectively suggested it was guaranteed for life.
The High Court found that an agreement like this could not be expected to last forever in reality. That being said, they found that it was inappropriate for the employer to use dismissal and re-engagement (‘fire and rehire’) to remove this from the contracts. The High Court imposed an injunction on the employer stopping them from continuing this, and the employer appealed.
The Court of Appeal did not dispute that the enhanced pay was incorporated in the contracts, and that many employees had benefitted from it for several years. The court however did not feel it met the well-established guidelines to protect the term regarding ‘fire and rehire’ processes. The Court of Appeals therefore removed the injunction. It is possible that the case will progress to the Supreme Court for further ruling.
Supporting a sports team is not a philosophical belief
McClung vs Doosan Babcock & Others has established that supporting a sports team is not akin to a philosophical belief. Mr McClung felt that they had been discriminated against for supporting Glasgow Rangers, and that a manager who supported the rival team Celtic FC has purposefully passed them over for work.
Mr McClung argued that their support of Glasgow Rangers should be treated as a philosophical belief – they had supported the team for 42 years, spent their disposable income on supporting the team by attending games and felt the club had played an intrinsic and massive part in their life by allowing them to create memories with their father and son. Mr McClung stated that supporting them was a way of life and attending the games was as important for him as a Christian attending church.
The judgement ultimately ruled that whilst Mc McClung’s support of the team was clear, it did not meet the parameters for this to be classed as a philosophical belief;
- The belief must not be an opinion or viewpoint
- The belief must be a substantial aspect of human life and behaviour
- The belief must have a certain level of cogency, seriousness, cohesion, and importance
- The belief must be worthy of respect in a democratic society and must not conflict the fundamental rights of others
Islamophobia Awareness Month
Islamophobia Awareness Month runs throughout November every year and aims to raise awareness of the discrimination Muslims continue to receive whilst also highlighting the positive contributions of the Islamic community.
The theme for 2022 is “Tackling Denial” with the supporting comment of “if you allow people to deny the very existence of Islamophobia, how can we begin to have a sensible conversation about it and therefore tackle this problem?”.
It is imperative to recognise that Islamophobia goes much deeper than the physical and verbal abuse that the community receive, and involves marginalisation and exclusion. Highlighting and tackling Islamophobia allows us to break down barriers and challenge incorrect stereotypes about the Muslim community.
Some key dates for your diaries;
- November 2022 – Movember
- 2nd November 2022 – National Stress Awareness Day
- 13th – 19th November 2022 – Transgender Awareness Week
- 19th November 2022 – International Men’s Day
Note: The above guidance was correct at the time of writing this article on 25/10/22. 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.