Employment Law Update – April 2021
Thursday 22nd April 2021
Statutory Limit Changes
A reminder that the following statutory limits have been increased as of 6th April 2021:
- Statutory payments for time off work
- National Minimum/Living Wage
- Compensation limits
- Payments on insolvency
- Discrimination compensation Vento bands
We have put together a fact sheet summarising these increases which can be found here.
Back to the office? What we know about the rules (or think we know) -V- the reality
From 29 March restrictions started easing, however many restrictions still remain in place and will do so for some weeks. There are many different rules and exceptions for various sectors, this summary focuses purely on the office environment.
On 22 February 2021 the government published its “Roadmap out of lockdown”. This is a 4-step approach to the removal of the restrictions under which we have all been working for months. The 4 key dates are:
- Step 1 – 8 March,
- Step 2 – not before 12 April,
- Step 3 – not before 17 May, and
- Step 4 – not before 21 June.
The government has been clear that in implementing its plan it will be “guided by data, not dates”, to minimise the risk of a surge in infections. So the dates in the roadmap are indicative and subject to change with a minimum of five weeks between each step:
- four weeks for the scientific data to reflect the changes in restrictions and to be analysed;
- followed by one week’s advance notice of the restrictions that will be eased.
We have already seen the levels of exuberance that lockdown easing generates with Step 2 seeing the re-opening of non-essential retail, hospitality venues and so on. Inevitably people hear something is changing next week and want to exercise the new freedom immediately. The risk and danger for employers is that they may seek to rush back to the office and encourage their staff to go back when in fact the rules haven’t relaxed enough. This could in turn generate its own problems especially with those among the workforce who are inevitably rather nervous. In all of this it is essential to be mindful that many people have suffered bereavements and will be understandably anxious. The last thing we need is conflict and strife at a time when we want people happy to be returning.
So currently, what do the rules actually say if we work in an office? When is it our turn?
The provisions are clear: “You should continue to work from home if you can, minimise the number of journeys you make where possible, and follow the rules in the Coronavirus Restrictions guidance.”
The specific office and contact centre guidelines make it clear: “Office workers should work from home if they can. This guidance will remain in place until at least step 4 of the roadmap, when the work from home guidance will be considered as part of the wider review on social distancing. Employers should ensure workplaces are safe for anyone who cannot work from home.”
Before Step 4 begins [which will not be before 21 June] the government will complete a review of social distancing and other long-term measures that have been put in place to cut transmission. As well as informing decisions on the timing and circumstances under which various measures may be lifted, importantly this will also inform guidance on working from home.
It is clear then that the “work from home” rule will not be removed before 21 June 2021 at the earliest.
As to “those who cannot work from home”, employers should ensure workplaces are safe. This merely reflects the position as it has been for months now, that offices and contact centres can open under all 4 of the steps, only if you ensure they’re COVID-secure. So if you keep your office or other workplaces open, or if you are re-opening office premises as restrictions ease, then your organisation must ensure any employees working in the workplace stay protected and observe the guidance issued by the government in order to stay safe. For the majority of office workers it seems you strictly should wait until Step 4 of the road map. But don’t forget, the guidance is very repetitive in stressing throughout, “Office workers should continue to work from home where they can”.
Often the rationale for going back in is the need for meetings. The guidance covers meetings and specifically provides (among other things) that offices should:
- Utilise remote working tools to avoid in person meetings.
- Ensure participants should not physically attend meetings unless reasonably necessary and even then participants should maintain social distancing of 2m.
- Hold meetings outdoors whenever possible or in rooms where there is good ventilation through open doors, windows and vents, mechanical ventilation (such as air conditioning) or a combination of both.
What will make a meeting “reasonably necessary” is a matter for debate and something unlikely to be tested in the foreseeable future but, it clearly calls for a degree of common sense, especially where virtual alternatives are being used regularly anyway within an organisation.
A question asked of us in the last week or so was this:
“Are we ok to start a phased return now the messaging is changing from staying home to stay at home where possible? Even though we can work from home, it does impact us not being able to collaborate as well etc when all at home.”
Let us be clear: the message is not changing and hasn’t changed. The roadmap is clear and the updated position is stated at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/offices-and-contact-centres
Additionally, we were asked,
“Can people refuse to return and/or say they don’t want to return until they have had the vaccine?”
At the moment certainly, if their work can reasonably be done from home, then they can probably refuse to go into the office and it may well be unreasonable to force them to do otherwise until Step 4 of the roadmap is reached.
Please note: this summary is for general guidance only.
Retail workers and distribution workers can be compared for equal pay…
In Asda Stores v Brierley, the Supreme Court has confirmed that store employees could validly compare their terms and conditions with the distribution depot employees for the purpose of equal pay claims.
Over 35,000 of Asda’s retail store employees brought a claim against Asda, seeking compensation for receiving less pay than employees in Asda’s distribution depot. The employees in Asda’s stores were mostly female, compared to the employees in the distribution depots which were mostly male. The store employees argued that they were employed on “common terms” with the distribution employees, and thus were valid comparators in an equal pay claim. The key principle being tested was whether “common terms” were demonstrated between the Asda store employees and the distribution depot employees.
The Supreme Court held that the Court of Appeal was correct to reach the conclusion that the depot workers would remain on substantially common terms and conditions if they were, in theory, moved to work within its retail stores. Whilst the preliminary hurdle of whether the two groups of employees could be compared has been overcome, the retail store employees will now need to show whether or not they perform work of equal value in order to be successful in their claim for equal pay.
Companies must bear in mind that different roles, even in completely distinct parts of the business, may actually have terms similar enough to be classed as “common terms”. Companies will need to consider this when reviewing the terms and conditions (especially in relation to pay) that they are providing to different groups of employees. This is especially the case where different groups are substantially comprised of workers of the opposite sex, as in this case.
Sex discrimination: shared parental leave v adoption leave
A man on shared parental leave could not claim sex discrimination for being paid less than a woman on adoption leave, held the Employment Appeal Tribunal in Price v Powys County Council.
The claimant was an employee of Powys County Council. Once the claimant’s wife’s compulsory maternity leave had ended, the claimant began to take shared parental leave. The claimant received pay equal to statutory maternity pay, as per the Council’s policy. A female colleague of the claimant’s was also on adoption leave at the same time and was being paid full pay, as per the Council’s policy. The claimant thus compared himself to his female colleague and alleged direct sex discrimination on the basis he was being paid less than his female colleague.
The tribunal dismissed this claim on the basis that the comparator was wrong – the claimant would have needed to use the comparator of a woman also on shared parental leave. Furthermore, the tribunal listed several differences between employees on shared parental leave and adoption leave. The main reasoning for adoption leave differing to shared parental leave is the fact that its purposes go further than that of simply providing childcare. Adoption leave includes matters such as the forming of a parental bond, becoming a family, and taking steps to prepare and maintain an appropriate environment for the adopted child. The claim thus failed because it did not meet the requirement of s23 of the Equality Act 2010 which states there must be no material difference in circumstances between the claimant and his comparator which in this case, there was. A woman on shared parental leave would have been paid the same as the claimant and therefore his sex discrimination claim failed.
Employers do not necessarily need to harmonise their maternity/paternity/adoption/shared parental leave policies for the purposes of avoiding sex discrimination claims. However, employers should still be careful to ensure that differences in family friendly policies are not indirectly discriminatory.