Employment Law Update – June 2021
Wednesday 30th June 2021
New draft Right to Work guidance published
Many clients have asked us recently about the related issues of settled status and right to work (‘RTW’) in the UK checks. The two issues are different albeit related – settled status is a matter for the individual whereas right to work checks are very definitely the responsibility of the employer.
All employers have for many years had responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work here. The illegal working provisions of the Immigration, Asylum and Nationality Act 2006 (‘the Act’) came into force in 2008 and provided for heavy fines for employers who don’t carry out these requirements correctly. But employers have been waiting for updated guidance given that from 1 July 2021, EEA citizens and their family members require immigration status in the UK, in the same way as other foreign nationals.
The government published the updated guidance on 10 June 2021. This is simply a post-Brexit update as opposed to a whole new regime but it clarifies many of the issues that employers have been waiting to hear about.
The draft code of practice explains what most employers already know, that since Brexit and the end of free movement law in the UK on 31 December there followed a grace period of six-months (until 30 June 2021) during which relevant aspects of free movement law were saved to allow eligible EEA citizens and their family members resident in the UK by 31 December 2020 to apply to the EU Settlement Scheme. However from 1 July 2021, EEA citizens and their family members require immigration status in the UK, in the same way as other foreign nationals. They can no longer rely on an EEA passport or national identity card, to prove their right to work.
As it has always been, provided that before an employer takes on a new employee they complete the RTW check correctly and can adequately evidence they have done so, then, if it later transpires the employee did not have the legal RTW for them in the UK, the employer should have a statutory defence to the offence of employing someone illegally.
The draft code which will come into effect on 1 July 2021 covers the changes to the RTW checks for EEA/Swiss nationals. This date dovetails with the Settled Status deadline of 30 June 2021 which enables EEA/Swiss nationals and family members to remain living and working in the UK legally.
Importantly, the draft indicates that previous RTW checks do not need to be repeated so long as they were done properly at the time. It states, “Right to work checks which were carried out in the prescribed manner prior to this code having effect will be considered by the Secretary of State in line with the version of the code which was current at the time at which the right to work check was made.” It also makes clear that checks done pre-1 July 2021 for a start date after 1 July 2021 need only comply with the version of the code of practice in place at the time the RTW checks were made.
The code explains that since 28 January 2019, employers have had the option to conduct either a manual right to work check or an online right to work check in order to establish a statutory excuse against a civil penalty in the event that an employee is found to be working illegally. Increasingly, the Home Office is providing digital evidence of immigration status, rather than issuing physical documents. This means they will only be able to evidence their right to work using the Home Office online service. But this doesn’t apply to all employees or in all circumstances so the manual document-based system is still acceptable.
By way of reminder, employers must obtain original versions of one or more of the acceptable documents, check the documents in the presence of the holder of the documents and make copies of the documents, retain the copies and a record of the date on which the check was made. Additionally employers are responsible for checking documents are genuine, that that the person presenting them is the prospective employee or employee, that the photograph and dates of birth are consistent across documents and with the person’s appearance.
The lists of acceptable documents are still called List A and List B. List A sets out the acceptable documents to establish an ongoing statutory excuse. In other words, if the RTW check is made using a document from List A, no follow up check will be required. There are some additions to this list including Frontier Work Permits and Irish passports.
List B is the list for those employees who only have time limited permission to live and work in the UK and has a several additional documents for EEA/Swiss nationals. If an employer has made the RTW check using a List B document, they must diarise a follow up check at the appropriate time.
Home Office Employer Checking Service
The draft code sets out details of the Home Office Employer Checking Service and states that this can be used where an individual, “cannot provide the employer with any of the documents from List A or List B, but claims that:
• they have an ongoing immigration application or appeal with the Home Office
• their documents are with the Home Office, or
• they present other information indicating they are a long-term resident of the UK who arrived in the UK before 1988.”
It provides that the statutory excuse will continue from the expiry date of an existing employee’s leave for a further period of up to 28 days to enable the employer to obtain a Positive Verification Notice from the Employer Checking Service. However this ‘28-day period’ does not apply to checks carried out before the start of the employment. In those circumstances, the start date must be delayed: employment should not start until the employer has received a Positive Verification Notice from the Employer Checking Service.
Further changes to the draft code are not anticipated before the final version is published.
The draft code is available to view at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/991571/DRAFT_Code_of_practice_on_preventing_illegal_working_-_Web_Accessible.pdf
Whistle-stop tour of flexible working requests
With the end of the instruction to work from home where possible in sight, employers are expecting to see an increase in flexible working requests from their employees.
As these are made under statute, employers have an obligation to deal with them in a certain way.
Do you know how to handle flexible working requests?
What is a flexible working request?
Any employee with over 26 weeks’ service has the right to make a written request for flexible working to their employer.
The request can include asking for changes to:
- The hours they work;
- The times they work; or
- The place they work.
What are our obligations as an employer?
Once you receive a valid flexible working request, you must provide an outcome within 3 months. You must also deal with it in a reasonable manner; so you should not unreasonably delay.
You should invite the employee to a meeting to discuss their request as soon as possible (unless you intend to approve the request, in which case this is not necessary).
Your decision should be provided in writing and, if the request is refused, your reasoning given.
Be warned: an employee can make a claim to the Employment Tribunal if their request isn’t dealt with properly. The maximum award is 8 weeks’ pay.
You must also make sure that you do not handle flexible working requests in a discriminatory manner. For example, approving requests from women on the basis that they have childcare requirements, but refusing the same requests from men, would be direct sex discrimination.
Can we refuse a flexible working request?
Yes, you can refuse if one of the following reasons would apply:
- The burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work; or
- Planned structural changes.
If none of these reasons apply, you must approve the request.
What happens next?
If a flexible working arrangement is agreed, you should formally vary the terms of the employee’s contract of employment. The easiest way is likely to be a side letter setting out the changes, signed by the employee. This must be provided to the employee within 1 month of the changes taking effect.
If the flexible working request is refused, then the employee should be given the right to appeal.
Either way, the employee will not have a statutory right to make another request for the next 12 months.
Employees refusing to work due to COVID-19 must also take steps to protect themselves
An employee was held to not have been automatically unfairly dismissed in Accattatis v Fortuna Group (London) as he had not taken appropriate precautionary steps with regards to COVID-19 when he believed it was a serious and imminent threat preventing him from working.
Accattatis worked for a vendor and distributor of PPE where staff were considered ‘key workers’ meaning the company remained open during the first lockdown. The company took measures to protect their staff in line with government advice at the time. Accattatis isolated with COVID-19 symptoms in late March 2020 and refused to return to work. He requested on numerous occasions to be furloughed or to work from home as he was not comfortable using public transport to commute. His employer refused, stating his role could not be done from home and PPE was in extreme shortage so all staff were needed in work. Accattatis emailed his employer stating that the HMRC advice line had confirmed that he was eligible for furlough. He was dismissed by email in reply and so Accattatis brought a claim of automatic unfair dismissal.
The Employment Tribunal considered that given the government announcements at the time, Accattatis could reasonably have believed that COVID-19 was a serious and imminent threat. However, it was held he had not taken any appropriate steps to protect himself. Demanding that he work from home was not appropriate given the nature of his job, and nor was demanding furlough when ineligible. Accattatis only made vague references to his concerns about returning to work and did nothing to explore any mitigation of these concerns. His main concern was loss of income. The Tribunal did note, however, that if Accattatis had the requisite 2 years employment, he would have been unfairly dismissed due to the lack of disciplinary policy followed by his employer.
This decision is not binding but employers should note that employees who refuse to come to work due to COVID-19 (or for any other health and safety reason) must be able to clearly explain why they think their workplace poses a serious and imminent threat to their health. They must also be willing to take appropriate precautions themselves. In situations where the employee has more than 2 years’ service, employers must ensure they follow a fair procedure or risk claims of unfair dismissal.
Are employees on sick leave allowed to go to the pub?
An employee was found to have been unfairly dismissed after being seen visiting a pub whilst on sick leave, as held in Kane v Debmat Surfacing Ltd.
Kane was employed as a driver for Debmat and went on a period of sick leave relating to his chronic obstructive pulmonary disease (COPD). On the first day of his sick leave, a colleague saw Kane in the pub and reported him to management. Kane later returned a call to his employer, stating he had been in bed all day. Upon returning to work, Kane was informed that he was being investigated. No witness accounts were taken and at the investigation meeting, Kane was questioned by the same colleague who had witnessed him in the pub.
Kane was dismissed at a disciplinary hearing on the basis that he had been dishonest about visiting the pub and that he had breached company rules by drinking in the pub while on sick leave. Kane appealed on the grounds that his disciplinary outcome listed incorrect dates and that others had done the same while being on sick leave but had not been dismissed. The appeal was unsuccessful so Kane brought a claim to the Tribunal for unfair dismissal.
The Employment Tribunal held Kane had been unfairly dismissed. It stated that the disciplinary procedure had not been fair and the investigation into Kane’s behaviour was insufficient. Debmat took no witness accounts causing confusion about dates and times, assumptions about Kane’s health had been made without further enquiry and the investigation simply consisted of speaking to Kane prior to the disciplinary hearing. The investigation and the disciplinary hearing had not been dealt with by impartial staff members and although an appeal was offered, the inconsistent treatment that Kane complained of was not adequately investigated. The Employment Tribunal also highlighted that there was nothing in the company’s disciplinary policy to prevent an employee going to the pub while off work sick.
This decision emphasises the need for employers to make sure their disciplinary process is fair and impartial, and that their investigations are thorough. It also highlights the importance of ensuring that disciplinary policies are up to date and that they actually reflect the behaviour the employer considers inappropriate. Dismissal for behaviours not prohibited are likely to be unfair.
Controversial beliefs can still be protected by Equality Act 2010
The opinion that sex is immutable and binary is capable of being a philosophical belief protected by the Equality Act 2010, as was held by the Employment Appeal Tribunal in the case of Forstater v CGD Europe and others.
Forstater was a visiting consultant at a think tank (CDGE). On the back of the proposed changes to the Gender Recognition Act, Forstater discussed via social media her belief that sex is an unchangeable reality which should not be conflated with gender. This offended some of her colleagues and her consultancy agreement was not renewed as a result.
Forstater brought a discrimination claim to the Employment Tribunal on the basis that her gender-critical views were a ‘philosophical belief’ protected by the Equality Act 2010. The Employment Tribunal stated her opinions were not a protected ‘philosophical belief’ as they were not worthy of respect in a democratic society. However, she successfully appealed to the Employment Appeal Tribunal who overturned the decision.
The Employment Appeal Tribunal held that the test for a protected ‘philosophical belief’ had been applied incorrectly by the Employment Tribunal. Furthermore, they highlighted that although Forstater’s opinions were offensive to some, her opinion was genuinely and widely held, it related to a substantial aspect of human life, and it did not seek to destroy the rights of transgender people. Therefore, Forstater’s opinion was a philosophical belief protected by the Equality Act and the failure to renew her contract had been discriminatory.
Employers should give careful consideration and seek advice before taking disciplinary action for the expression of opinions such as these. What constitutes a protected philosophical belief is fact specific. The important note for employers is that where an employee shares a belief that some people find controversial or offensive (which does not in itself amount to harassment or discrimination), in some circumstances it will amount to a protected philosophical belief and the employee is protected from suffering detriment as a result.