Employment Law Review – September 2021

Welcome to our employment law update bringing you up to speed with this month’s key COVID-19 developments. We also highlight some cases and developments that emphasise an employer’s responsibility around flexibility, support and employee wellbeing.

• COVID-19 developments

• Carers protected by indirect associative discrimination

• New right to carer’s leave

• New consultation published on a ‘day one’ right to work flexibly

• Push for mental health training for managers

• National Inclusion Week: On Demand webinars

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COVID-19 developments

• COVID-19 SSP rebate scheme ends – The COVID-19 SSP rebate scheme was introduced to allow eligible employers (those with fewer than 250 employees) to apply to HMRC for a reimbursement of SSP for COVID-19 related sickness absences. This relates to employees who are absent because they have tested positive, have COVID-19 symptoms, are self-isolating or shielding. This rebate scheme is now closed and eligible employers will only be able to claim for employees who were off work on or before 30 September 2021. Following this date, eligible employers can no longer claim a rebate in respect of SSP paid to employees. Employers have until 31 December 2021 to make any claims for eligible SSP costs incurred up to and including 30 September 2021. Going forward, employers will still be obliged to meet the costs of SSP and for Covid-19 related absences, employees are entitled to be paid SSP from the first day of their absence, rather than the fourth day following the removal of the ‘three day rule’ for COVID-19 related absences. It is useful to remember that an employee must be self-isolating for four days or more to be eligible for SSP. However, once that threshold is met they will be eligible to be paid SSP from day one of their absence.

• Mandatory COVID-19 vaccines – Although a judicial review is in progress challenging the mandatory COVID-19 vaccine requirement for those entering care homes, a further consultation has been published by the Department of Health and Social Care on whether the mandatory vaccination requirement should be extended to frontline health and care workers in other settings in England. The consultation also considers whether flu vaccinations should be required for these workers. The consultation is due close on 22 October 2021.

• COVID-19 Autumn and Winter Plan – Employers need to be aware of a number of steps outlined in Plan B of the Government’s Autumn and Winter Plan which may be implemented to help control transmission of the virus over the winter months. The potential measures set out are legally mandating face coverings in certain settings and also requesting people to return to working from home if they can, but for a limited period of time. This means employers may need to change their back to the workplace guidance at short notice.

You can keep up to date with all the latest Coronavirus developments on our Coronavirus Exchange. 

Carers protected by indirect associative discrimination

The Employment Tribunal (ET) has decided that an employer's requirement for a senior manager to no longer work from home amounted to indirect disability discrimination by association, based on the Claimant’s association with her disabled mother. The Equality Act 2010 allows workers to bring direct disability discrimination claims where they themselves are not disabled, but have been treated less favourably because of the disability of someone they are associated with e.g. a worker who cares for a disabled family member. Until now, the ET has not considered whether a claim of indirect disability discrimination can apply where the worker is not disabled, but associated with someone who is. Mrs Follows was the primary carer for her disabled mother and was employed on a homeworker contract; she did attend the office on two or three days a week. In 2017 Nationwide decided to reduce the number of Senior Lending Managers and make all remaining roles office-based for supervision purposes. Mrs Follows felt her working arrangement should continue, however, was subsequently made redundant. The ET applied a decision of the European Court; that the concept of associative discrimination could extend to indirect discrimination. The ET accepted that carers for disabled people are less likely to be able to satisfy a requirement to be office-based than non-carers, and that requirement put Mrs Follows at a substantial disadvantage because of her association with her mother’s disability. This case highlights the need for employers to be mindful towards staff who take on caring responsibilities. In our recent webinar on inclusive hybrid working we highlighted ONS data which demonstrates that as the UK population gets older, an increasing number of workers are providing care towards the end of their working life for family members. One in four older female workers, and one in eight older male workers, have caring responsibilities. Pre-pandemic ONS data also shows that employees who mainly worked from home were less than half as likely to be promoted and around 38% less likely to have received a bonus compared with those who never worked from home. Employers must carefully consider whether any new practices, criteria or policies (PCPs) could disadvantage workers as a result of their association with someone who has a protected characteristic; this is especially so as organisations look to embed hybrid working. Employers should also always consider whether the PCP would a proportionate means of achieving a legitimate aim. 

New right to carer’s leave

The Government has published its response to the consultation on ‘carer’s leave’ confirming that it will introduce a new ‘day one’ right to carer’s leave. The leave will consist of one week (five working days) of unpaid leave per year for employees managing long-term caring responsibilities alongside work. It is proposed that the leave will be available to take flexibly (i.e. from half-day blocks to a whole week) and will be introduced when Parliamentary time allows. 

New consultation published on a ‘day one’ right to work flexibly

A new consultation on making flexible working the default was published on 23 September. The consultation is open until 1 December and considers 5 key areas:

• making the right to request flexible working a day one right;

• whether the existing eight business reasons for refusing a flexible working request remain valid;

• requiring the employer to suggest alternatives;

• the current administrative process underpinning the right to request flexible working; and

• requesting temporary flexible working arrangements.

In the Good Work Plan (published in 2018) there was a suggestion that organisations would be required to publish flexible working policies. In response to this, the Government has confirmed that it will not be introducing a ‘one-size-fits-all’ approach to publishing a flexible working statement or policy, enforced by a legislative requirement. They will instead encourage and support publication of flexible working policies on a voluntary basis. 

Mental wellbeing at work: Push for mental health training for managers

Public Health England (PHE) and the National Institute for Health and Care Excellence (NICE) have published draft guidance on mental wellbeing at work which is now open for consultation. It recommends that employers should provide all line managers with training in mental health and wellbeing. The guidance is intended for employers, senior leadership teams and HR teams and refers to the latest evidence showing that less than a third of managers have received training on mental wellbeing at work. The guidance recommends that all managers are given time to attend relevant training sessions and that the training should equip managers with the knowledge, tools, skills and resources to improve awareness of mental wellbeing at work, promote mental wellbeing and improve communication between managers and employees. It also includes recommendations for organisational and individual-level approaches to mental wellbeing, employee engagement, and support in and outside the workplace. As many organisations move to a hybrid way of working, it is crucial for managers to be equipped with the knowledge and skills to support the mental wellbeing of their hybrid teams. It’s more important now, than ever, that managers are trained on the signs of poor mental health. Submissions are welcome from both individuals and organisations. If you would like to contribute to, or explore the recommendations addressed in the consultation, please contact us. The consultation is open until Friday 24 October 2021. 

National inclusion week: on demand webinars

We’re delighted to have been one of over 4,500 organisations celebrating National Inclusion Week this year. During the week we were joined by delegates from over 250 organisations to explore the theme of #UnitedForInclusion and discuss current Diversity and Inclusion issues facing organisations. Our webinars are now live and you can view them below.

• The cost of exclusion
• Menopause in the workplace
• Creating an inclusive hybrid workforce

A key theme that flowed through all the sessions was the importance of education, understanding and training. Many of our delegates have taken some really important and innovative steps in this area and we’re delighted to have supported some of them on this journey. The Freeths employment team has developed ‘Creating Inclusive Workplaces’ an eLearning course specifically designed as an introduction to Diversity and Inclusion for all staff within your organisation, which also explores concepts such as bias and allyship. You can see more information here. You see also can see details of our hybrid workforce training for people managers here.