Employment Law Review - October 2021

Welcome to our employment law update bringing you up to speed with this month’s key cases and developments.

• COVID-19 developments

• Pay offer outside of collective bargaining arrangements was unlawful

• World Menopause Day

• Menopausal symptoms and protection from discrimination

• Legislation to ensure workers to receive all tips

• National Minimum Wage increases

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COVID-19 developments

• Guidance for pregnant women – Previously employers have treated pregnant women beyond 28 weeks in a similar way to those who are shielding because of the risk of complications from COVID-19. The Government guidance for pregnant women has now been updated; it states that as shielding has ended people considered to be clinically extremely vulnerable, including women who are pregnant with significant congenital or acquired heart disease, would not be advised to shield again. The updated guidance now covers women at any stage of gestation (without reference to 28 weeks) but differentiates between those who are vaccinated and those who are unvaccinated (or not fully vaccinated). A risk assessment must be carried out and if workplace risks cannot be removed or managed, a pregnant worker should be suspended on paid leave. If there are no workplace risks, a pregnant worker can continue working beyond 28 weeks. The guidance places more much onus on the employee, advising women who are pregnant and unvaccinated to take a more cautious approach. Employers should also be mindful of the heightened risk for unvaccinated pregnant workers.

• Mandatory COVID-19 vaccines – Regulations mandating COVID-19 vaccines for those entering care homes, unless exempt, will take effect on 11 November 2021. The Government has recently published guidance on how those who are exempt can apply for proof that they have a medical reason not to be vaccinated, along with a list of possible reasons for exemption. It makes clear that pregnant women can apply for an exemption but that this exemption will expire 16 weeks after the birth of the baby. Until 24 December 2021 care staff can self-certify that they are medically exempt. The consultation on whether a mandatory COVID-19 and flu vaccination requirement should apply to frontline health and care workers in England closed on 22 October 2021.  The Department for Health and Social Care published its response on 9 November 2021 confirming that all those that are deployed in respect of a CQC regulated activity and who have direct contact with patients must be vaccinated against COVID-19 by April 2022.

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

Pay offer outside of collective bargaining arrangements was unlawful

The Supreme Court has concluded that an employer breached s145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) when it made a pay offer to employees while the collective bargaining process was still ongoing.S145B of TULRCA 1992 prohibits employers from inducing workers to opt out of collective bargaining and is intended to stop employers from making an offer to a trade union member which may result in either all of their terms, or some of them, no longer being determined by collective agreement. A breach of this legislation imposes a penalty on employers which, at the current rates, is in excess of £4,000 per employee. Kostal recognised Unite for collective bargaining purposes and agreed to engage in annual pay negotiations with the union. Kostal put forward a pay offer providing a 2% increase in basic pay and a Christmas bonus in exchange for reductions in Sunday overtime and certain sick pay rights. Unite did not support this deal and following a ballot, 80% of its members rejected it. Kostal then wrote to its employees directly offering them the same terms. The letter made it clear that any employees who rejected this offer would not receive the Christmas bonus, even if a revised offer was later agreed with Unite. 55 employees who were also Unite members brought Employment Tribunal claims, alleging that the offer constituted an unlawful attempt by Kostal to induce them to opt out of collective bargaining, contrary to s145B. The Supreme Court concluded that Kostal was in breach of s145B.This decision brings some clarity to collective bargaining for employers with unionised workforces. Employers must follow and exhaust the collective bargaining processes with their recognised trade union before they may make any direct offers to employees with a view to resolving an impasse that has arisen. 

World Menopause Day

18 October 2021 marked World Menopause Day. Led by the International Menopause Society, the purpose of the day is to raise awareness about menopause and improve support for those experiencing the menopause. To mark World Menopause Day Freeths hosted a webinar and were delighted to be joined by Deborah Garlick, director at Henpicked. Deborah shared her insights and highlighted why breaking down the taboo around menopause is a critical workplace issue. She explored the impact of menopause on work and personal lives together with some practical steps that employers can take to support and retain menopausal women. Supporting employees who have a health condition, such as the menopause, while at work provides many benefits for organisations, including long-term retention, increased motivation and productivity and an improved company reputation. You can watch our webinar back here. If you would like support with developing a menopause policy, please contact us. 

Menopausal symptoms and protection from discrimination

The Employment Appeal Tribunal (EAT) has concluded that an Employment Tribunal (ET) erred in law by concluding that a Claimant suffering from severe menopausal symptoms was not disabled. This is an important decision with the current focus on menopause in the workplace. In order to bring claims, menopausal women currently have to rely on sex, age and/or disability discrimination under the Equality Act 2010. Disability includes a physical or mental, long-term condition that has a significant impact on an individual’s day to day activities. The Equality Act provides disabled individuals protection from discrimination and also requires employers to make reasonable adjustments to address any disadvantage that they might face. Ms Rooney worked with Leicester City Council as a social worker. She resigned in 2018 as a result of being subject to unfavourable treatment while she was experiencing the menopause. She bought claims, including a disability discrimination claim. She had suffered with the physical, mental and psychological effects of the menopause for two years and suffered from severe peri-menopausal symptoms. She also spent prolonged periods in bed due to exhaustion. The ET said that her menopausal symptoms were not a disability because they were not long-term and did not have a substantial adverse effect on her ability to carry out normal day- to-day activities. The EAT concluded that the ET had not provided adequate reasons for striking out Ms Rooney’s disability discrimination claim and had also focused on what Ms Rooney was able to do, rather than on what she could not do. Call for change: The Women and Equalities Committee has recently concluded a call for evidence considering the extent to which menopausal women face discrimination at work. One of the options being considered is whether menopause should be added as a stand-alone protected characteristic under the Equality Act 2010. 

Legislation to ensure workers to receive all tips

The Government has recently published its response to the 2016 consultation on whether tips and gratuities should go direct to staff without deductions (other than for tax and NI). It has confirmed that it will introduce legislation to ensure that tips left for workers go to them in full. The legislation will require employers to:

• pass on tips to workers without any deductions (other than those required by law);

• distribute tips in a way that is fair and transparent;

• have a written policy on tips and keep records of how tips have been distributed;

• distribute tips to staff within a specific timeframe (no later than the end of the month following the month in which it was paid by the customer);

• allow workers to make a request for information about their employer’s tipping record and require employers to respond within four weeks; and

• comply with a statutory Code of Practice on tipping.

It appears that employers that ignore the new rules may be subject to a fine and that workers can also complain to an employment tribunal. Although the legislation has not yet been published, it’s important that employers start thinking about how they will comply with these new requirements especially around the time limits and transparency. 

National Minimum Wage increases

The Government has recently accepted the Low Pay Commission's recommendations for new National Minimum Wage (NMW) rates. The new rates are effective from April 2022:

• 16-17: £4.81 (up from £4.62)
• 18-20: £6.83 (up from £6.56)
• 21-22: £9.18 (up from £8.36)
• Over 23: £9.50 (up from £8.91)
• Apprentice rate: £4.81 (up from £4.30)

The NMW increases in particular for the over 23s, will mean that NMW legislation will apply to many more employees. Employers should be aware that the rate rises won't be confined to hourly paid employees; the new higher rates bring more salaried employees close to the minimum. Employers will need to be aware of the complexities of NMW calculations for example, innocent breaches such as deductions for salary sacrifice schemes may bring pay lower than NMW.