Employment Law Update - April 2022

Welcome to our April Employment Law update. In this month's update, we concentrate on guidance issued in a number of areas: reducing the spread of respiratory infections in the workplace, guidance for providers of single sex services and guidance on the levels of discrimination awards for injury to feelings. We also anticipate the proposed Code of Practice on “fire and re-hire” practices.

• Government announcement that it will be issuing a Statutory Code on fire and rehire practices
• New EHRC guidance published for providers of single sex services
• New UKHSA Guidance for Reducing the spread of respiratory infections in the workplace
• The new Vento bands for discrimination awards for injury to feelings
• Employment status case:  Waters v The Mote CC

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Government announcement that it will be issuing a Statutory Code on fire and rehire practices

On 29 March 2022, the Government announced that a new Statutory Code of Practice will be published on the practice of “fire and rehire”, with guidance on how to engage in meaningful consultation with employees when seeking to implement changes to employment contracts by way of terminating existing contracts and offering to re-engage on new terms. The new Code, which is yet to be published, is expected to detail how businesses must hold fair, transparent and meaningful consultations on proposed changes to employment terms. Additionally, the Code is expected to provide practical steps for employers to follow. As a statutory Code, tribunals and courts will be required to take it into account when considering relevant cases. Where applicable, an uplift of up to 25% of an employee's compensation may be added where the Code applies, and if the employer unreasonably fails to follow it.

New EHRC guidance published for providers of single sex services

On 4 April 2022, the Equality and Human Rights Commission (EHRC) published a practical guide to help service providers to make lawful decisions about any services they offer to women and men separately by explaining the legal justifications for sex and gender reassignment exceptions in the Equality Act 2010.The guidance confirms that service providers wishing to limit services to a single sex are legally able to do so, provided the reasons are justified and a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. Furthermore, the guidance advises organisations such as hospitals, retailers, hospitality and sports clubs to put in place policies that are both legal and balance the needs of different groups. It recognises that there are circumstances where a lawfully established separate or single sex provider can exclude, modify or limit access their service for trans people. This is the first time the EHRC has published guidance with specific examples related to the circumstances where access for trans people to single sex spaces can be modified or limited in England, Scotland and Wales.  The guidance has been criticised in some quarters as not reflecting the law and potentially leading to some service providers acting unlawfully. For access to the full guidance document, click here.

New UKHSA Guidance for Reducing the spread of respiratory infections in the workplace

On 1 April 2022, the UK Health Security Agency (UKHSA) published new public health principles for reducing the spread of respiratory infections, including COVID-19, in the workplace. This guidance is important for employers to consider with the removal of free COVID-19 tests as part of the Government's long-term strategy of 'Living with Covid'. The guidance details the various symptoms and signs of respiratory illnesses that staff and employers should be aware of in order to reduce the risk of spreading infections amongst the workplace, whilst also exploring the options available for employers to take in order to reduce the spread of such illnesses. The suggested steps proposed in the guidance are as follows:

• Encouraging and enabling vaccination,
• Letting fresh air in,
• Maintaining a clean workplace, and;
• Mitigating outbreaks in the workplace.

The document also provides guidance for employers to appropriately protect those who may continue to be at a greater risk of serious illness from respiratory illnesses like COVID-19, and discusses how employers should proceed with risk assessments after the removal of the requirement to explicitly consider COVID-19 in an employer's health and safety risk assessment. You can find the full guidance document on the Government website here.

The new Vento bands for discrimination awards for injury to feelings

From 6 April 2022, the amount that can be awarded for injury to feelings compensation has increased, as highlighted in updated guidance issued by the Presidents of the Employment Tribunals in England, Wales and Scotland. The bands for injury to feelings compensation, also known as the Vento bands, determine how much compensation an employee should receive as a result of an injury to feelings award. All three bands (Lower, Middle and Upper) have had increases, and the changes are as follows:

• Lower Band: £990 to £9,900 (£800 increase of the upper limit);
• Middle Band: £9,900 to £29,600 (£2,200 increase of the upper limit); and
• Upper band: £29,600 to £49,300 (£3,700 increase of the upper limit).

These bands provide employers with useful guidance as how best to assess the risks of losing a discrimination claim.

Employment status case: Waters v The Mote CC

In this case, the Claimant ran a gardening business and took on the ground management contract of a cricket club he had been an active member of over the years. Within the contract, there was a requirement that he personally should provide work for a minimum of 40 hours a week during summer. After discontent from the Claimant, the club gave notice to terminate his contract two years after its commencement. At a preliminary hearing, the Employment Judge held that the Claimant was neither a worker nor an employee, and, in his appeal, HHJ James Tayler agreed with that conclusion noting that an “agreement to do work personally does not necessarily make a person an employee”. The EAT agreed with the Tribunal, and held that the Claimant was not an employee. The EAT provided that, despite some of the work having to be undertaken personally by Mr Waters, it did not necessarily make an individual an employee. The Claimant was able to delegate some of the work to someone else, and perform work for other clients whilst performing his contractual obligations for the Club at the same time. These factors pointed away from an employment or worker relationship between the Club and the Claimant. The significance of this case is clear for those wanting to engage independent contractors. Each business doing so should consider all circumstances of a case, and not just merely the terms of the contract.