Employment Law Update | January 2021

Welcome to the latest edition of our employment law update.

Happy New Year from the Employment team. We hope you made it through 2020 safe and well and that 2021 will be a good year for us all (although it could have got off to a better start).

Our New Year’s resolution is to make sure we get a newsletter out to you each month, which sadly wasn’t always possible last year.

Below we’ve rounded up the most interesting things that have happened in the employment law world since our last newsletter and changes to look out for in 2021.

• • What will the National Minimum Wage be from April 2021?
  • What will maternity, paternity, adoption and sick pay increase to in April 2021?
  • Must agency workers be treated the same way as employed staff when it comes to vacancies?
  • Is someone who identifies as non-binary or gender fluid protected by the Equality Act?
  • Is someone who believes that sex and gender are set at birth and can’t be changed protected under the Equality Act?
  • Are your post termination restrictions enforceable?
  • Is the Government planning to change the rules on non-compete clauses?
  • Do we have to report our gender pay gap in 2021?
  • How long does ACAS Early Conciliation last?
  • Do employment tribunals make the losing party pay the other side’s costs?
  • Might you be liable for an employee’s prank that goes wrong?
  • Do you need to carry out a risk assessment for workers?
  • Are employers’ reducing salaries?
  • Can you include clauses in your contracts of employment preventing employees working elsewhere while employed by you?
  • Does homeworking improve productivity?

As always please don’t hesitate to contact James Austin or Gemma Sherbourne if you have any questions or queries of the issues raised in this update.

What will the National Minimum Wage be from April 2021?

In addition to increases to the minimum hourly rates from April 2021, the National Living Wage (which currently applies to workers aged 25 or over) will apply to employees aged 23 and over. The new rates will be:

• Age 23 or over (NLW rate): £8.91 (up from £8.72).
• Age 21 to 22: £8.36 (up from £8.20).
• Age 18 to 20: £6.56 (up from £6.45).
• Age 16 to 17: £4.62 (up from £4.55).
• Apprentice rate: £4.30 (up from £4.15).

What will maternity, paternity, adoption and sick pay increase to in April 2021?

The Department for Work and Pensions (DWP) has published the proposed weekly rates which are expected to apply from 5 April 2021:

• Statutory sick pay: £96.35.
• Statutory maternity pay and maternity allowance: £151.97.
• Statutory paternity pay: £151.97
• Statutory shared parental pay: £151.97.
• Statutory adoption pay: £151.97.

We’ll let you know once the rates are confirmed.

Must agency workers be treated the same way as employed staff when it comes to vacancies?

The EAT in Angard Staffing Solutions Ltd and another v Kocur and another, has stated that while the Agency Workers Regulations require employers to inform agency workers of vacancies, that does not mean they are entitled to apply and be considered for vacancies on the same terms as employees.

The EAT also held that there was no breach of the equal treatment principle when agency workers had shifts that were 12 minutes longer than employees, nor in employees being offered overtime first.

Is someone who identifies as non-binary or gender fluid protected by the Equality Act?

The question was considered by an employment tribunal in Taylor v Jaguar Land Rover Ltd. Ms Taylor identified as gender fluid/non-binary and usually dressed in women’s clothing. She alleged that she was subjected to insults and abusive jokes as a result. The tribunal had to consider whether Ms Taylor qualified for protection under the protected characteristic of gender reassignment. The Equality Act states that “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.” The tribunal found that definition included people who were gender-fluid or non-binary, so Ms Taylor was entitled to protection under the Equality Act.

Is someone who believes that sex and gender are set at birth and can’t be changed protected under the Equality Act?

This question was considered in Higgs v Farmor’s School. Miss Higgs worked in a school providing pastoral support to children. She re-posted an article on Facebook (that had been written by a third party) which referred to gender fluidity as a "perverted vision" and that "the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness". Miss Higgs was dismissed for gross misconduct for breaching the school's conduct policy, including in relation to discrimination and serious inappropriate use of social media.

Miss Higgs (a Christian) brought a tribunal claim alleging she had been directly discriminated against and harassed on the ground of religion, and that her beliefs had led to this treatment. An employment tribunal found that her beliefs that gender cannot be fluid and that someone cannot change their biological sex were protected, but that she had not been directly discriminated against or harassed as a result of those beliefs.

Are your post termination restrictions enforceable?

Contracts of employment can include clauses stating that an employee cannot work for a competitor for a set period of time and/or cannot deal with or seek to deal with their employer’s clients for a set time after they leave. In essence, whether these are found to be enforceable will depend on whether an employer can persuade a court that they do no more than is reasonable to protect their business.

The High Court recently considered whether restrictive covenants in a financial adviser’s contract were enforceable in Quilter Private Client Advisers Ltd v Falconer and another. The employee was employed to take over an existing book of clients. Her contract of employment included a clause aiming to prevent her from competing with the company anywhere in the UK for a nine month period, as well as clauses aimed at preventing her from dealing with or soliciting work from clients for 12 months after she left. She left after six months, joined a competitor and tried to use confidential information she had taken with her to entice clients of her former employer to join her.

The High Court held that the restrictive covenants were void: a nationwide non-compete clause was too wide and should only have covered the area in which she had worked, and the non-deal and non-solicit clauses were unreasonable as they included clients who had left before she joined and clients she had not worked with. The High Court also stated that an employee who is only employed for a short period is much less of a threat than one who has been employed for a long time and been able to form relationships with clients.

This is a good reminder that restrictive covenants need to be bespoke and should aim to only restrict dealing with or soliciting from clients that the employee has dealt with during their employment.

Is the Government planning to change the rules on non-compete clauses?

The Government is currently consulting on whether to introduce restrictions on non-compete clauses including a maximum length of time they can apply for or a requirement for the employer to continue to pay the employee a set amount whilst the non-compete clause restricts them.

The consultation also asks for views on whether measures should be introduced to restrict the use of other post-termination restrictive covenants, such as non-solicitation, non-dealing, non-poaching and goodwill protection clauses.

As always we’ll let you know if the rules change.

Do we have to report our gender pay gap in 2021?

The suspension of gender pay gap reporting in 2020 was a one-off so employers of 250 or more employees will have to report their gender pay gap for 2020 by 4 April 2021. If you fall into that category you may want to review the new guidance provided by the Government which you can access here

How long does ACAS Early Conciliation last?

As of 1 December 2020 the Early Conciliation period has increased to six weeks (from the previous one month). In truth this should make little difference in practice as conciliators have always had the power to extend the conciliation period by up to two weeks and the conciliation period should end earlier for claims that have no prospect of settling, but it may make some people feel they have longer to try and settle the claim. This could be welcome news for employment tribunals as the latest statistics show that the number of claims has risen to its highest level since 2013/2014.

Do employment tribunals make the losing party pay the other side’s costs?

It’s by no means standard practice, but employment tribunals can order a party to pay the other side’s costs. When this does happen it’s often only for a modest sum, but in the recent case of Tan v Copthorne Hotels, a claimant was ordered to pay £432,000 of the employer’s costs. The employee had unsuccessfully brought claims of unfair dismissal, age discrimination, race discrimination, sex discrimination, victimisation, harassment, whistleblowing detriment and unfair deduction from wages following a redundancy process. The tribunal had found that the employee had been "duplicitous" and had undermined the trust and confidence between himself and his employer, which assisted with the finding that costs should be paid.

Might you be liable for an employee’s prank that goes wrong?

In Chell v Tarmac Cement and Lime Ltd, as a practical joke, one of the employer's employees brought some pellet targets to work and hit them with a hammer causing them to explode. This led to Mr Chell (a contractor) suffering a perforated eardrum, hearing loss and tinnitus. Mr Chell claimed the employer was vicariously liable for the employee’s actions and directly responsible for his injuries, by breaching its duty of care and failing to provide a safe working environment.

The High Court held the employer was not negligent. It held that there was no foreseeable risk of injury in this way and that the employer was not required to implement a health and safety policy covering off such behaviour.

Despite the outcome in this case it is, of course, best to try and cover off as many eventualities as possible in any risk assessment and health and safety policy, as we have seen similar cases result in the employer being found liable.

Do you need to carry out a risk assessment for workers?

There is a legal requirement to risk assess your workplace, but given the current situation it’s never been more important that you make sure your assessments are up to date.

Researchers at the St John’s Institute of Dermatology at Guy’s Hospital in London have suggested that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of COVID-19. They have suggested that employers take this into account when conducting risk assessments.

Are employers’ reducing salaries?

In a survey for The Times, the Chartered Management Institute found that 18% of employers have been forced to make pay cuts as a result of the economic crisis caused by the pandemic. 30% of employers said they would consider making pay cuts in the future in order to remain viable, while 52% of organisations stated that they would not reduce employees' pay in any circumstances.

It remains to be seen whether the extension of the furlough scheme will prevent/delay any further pay cuts.

It’s also important to note that simply imposing a pay cut on employees can lead to claims of unfair dismissal and/or unlawful deductions from wages. It’s important to approach any proposed pay cut in the correct way in order to reduce the prospects of such a claim. Contact us if you need any guidance on dealing with this tricky area.

Can you include clauses in your contracts of employment preventing employees working elsewhere while employed by you?

At the moment “exclusivity clauses”, i.e. clauses aimed at preventing an employee (or worker) from working for anyone else are only banned in zero hours contracts. The Government is consulting on whether the ban should be extended to cover those earning under the Lower Earnings Limit which is currently £120 a week.

Does homeworking improve productivity?

Over the last nine or so months most of us have tried homeworking and many of us are still doing it, but is it good for business? A recent CIPD report based on a YouGov poll of over 1,000 employers revealed that 28% of employers reported a rise in employee productivity and 38% reported greater employee focus as a result. Other research has shown that the number of remote jobs being advertised has risen by 147% and the number of searches for jobs allowing remote working has risen by 660%. So it looks as though many industries are embracing homeworking. We are even seeing new jobs like “Head of Remote” being advertised (in my house that title relates more to who controls the TV).

Of course the impact of homeworking differs from industry to industry and even from job to job. Some jobs simply can’t be done at home, whilst others require supervision or assistance that can’t be properly provided when working at home. Let us know if you want to get workers back to into the workplace now that lockdown has ended, but are not sure how to approach it.