News & Updates

Employment Briefing – October 2021

Martin Stephen

Published byMartin Stephen

1st November 2021

Employment Briefing – October 2021

Welcome to October’s Employment news briefing, providing a summary of some of the recent employment judgements and updates.


If you have any questions about any of the topics covered, or would like to discuss anything, please call Martin Stephen on 0141 248 3434 or email mss@wjm.co.uk

 

Further update: Covid-19 adjusted Right to Work Checks

In August, the UK Government announced that the end date for the temporary COVID-19 adjusted right to work checks has been deferred to 5 April 2022 (inclusive). As previously mentioned, this allows employers to carry out right to work checks over video calls, and enables job applicants to send scanned copies of identity documents.

Please note that new guidance will be issued ahead of 6 April 2022, when the temporary adjustment to right to work checks end.

Further information on this can be found at the following government page: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks#history

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Changes to the National Living and Minimum Wage

On 27th October 2021, the Chancellor of the Exchequer unveiled the Autumn Budget, which set out, amongst other things, changes to the national living and minimum wage. The new budget notes that from 1st April 2022, the national living wage to be paid to workers aged 23 and over will increase 59p, from £8.91 per hour to £9.50 per hour. The national minimum wage (for those aged 22 to at least school leaving age) will also rise, however, the hourly rate to be paid will depend upon the age bracket a person falls within.

From 1st April 2022, the national minimum wage will increase as follows:

• For those aged 21 to 22: increase from £8.36 to £9.18;
• For those aged 18 to 20: increase of £6.56 to £6.83;
• For those under 18: increase of £4.62 to £4.81; and
• For Apprentices: increase of £4.30 to £4.81.

Accordingly, from 1st April 2022, businesses must ensure that they are complying with the above changes and pay their employees the revised hourly wages, as set out above.

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Assessing a ‘qualifying disclosure’ in whistleblowing cases

In a recent Employment Appeal Tribunal (“EAT”) case, the tribunal underlined the importance of adopting a structured approach when assessing qualifying disclosures (i.e. the types of disclosure that are eligible for protection under the Employment Rights Act 1996) in whistleblowing cases.

In the case of Martin v London Borough of Southwark the tribunal held that the ‘qualifying disclosures’ relied upon by the claimant, were not qualifying disclosures at all and as such, dismissed the claim that the claimant had suffered a detriment at work. In coming to its conclusion, the tribunal set out the following 5-stage test that must be used in determining if there has been a protected disclosure:

1) It is essential that there is a disclosure of information;
2) The whistle-blower must believe that the disclosure of such information is made in the public interest;
3) The whistle-blower’s belief that the disclosure is made in the public interest, must be reasonably held;
4) The whistle-blower must believe that the disclosure tends to show one or more of the ‘relevant failures’ set out under s43B(1)(a)-(f) Employment Rights Act 1996, for example, miscarriage of justice, breach of a legal obligation, etc.; and
5) The whistle-blower’s belief of such must be reasonably held.

The EAT highlighted the importance of adopting a structured approach when analysing this test, ensuring that tribunals work through each stage, step-by-step. The tribunal said that in doing so, it makes it clear which elements of the test are met and which are not, and therefore whether we are dealing with a protected disclosure which will then provide the whistle blower with protection under the Employment Rights Act 1996.

It’s noteworthy that the EAT also stressed the importance of the disclosure being factual and specific enough to bring it within the terms of s43B(1)(a) - (f) Employment Rights Act 1996.

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Why a recent employment tribunal dismissed a disability discrimination claim

The Employment Appeal Tribunal (“EAT”) recently upheld a tribunals decision to dismiss a discrimination claim brought by a former employee of a company following her dismissal, in the case Stott v Ralli Ltd. But what was the EAT’s reason for doing so?

By way of background, the Claimant worked as a paralegal in law firm and was dismissed during her probationary period for poor performance. The Claimant subsequently raised a grievance and referred to her disability when doing so, thereby making her employer aware of it, however, prior to this, her employer was unaware of the fact that she had a disability. The employee’s grievance and the subsequent appeal were rejected. Thereafter, the Claimant brought a claim under section 15 of the Equality Act 2010, alleging that her dismissal was discriminatory on the basis that it arose a result of her disability. The tribunal rejected this claim, however, on the grounds that her employer did not know, and could not reasonably have been expected to know, about her disability when they dismissed her (as per section 15(2) of the Equality Act 2010). But were the tribunal correct in coming to such a conclusion?

The EAT was of the opinion that the tribunal was correct in coming to this decision, and upheld its decision, noting that the case was about the Claimant’s dismissal, and not about what happened afterwards. As such, the employer’s knowledge of the former employee’s disability after her dismissal did not assist the claimants case in any way and the tribunal were correct in their findings.

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Direct offers to your employees during a period of collective bargaining – is this allowed?

Under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), a worker who is a member of a recognised independent trade union has the right ‘not to have an offer made to him by his employer if acceptance of the offer… would have the prohibited result, and the employer’s sole or main purpose in making the offers is to achieve that result.’ For the purposes of this Act, the prohibited result ‘is that the workers' terms of employment … will not … be determined by collective agreement negotiated by or on behalf of the union.’ As per section 145B(5) of the 1992 Act, failure to comply with this provision, can result in an employer being liable to a penalty. However, a recent Supreme Court ruling would suggest otherwise.

It was recently held in Kostal v Dunkley and others, that making pay offers directly to your employees, avoiding the trade union collective bargaining process, so that workers’ terms were decided upon out with said bargaining process was permissible. The Court came to this conclusion as the employer followed the collective bargaining procedure at first and genuinely believed that they exhausted all avenues of the collective bargaining process. As such, the direct pay offers they made to their employees were allowed.

In presiding over the matter, the Court set out two ways in which employers can protect themselves in regards to this kind of situation:

1) They must ensure that the collective agreement they have in place clearly sets out the bargaining procedure to be followed and the limitations of such; and
2) They must ensure that the main reason they are making the offer is not to achieve the ‘prohibited result’.

If employers follow both of these suggestions, they will not be liable under section 145B of the 1992 Act, should they find themselves in a position where they are having to negotiate with their employees in relation to (inter alia) pay or work conditions.

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The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at November 2021. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.