News & Updates

June Employment Briefing

Martin Stephen

Published byMartin Stephen

10th June 2021

June Employment Briefing

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

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

Covid-19 adjusted Right to Work Checks update

The government has announced, that the COVID-19 adjusted right to work check process will remain in place until 20 June 2021. It enables employers to carry out right to work checks over video calls (rather than in person), and allows job applicants to send scanned copies of identity documents (rather than provide originals).

The guidance also states that employers will not have to carry out retrospective checks, i.e. will not have to request copies of original documents from those engaged in the last 15 months, once the adjusted right to work checks end.

From June 21 2021 employers will have to revert to face to face and physical document checks as part of step 4 of the UK Government’s roadmap: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

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Health and Safety detriments – extension to workers

New Regulations, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 extend protection for health & safety detriments to workers (not just employees).

This means that an employee can claim in a tribunal if subjected to a detriment because (in simple terms) they reasonably believed that being at work would place them (or someone else, such as a household member) in serious, imminent danger. This right is found in s44 of the Employment Rights Act 1996, which was rarely used before last year but is now being used frequently by employees who are anxious about travelling to, or being in, work during the coronavirus pandemic.

These new Regulations extend the protection so that it now covers ‘workers’, rather than just ‘employees’. This is being done as a result of the decision in R (on the application of the IGWU) v Secretary of State for Work and Pensions, where it was held that confining such protection to employees was a breach of the EU Health & Safety Framework Directive.

The extension to workers applies to any detriments taking place on or after 31 May 2021.

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New workers’ watchdog announced

The UK government announced the publication of its response to consultation on establishing a new single enforcement body for employment rights on 8 June 2021, confirming that a new workers’ watchdog would be created.

This watchdog will have the rresponsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers, issues currently spread over 3 different bodies.

The new enforcement body will be established through primary legislation “when parliamentary time allows”. Therefore, in the meantime, employers should look at their current practices and if necessary, remedy these and keep an eye out on the watchdog’s progress.

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Equal Pay ruling for Tesco in the TFEU

The Court of Justice of the European Union has held, that Article 157 of the Treaty on the Functioning of the European Union (‘TFEU’) has direct effect in equal pay claims made on the basis of performing work of equal value to their comparators.

In Tesco Stores (C-624/19), 6,000 Claimants brought proceedings against their employer (or former employer) Tesco Stores Ltd, on the ground that they had not received equal pay for equal work, contrary to the Equality Act 2010 and Article 157 TFEU.

Tesco submitted that Article 157 TFEU lacks direct effect in certain circumstances, such as when the workers compared perform different work. They maintained that the criterion of 'work of equal value', unlike the criterion of 'equal work', requires definition by provisions of national or EU law.

The CJEU however, held that the above interpretation could not be supported by either the wording of Article 157 TFEU or case law. Article 157 "imposes, clearly and precisely, an obligation to achieve a particular result and is mandatory as regards both 'equal work' and 'work of equal value'." (para 20). The CJEU noted that the terms 'equal work', 'same job' and 'work of equal value' in Article 157 TFEU are "entirely qualitative in character" in that they are exclusively concerned with the nature of the work actually performed (para 28).

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Minimum wage for sleeping-in?

The government has updated its guidance on calculating the national minimum wage for sleep-in workers following a recent Supreme Court decision on sleep-in shifts and eligibility for minimum wage.

Royal Mencap Society v Tomlinson-Blake and others held that sleep-in workers are entitled to the national minimum wage only when they are “awake for the purposes of working”.

In light of this, the Department for Business, Energy and Industrial Strategy has now updated its guidance and confirms that while sleep-in workers are not entitled to the minimum wage for those periods when they are permitted to be asleep, the position is different for workers who are expected to perform work activities for all or most of a shift, and only permitted to sleep between tasks when possible. Those workers are likely to be entitled to the national minimum wage for the whole of the shift, including time spent asleep.

The guidance includes examples of workers with different work patterns who may be permitted to sleep at work, deemed ‘special situations’, and explains whether they would be entitled to the national minimum wage. The guidance also provides examples of different working patterns to illustrate how the principles outlined by the Supreme Court might apply to particular scenarios, though each situation will of course, be fact specific.

Guidance can be found here: https://www.gov.uk/guidance/calculating-the-minimum-wage/working-hours-for-which-the-minimum-wage-must-be-paid

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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 June 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.