HR Bulletin - October 2021 - Kuits Solicitors Manchester

HR Bulletin – October 2021

HR Bulletin – October 2021

7th October 2021 - Published by Kuits Employment team

Welcome to our newsletter for HR professionals and anyone responsible for people management, where each month we bring you all of the latest case law updates and best practice.

Key Updates

Tipping – the Government’s response

The Government has confirmed that it intends to introduce legislation which will prevent employers making deductions from tips received by their staff, other than those required by tax law. However, it is not known when the legislation will be introduced other than that it will be when parliamentary time allows.

The purpose of this is to ensure workers receive the tips left for them from customers. The new law will require employers to distribute tips in a fair and transparent way, as well as introducing a requirement on employers to implement a written policy on tips. Employers will be given time-limits to distribute the tips and an obligation to record how the tips have been dealt with.

It has been confirmed that it will be possible to enforce a breach of the new law in the employment tribunals, highlighting the necessity for employers to take note of the proposals now and to prepare their business for this new law. Whilst this will most likely be appliable to businesses in the hospitality sector, it is also relevant to any business that allows their staff to earn similar additional payments.

Plans to introduce a ‘day one’ right to unpaid carers leave

The Government has confirmed plans to introduce a right for workers to one week’s unpaid carers leave per year from the first day they start with a business. Again however, it is not known when this new law will be passed, other than that it will be when parliamentary time allows.

Currently there is only a ‘day one’ right to unpaid dependant leave which is for use in an emergency involving a dependant. Whereas, this new type of carers leave is intended for planned absences needed to deal with caring responsibilities.

Whilst full details of how carers leave will work have not yet been released, it has been confirmed that the leave will be available to take flexibly, i.e. from half day blocks to a whole working week and that employees will need to give a minimum notice period of twice the length of time being taken.

Businesses need to be considering how carers leave will be managed in their business and will need to implement a policy in order that employees understand carers leave and to ensure the leave is applied consistently throughout the business.

HR related aspects of the Government’s Covid-19 winter plan

On the 14th September the government unveiled plans for tackling Covid-19 during autumn and winter, consisting of a Plan A and Plan B.

Plan A is the option that is currently being followed, aiming to avoid the implementation of additional restrictions by rolling out booster vaccines and promoting uptake of the vaccine among younger people. Plan B will only be implemented if Plan A fails to prevent rising infection numbers, Covid-related deaths and increased pressure on hospitals. The Government has not specified what threshold will need to be met in order for Plan B to be enacted. The important aspects for employers to note under the two plans are:

Plan A:
Businesses are encouraged to communicate to workers to stay home if they feel unwell and get tested. Employees who test positive are legally required to self-isolate for 10 days and must not come to work, regardless of vaccination status. Practical and financial support will continue for those employees who are currently eligible.

Plan B:
Currently home working is left to the employer’s discretion, however, under Plan B Government guidance urging people to work from home could be reissued. Face coverings may be mandated in certain settings, however the exact settings will be decided at the time.

Case law updates – a focus on unfair dismissal

Gwynedd Council v Barratt and Hughes – a redundancy dismissal was not unfair due to a lack of a right of appeal

Facts: The employees in this case were P.E teachers at a secondary school. The school faced permanent closure and was to be replaced with a new community school. Staff were advised that they could apply to work at the new school, but those who were unsuccessful would be made redundant.

The employees that were unsuccessful and made redundant claimed unfair dismissal at the Tribunal on the basis that they had not been given the right to appeal against the decision to make them redundant.

Decision: The Court of Appeal determined that as the employees had been redundant the lack of a right of appeal on its own did not mean the employees had been unfairly dismissed.

Comment: The decision emphasises that the absence of an opportunity to appeal will not automatically make a redundancy dismissal unfair, which is different to a dismissal following a disciplinary process where the ACAS guidance is clear that employees should be given the right of appeal.

However, the judgment does note that when making redundancies the employer should at least consider whether in the particular circumstances it is appropriate to give the employee a right of appeal.

Simoes v De Sede UK – Is an actual breach necessary to claim automatic unfair dismissal for asserting a statutory right?

Facts: In this case, the employee was instructed by her employer to cover a colleague’s pre-booked holiday. The employee realised that covering this holiday would result in her working for 14 consecutive days, which would be in breach of the Working Time Regulations. The employee therefore refused to cover the holiday and arranged for another colleague to cover the holiday instead. The employee was later dismissed for refusing to cover the holiday.

The employee brought a claim for unfair dismissal claiming that she had been automatically unfairly dismissed as a result of asserting a statutory right, i.e. that if she covered the holiday she would be working too many hours which was a breach of the Working Time Regulations.

Decision: The Employment Appeal Tribunal found that the employee had been automatically unfairly dismissed. The appeal tribunal determined that it did not matter that the employee had not actually worked the additional hours which would have been a breach of the Working Time Regulations, all that was relevant was that she had been instructed to work in breach of the regulations.

Comment: Employers need to ensure they are aware of their employees’ statutory rights. This may mean training managers on the statutory rights most likely to cause issues such as the limits on the amount of time an employee is able to work, as this case makes it clear that even requesting that an employee do something in breach of their statutory rights could give rise to a claim.

If you need advice on any of the updates included in this bulletin then please contact a member of the Kuits Employment team here.

HR Breakfast Club

You can now re-watch our virtual HR Breakfast webinar that took place on the 30th September. In this webinar, Kuits Employment Partner Sally Bird was joined by guest speakers Emma Harvey, Director of Industrial Relations Strategy of Centrica and Dr Dan Bunstone, Chief Medical Officer at Speed Medical to discuss all things menopause in the workplace.

This is ahead of World Menopause day, an event which aims to raise awareness around the menopause and support options for improving health and wellbeing, on Monday 18th October. You can view this webinar here.


Subscribe to our mailing list