Employment legal update #55 | May 2022

Our Employment & HR team brings its monthly review of new legislation, guidance and case law.

News: 

A Labour Force Survey from the Office for National Statistics has found that a higher proportion of black and ethnic minority workers are on zero-hours contracts (4.3%) than white workers (3%). Women from black and ethnic minorities are twice as likely to be on zero-hour contracts (4.7%) than white men (2.4%). The proportion of white women on zero-hours contracts (3.6%) is also lower than the proportion of men from black or ethnic minority backgrounds (4%). The TUC observed that this shows what they describe as "structural racism in action" and reiterated the call for the banning of zero hours contracts.

A House of Commons debate has considered, but not yet taken any further, the implementation of paid miscarriage leave. Those who suffer miscarriages are currently unable to claim any statutory payments because parental bereavement leave and pay are only available to those who have experienced a stillbirth after 24 weeks of pregnancy. They do not cover miscarriages prior to this point, or ectopic or molar pregnancies which end before 24 weeks. 25% of pregnancies end in miscarriage and it was felt that grieving employees should not have to rely on statutory sick pay, flexible working / compassionate leave policies, or even have to take annual leave. The discussion also covered the Employment Bill with a suggestion that bereavement and neonatal leave and pay should be removed from the bill and dealt with separately. There is a Miscarriage Leave Bill currently being pursued as a private members bill. However, no commitment was given to extending statutory leave and pay to cover these areas; the comment that the government did not want to place too much extra burden on businesses was noted.

In contrast, Northern Ireland has introduced regulations to allow employees to receive the equivalent parental bereavement leave and pay to those in Great Britain under the Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022. The Act will also introduce paid miscarriage leave for Northern Ireland employees by 6 April 2026, albeit as mentioned earlier in this update, the government has recently stated that it has no plans to introduce this right for employees in England and Wales.

The government has brought into force the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No 3) Regulations 2022 to revoke the statutory requirements for vaccinations as a condition of working in health and social care sectors in England. Controversial regulations came into force on 11 November 2021 making it mandatory for all workers in the health and social care sectors to be vaccinated. Those who refused to be vaccinated ran the risk of having their employment terminated. Now this requirement has been revoked, and the Department of Health and Social Care has removed its operational guidance on vaccination of care home workers in social care settings other than care homes.

The Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc, Regulations 2022 came into force on 6 April 2022, alongside two associated revised codes of practice. These regulations amend the right to work check scheme where employers are required to check the immigration status of prospective employees to establish their legal right to work in the UK. It provides an alternative to a manual right to work check whereby they can use identification document validation technology (IDVT) service providers to digitally verify the identity of British and Irish citizens with valid passports (or Irish passport cards).

Regulations which were brought in during the pandemic to provide SSP payments for those who could not work because of isolating as a result of Covid-19 even if they were not actually sick, have now been revoked. With effect from 25 March, employees have had to be actually unwell and incapable of work in order to receive SSP.

Following a government request for information, P&O Ferries has provided further details regarding the mass redundancies made on 17 March 2022. It has stated that the affected employees were employed by Jersey companies and worked on vessels registered outside the UK. It did not notify the Secretary of State, because section 193A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) required it to notify only the competent authorities of the states in which the relevant vessels are registered - which it stated that it did. P&O's Chief Executive conceded that there was no prior consultation with staff as required under TULRCA, but said that the company had no alternative in order to continue trading and that the unions would not have agreed the proposals even if they had been consulted. The Insolvency Service has been asked to investigate whether P&O breached the notification requirements under sections 193 and 193A and if it did, its directors could face prosecution and potentially unlimited fines. The Insolvency Service was expected to report back by 8 April 2022 on what action can be taken. The government does not believe that injunctive relief is available.

Apparently those who were made redundant were offered an enhanced settlement of 2.5 weeks’ pay for each year of service conditional upon entering into a non-disclosure obligation in a settlement agreement. In the light of this situation, there have been renewed calls for legislation preventing "fire and rehire" by employers but the government has resisted on the basis that the P&O situation was firing only, with no consideration of re-hire.

Commentary: 

£2 million pay out by bank for discrimination

In Mack v BNP Paribas London Branch the employment tribunal has ordered the Bank to pay £2,081,449.70 in compensation to a female employee when her claims for equal pay, direct sex discrimination and victimisation succeeded. The Bank was also ordered to carry out an equal pay audit on the gender pay information of all those employed between 1 January and 31 December 2021 and all elements of compensation, other than benefits in kind.

The tribunal found that the Bank had discriminated against the claimant, and it was this discrimination which had caused her injury and illness, because of which she had been unable to work since July 2018. She remains employed and has been receiving benefits under the Respondent's PHI scheme since February 2019. Her claim was for damages for personal injury arising out of her discrimination.

The tribunal found that although it was likely she could carry out some form of work eventually, her condition meant that she would never be able to return to her previous role or any role which would pay her in excess of the benefits currently received under the PHI scheme. It was accepted that she would continue to receive these benefits until retirement age of 65, another 15 years. The tribunal found that her remaining employed and receiving these these benefits until retirement was a reasonable way to mitigate her loss, notwithstanding this was not what she wanted.

The award was therefore calculated on the basis that the claimant would continue to receive PHI benefits. It covers past and future losses as well as additional compensation for injury to feelings and aggravated damages plus an uplift of £317,06.34, representing 20% of the total sum, for the Bank's failure to follow the ACAS code.