Blog: Legal Update with DLA Piper April 2021

By KRaynes

Blog: Legal Update with DLA Piper April 2021

Employment Law legal update webinar
Hosted by the wonderful legal gurus, Jonathan Exten-Wright and Vinita Arora from DLA Piper

Summary of the key points shared to support the slide deck

Single enforcement body: Still a bit sketchy by definition of what is on the horizon but it is likely to reflect the European experience where they have labour inspectors who enforce workers’ rights and ensure vulnerable workers are more protected. Here we have various enforcement bodies who look at all aspects of work such as; HMRC and the national minimum wage, HSE to ensure safe places to work etc.

Tips: This was part of the Queens speech and is no longer a voluntary code, so it should be passed on in full to staff and not used by the business to support sales or prop up payroll.

Right to request a more predictable contract: This came out of Taylor Review to tackle the perceived issues around zero hour contracts and is intended to benefit workers with irregular hours and to remove the ‘cannot work for anyone else’ clause. This is directed to protect those on a zero hour contract with unscrupulous employers, there has been a lot of debate around this. This is an additional right to request but has yet to be shown how this will work in reality.

Return from maternity & redundancy risk: Dealing with a real concern here, statistical evidence suggests maternity returners face a disproportionate risk of being made redundant on or very shortly after their return. This has damaged the social policy that sits behind protecting women on maternity leave from being at risk of redundancy so they plan to extend this protection. Adding in 6 months extension from return to protect women returners and to offer a suitable ‘strong’ alternative move. The protection is triggered from the point an employee says they are pregnant to their employer (it also applies to adoption as comparable circumstances and possible shared parental leave).

Neo natal leave proposal: This is a common issue and a real need, so the government is currently looking at similar patterns of eligibility. There will be cut off in terms of child’s age and there must also be a hospital admission to qualify. There will be two forms of notice; formal known in advance or immediate due to an emergency has happened, so notification may change due to the actual circumstances parents find themselves in. The definitions are still to be sought in terms of what neonatal actually means and the level of pay and how it sits with other family rights. Likely to be capped at 12 weeks’ pay, similar to other family friendly policies and it is also likely to need to be taken in blocks. Political resistance for this coming in is unlikely here.

Weeks statutory leave for unpaid carers: Not yet clear what this might look like and with the demographic changes of an aging population there is a real need for this. We already see high numbers of carers looking after family members without pay who are being disadvantaged. Idea is who will have the right, what does a carer obligation look like and how does it interact with other forms of leave as this is quite different. There is a body of support for this in parliament and it was part of the manifesto so should be delivered,

Making flexible working the default: Slightly ironic as we are all pretty much working flexibly due to the pandemic! This was also set out in the manifesto but no real clarity on what it means ‘if only a good reason’. Current requests for flexible working already have a long list of reasons for employers to say no, What sits behind this is the real challenge of indirect discrimination; classic example is working hours for women with family care arrangements who need to work flexibly and could give rise to sex discrimination for maternity leave workers. This can be dangerous territory when citing any reason to not allow flexible working, so beware, as this will become more difficult to say no due to business reasons.

Let’s pause and consider recent cases as a reminder of what not to do

Worker Status & Uber: single biggest case to hit the employment law landscape and has been going on for 6 years brought about by a handful of drivers. Uber lost at every stage even up to the Supreme Court. Outcome in the end was all about self-employed drivers being classed as ‘workers’. Fundamental to this outcome is public policy following the Taylor Review it was inevitable that Uber could never win the case so it is a reflection of government policy that ensures we do not have a two tier workforce. Why is this important and relevant for Hospitality?
5 key factors that Uber drivers were workers;

  1. Uber has control over how much drivers are paid
  2. Uber requires drivers to accept a standard written agreement and drivers cannot amend or change any of the terms on this.
  3. Uber controls a drivers choice whether to accept or decline a ride so this means that Uber retains a lot of control.
  4. Uber also has significant control over how the driver picks up their passenger and the journey they take.
  5. Uber also restricts the control the driver has with the passenger over a single interaction and therefore prevents repeat (or loyal) business.

In the end Supreme Court held drivers are indeed a worker so entitled to statutory  holiday pay and the minimum wage. This now sets precedent for future cases for worker status and a high degree of control exercised by the business will automatically favour the argument that they are workers in the gig economy. So this may result in increase in prices.
Bear this in mind in hospitality….You need to accept that you will have to look behind the ‘label’ in any typical worker you have such as casuals and the level of control and supervision you have over them. Also Consultants who provide support on adhoc projects, consider what is the substantive nature of the relationship, analyse closely the relationship you have for these workers (also bear in mind IR35).

Indirect Discrimination BA: This case was about disadvantage to women under their parental leave policy and the term of ‘particular disadvantage’. Is there a ‘particular disadvantage’ to a group if a ‘particular arrangement’ is put in place? Check your polices carefully as more women are more likely to take parental leave than men even though it is applied equally to men as well. It was not just a question of looking at the arrangement you have but to look deeper and see if the arrangement indirectly discriminates against women (see how many women to men actually take parental leave in your organisation). When you are making an arrangement consider if it impacts anyone unfairly, take a further step and see whether your plan might impact a group in a particular way.

Awarding Tribunal costs Copthorne Hotels: A precedent of a high award being given to an employer has now been set.  However, getting the actual money awarded out of individuals even if you do win costs from the claimant can be a challenge. Copthorne Hotel case where a Senior VP lodged multiple claims during the disclosure process, (he had covertly recorded 100’s of private conversations with colleagues) and the judge described his actions as deceitful and duplicitous. He was given an opportunity to withdraw his claim but refused and lost eventually being charged with paying costs of £432,000. This was an exceptional case that made headlines for one of the largest awards, so just in case you come across someone who is being really difficult you can now refer to a meaningful claim that could be made by you and may actually deter the employee so they end up withdrawing.

Planning for a return
What is occupying us at the moment as we feel our way forward to reopening and bringing people back off furlough, it seems everyone has just moved straight to action, so what does the law look like now?

  • Advice is still to work from home where possible (back office staff)
  • Ensure a covid safe work place has been created and that ongoing risk assessments are carried out.
  • Testing in the workplace is more likely to evolve and be common practice so consider how this will be administered and ensure data protection and safeguarding information is met.
  • Be mindful of mental health issues, some will still be genuinely concerned about returning to work (some may not have had the vaccination). A little bit of compassion can go a long way, so deal with people who are fearful on an individual basis being mindful of your values.
  • Revisit some of your policies and go back to basics.
  • Trade union activity has increased in hospitality so be mindful you do not behave in a way that encourages activism.
  • Travelling to work and business travel it is worth remembering what is classed as a base of work so people do not claim for expenses for travel from home.
  • Agree now on accrued holiday, how far do you allow them to carry this forward.

Consult, Collaborate and Communicate  

Esther O’Halloran
Chair of HR in Hospitality