Client Employment Law Update (April 2021)
UK Immigration Policy post-Brexit
What has changed?
The UK’s points-based immigration system treats EU and non-EU citizens equally and aims to attract people who can contribute to the UK’s economy. Irish citizens can continue to freely enter, live and work in the UK under the Common Travel Area (CTA) arrangement.
Free movement with the European Union (EU) ended on 31 December 2020 and there are new arrangements for EU citizens.
Key points for employers to consider:
Employers must continue to carry out thorough ‘right to work’ checks when employing new staff and should now be aware that this requirement includes EU citizens as the free movement arrangement has ended following Brexit.
IR35 – Roll out extended to April 2021, these rules relate to off payroll working where a contractor is used to pro- vide services or work to a company.
The rules aim to ensure that the appropriate amount of tax is paid for all work done in the UK and prevent tax avoidance which sometimes happens when work is done by a person who should really be an employee. The rules mean that the company is responsible for establishing the tax status of a contractor and they apply to all public sector clients and medium and large private sector companies that meet 2 or more of the following conditions:
- you have an annual turnover of more than £10.2
- you have a balance sheet total of more than £5.1
- you have more than 50
The UK Government is considering the following changes to employment law within the Parliamentary process:
EU Employment Law was migrated to UK law on 1st January 2021 – this means that the EU law that governed employment whilst the UK was part of the EU still applies. The UK Government are currently conducting a review to establish which aspects of EU Employment Law is to be amended in the future. We will keep our clients informed of developments in this area.
Pregnancy & Redundancy Protection – enhanced rights for new and expectant mothers. The Bill aims to provide women with protection from redundancy when pregnant, during maternity leave and for 6 months after a mother returns to work following maternity leave (unless there is a whole business closure). When introduced, it is expected that these new rules will also apply to those taking Adoption Leave and Shared Parental Leave.
Neonatal Leave & Pay Entitlement – a proposal to provide parents of premature babies up to 12 weeks extra paid leave whilst their babies are in neonatal care.
Exclusivity Clauses – consultation is ongoing on introducing a ban on exclusivity clauses if earnings are below the Lower Earnings Limit (LEL).
Restrictive Covenants – consultation on the use of Non-Compete clauses with consideration being given to introducing compensation or an out-right ban.
Continuity of Service – consideration being given to increasing the amount of time needed for continuity of service to be broken from 1 week to 4 weeks.
Tips & Gratuities – legislation being considered to ensure tips and gratuities go to staff.
Right for Workers to request a more stable contract – All workers will have the right to request a more predictable and stable contractual working pattern after 26 weeks’ continuous service. It is intended to benefit workers who have irregular hours, for example under a zero hours contract, but who would like more certainty on the number of hours they work and/or the days on which they work.
Summary of Recent Case Law
K v L 
Background: A schoolteacher was found to be in the possession of indecent images of children by the police, though the police decided not to prosecute (but reserved the right to do so in the future). The teacher was ultimately dismissed via the school’s Disciplinary Procedure. The Employment Tribunal agreed with the employer, in that there was insufficient evidence that the teacher had downloaded the images but there was an unacceptable risk to children and to the reputation of the school. However, an Employment Appeals Tribunal found that reputational risk was not included in the correspondence or the Disciplinary Procedure as a dismissible offence. Nor can an employee be dismissed on the ground that they may have committed a criminal offence. The risk of dismissal was also not included in the letter inviting the teacher to the disciplinary hearing and the Employment Appeals Tribunal overturned the decision.
Learning Points: Ensure that there is a broad range of offences that can result in dismissal within your Disciplinary Procedure.
Ensure that the risk of dismissal is included within letters inviting employees to disciplinary meetings where appropriate.
Background: Mr Kirk had more than 25 years service with Citibank. In 2017 he was invited to a meeting to ‘discuss his team’, only to be told at the meeting that there would be a new unit which would be led by one of the MDs and that his role was at risk of redundancy. At the meeting Mr Kirk was told that his many years with the bank counted against him and that he was ‘old and set in his ways’. Further meetings followed and Mr Kirk was ultimately dismissed on the ground of redundancy. In his appeal meeting the appeal officer accepted that the age-related statement had been made but did not find that Mr Kirk had been dismissed because he was too old. Mr Kirk’s Unfair Dismissal and Age Discrimination claims were subsequently successful. The Tribunal found the redundancy decision was predetermined and that Citibank fell a long way short of showing that age was not a factor in their decision-making process.
Learning Points: Selection for redundancy must be made on objective criteria related to skills and abilities. No remarks related to age or other protected characteristics should be made.
A redundancy process must be structured and transparent throughout.
Background: Mr Christie was a carpenter working for a housing association and a tenant complained that Mr Christie had made homophobic remarks towards them. Mr Christie was suspended, and an investigation was conducted. The tenant was interviewed twice during the investigation process but stated that they wished to remain anonymous. Mr Christie denied that he would make homophobic comments and stated that if he was bigoted, it would have come out during his 14 years of service. Though the disciplinary panel accepted that he was not homophobic, Mr Christie was dismissed as the tenant’s statement was believed in that he had made the comments. Mr Christie brought a successful claim for Unfair Dismissal as the Tribunal panel decided that relying on an anonymous account is beyond the band of reasonable responses, and it was noted that the dismissal was also procedurally unfair as Mr Christie had not been provided with a copy of the tenant’s original statement. However, the employer has appealed, and the Employment Appeals Tribunal has ordered that the case be submitted for a fresh hearing after reviewing the evidence.
Learning Points: Though this case may ultimately result in a favourable outcome for the employer, it is important to ensure that any evidence that a Disciplinary Panel will rely on is provided to the employee in advance of a disciplinary hearing. Employers should also seek to corroborate anonymous statements by other means.