2020 was not all bad. The year which has challenged outdated practises and been dominated by social change has brought much needed progression in employment law. Below are the 5 employment updates which are indicative of employment law’s dependency on the constantly changing social landscape.
Job Support Scheme
The conclusion of the original Job Retention Scheme at the end of October marks the commencement of the Job Support Scheme. Introduced on 24 September 2020, this scheme was designed to continue financial support to employers giving workers who are not working, or working a proportion of their contracted hours, 80% of their wage. The Job Retention Scheme was not intended to be a long-term solution; thus, a renewed, more sustainable programme was required to be put in place to help employers navigate the winter economy. So, what are the main changes from the original scheme?
- To qualify for the scheme, employees must be working 33% of their original hours or less, reduced from the previously unlimited threshold.
- The government’s contribution to the wages of unworked hours is capped at £697.92 per month and has lessened to a third of an employee’s original wage. This does not include pension and National Insurance contributions as it did previously.
- The new scheme is more flexible: the minimum arrangement is for seven days, reduced from three weeks.
- Large business may only take advantage of the scheme if their turnover has decreased since the onset of any difficulties which have arisen since coronavirus.
Evidently, social activism has influenced a change in employer mindset. The case of Taylor v Jaguar Land Rover, which reached a decision on 14 September 2020, is a landmark case for gender equality and outlines an extended set of rights to employees. The court held that section 7 of the Equality Act 2020 applies to non-binary and gender fluid individuals under the term ‘gender reassignment’. Ms Taylor, an engineer at Jaguar Land Rover who identified as gender fluid, endured continuous verbal abuse from their colleagues and a lack of managerial support. Their claims of harassment, direct discrimination and victimisation received undivided approval.
Furthermore, cases concerning the gender pay gap are on the rise. The wider social awareness of gendered issues has empowered many individuals to speak out on their experience with discrimination relating to pay. Magic Circle outfit Allen & Overy have voluntarily submitted data concerning their gender pay gap, reporting a 59.9% gap, a modest improvement from the previous year. However, not including partners, the firms gender pay gap proudly stands at 16.1%. Does this pave the way for more attention paid to the ethnic pay gap? Definitely. Allen & Overy have also reported a 22.4% ethnic pay gap. However, the difficulty is that there are a greater number of variables between employees of different ethnic backgrounds, meaning this information is more difficult to assess.
Employment tribunal process
Applicable from 8 October, new rules have been outlined which will offer greater flexibility within the employment tribunal procedure. The main changes, which intend to reduce the backlog of forthcoming cases, are as follows:
- Non-employment judges are permitted to sit on cases
- Legal officers will be allowed to fulfil various current responsibilities of employment judges
- Virtual courtroom procedures have greater flexibility
Lockdown has accelerated the exercise of virtual hearings, which has the potential to aid the lack of resources relating to employment tribunals. Although, there are several challenges presented with this shift: judges carry out administrative tasks that court positions (e.g clerk) would typically do, slowing down the efficiency of the process; additional documents must be submitted and assessed online; the home environment lessens the formality of the situation; the procedure is inherently unfair as the claimant is unable to access the level of support they would typically receive in person from the judge; and there are issues relating to the confidentiality and security of witnesses.
Definition of disability
There is a slowly developing change in attitude to mental health in the workplace; however, it is clear that a wider awareness of mental health issues is needed. Understandably, it is harder for employers to understand mental health issues than physical issues because it is impossible to completely relate to an individual’s unique mindset. This means that employers are struggling to make reasonable adjustments for workers suffering with mental health.
Despite the lack of case law surrounding mental health issues, the employment appeals tribunal recently explored the definition of disability in the case of Sullivan v Bury Street Capital Limited. Mr Sullivan suffered from paranoid delusions during 2013 and 2017 which were detrimental to his attendance, punctuality, organisation and conduct. However, according to his employer, these areas were already substandard prior to the onset of his condition. The court held that Mr Sullivan was not disabled, referencing the Equality Act 2010, which requires the condition to be ‘long-term’ – longer than 12 months or likely to reoccur.
Dismissal without correct procedure can be considered fair
A recent employment appeals tribunal found that in the case of Mrs Linda M Gallacher v Abellio Scotrail Ltd, Mrs Gallacher was not subject to unfair dismissal despite the absence of correct procedure. The relationship between the claimant and her line manager deteriorated to the extent that it became irreparable, leading to the termination of her employment without any prior procedure. Confirming the decision of the first court, it was ruled that because Mrs Gallacher was not willing to improve her relationship with her line manager, the implementation of procedure would not have impacted her situation. Although, this does not provide strong precedent for just any employer dismissing an employee, as all cases are judged individually.