Top 5 recent workplace developments – January 2021

This is our selection of the recent developments which we think will impact on HR practice.


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Top 5 recent workplace developments – January 2021
  1. COVID-19: Lockdown 3.0 restrictions in England

The government has published new guidance and amendment regulations setting out the restrictions that will apply in England during Lockdown 3.0. They set out the latest rules on attending the workplace, travel and protecting people who are more at risk – and once again emphasise staying at home.

While the regulations include a legal requirement to work from home where possible, the guidance says that employers must take “every possible step” to facilitate homeworking, including providing suitable IT and equipment to enable remote working. It also says that “extra consideration” should be given to those individuals who are at higher risk.

In response to calls to support working parents with homeschooling during lockdown, the government guidance was updated to confirm that employees may be furloughed if they are unable to work, or are working reduced hours, because of caring responsibilities which have arisen as a result of COVID-19. This includes employees caring for:

  • Children who are at home because of the closure of schools and childcare facilities
  • A vulnerable individual in their household

Practical point

The decision as to whether to furlough staff is ultimately one for the employer – they are not obliged to furlough employees.

See our update What lockdown 3 means for employers in England

  1. Brexit – changes to UK employment law and data protection issues

There has been much debate around how employment laws may change after Brexit, given the UK’s new found freedom – but it comes as no real surprise to learn that, in view of the level playing field commitments, the trade agreement will to some extent limit that freedom.

There are a range of laws that may be susceptible to some amendments in time, notably those relating to working time and holiday pay rights, agency workers, TUPE and collective redundancy consultation. While discrimination laws and family friendly rights are highly unlikely to be weakened, a future government may be tempted to re-introduce the cap on discrimination tribunal awards.

Before 2021, UK employers could transfer personal data freely between the UK and the EEA.  Now, the UK is a “third country” and two sets of rules apply in relation to data transfers. Essentially this means that UK organisations do not need any new arrangements for transfers from the UK to the EEA.  But to maintain data flows from the EEA to the UK, organisations are advised to put in place appropriate safeguards as a precautionary measure by the end of April 2021.

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Practical point

The ICO advises that usually the simplest way to provide an appropriate safeguard for a restricted transfer from the EEA to the UK is to enter into standard contractual clauses with the sender of the personal data.

The ICO has published guidance for businesses to help with this.

For further details, see Brexit: the key implications for employers and HR

  1. Redundancies – when a redundancy situation arises

The Employment Appeal Tribunal considered whether the motive behind a redundancy situation affects whether a genuine redundancy situation exists.

Ms Jackson was the Managing Director. But after the company’s owner became CEO, he took control of management decision-making and operations, and undermined her position as MD. She was dismissed for redundancy on the basis that the company’s requirements for employees to carry out work of a particular kind had diminished, and brought a claim for unfair dismissal.

The EAT stated that a redundancy situation “exists or it does not”. The issue was whether the company’s requirement for employees to carry out particular work had diminished. If that occurs, the company’s motive is not relevant to the question of whether the redundancy situation exists.

The EAT found that the company’s requirement for employees to carry out work of a particular kind, undertaken by the MD, had diminished which created a redundancy situation.

Practical point

The motive behind a redundancy situation, and the manner in which it arises, will not affect whether there is a genuine redundancy situation. That said, the motive may be relevant in determining whether the dismissal was fair.

Berkeley_Catering_Ltd_v_Mrs_J_Jackson

  1. Perceived religious discrimination/racial harassment – injury to feelings and aggravated damages

An employment tribunal awarded aggravated damages and an injury to feelings award on the cusp of the middle/upper “Vento” bands (for serious cases/the most serious cases) to an employee it ruled was a victim of perceived religious discrimination, racial harassment and victimisation.

Mr Shunmugaraja , a Hindu, was employed by the Royal Mail Group for over 10 years, and worked as a Work Area Manager. He was called a “sly dog” by a colleague in front of his line manager who took no further action against the colleague. Another colleague reacted aggressively to Mr Shunmugaraja using a quiet room, which a Christian colleague used for praying, as a meeting room. He mistook Mr Shunmugaraja for a Muslim and said he would not have used the Muslim prayer room as a meeting room.

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After Mr Shunmugaraja took time off work because of anxiety, a manager threatened to stop his sick pay. He was eventually dismissed. Although he applied for dozens of jobs, he could not find work and as a result, he became homeless.

The tribunal found that the Royal Mail’s actions amounted to harassment because of Mr Shunmugaraja’s race, to discrimination because of his perceived religion, and to victimisation. He was awarded £229,000, of which £27,000 was for injury to feelings, including aggravated damages of £7,000, in respect of all acts of discrimination and victimisation.

Practical point

Since April 2020 the “Vento” bands for injury to feelings awards have been:

  • Lower band: £900 – £9,000 – for less serious cases, such as where there is an isolated act of discrimination
  • Middle band: £9,000 – £27,000 – for serious cases which do not merit an award in the upper band
  • Upper band: £27,000 – £45,000 – for the most serious cases, such as where there has been a lengthy campaign of sexual or racial harassment – although it is possible for tribunals to award in excess of £45,000 in exceptional cases

Tribunals are not bound by these guidelines but must take them into account when making an award.

Shunmugaraja_v_Royal_Mail_Group_Ltd

  1. Agency workers’ rights – applying for internal vacancies

The Employment Appeal Tribunal ruled that agency workers are not entitled to apply, and be considered, for relevant vacancies with a hirer on the same terms as directly-recruited employees.

Two agency workers employed by Angard, a wholly owned subsidiary of Royal Mail, were supplied to work in the Leeds Mail Centre and had attained the 12 weeks’ service required for an agency worker to qualify for rights in relation to basic working and employment conditions.

They brought claims for a number of breaches of the Agency Workers Regulations, including not being eligible to apply for internal vacancies within Royal Mail.

The EAT decided that, to give an agency worker the same opportunity as a comparable worker to find permanent employment with the hirer, the right to be informed of any relevant vacant posts with the hirer does not mean agency workers are entitled to apply for and be considered for internal vacancies on the same terms as comparable directly-recruited employees.

Practical point

The EAT’s decision marks an attempt to avoid extending agency workers’ rights which will be of some comfort for employers. This case also serves as a reminder that there is no overarching principle of equal treatment between agency workers and comparable employees generally.

Angard_Staffing_Solutions_Ltd_v_Kocur_& Another


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