September 2021 employment law newsletter out now

Welcome to September's employment law newsletter

As we settle back into work after the summer break, our news section looks at
- a new consultation by the ICO on employers’ use of personal data;
- whether people working from home should take a pay cut;
- a checklist of what employers should do to make a success of hybrid work;
- the pros and cons of workation policies;
- Scotland's forthcoming 4-day week trial and finally;
- when the Minimum Wage may apply to work trials.

Case law analysis is provided by Grace Nicholls on Seecombe v Reed In Partnership UKEAT/0213/20/OO (key principles when establishing disability status); Sarah Clarke on Aleem v E-Act Academy Trust Ltd UKEAT/0100/20/RN (reasonable adjustment); and Katherine

Anderson who reviews Farnham-Oliver v RM Educational Resources Ltd [2021] EWHC 2418 (QB) (claim struck out for abuse of the court's process) as well as the Court of Session's decision in L v K [2021] CSIH 35 (suspicion of guilt and unfair dismissal) and Mrs A Martin v City and County of Swansea: EA-2020-000460-AT (Previously UKEAT/0253/20/AT) (on the importance of properly identifying PCPs).

ICO launches consultation on employment practices

The Information Commissioner's Office is seeking your views on employers’ use of personal data. It is thought the consultation will help the ICO formulate practical guidance for both businesses and workers and update its existing Employment Practices Code.

Cutting pay for working from home: a legal ‘grey area’

A Cabinet Minister's comment that civil servants working from home should have their pay decreased has sparked warnings of unfair dismissal, discrimination or health and safety claims, even if employees were consulted beforehand.

The warning follows a recent report that employees working from home due to their disability, gender or age may bring legal claims in coming years if they feel their office-based counterparts progressed faster in their careers.

Workation policies: a word of caution

Scottish Legal News examines the benefits and disadvantages of workation policies. Will this growing trend further blur the lines between work and private life or will it benefit both employee and employer?

Scotland set to trial the 4-day week

Following in the footsteps of Iceland, New Zealand and Spain, Scotland is set to trial the 4-day week without loss of pay. The policy, aiming to reduce working hours by 20% is set to help improve workers' wellbeing. While impressive productivity results have been recorded in New Zealand, the Scottish government is yet to decide if the free time will be used for training or handed to staff as annual leave entitlement.

Work trials: when may the National Minimum Wage apply

Though they often are a genuine part of the recruitment process, (unpaid) work trials may now be used by some employers to bridge their post Covid and Brexit resources gap. Employers and candidates may find this non-binding government guidance useful, in helping them identify when the NMW applies.

Hybrid working trial periods: a guide for HR

In the new normal, the hybrid working model is becoming very attractive for many businesses and their employees. Personnel Today publishes a checklist of what employers should take into consideration to make it work.

Was a claimant prevented by a tribunal claim settlement agreement from pursuing a personal injury claim in the civil courts?

Katherine Anderson examines Farnham-Oliver v RM Educational Resources Ltd [2021] EWHC 2418 (QB), the latest in a line of claims where an employee whose claim is compromised in the ET, finds it is then struck out in civil proceedings for abuse of the court’s process.

Maintaining an individual’s salary indefinitely for a role which attracts a lower rate of pay is not a reasonable adjustment  

Sarah Clarke reviews Aleem v E-Act Academy Trust Ltd UKEAT/0100/20/RN, a case which reminds us that the purpose of the duty to make reasonable adjustments is to assist an employee remaining in employment or returning to work after a period of absence. If an employer does decide to maintain a salary whilst investigating the way forward, it is

imperative that it is made clear to the individual that this is only a temporary measure.

Is mere suspicion of guilt enough to dismiss a teacher because of safeguarding concerns?

Katherine Anderson analyses the Court of Session's decision in L v K [2021] CSIH 35, a case involving a scenario which practitioners may have encountered before among employers concerned with the safeguarding of children.

The well-trodden s6 test and knowledge in disability discrimination cases

Grace Nicholls reviews the decision of the EAT in Seecombe v Reed In Partnership UKEAT/0213/20/OO, which restates many of the key principles and authorities to consider when seeking to establish or challenge disability status. The case also demonstrates that disputes about disability status are very difficult to overturn, given the fact sensitive nature of decisions.

Reasonable adjustments claims: PCPs are not designed to be ‘traps for the unwary’

Katherine Anderson considers Mrs A Martin v City and County of Swansea: EA-2020-000460-AT (Previously UKEAT/0253/20/AT), a case which confirms the importance of properly identifying PCPs in reasonable adjustments claims, whilst deterring respondents’ lawyers from taking overly technical points on pleading.

Meet the team

3PB’s employment law group offers expert advisory and advocacy services to private and public sector employers across all areas of employment law including unfair dismissal, discrimination, equal pay, industrial disputes, executive contracts, wrongful dismissals, restrictive covenants, whistleblowing, TUPE, injunctions, pensions disputes and disciplinary proceedings.