The Employment Tribunal has recently held that a claimant’s belief in a fear of catching COVID-19 and a need to protect herself and others does not amount to a philosophical belief under the Equality Act 2010.

The Claimant argued that her decision not to return to the workplace in July 2020 was because she had reasonable and justifiable health and safety concerns about the workplace as a result of COVID-19 and was worried about the spread of the virus.  She had a genuine fear of getting the virus and passing it to her partner, who is considered high risk.  She therefore brought a claim for discrimination when her employer stopped paying her wages when she refused to return to work.

The Employment Tribunal held that the Claimant’s fears did not amount to a belief but rather it was a reaction to a threat of physical harm and the need to reduce that threat.  They could be described as a widely held opinion based on the present state of information available.  In addition, the Employment Tribunal found that, because the Claimant’s fear was about protecting herself and others (in particular, her partner), it did not satisfy the requirement that the belief must be about weighty and substantial aspects of human life and behaviour.

This case is helpful for employers who want their staff to return to the office now the current work from home guidance has been lifted by the Government.  However, employers should still consider any objections about returning to work or other post-pandemic workplace issues on a case-by-case basis because there remains the risk of other types of discrimination claims.  These discrimination risks may be particularly relevant in the context of the approach employers decide to take to vaccinations and access to the workplace, in particular, whether mandating proof of vaccination, for example, is an acceptable condition for access to the workplace.  For further information, please see our Employer Guide on Vaccines: COVID-19: Employer Guidance on Vaccines | Perspectives & Events | Mayer Brown

The Pensions Regulator (the “Regulator”) has announced that it will not now consult on a revised defined benefit (“DB”) funding code of practice until late summer 2022.

Background

The Regulator’s current code of practice on DB scheme funding came into force in 2014. In 2020, the Regulator carried out the first of two consultations on a proposed revised code of practice. This first consultation covered:

  • The Regulator’s proposed new regulatory approach to DB funding.
  • The principles the Regulator thought should underpin the new DB funding framework.
  • How those principles could be applied in practice to provide clearer guidelines.

The Regulator was due to carry out its second consultation, on a draft of the revised code, in 2021.

The Pension Schemes Act 2021 introduces a requirement for trustees of DB schemes to produce a written funding and investment strategy. This must specify the funding level that the trustees plan for the scheme to have achieved by a particular date (to be determined by regulations). It must also detail the investments that the trustees intend the scheme to hold at that date. The strategy must be agreed with the employer. Regulations will set out further detail on what the strategy needs to cover. The Regulator’s revised code of practice is also intended to provide additional guidance.

Regulator announcement

According to the Regulator, the government will consult this spring on draft regulations setting out the detail around the new funding and investment strategy requirement. The Regulator wants to take account of that consultation before publishing the draft code for consultation. It therefore expects to publish its consultation in late summer. The Regulator’s announcement also confirms that the new code will only apply to scheme valuations with an effective date falling on or after the date on which the code comes into effect.

We will be featuring contributions from our global Employment and Benefits team on this blog, highlighting particular topics and issues of interest to UK employers with operations overseas.

The new year has started with a range of new COVID-19 measures in different jurisdictions. Here are two recent updates from our teams in France and Hong Kong:

Our Employment & Benefits team in Hong Kong produce the “Asia Employment Law: Quarterly Review”, a publication covering 15 jurisdictions in Asia.

In this thirty-third edition, they flag and comment on employment law developments during the third quarter of 2021 and highlight some of the major changes on the horizon.

For other recent commentary from our Hong Kong team, please click here. If you or a colleague would like further guidance on employment and benefits issues in Hong Kong, please contact Duncan Abate, Hong Tran or Jennifer Tam.

The Pensions Regulator (TPR) has published a revised version of its code of practice on contribution notices. TPR has updated the code to cover the two new grounds for issuing a contribution notice – the employer insolvency and employer resources tests. The updated code came into force on 25 November.

Continue Reading Contribution notices – updated Pensions Regulator code of practice

The Pension Protection Fund (PPF) is consulting on its draft levy determination for the 2022/23 levy. The PPF currently has a strong funding position. It therefore intends to set the 2022/23 levy estimate at £415 million, £105 million less than in 2021/22. Around 82% of schemes that pay the risk-based levy will see a levy reduction. The consultation closes on 9 November.

Continue Reading Pension Protection Fund levy – lower levies expected in 2022/23

James Perrott, Counsel at Mayer Brown in the Employment & Benefits practice of the London office, and Head of the firm’s Global Mobility & Migration practice in Europe, comments on the struggle European firms in London are facing to get European lawyers into the UK due to post-Brexit immigration issues. The article “Red Tape, Rising Costs and Travel Woes: How Post-Brexit Rules Are Hampering European Firms In London” published on law.com can be read here: https://www.law.com/2021/10/12/red-tape-costs-and-travel-woes-how-post-brexit-rules-are-hampering-european-firms-in-london-292-97745/

It has been over a year since the new Section 1 requirements came into force.  Following on from our initial Employer Perspectives update in March 2020, this post looks at some frequently asked questions and practical tips on dealing with some of the more tricky requirements.

A quick recap of the law

The law requires that employers now provide written statements of key employment terms to employees and workers whose contracts started on or after 6 April 2020.

In particular, the statement should give detail in writing about any paid leave to which they are entitled; which days of the week they are required to work and, if there can be any variation to this, how that variation will be determined; details of all benefits that will be provided by the employer; details of any probationary period, including duration and any conditions; and any training entitlement provided, including whether it is optional/mandatory and how the cost of this training is to be covered.

This is a “Day 1 Right” and so employers will, in most cases, need to ensure that they are providing employees/workers with written particulars on or before the date on which work begins.

Frequently asked questions

1. Does the obligation apply retrospectively?

No, the obligation only applies to employment contracts entered into after 6 April 2020.  However, there are instances where employers would need to provide a compliant statement to employees and workers whose contracts started before 6 April 2020.  Firstly, these employees and workers are entitled to request a newly compliant Section 1 statement.  If they do so, employers will need to provide this within one month of such a request.  Secondly, if there are any changes made to any of the new information required to be given or the employee or the worker is re-engaged, then an updated Section 1 statement would also need to be provided.

2. If we include a statement specifying the training requirements, and these requirements subsequently change, do we need to issue an amendment each time this occurs?

If requirements subsequently change, this would technically require employers to issue new written statements.   Under the Employment Rights Act 1996, if there is any change to any of the required statutory particulars of employment, the employer must give the employee or worker a written statement containing details of the change at the earliest opportunity and, in any event, no later than one month after the change.  We understand that this can be onerous, particularly with large workforces, which is why we suggest taking the approach of listing the key mandatory training courses and then letting employees know further details will be provided regarding subsequent requirements.

3. What are the consequences for non-compliance?

Employees can only bring a tribunal claim for failure to provide a full section 1 statement if they are also bringing another specified claim in the tribunal, and that other specific claim is successful. The compensation for failure to provide a section 1 statement is capped at two or four weeks’ basic pay, currently £1,088 or £2,176, respectively.

Some practical tips

  • Don’t forget that the workers are now entitled to a section 1 statement.
  • Ensure that your contracts  are compliant with the section 1 requirements – review and update your contracts of employment and worker contracts so that they contain all the information they need.
  • In particular, consider whether there have been any changes to the key particulars since April 2020 (particularly as certain particulars may have changed as a result of Covid-19).  Ask yourself whether you need to make any changes to any reissued contracts.
  • Consider pragmatic options for the more burdensome provisions of section 1, as noted at 2 above in terms of training requirements.

Comment

It is likely that employers will continue to take a pragmatic view of section 1 requirements, given the low financial penalties.  However, reputation as an employer that complies with the most basic of legal requirements is important, regardless of financial penalties.  At a time when many clients are refreshing contracts to reflect post-COVID changes, this a good opportunity to ensure that your employment and worker contracts are section 1 compliant.

The government is consulting on regulations that (a) make changes to the list of employer notifiable events and (b) prescribe the events affecting a DB scheme employer in respect of which a notice and accompanying statement (often referred to as a “declaration of intent”) must be given to the Pensions Regulator (TPR) and the scheme trustees. The regulations are intended to come into force on 6 April 2022.

Changes to the list of employer notifiable events

The regulations remove wrongful trading from the list of employer notifiable events and add two new employer notifiable events:

  • A decision in principle by the employer to sell a material proportion of its business or assets.
  • A decision in principle by the employer to grant or extend a security over its assets where that grant/extension would result in the secured creditor being ranked above the scheme in the order of priority for debt recovery.

New “declaration of intent” requirements

The Pension Schemes Act 2021 will introduce a requirement for employers to give notice to TPR of certain prescribed events in relation to the employer of a DB scheme and to provide an accompanying statement about the impact of the event on the scheme (often referred to as a “declaration of intent”). A copy of the notice and the accompanying statement must also be given to the trustees of the scheme at the same time that they are given to TPR.

The regulations prescribe the following as events in respect of which a notice and accompanying statement must be given to TPR and the trustees:

  • The intended sale by the employer of a material proportion of its business or assets, in respect of which the main terms have been proposed.
  • The intended granting or extending of a security by the employer over its assets which would result in the secured creditor being ranked above the scheme in the order of priority for debt recovery, in respect of which the main terms have been proposed.
  • Where the employer is a company, the intended change of control of the employer, in respect of which the main terms have been proposed, or where a change of control occurs without a decision to do so having been taken, the change of control of the employer.

The regulations also set out the information to be included in the accompanying statement.

The notifiable events regime and the declaration of intent regime are separate and, where an event will give rise to obligations under both regimes, both obligations must be complied with.

The consultation closes on 27 October 2021.

For a more detailed discussion of the proposed changes, please see our legal update.