In this episode, Chris Fisher looks at the recent Court of Appeal decision in Planon v Gilligan, where the employer was refused an injunction to enforce a non-compete clause because of the loss of income that the employee would have suffered and the two month delay before the employer issued its proceedings.
In this special podcast series, I deal with topics in the area of Diversity, Equity & Inclusion (DE&I). Each episode will focus on a particular DE&I initiative or issue. In this episode, I interview two of my Mayer Brown partners, Nicole Saharsky and Marcia Goodman, who represented the US women’s national soccer team in their recent landmark equal pay claim. We hope you find it interesting.
With the regular changes to the UK Right to Work (“RTW”) checks over the last year or so, employers may be forgiven for having lost track of what the latest requirements are.
As mentioned in our last blog on RTW checks (You’re Joking – Not Another One! Further Changes to the Right to Work check process | The Mobile Workforce), further changes to the process came into effect on 6 April 2022.
Current process as of 6 April 2022
Prior to an employee commencing work in the UK, an employer must undertake the RTW check through one of the following:
- a manual RTW check;
- using the services of an Identity Document Service Provider (“IDSP”) to complete the RTW check;
- though the Home Office online RTW check website.
For an employer who is used to completing a manual check, please note that the lists of acceptable documents have been changed. The current lists can be found under Annex A of the Home Office guidance on RTW checks: An employer’s guide to right to work checks (publishing.service.gov.uk)
The changes will primarily affect employers who have been used to undertaking the manual RTW check on an employee’s Biometric Residence Permit (“BRP”). As of 6 April 2022, BRPs are no longer on the list of acceptable documents.
Employers who have always undertaken the check on an individual’s BRP must now use the Home Office’s online website to complete the RTW check:
- once the individual has their BRP and passport, they should go online to complete the form here: Prove your right to work to an employer – GOV.UK (www.gov.uk);
- this will generate a share code, now valid for 90 days (it used to be 30 days only), which the individual will need to provide to the employer to enable them to view the RTW through this site: View a job applicant’s right to work details – GOV.UK (www.gov.uk). Please note that the share code must start with a “W”. If it starts with an “R” or “S”, it was generated for use by landlords or other users and cannot be used by an employer;
- on completion, this will generate confirmation of the individual’s RTW status. Employers should check that the photograph and details match the individual. This may be carried out either in person or by video call;
- if the details match the individual, the page should be downloaded and saved to evidence compliance by the employer. This must be saved for the duration of the employee’s employment plus two years afterwards.
If a valid check was completed before 6 April 2022, a retrospective check is not required.
You may have noticed we have mentioned the manual check, discussed the online check but completely skipped over the second option – the use of IDSPs.
Identity Service Providers
IDSPs that are licensed by the Home Office may be instructed by an employer to verify an individual’s RTW. The IDSP will use an Identity Verification Technology (“IDVT”) to verify an individual’s identity on the basis of a digital copy of a physical document.
It sounds quite straightforward – the employer engages an IDSP, pays the IDSP fee and receives the RTW check evidence. On 2 March 2022, the Home Office helpfully published information about how the process will work: Digital identity certification for right to work, right to rent and criminal record checks – GOV.UK (www.gov.uk)
Rather handily, there is a section on that page, which states it will be updated with the current list of licensed IDSPs……we are still waiting for this list to appear.
Looking back on our blog of 3 February 2022, we expressed scepticism that the use of IDVT would be fully operational by 6 April 2022. We even went so far as to end our blog with the prediction that the Covid-19 adjusted check process would be extended.
Extension of Covid-19 adjustment to RTW process – surprise!
Due to the pandemic, with the majority of the country suddenly working from home, the Home Office introduced a concession to the RTW check requirements. Under the concession, employers are permitted to perform the check on the basis of copy or scanned documents. Employers would not be required to see the original document under the concession. This concession was due to on 6 April 2022 but has now been extended to 30 September 2022.
One day, there will be a list of IDSPs available for employers to use. When that happens, employers should ensure that they do not simply pick one from the list. We suggest that employers compare their service offerings, timescales and fees before selecting one, or more, that most suit(s) their needs.
In the meantime, we recommend that, where possible, employers use the online checking process. Unfortunately, until there are licensed IDSPs, manual checks will still have to be carried on some individuals, such as British or Irish passport holders.
We will no doubt be writing another RTW blog with further changes and updates in due course.
The conversation around menopause in the workplace has been amplified recently, with weekly press reports stating that an increasing number of companies are taking steps to support employees who are going through the menopause.
Recent examples include a major high street retailer announcing last month that they would be paying for employees’ hormone replacement therapy (a common treatment for severe menopause symptoms), and a large media company is offering access to menopause resources and desk fans for women suffering from hot flushes.
These announcements also come amidst a discussion chaired by the Women and Equalities Committee earlier this year as to whether menopause should become a legally protected characteristic, as women are currently forced to find legal workarounds using age, sex, or disability as their protected characteristic if they want to protect their rights via litigation.
Creating an environment supportive of women going through the menopause is particularly important in the context of retaining senior women in the workplace. Recent research reported that almost a fifth of women with menopausal or peri-menopausal symptoms took more than eight weeks’ leave, and half of these women resigned or took early retirement.
A YouGov poll conducted in March 2022 has revealed that 72% of respondent companies do not currently have a menopause policy in place, and only 16% of businesses train line managers on how to address the menopause at work. Given the increasing number of queries we are responding to on this topic, we expect these statistics to change significantly this year, as employers begin to place greater emphasis on supporting those going through the menopause at work.
In the latest episode of our Employment Podcast, Chris Fisher and Miriam Bruce look at three recent cases:
- whether a 12 month non-compete covenant could be enforced against a solicitor (either through the covenant in their employment contract or the slightly wider covenant in their shareholder agreement);
- whether a resignation becomes a dismissal if the employer exercises a payment in lieu clause; and
- what rights agency workers have in relation to vacant roles in the client organisation.
Please find the link to the podcast here: https://www.mayerbrown.com/en/perspectives-events/podcasts/2022/04/employment-podcast-april-2022
Following on from our post last week on new employment rates and limits (click: here), the Presidents of the Employment Tribunals in England & Wales and Scotland have issued guidance updating the so-called Vento bands. The Vento bands provide guidance on the amount of compensation to be awarded by Tribunals for injured feelings in successful discrimination claims. The bands were originally set by the Court of Appeal in the leading case of Vento v Chief Constable of West Yorkshire Police (No 2)  IRLR 102, and have been subsequently uprated over the years to account for inflation and case law changes.
The new Vento bands, set out below, apply to claims presented on or after 6 April 2022:
- a lower band of £990 to £9,900 (this band is for less serious cases) (up from £900 to £9,100 in 2021);
- a middle band of £9,900 to £29,600 (this band is for cases that do not merit an award in the upper band) (up from £9,100 to £27,400 in 2021);
- an upper band of £29,600 to £49,300 (this band is for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment) (up from £27,400 to £45,600 in 2021),
- with the most exceptional cases capable of exceeding £49,300 (up from £45,600 in 2021).
It is worth noting that, contrary to many claimants’ expectations, an injury to feelings or Vento award is not a punitive award, but is intended to be compensatory.
The annual increases to employment rates and awards are higher than in recent years.
The statutory minimum amounts employers must pay to their staff and maximum awards available at the Employment Tribunal are increasing from 6 April 2022. This is not a surprise, given the annual nature of the increases. What is surprising, though, is that the increases are higher than in the last few years. In particular, the compensatory award for unfair dismissal has jumped from £89,493 to £93,878.
We have set out the key increases below. Note that the increased rates are based on the September 2021 retail prices index (RPI), which itself had increased 4.9% on the previous year.
Unfair dismissal/redundancy pay from 6 April 2022
- The maximum limit on a week’s pay, including for the purposes of calculating statutory redundancy or for various awards, including the basic or additional award of compensation for unfair dismissal, will increase from £544 to £571.
- The maximum compensatory award for unfair dismissal increases from £89,493 to £93,878.
Other statutory rate increases from April 2022
Under the Social Security Benefits Up-rating Order 2022, employers must increase minimum weekly payments to eligible employees as follows:
- National minimum wage: £9.50 per hour (up from £8.91).
- Statutory sick pay: £99.35 per week (up from £96.35).
- Family leave-related pay: £155.66 per week, or 90% of the employee’s average earnings, whichever is lower (up from £151.97).
- Maximum statutory redundancy payment: £17,130 (up from £16,320).
What you need to do
- Implement: Make sure the company is prepared to implement the changes (particularly in relation to national minimum wage) from the correct dates.
- Tribunal claims: If you are facing a potential claim in the Tribunal with a termination date post-6 April 2022, keep in mind the above increases to awards as, no doubt, claimant solicitors will be sure to mention these increases in any pre-claim settlement discussions.
- Diarise: Be prepared, and keep an eye out for the next round of changes in April 2023.
Mayer Brown will shortly be hosting the acclaimed author of A Dutiful Boy, Mohsin Zaidi, as part of our Diversity Month celebrations in March.
A Dutiful Boy was named one of the best books of the year (2021) by The Guardian, GQ, The New Statesman and Attitude. At this event, Mohsin will share his personal story and discuss diversity, inclusion and the realities of intersectionality.
This in-person event with our LGBT+ and Fusion networks will be held at our London office on Tuesday 15 March 2022: registration from 5.30pm, with event to start at 6pm.
If you would like to attend, please register here to confirm your place.
Following the last post on European Works Councils post-Brexit, UK employers should be aware of the continued relevance of the European Convention on Human Rights (ECHR) and keep on top of recent developments to ensure they are prepared to respond if human rights issues are raised in the workplace.
Is the UK still committed to the ECHR?
For now, the UK is still a participant in the ECHR, and UK Human Rights cases can still be heard by the European Court of Human Rights (ECtHR). The commitment was established in 2019 in a political declaration between the EU and the UK. The declaration highlights the UK’s ongoing commitment to respect the framework of the ECHR. The parties also declared that future arrangements should be underpinned by long-standing commitments to the fundamental rights of individuals, including giving effect to the ECHR.
The Brexit Trade Agreement codifies this commitment, but only to an extent – there is no specific mention of the ECHR and the drafting is vague on the consequences of withdrawing from the commitment.
The UK’s ongoing commitment to the ECHR is therefore uncertain as there is nothing to prevent the UK from withdrawing as a participant or limiting the application of the ECHR, e.g. by repealing or amending the Human Rights Act 1998 (which made available, for the first time, a remedy for breach of the ECHR in the UK courts). For the time being, we advise UK employers to keep on top of case law developments from the ECtHR, such as the recent high profile judgment of Lee v United Kingdom [Application no. 18860/19] (often referred to as the “support gay marriage cake case”).
ECHR Case update: Lee v United Kingdom [Application no. 18860/19]
The key takeaway from this case is that litigants should plead Convention rights expressly (or in substance) domestically before applying to the ECtHR.
The Claimant had brought a claim for breach of Northern Ireland anti-discrimination laws against a bakery following their refusal to supply him with a cake iced with a message in support of legalising same-sex marriage. The Supreme Court ultimately dismissed the claim, following which Mr Lee complained to the ECtHR on the basis that the Supreme Court’s interpretation of the anti-discrimination laws had infringed his rights to the following European Convention Rights:
- private and family life (Article 8)
- freedom of thought and conscience (Article 9)
- freedom of expression (Article 10)
- freedom from discrimination (Article 14)
The complaint about the Supreme Court’s judgment was inadmissible. The Claimant had not invoked those Article rights domestically and so the ECtHR held that the Claimant had not exhausted his domestic remedies. As such, the claim could not be heard by the ECtHR.
After years of press attention, the final conclusion of this case – it being rejected on procedural grounds – falls someway short of previous headline-grabbing decisions at earlier stages in the litigation. However, the main takeaway from this decision is an important one, namely that Convention rights and the “substance” of the Convention complaint have to be raised in domestic courts first in order to proceed to the ECtHR. If litigants do not do this, it is unlikely the ECtHR will entertain such claims.
As mentioned above, these cases will only continue to be relevant for UK employers for as long as the UK remains committed to the ECHR, so we will be interested to see how this develops in the coming years. For now, we would advise staying on top of these developments in case proceedings do go down the ECtHR route or where Convention rights are raised at an early stage in a dispute.
With a year now passed since Brexit, you may be surprised to see a post on this topic. However, it would seem that Brexit is still causing havoc when it comes to European Works Councils (EWCs) which had their headquarters in the UK pre-Brexit.
As the scope of EWCs is limited to the European Economic Area, post Brexit, it was not possible for EWCs to keep their bases in the UK. Given that, following the end of the transition period, the UK was no longer an EU Member State, the UK automatically became a ‘third country’ with regards to the implementation and application of EU law. As such, any EWC based in the UK needed to move to a new EU Member State prior to this date. If active steps were not taken to relocate the EWC to another EU member state, the EWC automatically relocated to the EU Member State in which the company has the highest employee headcount (assuming the employer still had the required number of employees in EU Member States to remain subject to the EWC Directive, once the UK was taken out of the equation). This may not always be the EU Member State of choice for the employer. Many employers have found themselves in a position where the location of the central management of their EWC has defaulted to a country that they did not intend and as such, are now taking steps to transfer the location of the EWC from the default country, to a new host location. This involves taking local law advice in multiple jurisdictions.
It is worth remembering that it remains possible to have UK representatives on an EWC. The EWC Directive allow for third-country employees to participate in EWCs by agreement, and this should be documented in the EWC agreement if it is not already.