320: And finally a look forward to what’s happening in employment news for July 2021
The government has recently updated its guidance on calculating the National Minimum Wage (NMW) for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others. This revised guidance confirms that sleep-in workers are only entitled to the NMW when they are awake for the purposes of working, and not whilst they are permitted to sleep. It also explains that the situation is different for workers who are expected to perform activities for all or most of a shift and are only permitted to sleep between tasks where possible (such as napping when not busy). Since these workers are in effect working for all of that time, it is likely that the NMW must be paid for the whole shift, including for any time spent asleep. Although the updated guidance and some new practical examples will be helpful to employers, each case will depend on the individual circumstances, including any relevant contractual provisions and what happens in practice.
The Court of Appeal has refused permission for Addison Lee to appeal against an EAT finding that its minicab drivers are workers (Addison Lee v Lange and others). The Employment Tribunal and the EAT had both found that its drivers are workers, rather than self-employed contractors, and that the time during which drivers are logged onto the Addison Lee system constitutes working time. Addison Lee’s subsequent appeal to the Court of Appeal had been stayed pending the Supreme Court’s decision in the Uber case. Following the Supreme Court’s recent ruling that Uber drivers are workers, the Court of Appeal refused permission for Addison Lee to appeal on the basis that it had no reasonable prospect of success.
The Office of National Statistics has published a major study which looks at how homeworking impacts an individual’s job outcomes and explores the characteristics of those who work from home. Data from 2011 to 2019 was used to understand pre-pandemic trends and then compared with 2020 data. The number of people who occasionally worked from home increased from 9.4% in 2019 to 35.9% in 2020. Those who only recently worked from home worked the most hours per week on average in both full-time and part-time roles. Full-time homeworkers were found to work the most unpaid overtime, with an average of six hours per week compared to 3.6 hours for non-homeworkers during 2020. Employees working from home also had a lower sickness absence rate than office-based workers, with the total sickness absence for homeworkers falling to 0.9% in 2020.
The Presidents of the Employment Tribunals in England, Wales and Scotland have published a new “road map” for tribunal proceedings in 2021 / 2022. Given the increase in caseload, which had begun even before the pandemic, video hearings will continue for at least two years. A ‘virtual region’ will be created in England and Wales from April 2021, with around 100 fee-paid employment judges. Until March 2022, all preliminary hearings for new cases will default to telephone or video. Applications for interim relief and final hearings of short track claims, such as holiday pay or unpaid wages claims, will default to video. Final hearings of standard track claims, including unfair dismissal, will vary by region but in London and the South East, where the backlog is worse, they will default to video. In most areas, open track claims (discrimination and whistleblowing) will default to in-person hearings. However, in London and the South East, there will be a more hybrid format. Parties will still be able to ask for a hearing to be held in a different format.
The House of Lords Select Committee on Covid-19 has published a report ‘Beyond Digital: Planning for a Hybrid World’ which is part of its inquiry into the impact of digital technology on social and economic wellbeing. This links to the government’s commitment to develop a new post-Covid digital strategy, due to be published later this year. The Committee urges the government to be mindful of both the positive and potentially negative impact of digital technology. Recommendations in the report which are relevant to employers include: introducing new legislation to provide platform workers with enhanced employment rights; considering new employment policies and regulations to deal with the shift in the nature of work, for example, a right to switch-off and new guidance dealing with the increase in remote monitoring of employees working at home; and defining responsibilities for the costs of remote working.
The Employment Bill which was proposed in the Queen’s Speech in December 2019 has been delayed by the pandemic and was notably absent from the recent Queen’s Speech. It is not clear when the measures previously proposed in this Bill will be implemented. These measures included a single labour market enforcement body; legislation and a code of practice requiring employers to pass all tips and service charges to workers; a right to request a more predictable and stable contract after 26 weeks’ service; extending redundancy protection to six months after the end of maternity leave; a right to neonatal leave and pay; a week’s leave for unpaid carers; and making flexible working the default position without good reason.