359: What’s coming up in employment law?

Requirement for employers to provide PPE to be extended to workers

Employers already have a duty to provide suitable personal protective equipment (PPE) free of charge to employees who might be exposed to a health and safety risk at work. From 6 April 2022, new regulations will extend this duty to workers as well as employees (Personal Protective Equipment at Work (Amendment) Regulations 2022). This follows the High Court’s ruling in R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another which held that, by excluding workers, the UK had failed to properly implement the EU Health and Safety Framework Directive and the EU Council Directive on PPE in the workplace. Employers should be conducting risk assessments now to check whether any workers require PPE and, if applicable, PPE suitability assessments. Workers should then be provided with PPE, appropriate instructions and training in time for the 6 April deadline. The Health and Safety Executive has published guidance to help employers prepare for the change.

ECtHR blocks application as ECHR rights not argued early enough in proceedings

The European Court of Human Rights has declared as inadmissible an application challenging the Supreme Court’s ruling in Lee v United Kingdom. In 2018, the Supreme Court had ruled in this case that the Christian owners of a Northern Ireland bakery had not discriminated against Mr Lee, a gay man, on the grounds of sexual orientation or political opinion when it refused to provide a cake iced with the words ‘Support Gay Marriage’. This was because the bakery’s objection was to the message rather than to Mr Lee as an individual, as evidenced by the fact that the bakery employed and served gay people and treated them in a non-discriminatory way. The bakery’s owners believed that providing the cake would have helped promote the political campaign for legalising same-sex marriage in Northern Ireland, which was against their Christian beliefs. Mr Lee had argued that the Supreme Court had interfered with his rights under Article 8 (respect for private life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). His application failed for procedural reasons because he had not invoked his ECHR rights earlier in the domestic proceedings (although the bakery had) and therefore had not exhausted his domestic remedies. The ECHR still applies in the UK after Brexit, and this decision highlights the importance of arguing potential ECHR breaches early on in proceedings.

Home Office data rights exemption in Data Protection Act 2018 amended to increase safeguards for individual data subjects

Following the recent Court of Appeal judgment in R (The Open Rights Group and another) v Secretary of State for the Home Department and another, regulations amending the immigration exemption in the Data Protection Act 2018 (DPA) came into force on 31 January 2022. The Court of Appeal had ruled in May 2021 that the exemption allowing the Home Office to deny access to data rights where necessary to maintain immigration control was unlawful because it failed to include sufficient safeguards to protect individual data subject rights, as required by the GDPR. This amendment clarifies that the exemption must be applied on a case-by-case basis and can only be relied on if the government has guidance in place setting out the policies and processes for determining whether it applies. However, a further appeal may be lodged in this case as the Open Rights Group does not believe that the amendments to the DPA, in particular the reliance on guidance rather than legislative provisions, provide the accountability and clarity required by the Court of Appeal’s judgement.

High Court rules the government’s National Disability Strategy as unlawful

The High Court has recently declared in R (Binder and others) v Secretary of State for Work and Pensions that the National Disability Strategy published by the government in July 2021 is unlawful due to its failure to comply with consultation requirements. This Strategy was informed partly by the results of a UK disability survey open to the public between January and April 2021. However, four disabled claimants brought judicial review proceedings arguing that the government had failed to consult lawfully due to defects in the way the survey had been conducted. The High Court agreed that the survey did not amount to meaningful consultation, for example, because it did not confirm the government’s proposals; the multiple-choice format of most of the survey and word limits on other answers made it impossible for respondents to express their views effectively; and there had been no way for people to submit their responses to the easy read version of the survey. These defects had prevented due consideration and intelligent responses. The impact of the High Court’s judgment on the National Disability Strategy is not yet clear as the government has indicated that it intends to apply for permission to appeal.

Government reinstates Coronavirus Statutory Sick Pay (SSP) Rebate Scheme

In response to the spread of the Omicron variant, the government has temporarily reinstated the Coronavirus Statutory Sick Pay (SSP) Rebate Scheme. Small and medium-sized employers are now able to recover up to two weeks’ SSP paid due to Covid-19 where employees were off work on or after 21 December 2021. This applies to businesses with fewer than 250 employees across all PAYE payroll schemes on 30 November 2021. Employees do not have to provide a fit note for a claim to be made, although self-isolating employees can be asked to provide an isolation note from NHS 111. The financial limits under this rebate scheme are unaffected by payments made under the former scheme.

HMRC reviewing policy on whether businesses can reclaim VAT on the cost of charging electric vehicles

Following a number of representations from businesses, HMRC has announced that it is conducting a review of its policy on reclaiming VAT on the cost of charging electric vehicles. At present an employer cannot recover VAT where it reimburses an employee for the cost of charging at home an electric vehicle used for business, because the supply of electricity is made to the employee not the business. HMRC’s review will include looking at the evidence that can be provided to allow employers to claim back the VAT. It is also looking at other simplification measures that may reduce the administrative burden of accounting for VAT on private use. Guidance confirming changes to HMRC policy is expected in due course, but no timescale has been confirmed.

Report highlights significant rise in health and safety and flexible working claims

It has been reported that 637 single claims citing health and safety concerns were lodged in the Employment Tribunals in the 12 months to 31 March 2021. This is a 156% increase on the 248 cases received the previous year. Health and safety cases are likely to continue to increase this year due to the impact of the Omicron variant and a renewed emphasis on face-to-face working. Separate research has also highlighted a 52% increase in flexible working claims received by Employment Tribunals in the year to 30 September 2021, possibly due to employees resisting attempts by employers to bring them back into work. Compensation for failure to deal with flexible working requests in a reasonable manner is capped at eight weeks’ pay, subject to the statutory maximum of £544 per week. However, these claims are often brought in conjunction with direct or indirect discrimination claims for which compensation is unlimited. These trends highlight the need to tread carefully when employees raise health and safety or flexible working concerns.