Insights Worked up, your monthly employment law lowdown – June 2021

Summer has finally arrived and there is seemingly lots to be cheerful about. Whether it’s a night out at the pictures, the prospect of attending a music festival or the chance to finally see some live sport in person (perfect timing given the imminent Euros), it’s a truly exciting time within media, entertainment and sport. Little surprise then that there’s not been too much to get Worked Up over from an employment law perspective this last month.

We would hate to deprive you of some HR goodness though so read on for the key updates you need to know. In this edition, we highlight the extension of health and safety protection to workers, predictions on the future of remote working, the impending EU Settlement Scheme deadline and an interesting constructive dismissal case.

If you would like to receive these updates directly to your inbox, please subscribe here.

Following the Independent Workers’ Union’s successful challenge of the UK’s implementation of the Health and Safety Framework Directive (which we reported in December’s edition of Worked Up), the Employment Rights Act 1996 has now been amended so that workers, as well as employees, have the right not to be subjected to a detriment in certain health and safety cases.

All workers who reasonably believe that there is a serious and imminent danger at work now have the right to take appropriate steps to protect themselves or others (including not attending work) without being subjected to a detriment for taking such action. The amendment came into force on 31 May 2021 and applies to acts (or the last in a series of acts) which occur on or after that date.

This is clearly very topical given the workplace health and safety concerns which continue to be prevalent as a result of Covid-19, particularly given the large number of freelancers working in the media industries that benefit from worker status. All employers should take note though, especially as many continue to accelerate their plans for a return to the office or workplace in some capacity post-Covid.

Health and safety considerations therefore remain critically important and businesses should tread carefully when dealing with any employees or workers who raise concerns about returning to the workplace. Care should be taken to ensure such individuals aren’t subjected to a detriment (e.g. dismissed or having their pay reduced) as a result of raising such concerns or taking action linked to these concerns.

Back to top

With the work from home guidelines due to be lifted in the next couple of weeks, reports suggest that demand for city centre office space is starting to rise as many employers prepare for a return to the workplace.

While this time last year reports suggested that Covid could pave the way for a future of remote or hybrid working, many businesses have now announced their plans to return to the office and the Centre for Cities think tank is predicting that a five-day office week could become the norm again within two years.

This is likely to be unwelcome news for many who have grown to enjoy the flexibility that remote working brings. With Apple employees having reportedly already launched a campaign to resist Tim Cook’s plans for staff to return to the office, this looks set to be a tricky area for HR professionals to navigate over the coming months.

Those contemplating a return to pre-Covid office arrangements would therefore be wise to carefully consider how this will be received by staff and how the process can best be managed.

Back to top

The deadline for applications under the EU Settlement Scheme of 30 June 2021 is fast approaching. Successful applicants to the scheme obtain either settled or pre-settled status which is one of the simplest ways of retaining the right to live and work in the UK post Brexit.

Those with settled status will be able to remain in the UK indefinitely and those with pre-settled status will be able to stay in the UK for a further five years and can apply to switch to settled status once they have five years’ continuous residence. It’s therefore last orders time for any EU, EEA or Swiss citizens who have not yet applied and if they have any intention of doing so they should get their applications in pronto. And if your business employs any such individuals, we’d strongly advise you speak to them urgently to ensure applications are submitted in time.

Back to top

Flatman v Essex County Council UKEAT/0097/20

In this case, the Employment Appeal Tribunal (EAT) reaffirmed the principle that a fundamental breach of contract (in the context of a constructive dismissal claim) cannot be cured.

The employee in question in this case, Ms Flatman, brought a constructive dismissal claim following her resignation as a result of her employer allegedly failing to provide a safe system of work.

Ms Flatman was a Learning Support Assistant who had to carry out lifting manoeuvres when supporting a disabled pupil. She had requested manual handling training on a number of occasions but this was not provided and she was signed off work with back pain. On her return to work, she was told that training was being organised and that the school was looking into moving her to another class so that she didn’t have to lift the pupil. Ms Flatman resigned before the training or the move took place.

Ms Flatman’s claim was rejected by the Employment Tribunal which found that her employer had demonstrated genuine concern for her in the return to work conversations. However, the EAT held that the Tribunal had erred in failing to consider whether there had been a fundamental breach at any time before the return to work conversations took place. The EAT determined that there had been a fundamental breach by the employer and that this had not been waived by Ms Flatman who had resigned in response to it. She had therefore been constructively unfairly dismissed.

This is an interesting case although the outcome isn’t particularly surprising. It’s a useful reminder of the importance of promptly dealing with employee concerns as, once a fundamental breach has occurred, it cannot later be cured.

Back to top