Welcome to our September 2021 edition of Employment Up-To-Date.  


Read on for a roundup of some of the latest news and developments in relation to employment.

UPDATE: SHOULD FLEXIBLE WORKING BE A DAY ONE RIGHT?

The government has launched a new consultation on flexible working which remains open until 1 December. It seeks views on five key proposals: making the right to request flexible working a day one right, whether the eight business reasons for refusing a request all remain valid, requiring the employer to suggest alternatives, the administrative process underpinning the right to request flexible working and requesting a temporary arrangement. It also wants to consider how to make the most of the lessons learnt over the last eighteen months as more people return to work and employers respond to new approaches to working and to consider how to secure genuinely flexible working friendly cultures across and within organisations.

Please contact us if you would like to discuss any issues raised in the consultation document or would like to put your views forward. 

Covid-19 Update: Extended Right to Work Checks Concession

The Home Office is currently running a temporary concession for right to work checks to be carried out remotely. The concession due to end on 31 August 2021 has been extended until 5 April 2022. The temporary changes, which have now been in place since 30 March 2020, allow right to work checks to be carried out remotely over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals. The Government has amended its Coronavirus Covid-19 Right to Work Checks guidance accordingly.

We reported on the temporary concession in our article Right to Work Checks: Covid Concession Extended in May 2021, read the full article here

Update: PHI benefits - Be careful what you commit to

In Amdocs Systems Group Ltd v Langton, the Employment Appeal Tribunal (EAT) held that an employer was liable to pay an ‘escalator’ of 5% per annum on payments under a long-term sickness scheme, even though it was no longer covered by the employer’s insurance policy.  The employer was contractually bound by terms in an employee's offer letter and 'summary of benefits' provided by a previous employer before a TUPE transfer - because it hadn't expressly and unambiguously communicated to the employee any limitation of that entitlement.

Read the full article here 

Updates: Disability Awareness Day

As part of our focus on disability discrimination leading up to Disability Awareness Day on 12th September 2021, we published a number of articles highlighting recent cases and issues surrounding disability in the workplace.

They include Can employers avoid making adjustments by relying on someone else to help a disabled person? considering whether employers can avoid making reasonable adjustments themselves by relying on someone else, such as friends, family or advice centres, to help a disabled employee or prospective employee and taking a look at the EAT case of Mallon v AECOM Ltd (2021).

Tribunal makes second largest disability discrimination award ever examining the case of Mr D Barrow v Kellog Brown & Root (UK) Ltd in which the Employment Tribunal awarded Mr Barrow £2,567,831.97 for unfair dismissal and disability discrimination. 

Is long Covid protected as a disability under the Equality Act 2010? analysing the effects of long covid and the implications under the Equality Act 2010 in the absence of any employment tribunal ruling and the evolving nature of Covid-19.

Why it's always important to identify the correct PCP in a reasonable adjustments claim, looking at the recent case of Martin v City and County of Swansea [2021] where on appeal it was found that the Employment Tribunal had erred in law by concluding that the PCP asserted by the Claimant in a reasonable adjustments claim was only the terms of a Management of Absence Policy and not the subsequent application of that policy.

The importance of the employer's knowledge in a disability discrimination claim, examining the case of Seccombe v Reed in Partnership Ltd [2021] where it was held that the employee was not a disabled person and, in any event, the employer did not have actual or constructive knowledge of the Claimant's mental health issues.

Employers must act fairly across different groups of disabled people, looking at the recent case of VL v SZPITAL KLINE NY [2021], in which the European Court of Justice (ECJ) considered whether it may be direct or indirect discrimination for an employer to pay an allowance to disabled workers who submitted their disability certificates after a certain date, but not to other disabled workers who submitted their certificates before this date. 

The importance of timing when determining disability status, a spotlight on the case of All Answers Lt v W [2021] where the Court of Appeal reaffirmed the importance of timing when determining disability status. 

Insight: Working from home in the retail sector – what does the future hold?

Hybrid working is here to stay but what does that look like for the retail sector?  We take a look at what this may mean, in particular, for the in-store teams, how it will affect the consumer experience and how it will shape the future of the high street.

A recent BBC survey reported that 60% of workers prefer working from home and while adapting to a new hybrid landscape has been challenging for businesses, it has largely been achievable especially for office based staff.  The retail sector, however, faces greater challenges to meet the new remote working model while maintaining an in-store presence on the high street for its customer base.  

Read the full article here 

Insight:  Menopause in the workplace

The House of Commons Women and Equalities Committee has launched an inquiry into issues surrounding the menopause in the workplace. The inquiry will review the discrimination legislation and workplace practices already in place to consider whether enough is being done to prevent women from leaving their jobs or suffering other adverse consequences as a result of menopausal symptoms. 

Read the full article here 

Immigration update: How will the changes to UK and EEA visitor rules affect business travel?

Following the changes to the UK's Immigration Rules and the end of free movement between the UK the EEA, business travellers should make sure that their actions fall within the visitor rules before they travel. Activities that do not fall within the visitor rules will likely require a working visa. We look at the rules in the UK, France and Germany and the visitor requirements for each.

Read the full article here 

What to watch

The September edition of our Employment and Immigration Horizon Scanner has just been published which gives a useful overview and impact assessment of future legislation developments as well as key cases to expect over the coming months.  

The Horizon Scanner can be found here

AG Publications and Events

We are delighted to be hosting our annual training day event again in November. Watch out for the invitation in the coming weeks. 

Richard Yeomans has also been speaking to inews about why remote working throws up a risk of discrimination.  The article can be found here.

Key Contacts

Michael Leftley

Michael Leftley

Partner, Head of Employment, Incentives & Immigration Group
London, UK

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Sarah Harrop

Sarah Harrop

Partner, Employment & Immigration
London

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Helen Almond

Helen Almond

Senior Knowledge Lawyer, Employment & Incentives
Manchester, UK

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