Welcome to our June HRizon employment law newsletter. We consider when ‘without prejudice’ settlement offers can be admitted into evidence, how to ensure hybrid working is effective, and new rules regarding the signing of ‘fit notes’ and apprenticeship funding. We also highlight other recent employment law cases and HR news from the last month.
In the European Court of Justice (ECJ):
Data protection: does the data subject’s right of access extend to identification of specific recipients with whom their personal data has been shared/disclosed?
Data subjects have a number of specific rights under the UK GDPR, including the right to obtain information about ‘the recipients or categories of recipient’ to whom their personal data have been, or will be, disclosed (article 15(1)(c)). There is currently a pending application before the ECJ, which seeks to clarify the scope and extent of this right of access. Read more
In the Employment Appeal Tribunal (EAT):
When should correspondence sent ‘without prejudice’ be admitted into evidence?
Employment disputes should, wherever possible, be settled without recourse to the courts and tribunals. To encourage settlement most claims are subject to mandatory pre-claim early conciliation, and the parties may voluntarily enter into protected conversations or ‘without prejudice’ settlement discussions/correspondence. Any without prejudice correspondence is generally not admissible in evidence, but there is an exception to this rule where there is perjury, blackmail or other unambiguous impropriety. The EAT recently considered whether a letter expressed to be ‘without prejudice’ could be admitted into evidence in reliance on the unambiguous impropriety exception to the without prejudice rule. Read more
What impact does the maximum statutory cap have when the amount of compensation is successfully appealed upwards?
For most ‘ordinary’ unfair dismissals, the compensatory award is subject to a statutory maximum, which is applied once all other deductions and reductions have been made. This statutory cap is currently £89,493 or 52-weeks’ actual pay if this is lower. The EAT has recently considered what impact the statutory cap has when the employee successfully appeals so that the amount of compensation awarded was revised upwards. Read more
In the Employment Tribunal (ET):
Was a casino cashier, who had twice alleged discrimination, victimised when she was socially excluded by her colleagues, treated less favourably and threatened with disciplinary action if she made further allegations of discrimination?
Under the Equality Act 2010, a worker is protected from victimisation (ie being subjected to less favourable treatment) because they have done a ‘protected act’, such as raising a grievance alleging discrimination or bringing a discrimination claim. The tribunal must consider whether the particular detrimental act complained of was motivated by the worker’s ‘protected act’. East London ET recently considered whether a casino cashier, who had twice alleged discrimination, was victimised when she was socially excluded by her colleagues, treated less favourably and threatened with disciplinary action if she made further allegations of discrimination. Read more
In the news:
A wider range of medical professionals to be able to sign ‘fit notes’ from 1 July
With the aim of reducing the workload of GP’s, new regulations have been introduced that will allow a wider range of medical professionals to sign ‘fit notes’ (which are necessary to claim entitlement to statutory sick pay once an absence lasts eight or more days). The new regulations come into force on 1 July 2022. In practical terms, the changes mean that, in addition to doctors, some specified healthcare professionals – namely, registered nurses, occupational therapists, pharmacists and physiotherapists – will be permitted to sign fit notes for patients. It is perhaps surprising that the midwives have not been added to the list of healthcare professionals given the power to sign fit notes.
ESFA announces changes to simplify apprenticeships
The Education, Skills and Funding Agency (ESFA) has announced that it intends to make changes to the apprenticeship funding rules in order to make the apprenticeship system simpler to use. The planned improvements include:
- Provider assessment of prior learning and experience (1 August 2022): apprenticeship providers will be funded to perform an upfront assessment of any prior learning/experience the apprentice has, so they can cut out any training they do not require and complete their apprenticeship faster.
- Specify the minimum number of hours that a full-time apprentice must spend in training (1 August 2022): this will create a level-playing field among apprentices who are on the same standard but working different hours.
- Changes to the minimum English/Maths requirements (1 August 2022): apprentices who start a L2 apprenticeship without L1 English and Maths will be able to focus on securing a L1 English and Maths qualification.
- A more efficient payment service for apprenticeship providers (from late 2022): this will reduce the data needed to make payments and improve the financial reports to help providers understand what they are being paid for each apprenticeship and why. The new payments system will also do more to ensure that employers promptly receive their £1,000 additional support payment if they take on an eligible young apprentice.
ONS estimates that around 3.1% of the UK population have symptoms of long-Covid
On 1 June 2022, the ONS reported that 3.1% of the UK population (around 2 million people) have self-reported to the ONS that they have symptoms of long-Covid (ie Covid-19 symptoms that continue for more than four weeks). Drilling down into the ONS research further:
- Symptoms of long-Covid are long-lasting – 1.4 million people (72%) reported that they first had Covid symptoms at least 12 weeks previously, 826,000 (42%) at least one year previously, 442,000 (22%) less than 12 weeks previously, and 376,000 (19%) at least two years previously
- 1.4 million people said that their long-Covid symptoms adversely affected their day-to-day activities with 398,000 people saying that their ability to go about their day-to-day activities had been ‘limited a lot’
- The most common long-Covid symptoms were fatigue (55%), followed by shortness of breath (32%), a cough (23%), and muscle ache (23%)
- The prevalence of self-reported long-Covid was greatest in people aged 35 to 69 years, females, people living in more deprived areas, those working in social care, teaching and education or health care, and those with another activity-limiting health condition or disability.
Hybrid working: University of Leeds publishes new research-led report
The future workplace team at the University of Leeds have published a new report ‘Where is Your Office Today?’, a research-led guide to effective hybrid working. The report starts by recognising that the pandemic has changed what it means to ‘go to work’ for many people and this has changed employees’ and organisations’ preconceptions over ‘what’ a workplace is and led to a broader rethink of ‘how’ we work in a much broader sense. Read more
Employed pension trustees – how much protection should be provided?
Section 46 of the Employment Rights Act 1996 (ERA) provides that an employee who is a trustee of an occupational pension scheme may not be subject to any detriment by their employer on the ground that they performed any function as a trustee of the scheme. In a recent case, Folarin -v- Transport for London, the Employment Tribunal (ET) considered whether the treatment of an employee who was a trustee of her employer’s pension scheme amounted to a detriment for the purposes of s.46 of the ERA. Read more
Q&A with Olivia Sweeney-Jones
This month we meet Olivia Sweeney-Jones, Trainee Solicitor, Commercial Employment based in Manchester.
What is your greatest achievement?
Surviving in a flat alone during the pandemic. I almost went stir crazy… almost!
What is your favourite book?
I LOVE the Harry Potter books and have read them countless times but I am also a huge fan of Jo Nesbo who is a Norwegian author. His books are really gritty detective thrillers and I highly recommend the Harry Hole series – in particular (if you want to be absolutely terrified) read The Leopard.
What advice would you offer your teenage self?
I would tell my teenage self to relax. I think I was quite an uptight teen and I put a lot of pressure on myself when it wasn’t necessary…enjoy the house parties while you can!
What is your favourite food?
A few of my colleagues know my love of anything pickled. You can quite literally pickle anything and it will taste amazing, trust me!
Who is your favourite superhero?
Spiderman and I think my favourite Peter Parker is Tobey Maguire.
For further information, please contact:
Emma Ahmed, Hill Dickinson