* This post was written in October 2022, for the most up-to-date information on legislative changes under RUEL please see our member-support page https://www.cipd.org/uk/knowledge/employment-law/retained-eu-law-bill-employment-changes/
Jill Evans, Law Content Analyst, CIPD, looks at employment law developments in September and October 2022 for England, Scotland, Wales and Northern Ireland.
Removing EU laws
A Parliamentary bill was published on 22 September which will strip EU law out of the UK’s statute book. The Retained EU Law (Revocation and Reform) Bill 2022 allows the government to ‘amend, repeal and replace’ all EU-derived law, such as the:
- Working Time Regulations
- Agency Workers Regulations
- TUPE regulations.
Any EU-law which hasn’t been rewritten into UK law will automatically expire on 31 December 2023 although this ‘sunset date’ can be extended until 2026. Prime Minister Liz Truss committed to making changes to the 48-hour working week and calculating holiday pay under the Working Time Regulations in her election campaign (see Employment law updates for August/September 2022).
The new government has raised the threshold for small to medium-sized businesses from 250 employees to 500 employees for any future reporting regulations. Any existing regulations, for example, the gender pay gap reporting regulations, could be amended under the Retained EU Law Bill so that any business with fewer than 500 employees is exempt.
The government’s aim is to remove ‘bureaucratic and burdensome regulations’ from around 40,000 organisations but it says it will do this in a ‘proportionate way to ensure workers’ rights and other standards will be protected’.
Former Chancellor Kwasi Kwarteng’s mini-budget contained a proposal to return responsibility for deciding whether IR35 applied to contractors from 6 April 2023. This decision was reversed on 17 October, so employers must continue to assess the employment status of any contractors working for them through personal service companies to see whether NI contributions are due on them.
Trade union challenge
The TUC is bringing legal proceedings on behalf of 11 trade unions, including ASLEF, the GMB, and Unite, against the government’s law change allowing agency workers to cover for striking employees (see New strike use for agency workers, July 2022). The unions are claiming the amendment was unlawful and violates fundamental trade union rights set out in Article 11 of the European Convention on Human Rights. The TUC has also reported the UK government to the UN workers’ rights watchdog, the International Labour Organisation (ILO) over its anti-strike measures including a proposal to set minimum service levels for transport and other essential services.
Bypassing collective bargaining
In Jiwanji v East Coast Main Line, an employment tribunal has awarded a total of £4.8m in compensation to 1,250 members of the RMT union. The union was able to show that the employer had bypassed collective bargaining procedures when it made a pay offer directly to its members, having successfully concluded negotiations with the other two railway workers’ unions in the company’s collective agreement. This employment tribunal decision follows an earlier Supreme Court ruling in the case Kostal UK v Dunkley.
Other cases to note:
- In Marshall v ProQual Awarding Body, an administrator with a pre-existing stress condition was awarded £27,000 compensation for indirect sex discrimination including psychiatric injury. Lack of available childcare during the pandemic prevented her from returning to work after her furlough ended and there were no attempts to accommodate the short-term difficulties she faced.
- In Quinn v Sense Scotland, the head of people for a care provider struggled with daily activities after a COVID-19 infection and was dismissed. She was subsequently diagnosed with long Covid but her disability discrimination claim failed as her condition was not sufficiently long-term at the point of her dismissal to meet the definition of disability in the Equality Act 2010.
- The case Tijani v House of Commons Commission is a useful reminder that a fair dismissal is possible simply for persistent lateness. The cleaner in the case had a final written warning for lateness in 2018 but was then late on a further 43 occasions in the period up to January 2019 and was fairly dismissed for misconduct in May 2019.
Explore our resources on these subjects
Recent and forthcoming legislation - latest employment law developments and proposed future changes
Working Time Regulations Q&As - EU-derived rules that may change (see ‘Future developments’)
Transfer of undertakings (TUPE) Q&As – possible post Brexit changes (see ‘Future developments’)
Pay fairness and pay reporting - find out what fair pay can mean, what pay information UK employers must disclose by law and the opportunities pay narratives bring
IR35 implications for in-house HR practitioners – understand the ramifications of the tax regime for in-house HR
For case law on employment status see Basic Broadcasting Ltd v HMRC and Atholl House Productions v HMRC
Agency workers: understanding the law – using agency workers to cover striking workers (see section 5)
Employee relations: an introduction - employee relations as a concept and what it means to employers
Trade union recognition and industrial action Q&As - commonly asked questions on the legal issues relating to trade union recognition and industrial action
Case law topics
Case law on trade union recognition and industrial action - selected cases on recognising trade unions and dealing with industrial action
Supporting mental health at work: guide for people managers - information, advice and templates to improve support for those experiencing stress and mental ill health
Working with long COVID: guidance to provide support - advice for HR professionals, line managers and colleagues to support employees with long COVID
Managing absence Q&As - frequently asked questions on the legal issues relating to absence management