Littler Global Guide - United Kingdom - Q1 2023

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Court of Appeal: Dismissal of Employee Who Stayed Away from Working During COVID-19 Was Not Unfair

Precedential Decision by Judiciary or Regulatory Agency

Authors: Stephanie Compson, Professional Support Lawyer, and Darren Isaacs, Partner – GQ | Littler

In the first COVID-19 related employment case heard by the Court of Appeal, the court considered whether the dismissal of an employee who refused to attend work during the COVID-19 pandemic on the grounds that it presented a health and safety risk was automatically an “unfair dismissal.” Under section 100(1)(d) of the Employment Rights Act 1996 (ERA 1996), dismissals are automatically unfair if the employee is dismissed in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert and such employee left (or proposed to leave) or (while the danger persisted) refused to return to the place of work or any dangerous part of the place of work.

The Court of Appeal upheld that an employee had not been automatically unfairly dismissed for leaving the workplace and refusing to return at the start of the first COVID-19 lockdown. Although decided on its facts, the Court of Appeal set out some useful guidance on s. 100(1)(d) ERA 1996, including that the employee must believe that there were circumstances of serious and imminent danger at the workplace and that such belief must be reasonable.

The decision and the guidance will be welcome to employers who put in place adequate safety measures to reduce the risk of COVID-19 infection in their workplace.

Proposed Strikes (Minimum Service Levels) Bill

Proposed Bill or Initiative

Authors: Stephanie Compson, Professional Support Lawyer, and Darren Isaacs, Partner – GQ | Littler

In the previous Global Guide Quarterly update, we reported on the Transport Strikes (Minimum Service Levels) Bill. That Bill now appears to have been superseded by the Strikes (Minimum Service Levels) Bill and will, if enacted, target a broader range of public services (relevant services), including a) health; (b) fire and rescue; (c) education; (d) transport; (e) decommissioning of nuclear installations and management of radioactive waste and spent fuel; and (f) border security. The Bill, which is currently working its way through the UK Parliamentary process, proposes to give the UK government new powers to make regulations setting minimum service levels for the relevant services. Consultations in respect of regulations to set minimum service levels for ambulance, fire and rescue and passenger rail services have been launched.

The Bill, if enacted, will also: (1) Enable employers to issue "work notices" to require minimum service levels to be delivered for particular strikes in those relevant services; (2) Restrict the current legislative protections afforded to trade unions for immunity from tort liability (when certain conditions have been met) if the union fails to take reasonable steps to ensure all union members identified in the work notice comply with such work notice; and (3) Amend the current automatic unfair dismissal protection given to employees who take part in protected industrial action, to exclude employees who are “identified workers” in the work notice and nevertheless take part in a strike in breach of the relevant work notice.

Proposed Statutory Leave and Pay Entitlements for Parents of Babies Requiring Neonatal Care

Proposed Bill or Initiative

Authors: Emily Partridge, Associate, and Darren Isaacs, Partner – GQ | Littler

The Neonatal Care (Leave and Pay) Bill (the Neonatal Bill), which has gained UK government support, proposes that parents of babies who require specialist neonatal care following birth will be entitled to statutory Neonatal Care Leave and Neonatal Care Pay in addition to other statutory leave entitlements such as maternity and paternity leave. If approved as proposed, employees will be able to take Neonatal Care Leave from one to 12 weeks, either when their child is receiving neonatal care or after that period but within a prescribed period.

Statutory Neonatal Care Pay will be provided for qualifying employees with at least 26 weeks' continuous service and who have earnings not less than the lower earnings limit. Parents taking Neonatal Care Leave will have the similar employment protections as those associated with other forms of family related leave. This includes protection from dismissal or detriment as a result of having taken Neonatal Care Leave. Additionally, employees will therefore be able to add Neonatal Care Leave to the end of other forms of statutory parental leave to which they may be entitled.

Workers (Predictable Terms and Conditions) Bill

Proposed Bill or Initiative

Authors: Hannah Drury, Trainee Solicitor, and Darren Isaacs, Partner – GQ | Littler

Under current law, there is no statutory right for workers to request a predictable working pattern. The Workers (Predictable Terms and Conditions) Bill (the Bill), which is expected to be passed without opposition, proposes to create this right for workers and agency workers. The framework is largely based on the existing statutory flexible working framework and so the application of the rules will not be unfamiliar to employers.

As currently proposed, the right will be available to workers who have a lack of predictability in their working pattern, where such request is to change their working pattern and the purpose of such change is to get a more predictable working pattern. The right will be available to workers after they have completed a qualifying period of service (expected to be 26 weeks), and a worker is restricted from making two statutory applications in any 12-month period. The Bill also proposes to introduce certain remedies to workers where an employer has failed to deal with their request reasonably, including the right to request reconsideration of their request and/or an award of compensation. Further, a worker will have the right not to be subjected to a detriment and it would be automatically unfair to dismiss an employee because they have made a request for a predictable working pattern (or brought proceedings) under the proposed legislation.

Scottish Reforms to Gender Recognition Process Blocked by UK Government

Proposed Bill or Initiative

Authors: Ben Smith, Associate, and Darren Isaacs, Partner – GQ | Littler

By way of background, the United Kingdom is made up of different jurisdictions: Scotland, Northern Ireland, England and Wales. Although the UK Parliament makes laws for the whole of the UK, law-making powers have also been given to other legislatures (e.g., the Scottish Parliament) on certain matters within their jurisdictions.

Accordingly, the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill in December 2022 (the Bill). The Bill would have made changes to apply in Scotland to the system of gender recognition certificates (GRCs) - the system in the UK by which a person is able to get legal recognition of a change in their gender identity from that assigned at birth. The Bill would have removed the current requirement for a medical diagnosis of gender dysphoria and extended the GRC application rights to 1) apply to 16- and 17-year-olds, albeit with slightly different requirements; and 2) to reduce the self-certification time required for an applicant to live in their “acquired gender” from two years to three months.

However, in January 2023, the UK’s central government used its legislative powers under s.35 of the Scotland Act 1998 to block the Bill from becoming law, on the grounds that the legislation would have an adverse impact on an area of law that applies across the whole of the UK (in this case, equality law). The unprecedented use of this power is expected to be legally challenged by the Scottish government and it may be some time before the status of the Bill is resolved. If the challenge is successful and the Bill is enacted, it would apply only in Scotland but there may be wider implications for all UK employers (such as whether Scottish GRCs would be recognized in England, Wales or Northern Ireland).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.