Thu 13 May 2021

What else is happening in employment law? - May

We look at what is happening in employment law away from the COVID-19 pandemic.

Legislation and Guidance

The Telegraph newspaper has reported that the UK Government intends to review whistleblowing legislation to ensure it is "fit for purpose".  Analysis by the paper has found that nearly 2,300 tribunal claims were made between April and December 2020 by workers alleging they had been sacked for whistleblowing.  In addition, figures released by whistleblowing charity Protect show that there has been a 5% increase in calls to them made in the period September 2020 to March 2021 by whistleblowers who claim they were dismissed from their employment compared to the same period the previous year. 

The BEIS guidance on calculating the national minimum wage has been updated insofar as it relates to "sleep-in" workers.  The updates follows the Supreme Court decision in Royal Mencap Society v Tomlinson-Blake and others that confirmed sleep-in workers were only entitled to NMW when they were awake for the purposes of working.  The guidance clarifies the differing treatment of workers depending on the requirements to undertake work during the shift and provides practical examples to assist employers with correctly applying the law.


ACAS have published a report on estimating the costs of workplace conflict. The report maps the incidence of conflict across UK workplaces, showing the impact on individuals and their employers as well as estimating the overall cost to UK organisations.  It is estimated that over 485,000 employees resign each year due to conflict at work.  The estimated overall total annual cost of conflict (including recruiting replacements, lost output as new employees get up to speed, the negative impact on productivity caused by mental health conditions connected to the conflict and sickness absence) is estimated at £28.5 billion, representing just over £1,000 for every employee in the UK.  A further £264 million is estimated to be spent on legal fees with the management costs of dealing with potential or actual litigation being estimated at £282 million each year. 

Equality and Diversity issues have been in the headlines.  The much criticised report by the Commission on Race and Ethnic Disparities was published on 31 March and looked at health, education, criminal justice and employment.  The TUC made calls for legal restrictions on workplace decision-making using Artificial Intelligence, highlighting the risk of "widespread discrimination and unfair treatment" of workers, particularly in the gig economy.  In addition, a survey by YouGov found that 65% of trans employees feel the need to hid their trans status at work.  For more detail on all of these stories see our blog on what's new in Equality Law.

According to recent research by the union Prospect, 66% of remote workers support a "Right to Disconnect" Bill.  A number of other European countries including Ireland have already adopted a similar right.  Supporters argue that including a right to disconnect in the Employment Bill (the bill introduced in the Queen's Speech in December 2019) would help define the boundary between private and work time for the many employees likely to continue with some home working post pandemic.

Campaigners are urging the UK Government to reform Shared Parental Leave, replacing it with a scheme that would give both parents non-transferable paid leave to care for their child.  It is estimated that only 3 to 4% of eligible couples currently use SPL.  The proposed replacement would encourage fathers to take on a greater share of childcare responsibility. 

Opposition MPs have urged the UK Government to address employers "fire and re-hire" tactics.  This method is commonly used to implement changes to employees' terms and conditions and was the subject of an MPs' debate in late April.  The Government is currently considering a yet to be published ACAS report on this issue with the method being described, during the debate, as something that "should only ever be used as an option of last resort".

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