We are back! After a summer break and a few bank holidays (some planned and others less so) the Monday Morning Dispatch (MMD) has returned.

The MMD will have a slightly different look this year, which we will continue to develop over time. As much as we can, we are going to publish our content in video format, via our weekly update videos in addition to some bite sized webinars.

We will continue with our news updates but also lift the lid as to life at Chadwick Lawrence in a weekly update as what we are getting up to.

Finally, we are planning on restarting our in-person events on a regular basis and more details of this will come in next week’s MMD.

What Changes are Taking Place with Right to Work Checks?

From 1st October 2022, the temporary changes to right to work checks brought in during COVID-19 cease to apply. However, employers will be able to make use of Identity Service Providers (IDSPs) to undertake right to work checks for British and Irish workers rather than undertaking manual checks moving forwards.

To watch the video please click here.

This video examines the legislative changes to medical certificates, which allow these to be provided by a wider range of health professionals from 1 July 2022. We look at the DWP accompanying guidance, which should result in more comprehensive notes being provided, and consider whether ‘back to work’ notes can be requested by employers.

Click here to view the recording.

There have been lots of relevant employment law/HR updates this week.

Holiday for a “term-time” worker with a year-round contract

The Claimant worked as a music teacher during term-time, but her contract extended throughout the year. All workers are entitled to 5.6 weeks annual leave.  In 2011, her employer changed its method of calculating holiday pay for the Claimant, from an average of the previous 12 weeks’ earnings multiplied by 5.6 weeks, to 12.07% of termly earnings, which worked out to be less income for the Claimant. She brought an unlawful deduction from wages claim which she initially lost; however this was overturned by the Court of Appeal and the Supreme Court agreed.

The Supreme Court noted that nothing in the Part-Time Workers Regulations prohibited part-time workers from being treated more favourably than someone working throughout the year and that weekly pay should be calculated as an average of the most recent 12 weeks’ of earning, ignoring any weeks where earnings were zero (eg, school holiday in this case).

https://www.supremecourt.uk/cases/docs/uksc-2019-0209-jiudgment.pdf

Barrister subject to discrimination over gender critical beliefs

In a recent case, the employment tribunal held that a barrister was subject to direct discrimination and victimisation by her Chambers due to her gender critical philosophical beliefs. Ms Bailey, a criminal barrister at Garden Court Chambers, co-founded the LGB Alliance Group in 2019 which opposed the views on transgender issues. In a number of tweets, she had aired her views that women are defined by their biological sex and not their gender identity and considered that transgender views were detrimental to women.

This attracted online abuse and death threats and her Chambers found that the tweets breached her duty as a barrister. The tribunal held that Ms Bailey was subject to direct discrimination as a result of the investigation into her tweets and that she was also victimised as the tweets were protected acts as they alleged breaches of the Equality Act 2010.

https://assets.publishing.service.gov.uk/media/603670b4d3bf7f0ab2f070b3/Ms A Bailey -v- Stonewall Equality Limited others 2202172 2020 – preliminary judgment.pdf   

‘Fire and Rehire’ is still an option for employers

In 2007, Tesco offered warehouse staff a relocation package with a permanent pay premium, known as “retained pay”, and was described as “guaranteed for life,” provided those employees were not dismissed for conduct etc or promoted. In 2021, Tesco sought to buy-out retained pay, then sought to dismiss and re-engage staff who objected. High Court proceedings were issued, and the Court found an implied term preventing any dismissal that simply removed retained pay. The Court also granted a permanent injunction against dismissal of the employees.

In a recent appeal, the Court of Appeal overturned the High Court’s decision, and found that language such as “guaranteed for life” was too vague and was inconsistent with the general right in the contract to dismiss the employees if they provided notice in the proper way.

https://www.bailli.org/ew/cases/EWCA/Civ/2022/978.html