Employment Law Update September 2022

Our monthly employment law update brings our clients the latest top picks of employment law developments that may affect your business.Remember though, we’re always here to answer any questions you have and to help you navigate the wondrous world of employment law in managing your people!

This month we cover:

• How to deal with the extra bank holiday on 19th September.
• Changes in ‘Right to Work Checks’ from 1st October.
• Recent case law with takeaways for your business:
• No reasonable adjustments for a job applicant, amounted to disability discrimination.

Bank Holiday 19th September

A UK bank holiday has been declared for the state funeral of Her Majesty Queen Elizabeth II on Monday, 19 September 2022. But what does that mean for employers? Do you give the day as an extra day’s leave or not? Or is your workplace staying open? What then?

If you’re closed on the bank holiday, you may be able to ask your employees to use part of their annual leave entitlement. Or you may choose to give it as an extra day’s leave regardless.

The strict legal position depends on the wording of your employees’ contracts. Check the wording of your employment contracts to see precise rights to bank holidays and read the guidance below.

Remember if your workplace stays open and the employee is entitled to the bank holiday, you’ll need to give them the extra day by allowing them to book it as holiday on another day instead.

Contractual wording

• Employees are entitled to 20 days holiday plus bank holidays: They will be entitled to the additional bank holiday for the funeral.

• Employees are entitled to 28 days holiday per annum. Or employees are entitled to 28 days holiday inclusive of bank holidays: It will be the employees’ choice whether to book the extra bank holiday off. This is because the employee can use the 28-day holiday allowance to book time off on any of the bank holidays, including the additional bank holiday. The employer can also choose to allow the extra bank holiday, as it is not explicitly mentioned in the contract. Unless the employer agrees as a matter of goodwill, there is no increased holiday entitlement as a result of the additional bank holiday.

• Employees entitled to 20 days holiday per annum plus usual bank or public holidays: Employees aren’t automatically entitled to paid time off on the additional bank holiday as it is not usual. However, employers may still grant this as a gesture of goodwill.

• Employees entitled to 20 days holiday per annum plus 8 bank or public holidays: Employees can use the 20 plus 8-day holiday allowance to book time off on 8 of the bank holidays, including the additional bank holiday. However, unless the employer agrees to an extra day as a matter of goodwill, there is no increased holiday entitlement due to the additional bank holiday. Therefore, employers could argue employees aren’t entitled to one of the later bank holidays in the year but as these would fall at Christmas and work places may be closed then, it may be easier to allow the extra day.

• Employee entitled to 20 days holiday per annum plus listed days (New Year’s Day, Good Friday, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Summer Bank Holiday, Christmas Day and Boxing Day). Employees will only be entitled to receive paid time off on the days specified where a list of bank holidays is given in the contract. However, employers may still grant the extra day as a gesture of goodwill.

Change in Right to Work Checks

All employers are required by law to check the right to work in the UK of every worker they employ.

During the pandemic, the government introduced digital ways for employers to check employee’s right to work because of the difficulties associated with manually checking documents at the time. These arrangements end on 30 September.

So, it’s time to go back to the old ways of manual checking of passports or other relevant right to work documents!

Or alternatively, you can use an approved ‘identity service provider’ (IDSP) to carry out the check for you using ‘identification document validation technology’ (IDVT) for employees with valid British or Irish passports. You will still be responsible for checking the physical identity of your employee though and keeping a record of the check for as long as they’re employed with you, plus two years.

To summarise, from 1 October, employers will need to either:

• Carry out a manual check by physically meeting with your employee to check and copy their original documentation.
• Appoint an ‘identification service provider’ (IDSP) to check the passport of the employee on your behalf.

The Employer Checking Service continues for right to work checks on non-UK/Irish citizens.

Case Law with Implications

1. Failure to make reasonable adjustments for a job applicant amounted to discrimination.

Background

In this case, Mr Drummond applied for a promotion with his employer (the HMRC) for which he was well qualified.

However, the job advert and application process automatically rejected any applicants who couldn’t drive, without questioning the reasons why.

Mr Drummond raised a grievance and explained that he had his licence taken away 2 years before, due to dizzy spells and fainting but that he had funding from Access to Work that would enable him to provide a driver when necessary and the HMRC should make a reasonable adjustment for him to be able to apply for the job without a driving licence.

In any case, in the new role, two employees would always travel to site in one car, so the need for Mr Drummond to drive would rarely be needed anyway.

His grievance failed so he raised claims for indirect disability discrimination and failure to make reasonable adjustments in an employment tribunal.

He won his case. The Employment Tribunal said that whilst having a driving licence could have been listed as desirable criteria, it wasn’t reasonable to decline his application based on that. The tribunal therefore held he’d been treated unfavourably as a result of his disability and the HMRC had failed to make reasonable adjustments.

Mr Drummond was awarded £20,000 in compensation.

Takeaways – What does this mean for employers?

Whenever you’re hiring, make sure you aren’t putting any provision, criterion or practice in place that unfairly disadvantages an applicant with disabilities.

The only reasonable response the HMRC could have had in this case was to consider the job application and decide if Mr Drummond was capable of doing the job itself, because in reality the lack of a driving licence didn’t cause a significant issue for the performance of the role.

The only issue was transport to and from sites and as the funding for a driver was available from an external organisation, and the adjustments needed to allow Mr Drummond to do the job were minor, this was deemed unfair and discriminatory.