Our monthly employment law update brings you 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 wonderful world of HR & employment law in managing your people!

This month we will cover:

1. IR35 Compliance

2. Duty to provide free PPE to all workers

3. The P&O Ferries Debacle

4. The Employment Bill

5. Recent case law with takeaways for your business:

* Employer liability for workplace pranks;

* Agency workers’ rights to apply for roles.

6. What not to forget in April.

We all know that the new IR35 rules came into effect in April 2021 for the private sector but at the time the HMRC said it’d be ‘kind’ initially by giving companies 12 months to adjust by scaling back any enforcement penalties unless there was deliberate non-compliance.

From this month, no more allowances will be made, the grace period is over, so remember:

If you’re considering engaging a contractor, make sure you determine their employment status to decide whether IR35 applies. If it does, you’ll be deemed to be their employer for tax and national insurance purposes.

In addition make sure you regularly review the status of any contractors you already work with to check their status, to ensure compliance. It’s good practice to do a review of all contractors annually.

However, if you’re a small business you’re likely to be covered by the small business exemption meaning that you can carry on working with contractors as you always have been, with the liability for tax and national insurance staying firmly with the contractor, regardless of status.

A business is classed as a ‘small’ company if it meets 2 or more of the following criteria:

• Turnover – not more than £10.2 million

• Balance sheet total – not more than 5.1 million

• Number of employees – no more than 50

From 6 April 2022, where there is a health & safety risk, you’ll have to provide suitable personal protective equipment (PPE) to all workers, not just employees.

In addition you’ll not be allowed to charge workers for the PPE supplied.

Following the P&O Ferries debacle, more than 30 trade unions are collectively putting pressure on the government for a definitive publication date for the Employment Bill which was originally planned to come into force in 2021 and now planned for ‘sometime’ in 2022.

It’s aim? To strengthen employment law and make Britain the best place to work in the world!

The unions are arguing that the events within P&O Ferries recently, shows that UK employment law doesn’t properly protect workers from unfair dismissal and that bad employers should be penalised.

That said, companies unfortunately do have to cut jobs occasionally and there are laws in place as to the way in which that must be done which consider the financial costs and wellbeing of employees. The problem is that P&O ferries didn’t follow these.

Businesses that don’t follow the law, place themselves at huge risk of tribunal claims and face large financial penalties as well as reputational damage as we’ve seen in this case.

The unions are calling on the Government to intervene to reinstate all the P&O staff who were dismissed with no loss of pay. I can’t see that happening, especially as all bar one have now signed a settlement agreement to relinquish any claims in exchange for a financial package but let’s watch this space!

What does the ‘long awaited’ awaited employment bill include?

• A right for employees who work variable hours to request a more predictable contract.

• Making flexible working the default position with application allowed from Day 1 and a widening of rights, amongst other proposals.

• Basic rights for vulnerable workers with a ‘single labour market’ enforcement agency to monitor such as rights around statutory sick pay, modern slavery and unpaid tribunal award enforcement.

• Requiring all tips and service charges to be passed on to workers.

• More rights in redundancy for pregnant employees (and those adopting or taking parental leave) to be offered suitable alternative employment including in the six months following their return to work from maternity or adoption leave.

• A statutory right for carers to take one week’s leave each year (unpaid).

• A statutory right for parents to take up to 12 weeks for neonatal care.

However, the main principles of the bill are still being debated with it’s second reading not due to take place until May 2022.

5.a. Workplace Prank – Was the Employer Liable?

In the case of Chell v Tarmac Cement & Lime Ltd [2022], an employee caused damage to the hearing (and other injuries) of a contractor by setting off an explosive pellet by his ear. The contractor brought a claim against the employer for damages.

On this occasion the Court of Appeal rejected that the employer was liable for the injuries mainly because there wasn’t enough of a connection between the job that the employee does and the prank itself.

There were several factors the Court considered in making their decision including:

• the employee’s work didn’t involve the use of pellets.

• the employer didn’t authorise the employee to do what he did.

Takeaways – What does this mean for employers?

It’s always a good idea to protect yourself as an employer by having very clear rules and warnings about inappropriate behaviour and reckless use of equipment because employers can be found liable for the actions of its employees.

Do you have a robust staff handbook in place? If not, consider it.

5.b. Did an agency worker have the right to apply for a vacancy with the end hirer?

No, said the Court of Appeal in Kocur v Angarad Staffing Solutions Ltd [2022]

Mr Kocur complained that Royal Mail only allowed agency staff to apply for vacancies after employed staff had been given the opportunity.

The court found that Royal Mail was acting within the law.

Takeaways – What does this mean for employers?

Although agency workers have the right to be notified of vacancies with the hirer, they don’t have the right in law to apply for the vacancies so where you wish to give employed staff the chance to apply and be interviewed for a role before any agency staff are allowed, this is lawful.

Minimum wage rates changed on the 1st of April so make sure you’re complying by paying at least the minimum. Take a look back at our April issue for the new rates.

Other rates have increased this month too such as:

• Statutory Sick Pay.

• Redundancy Weekly Minimum rate.

• Family related policy rates e.g. Statutory Maternity Pay.

• Employment tribunal compensation rates

• State pension rates

Employers can now use certified providers to undertake digital identity checks, in relation to British and Irish citizens who hold valid passports (or Irish passport cards) via a new online system which can also be used for pre-employment DBS checks.

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