Recently, the Government published the Retained EU Law (Revocation and Reform) Bill 2022 (the “Bill“). This means that all retained EU law will be automatically revoked on 31 December 2023 (this date can be extended until 31 December 2026), unless it is saved or replaced.

The Bill would automatically revoke the following employment regulations on 31 December 2023 (unless it’s reinstated or amended): 

• The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE);
• The Working Time Regulations 1998 – for example, the maximum 48 hour working week, rest breaks, paid holiday, and protection for night workers;
• The Agency Workers Regulations 2020;
• The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The Bill only impacts regulations, not Acts. The current legislation in relation to discrimination (Equality Act 2010) or unfair dismissal (Employment Rights Act 1996) will be unaffected.

The Bill is not yet law, and there is an absence of clear information about what will happen. However, the key point is that employers should be aware that changes are afoot and should ensure they keep up to date with proposals relating to the Bill.

We will of course issue updates as and when more is known.

Mr Chakraborty raised a grievance with the University, however before the grievance investigation report was produced, he had submitted an employment tribunal claim. The University asked its solicitors to review the report before it was shared. The solicitors suggested some amendments; however, the investigator also made some further amendments of their own. The amended report was then disclosed to Mr Chakraborty. However, the first page of the report stated “Note: This report was amended and reissued on 23.06.2022 following independent legal advice”.

Mr Chakraborty requested disclosure of the original report, but the University refused on the grounds that that the original report attracted legal privilege. The University argued that if the original report was shared, then a comparison could be made between the two versions which would enable inferences to be made about what legal advice had been provided. The tribunal rejected this and ordered the original report be disclosed.

The University appealed but the EAT dismissed the appeal. The report was produced in response to a grievance and not in contemplation of litigation, therefore it could not attract litigation privilege. The University also argued that legal advice privilege applied to the report retrospectively, due to the legal advice it received on the report’s contents, however this was unsupported by legal authority and rejected by the EAT.

In a recent case, the EAT clarified the rules relating to Early Conciliation (EC) certificate numbers for multiple claimants when the EC certificate numbers for all claimants did not appear on the claim form.

In 2015, multiple employees from Sainsburys brought a joint claim for equal pay. Despite all claimants having complied with the requirement for EC, the Employment Tribunal rejected claims by those claimants whose EC numbers did not appear on the claim form. The claimants appealed to the EAT and the EAT allowed the appeal.

The EAT held that the Employment Tribunal had erred when it had rejected the claimants’ claims and confirmed that it was sufficient that an EC certificate number for one of the prospective claimants was provided on the multiple claim form. The EAT subsequently reinstated the rejected claims.

A recent report by the Chartered Institute of Personnel and Development (CIPD) sets out that within the next 10 years, a third of employers expect a movement towards a four-day working week.

Of the 2,000 employers surveyed, 16% reported already having reduced working hours over the past 5 years, with 10% reporting reducing hours while also keeping pay the same. Among those who had reduced their hours, the most common explanations were to increase wellbeing among employees (36%), followed by a reduction in demand for services and products (32%), and an attempt to boost retention and recruitment (20%).

Three in four of those employers who had not reduced hours had however considered it. The main challenges for reducing hours were that;

•           it’s not suitable for everyone;

•           it may be difficult to achieve the same level of work during a 4-day working week; and

•           certain tasks require someone to be present, for example in retail or security

Despite the growing interest in the perceived benefits of staff retention and greater flexibility associated with an additional day-off for employees, the CIPD reported that over the next 3 years, only 1% of employers plan to reduce employees working hours without loss of pay. Most employers agreed that they first needed to improve efficiency in the workplace, focusing on investing in the adoption of technology and/or working smarter to achieve this.

Whilst the National Grid are still alleging it to be unlikely that we will face blackouts this winter, they are not able to completely rule out this possibility.

If this does take place, there may be a chance that employees who are physically required to be present in the workplace may not be able to work. So, how is this managed?

The starting point would be if a reasonable alternative solution can be mutually agreed.

In this article, we take a look at some of those alternative solutions together with options for those who cannot work from home.

Keeping the workplace open during a blackout

While there is no statutory minimum temperature for workplaces, government guidance suggests 16 degrees for sedentary jobs or 13 degrees for physical work.

Employers must also be mindful that they are obliged to provide a safe working environment for their employees, and as such, a workplace that is too cold to work in is a health and safety concern and could result in compulsory closures. A further consideration for employer would be the provision of adequate safety lighting.

Health and safety should always be the number one consideration in such circumstances, and employees should not be forced to work where there is a reasonable risk of danger.

If employees have electricity at their homes

If the business premises have no electricity but employees have access to electricity at their homes, or if they have sufficient battery life on their IT equipment to enable them to work (and access to mobile data), then a reasonable alternative solution would be to request employees to temporarily work from home during any blackouts. If employees can work from home, but have to use their own personal devices, you will need to draw their attention to your policies concerning GDPR.

If employees don’t have electricity at their homes

If a blackout extends to employees’ homes, then you could ask employees if they would be willing to make up the time out of working hours when they have access to electricity. Employees may also explore the option of working from a suitable alternative venue, such as a hot desking space or a local coffee shop which does have electricity (subject to the organisation’s confidentiality procedures).

Employees who cannot work from home

Some employees’ duties will not enable them to work from home. In such circumstances, the following could be offered:

Annual leave

You could request that employees use their annual leave entitlement in such circumstances, which will be of benefit to them as they will not suffer a loss in their remuneration.

If planned blackouts are announced in sufficient time, then employers can require staff to take annual leave.  The notification requirement is twice as long as the leave itself. So, if there is a blackout for one day, for example, then two days’ notice has to be given.

Unpaid leave

If employees have no annual leave left or they are simply unwilling to use their annual leave for such circumstances, they could take a period of unpaid leave. The unpaid leave would be subject to mutual agreement, and we would recommend obtaining an employees’ consent to this in writing.

Lay-off or short-time working

Subject to what an employee’s employment contract says, you may have the right to contractually lay-them off for a set period, or put them on short-time working, which is a temporary reduction to their hours of work. There’s no limit for how long you can be laid off or put on short-time working, however employees can apply for redundancy and claim redundancy pay if it’s been 4 weeks in a row or 6 non-consecutive weeks in a 13-week period. If the employment contract doesn’t provide full pay in such circumstances, employees may be entitled to a statutory guarantee payment.

School closures

If schools face compulsory closures, many staff who have school age children will have to juggle childcare whilst working. If possible, you may wish to allow employees to work from home (if their duties allow for this). If that is not possible you may permit them to take annual leave or remind them of their statutory right to take a reasonable amount of unpaid time off to care for dependants.

Employers will need to be mindful that some employees may not be able to be as flexible as others due to childcare issues. If a fixed approach is taken, an employer may be unintentionally putting the business at risk of sex discrimination claims as statistically, more women than men have childcare responsibilities.

What if you don’t want employees to work from home?

If an employee has access to electricity at home (and the workplace does not and has forced a mandatory shutdown on account of no electricity) and the employee has the ability and equipment to enable them to do so, then it may be considered unreasonable to refuse them to work from home, particularly if they have previously done so (such as during the pandemic).

If you choose not to permit them to work from home, but they are otherwise able to work, then arguable they are entitled to be paid their contractual rate of pay, as they are otherwise willing and able to perform their work. Organisations could be at risk of an unauthorised deduction from wages and breach of contract claim.

Abuse of the circumstances

If you suspect that there may be some members of your workforce who would abuse a right to be paid to be at home during a blackout, please make it clear that any employees who provide misleading information regarding their power supply will face disciplinary action.

Policies

It is always best practice to ensure that all these situations are recorded in the Staff Handbook – particularly in the homeworking, hybrid-working and health and safety policies so that employees are clear on what will happen, and employers will be able to manage expectations.

If you would like for us to review your staff handbook or draft bespoke policies for your business, please feel free to contact us for a free no obligation quote on 01792 776776.