The Office for National Statistics have recently released data from June to July 2020 that shows home-workers are more likely to plan for a later retirement.

Of those workers who fall into the age category of ‘50 an over’, 11% who chose home-working during the pandemic stated they would plan for a later retirement. However only 5% of those who continued working at their usual place of work planned for a later retirement.

10.9% of workers with a long-standing illness, disability or infirmity, who chose home-working during the pandemic had plans for a later retirement, compared with 5.9% of those who continued working at their usual place of work.

Generally, documents relevant to disputes are subject to disclosure. An exception to this rule is the legal professional privilege, which protects against the disclosure of communication exchanged between professional legal advisers and their clients without the client’s consent. However, the legal professional privilege is subject to an “iniquity” exception which states documents created to further a criminal or fraudulent purpose should be disclosed.

In a recent case, an employer sent an email to a HR consultant that indicated an intention that the employee may be dismissed as the employer did not want the employee to return to work. The email was sent before a disciplinary hearing took place.

The EAT held this email could not be classed as an “iniquity” exception to litigation privilege. The employer and their legal adviser did not discuss how to act unlawfully, and the email did not further a criminal or fraudulent purpose. Instead, the EAT held the employer freely communicated with the HR consultant believing the communication was privileged and would not need to be disclosed.

A firefighter has challenged his employer’s decision to make his daily rest breaks unpaid, unless there was an emergency call-out. During the firefighter’s rest breaks, he was allowed to go to a canteen which was around 200 metres away from his workstation, but was continually on “standby” during the entirety of his break and was expected to return to his duties on two minutes’ notice in the event of an emergency. All rest breaks were unpaid and were only included in the calculation of the firefighter’s working time if they were interrupted by a call-out. The firefighter challenged this method of calculating his remuneration.

The Court of Justice of the European Union (ECJ) held the breaks should be classed as “working time” under the Working Time Directive, because the potential interruption on two minutes’ notice significantly affected the firefighter’s ability to freely manage his own time during the break as he was on “permanent alert”. The half-hour periods were not genuine rest breaks, and it was immaterial that the firefighter may not have carried out any actual activity for the employer during the break.

The national court must now decide if the firefighter’s breaks are to be classed as working time, by analysing any limitations the firefighter was faced with during their time on standby.

Changes introduced by the Covid-19 pandemic have affected British and foreign nationals working and living in the UK.

The government published its ‘Statement of Changes HC617’ to the UK’s immigration rules on 10 September 2021. Some of the changes, which became effective from 6 October 2021, include the following:

• There are new Covid-19 concessions on Tier 1 (Entrepreneurs), Tier 2 (Sportsperson), the EU Settlement Scheme (EUSS) and Skilled Workers;
• The T2 and T5 Temporary Worker routes have been replaced by a new International Sportsperson route for professional sporting workers;
• Individuals who are joining their EUSS family member can apply to the EUSS as a Visitor whilst they are in the UK;
• The list of qualifying prizes under the Global Talent route has been extended;
• The Youth Mobility Scheme has been expanded to encompass Icelandic and Indian nationals.

A moped courier, who worked under a contract for the personal performance of services, could notify other couriers if he wished to release a delivery slot. This limited right of substitution was sufficient for the courier to be classed as a “worker” under section 230(3)(b) of the Employment Rights Act 1996.

The Court of Appeal upheld the tribunal’s decision that the courier’s ability to release a slot was not unfettered substitution, since it was outside of the courier’s control whether any other courier would sign up. When the courier signed up to undertake a slot, they were required to personally perform the delivery work. The tribunal found that this satisfied the fifth category of substitution identified in the case of Pimlico Plumbers Ltd and another v Smith 2017, so the courier’s right of substitution was insufficient to negate the existence of an obligation to personally perform their work.   

A Trade Union Congress (TUC) recently collaborated with online parenting portal Mother Pukka to conduct a study on flexible working.

The report, ‘Denied and discriminated against’, found that 50% of almost 13,000 working mothers who took part in the study had had their flexible working requests either rejected or only partially accepted by their employer.

42% of women stated they were reluctant to request flexible working because they were concerned about how their employer would react. In fact, they did not want to make a flexible working request if their request could just be rejected.

Of those women who were working flexibly, 86% specified that they had experienced workplace discrimination and felt disadvantaged following their decision to choose flexible working.

The TUC have advocated that every job advertisement should refer to the legal right to request flexible working. The government is holding a consultation on this point, amongst other reform proposals for flexible working.  

Acas have published its new guidance on hybrid working this summer. Hybrid working, where staff can work flexibly between their workplace and a chosen remote location, such as their home, is becoming an increasingly popular option for organisations, considering over 50% of employers who answered Acas’ survey said they anticipated more employees would be requesting flexible working.

The guidance aims to help employers decide if hybrid working is a suitable option for their workforce. To ensure hybrid working policies are fairly introduced, the guidance provides advice for employers, including:

• Consulting with staff on practicalities to be considered before hybrid working is introduced
• Supporting and managing staff whilst they are hybrid working
• Treating all hybrid workers fairly
• Creating a hybrid working policy
• Dealing with staff requests on hybrid working

The guidance sets out a number of factors for employers to consider when reviewing hybrid working for their organisation, such as technological issues, health and safety, data privacy and protection, cybersecurity and remote team communications.

For more information, please review the guidance on the Acas website: https://www.acas.org.uk/hybrid-working