Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Striking Workers Are Protected from Suffering Detriment

Precedential Decision by Judiciary or Regulatory Agency

Authors: Chris Coombes, Associate, and Raoul Parekh, Partner – GQ | Littler

On November 18, 2021, the Employment Appeal Tribunal (EAT) confirmed that workers who take part in industrial action (e.g., by going on strike) are protected from being subjected to detriment by their employer. UK legislation provides protection from detriment for workers who have taken part in “trade union activities”, but the scope of those “activities” has historically been interpreted as excluding strike action. This effectively meant that there was no ban on subjecting workers to detriments short of dismissal for having taken strike action. Now the EAT has made clear that workers who go on strike are protected from all detriments, up to and including dismissal.

Relevance of Rights to Substitute Performance on Employment Status

Precedential Decision by Judiciary or Regulatory Agency

Authors: Ben Smith, Associate, and Raoul Parekh, Partner – GQ | Littler

On October 19, 2021, the UK Court of Appeal further clarified when limits on a right to substitute performance will be consistent with an individual being a self-employed contractor. A delivery courier engaged as a self-employed contractor, with a limited right to allow a substitute to perform his work. He (and other couriers) could book a time slot where he would be available but could release that slot for other couriers to book. If no other courier took the slot, he was still expected to perform work during that time.

The Court of Appeal found that this limit on the right to substitute performance was sufficient to mean that the courier was required to personally perform work and therefore was a worker, not a self-employed contractor, entitling him to rights such as the minimum wage and paid sick leave. The decision is a useful reminder for employers that UK courts will look at all the facts of a working relationship to determine the true status of purported self-employed contractors.

Administrator Personally Liable for Criminal Offense of Failing to Notify Government of Redundancies

Precedential Decision by Judiciary or Regulatory Agency

Authors: Josephine Rendall-Neal, Associate, and Raoul Parekh, Partner – GQ | Littler

On November 12, 2021, the High Court of England & Wales held that administrators in an insolvency could be personally liable for the insolvent company’s failure to notify the Secretary of State of proposed collective redundancies. The notification requirement applies when a company proposes to dismiss 20 or more employees as redundant within a 90-day period. Failure to notify is a criminal offense punishable with a potentially unlimited fine. Directors, managers, or other similar company officers can be personally liable if they consented to or connived in the failure, or if the failure is attributable to their neglect. The Court here clarified that this extends to administrators.

This is only a preliminary decision on the meaning of UK law and the case will now go to the criminal courts to determine liability, so the full ramifications are not yet clear. It is likely however that the decision will put administrators in a difficult position as they may be forced to choose between breaching their statutory duties to creditors (who would be prejudiced by the delay in redundancies) or potentially committing a criminal offense.

Supreme Court Clarifies When Direct Offers to Employees Covered by Collective Bargaining Agreement Permitted

Precedential Decision by Judiciary or Regulatory Agency

Authors: Asher Iduoze, Associate, and Philip Cameron, Partner – GQ | Littler

On October 27, 2021, the Supreme Court clarified when employers are permitted to make direct offers to employees in relation to terms that are or may be covered by collective bargaining. UK legislation prevents employers making direct offers to union members in relation to terms that would otherwise be determined through collective bargaining this has long created concerns that trade unions would effectively have a veto in collective bargaining. The Supreme Court clarified that employers are free to make direct offers to employees where collective bargaining has been exhausted (or the employer genuinely believes the process has been exhausted).

On the facts the employer did not succeed because they had agreed to refer the matter to ACAS for conciliation after negotiations with the union broke down, indicating the collective bargaining process had not been exhausted and therefore direct offers made to employees breached the law. Employers should ensure collective bargaining agreements include clear, codified dispute resolution mechanisms, with time limits, that can be tracked so it is clear when the process has been exhausted and direct offers can be made without risk of breaching the law.

Changes to Guidance in Response to COVID-19 Omicron Variant

New Regulation or Official Guidance

Authors: Deborah Margolis, Senior Associate, and Raoul Parekh, Partner – GQ | Littler

In response to the Omicron variant, the Government made several changes to COVID-19 regulations. From December 13, 2021, those that could work from home were advised to do so and in Wales, a legal duty was placed on employees to work from home where reasonably practical to do so. The requirement to wear face coverings was also extended to further indoor settings including shops and public transport. On December 14, 2021, the requirement to self-isolate if a close contact of a positive COVID-19 case was removed in England for fully vaccinated people.

Further, from December 17, 2021, the time limit before an employer in England can ask an employee for proof of sickness was temporarily extended from seven to 28 days. In Scotland, employers have been required to take reasonably practicable measures to minimize the risk of exposure to COVID-19 in their businesses from December 17, 2021. From December 22, 2021, the mandatory self-isolation period for positive COVID-19 cases was reduced from 10 to 7 days, provided the person has two negative lateral flow/rapid antigen test results on days six and seven of self-isolation.