HR briefing - December 2020

08 December 2020

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package. We hope all our readers are safe and well in these troubling times, and wish you all a very Merry Christmas.


Release from lockdown: the new tiering rules

All readers will be familiar with the new three-tier Covid restriction system, but what are the rules affecting office work? Our detailed client note explains more. 

In the courts


Businesses often seek to justify indirect discrimination, which can be done by showing a proportionate means of achieving a legitimate aim, by showing the exorbitant cost of a particular step. For example, an employer might wish to select an older employee for redundancy to avoid them reaching an age threshold which would give them an expensive enhanced benefit. Using cost alone has been criticised by the European and UK courts, and is not permissible. Combining cost with another factor, however, can be sufficient – the so-called “cost plus” rule. The Court of Appeal has reviewed this area of law, and confirmed that the focus must be on the real reason for the treatment, and whether it is proportionate. Using the phrase “cost plus” is described by the Court as an unhelpful shorthand.

Health and safety protection

The High Court has declared that the Government has failed to implement a key EU Directive on measures to improve health and safety of workers. The Directives require Member States to confer certain protections on "workers", whereas the UK legislation protects only "employees". The litigation was brought by a union representing gig economy workers, such as couriers and private hire drivers, who argued they should be provided with PPE to protect them against the risk of contracting Covid-19.

In the news


Government review of restrictive covenants

The Government has announced a consultation on potential reform of the law on restrictive covenants. The primary focus is on non-compete provisions, which are relatively typical, particularly for senior executives. The consultation seeks views on whether non-competes should be banned (as in California), time-limited, or compensated (as in Germany). Reasonable and justified covenants, linked to legitimate business interests, have been recognised by the courts since at least the 1700s. The Government’s stated aim in reviewing the law is to promote innovation – a similar review in 2015 concluded no reform was necessary, but it remains possible that a combination of Brexit and Covid-19 may persuade this administration to take a different approach.

Minimum wage rates

The Government has accepted the Low Pay Commission's recommendations for the new national minimum wage rates. Effective from 6 April 2021, the rates will be:

  • 23+: £8.91 (up from £8.72)
  • 21-22: £8.36 (up from £8.20)
  • 18-20: £6.56 (up from £6.45)
  • 16-17: £4.62 (up from £4.55)
  • Apprentice rate: £4.30 (up from £4.15)
  • Accommodation offset £8.36 per week (up from £8.20)

Socio-economic diversity

The Government and the City of London Corporation have established a new Taskforce to boost socio-economic diversity in the financial and professional services sectors. Three workstreams will examine incentivising employers to take action in this field, how membership and peer-to-peer networks can assist, and how best to show a business case for increased diversity.

Disabled people and employment

The Government has announced a call for evidence on the gap between the employment rates of disabled and non-disabled people, which currently stands at around 28%. Undertaken by the Work and Pensions Committee, the inquiry will investigate how disabled people can be better supported in the labour market.