HR briefing - March 2022

09 March 2022

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.

In the courts

Holiday pay

The correct method of calculating holiday has bedevilled employment law for more than a decade, with UK and European courts grappling with the proper approach to overtime, commission payments, and the interplay between holiday rights and long-term ill health. One particularly thorny question has been how to treat those who originally contracted to provide services as self-employed independent contractors, but who subsequently claimed, and were found to be, workers for the purposes of the Working Time Regulations 1998, which govern the right to paid holiday. The difficulty arises from the Regulations themselves, which specifically bar carrying over untaken holiday. Having reviewed the authorities, the Court of Appeal has held that the right to holiday pay crystallises on termination of the working arrangement, so that a claim can be made for the entirety of the relevant period. This applies whether the worker took holiday but was not paid for it, or did not take holiday at all.

Agency workers

Under the Agency Workers Regulations 2010, agency workers benefits from two sets of rights. The first, which apply from day one, gives agency workers an entitlement to access collective facilities such as the canteen, and the right to be notified of any vacancies within the hiring company. The second set gives agency workers the right to parity of treatment, so that their basic employment conditions must be the same as an equivalent direct permanent hire. The question for the Court of Appeal in this case was whether the right to be notified of vacancies carried with it a parallel right to apply for vacancies on the same basis as permanent employees. Noting that the EU Directive that underpins the Regulations does not give such a right, and that many employers would properly want to give preferential access to long-serving permanent employees, the Court concluded that no such parallel right exists.

Vicarious liability

Employers can sometimes be liable for the acts of their employees, even where those acts are not condoned or authorised. The test is whether the acts were carried out in the course of employment – i.e. was a sufficiently close connection between the act which caused the injury and the employee's work to make it fair, just and reasonable to impose vicarious liability? That is a flexible, fact-based assessment that has seen, for example, churches liable for the abuse of children carried out by priests, bars liable for assaults by bar staff on customers, and a bank liable for the abusive conduct of a doctor performing pre-employment medicals. In a recent case, however, the Court of Appeal concluded there should be no liability. An employee had (apparently as a practical joke) set off explosive pellets next to a colleague, causing ear injuries. As the conduct was so far outside the scope of the employee's role, it was not fair to impose any liability on the employer.

In the news

Long Covid

The UK's Equality and Human Rights Commission has suggested that employers should treat long Covid as a disability for the purposes of the Equality Act, at least until he position is clarified by legislation (which the TUC has urged the Government to introduce). The symptoms of long Covid will vary by individual, but can include cognitive difficulties and fatigue, which may affect employees' performance at work. Clients should note that not all those suffering from long Covid will have a qualifying disability: a long-term physical or mental impairment causing substantial adverse effects on the person's ability to undertake day-to-day tasks.

Sudden closure of the Investor Visa route

On 17 February 2022, the Investor visa category closed to new applicants with immediate effect.

Current Investor visa holders (and their family members) will continue to hold valid UK immigration permission and the right to work.

The deadline to extend under this category is 17 February 2026 and the deadline to apply for Indefinite Leave to Remain (ILR), also known as Permanent Residence or Settlement, is 17 February 2028. If the Investor Migrant cannot meet the requirements for extension or ILR before the associated deadline, they will need to switch into another UK immigration category in order to continue to live in the UK.

We understand that the Home Office will reform the existing Innovator category for migrants looking to invest in the UK where it leads to genuine job creation and other tangible economic benefits. Details of the reformed Innovator category are yet to be published but are expected towards the end of 2022.

Russia/Ukraine conflict: immigration rule changes

The refugee exodus from Ukraine as a consequence of the Russian invasion has prompted rapid changes to immigration rules across Europe which affects both Russian and Ukrainian nationals.

Our article details these changes and explains how your employees, and their family members, may be affected.