Employment Bulletin - April 2021

Do standby periods count as ‘working time’ for the purposes of the EU Working Time Directive?

In recent cases it was held that standby/’on-call’ periods are considered as ‘working time’ under the EU Working Time Directive if the standby period affects, “objectively and very significantly, the possibility for the [worker to] freely to manage the time during which his or her professional services are not required and to pursue his or her own interests”. This depends on the particulars circumstances of the individual being required to work on standby. Only constraints imposed at national level would apply. Two cases have recently dealt with this: DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main.

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Employee not automatically unfairly dismissed despite claiming a belief of serious and imminent danger in the workplace

In the recent Employment Tribunal (‘ET’) case of Rodgers v Leeds Laser Cutting Limited, an employee was dismissed for being absent at work. The employee sought to rely on s100 Employment Rights Act 1996 (ERA) namely that there was a reasonable belief of serious and imminent danger, so he could not be dismissed because of the actions taken. It was held that the specific facts of the case had to be considered and in this case the employee was not automatically unfairly dismissed on the grounds of s100.

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There can be multiple transferees under a ‘service provision change’ for TUPE

In the recent Employment Appeals Tribunal (‘EAT’) joint case of McTear Contracts Ltd v Bennett others and Mitie Property Services UK Limited v Bennett and others, the EAT held that where a service provision change (‘SPC’) applied, there could be multiple transferees.

Where there are multiple transfers, the employees should transfer to whichever transferee are taking over the bulk of activities undertaken by the employee pre-transfer. Sometimes it may be possible for the employment contract to be split between the two transferees as long as parts of the role are easily divisible and identifiable.

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Long COVID: Advice for schools

The Office for National Statistics has reported that approximately 1 in 5 individuals testing positive for COVID-19 exhibit symptoms for a period of 5 weeks or longer and approximately 1 in 10 exhibit symptoms for a period of 12 weeks or longer. Individuals experiencing these symptoms are being told it is “Long COVID”, but these individuals are not all experiencing the same symptoms because Long COVID can impact employees very differently.

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Flexible working requests and working from home in the wake of the Government’s roadmap out of COVID-19 lockdown

Increasing numbers of employees are requesting to work from home, and employees with 26 weeks' continuous employment can make a formal request to work flexibly. While there is no automatic right to work from home, any request to work from home must be carefully considered; there are challenges to home working but there are also benefits, and to refuse a request to home work could be considered discriminatory. This article includes guidance for employers on how to approach flexible and home working requests as lockdown eases.

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Is it fair to dismiss an employee for refusing to wear a face mask?

In the recent case of Kubilius v Kent Foods Ltd, the Employment Tribunal held that an employee was not unfairly dismissed after refusing to wear a face mask. Tim Tyndall, Partner at Cambridge firm Stone King LLP, has explored below what this decision could mean for employers.

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Vento Bands for awards for injury to feelings increased in line with RPI

We are often asked how much compensation clients are likely to be awarded for an injury to feelings claim. The amount of compensation will largely depend on the severity of the case and whether it is an isolated or repeated occurrence.

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The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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