Commercial Brief: global employment updates March 2021
A summary of the latest global developments in the employment space including a case review of the Supreme Court decision of Royal Mencap Society v Tomlinson-Blake [19.03.21], a comparison of the treatment of the COVID-19 vaccination in the US, Denmark, India and the UK, remote working to be legislated in Ireland, Australia’s Fair Work Commission which can now determine general protections dismissal applications and the introduction of the Employment Amendment Ordinance 2020 in Hong Kong.
Care workers who sleep in are not entitled to the national minimum wage for the duration of their shift
A case review of the very recent Supreme Court decision of Royal Mencap Society v Tomlinson-Blake [19.03.21] in which the court considered whether time spent sleeping by a sleep-in care worker attracts the national minimum wage.
The Supreme court unanimously dismissed the appeal, agreeing with the position taken by the Court of Appeal, namely that sleep-in time should not be counted for the purposes of the national minimum wage.
Contact: Amanda Beaumont
Related item: Care workers who sleep in are not entitled to the national minimum wage for the duration of their shift
COVID-19 vaccines and employers liability: a global approach
With many countries now vaccinating and looking to lift lockdowns, the question of everyone’s lips seems to be “can employers require their employees to vaccinate”? We asked our experts based in Denmark, the UK, the US and India.
To date, only employers in the US have the legal right to mandate their employees receive a COVID-19 vaccination. However, many are unlikely to do so because of the risk to reputation, and potential legal and cultural backlash. We believe it very unlikely that Denmark, the UK and India will follow suit.
Contacts: Erica Aldridge, Joy Middleton, James Shrimpton, Heidi Bloch, Sean Burns and Shubanghi Pathak (Tuli & Co.)
Related item: COVID-19 vaccines and employers’ liability – a global approach
Remote working in 2021 and beyond: an Irish perspective
The first national Remote Working Strategy (the Strategy) was published on 14 January 2021 in Ireland. The Strategy will provide employees with the right to work remotely and the right to disconnect from after-hours technology use. Legislation allowing employees to request the ability to work remotely will be introduced by September 2021.
This initiative has the potential to completely alter working practices in the coming years, for the benefit of employers and employees alike. It remains to be seen how these proposals will develop.
Contacts: Noel Devins and Grainne Donnelly
Related item: Remote working in 2021 and beyond: an Irish perspective
Jurisdictional objections in the fair work commission
The recent Full Federal Court (Australia) decision, Coles Supply Chain Party Ltd v Milford  (the Coles case) is likely to significantly reduce the number of general protections dismissal applications from the Fair Work Commission (FWC).
The Coles case provided the FWC with jurisdiction to determine whether there had been a dismissal by an employer of an employee (applicant), where dismissal is in issue. Hence, the FWC no longer has to progress the application to a federal court to decide. However, the FWC only has authority to determine the issue where a general protections dismissal application is lodged with the FWC. If the FWC decides that there has been no dismissal and declines to issue a certificate, the matter will end, saving employers and their insurers the costs of a federal court proceeding.
Contact: Chris Molnar
Related item: Jurisdictional objections in the Fair Work Commission
Australian workplace laws to criminalise workplace fatalities
In October and November 2020, Australian states and territories (with the exception of South Australia and Tasmania), introduced laws for industrial manslaughter as part of the continuing harmonisation of national work health and safety laws. A workplace fatality is now defined as a criminal offence.
The continued development of robust workplace health and safety laws in Australia including these latest developments means it is imperative that businesses continue to regularly review systems of work.
Contact: Justin Le Blond
Related item: Australian workplace laws to criminalise workplace fatalities
Hong Kong legislation update: Employment Amendment Ordinance 2020
The Hong Kong Employment (Amendment) Ordinance 2020 (the Ordinance) became effective on 11 December 2020, extending maternity and paternity leave for parents. The Ordinance also extends maternity leave pay for a further four weeks (subject to a cap of HK$80,000 per employee).
In light of the Ordinance, it remains important for employers to keep all relevant employment and payment records of those seeking maternity/paternity leave.
Contacts: Richard Bates and Emily Duncan
Related item: Legislation update - Employment (Amendment) Ordinance 2020