COVID-19 is presenting an unprecedented challenge for business. With people at the heart of the crisis read our guide for employers on the key issues here.

Employment law is constantly on the move. We keep track of the latest employment law changes so you don't have to. Below you'll find our regular round-up of legislation, case updates and helpful guides. For a list of key dates for 2021, see our employment law timeline. For a quick summary of the top five topics for HR teams to be thinking about in 2021, see the latest video by Adrian Martin, Head of the Employment team.

Employment law updates

Update posted: 20 May 2021

Employment law proposals

The government has now published its response to the previous report prepared by the Women and Equalities Committee, ‘Unequal Impact? Coronavirus and the gendered economic impact’, which concluded that government policies during the pandemic had consistently overlooked women's caring responsibilities and the employment inequalities experienced by them.

Although the government’s response rejects many of the recommendations, the response mentions that the government is:

  • considering removing the 26-week service requirement for making a flexible working request and it will consult on making flexible working the default position
  • committed to bringing forward an Employment Bill "when parliamentary time allows” (although there was no mention of the Employment Bill in the Queen’s Speech)
  • intending to extend the redundancy protection period afforded to mothers on maternity leave to apply to pregnant women and for six months after a mother has returned to work, and this will also include those taking adoption and shared parental leave
  • considering proposals to require large employers to publish their parental leave and pay policies.

Right to work checks

The Home Office previously announced that the temporary COVID-19 process for right to work checks, which has been in place since last March, would end on 16 May 2021. The Home Office has now confirmed that the amended COVID-19 process for right to work checks will actually continue until 20 June 2021. From 21 June 2021, employers must either check the applicant’s original work documents by conducting a manual check or check the applicant’s right to work online.

We have been advising many employers on right to work checks. If we can help your organisation, please do get in touch.

Worker status

The EAT has held that the absence of any obligation on a worker to accept and perform a minimum amount of work is not fatal to establishing ‘worker’ status, where the worker had an overarching contract with the employer.

In this case, the Claimant was fee-paid panel member on the Nursing and Midwifery Council (NMC)’s Fitness to Practice Committee and there was an overarching contract for the performance of services between the parties. The NMC was not obliged to offer a minimum number of sitting dates on the Committee and the Claimant was free to withdraw from dates he had accepted. However, he was required to provide his services personally.

The EAT agreed with the employment tribunal that he was not an employee, since there was no irreducible minimum of obligation, but that he was a ‘worker’ and he was engaged under an overarching contract for the performance of services and a series of individual contracts arose each time he performed the services. The EAT also held that the absence of an irreducible minimum of obligation was not incompatible with ‘worker’ status.

The case is the latest in a series of decisions about ‘worker’ status, including the recent Supreme Court’s decision in Uber that drivers were ‘workers’ and not self-employed contractors. With this in mind, employers will need to consider such appointments very carefully and undertake a close analysis of working practices and contractual arrangements to help identify any risk areas and steps that could be taken to manage potential risks.

(Nursing and Midwifery Council v Somerville)

Data protection

The Information Commissioner's Office (ICO) has produced a new Data Sharing Code of Practice pursuant to section 121 of the Data Protection Act 2018 (DPA). This was laid before Parliament on 18 May 2021 and, in the absence of any objections, it will come into force after 40 sitting days. The Code gives practical guidance for organisations on how to share personal data in compliance with the fairness, lawfulness, transparency and accountability requirements of the UK General Data Protection Regulation (UK GDPR) and DPA.

Tackling loneliness

The Department for Digital, Culture, Media and Sport has published new guidance on what employers can do to address loneliness among their workers. The guidance was compiled following consultation with employers during the COVID-19 pandemic and recognises that the increased reliance on virtual connections has had an impact on social connections.

As more employers consider moving to hybrid working, finding ways to alleviate loneliness will become more important and the guidance provides examples of good practice and other steps that employers can take, including making loneliness awareness part of any employee wellbeing programme and having a loneliness champion who is trained in loneliness and wellbeing.

Inclusive workplaces - neurodiversity

How can we better set up our workplaces to support those with neurodiverse conditions? Watch this video for some quick tips, taken from our internal series of events to educate and support our own people.

Update posted: 6 May 2021

Right to work checks

On 20 April, the Home Office announced that the temporary COVID-19 right to work check concession will end on 16 May 2021. From 17 May 2021, employers must either check the applicant’s original work documents by conducting a manual check or check the applicant’s right to work online.

The Home Office has also confirmed that employers do not need to carry out retrospective checks on those who had COVID-19 adjusted checks between 30 March 2020 and 16 May 2021 (inclusive). Employers will maintain the statutory excuse provided the check made during this period was done as set out in the COVID-19 adjusted checks guidance. This is a departure from previous guidance, where employers were advised that the COVID-19 adjusted right to work checks would only provide a temporary statutory excuse and that new retrospective checks would need to be carried out within 8 weeks of the temporary measures coming to an end.

The fact that retrospective checks in these circumstances will no longer be required is likely to be of relief to employers, as this has removed a significant administrative burden. However, the changes effective from 17 May, may pose potential issues for those who cannot demonstrate a right to work using the online service (which may only be used in certain circumstances) and who will therefore need to undertake a manual check in accordance with the employer’s guide on right to work checks.

Manual checks must take place either in person or via a live video link, but in either case the employer must be in possession of the applicant’s original documents - these cannot be inspected via a live video link and cannot be scanned copies. In the current climate, it’s likely that more individuals will choose to demonstrate their right to work by posting the required documents to their employer and then conducting the required check via video link. Employers will therefore need to be alive to the practical difficulties the removal of the COVID-19 adjusted checks present to their business. They should also ensure that they do not mandate how an individual proves their right to work and provide individuals with every opportunity to demonstrate their right to work.

We have been advising many employers on right to work checks. If we can help your organisation, please do get in touch.

COVID-19 update

HMRC has issued its seventh Treasury Direction to extend the Coronavirus Job Retention (Furlough) Scheme from 1 May to 30 September 2021, reflecting the changes made in the updated guidance published on 8 April 2021. The regulations on calculating a week's pay for furloughed employees for the purpose of certain statutory payments (including redundancy and notice pay) have also been extended until 30 September 2021.

As we ease out of lockdown, many employers will be focussing on how to manage a return to the workplace. A recent employment tribunal decision is particularly interesting because it concerned an employee who was dismissed when he refused to return to work because he was worried about COVID-19.

The employment tribunal dismissed his automatic unfair dismissal claim and held that, as his employer had followed government guidance on making its workplace COVID secure and the Claimant had not raised any meaningful concerns about workplace safety, the Claimant did not hold a reasonable belief that there was serious and imminent danger, for the protection from dismissal under sections 100(1)(d) and (e) of the Employment Rights Act 1996 to apply. Please note that this decision relates to the specific facts in this case and is not binding on other employment tribunals. Please see our COVID-19 guide for employers for more information about reluctant returners.

(Rodgers v Leeds Laser Cutting Limited)

National minimum wage

The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the national minimum wage for sleep-in workers, following the Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home).

The guidance now states “sleep-in workers are only working and eligible for the national minimum wage when they are ‘awake for the purposes of working’. They are not entitled to minimum wage when they are permitted to sleep. The position is different where workers are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible (such as napping when not busy). In such cases it is likely that at least the minimum wage must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time.”

Business immigration

The UK’s immigration system underwent significant change as a result of Brexit and the end of freedom of movement for European nationals on 31 December 2020.

UK employers wanting to recruit migrant workers need to understand the new immigration regime and, in particular, how the changes affect the recruitment and employment of EU nationals. We set out the key elements of the UK’s business immigration system and the routes available for employers who wish to recruit from overseas.

Update posted: 22 April 2021

Shared parental leave

The EAT has upheld an employment tribunal decision that it was not sex discrimination for an employer to pay a man on shared parental leave (SPL) less than a woman on adoption leave.

In this case, Mr Price decided not to proceed with his application to take 37 weeks SPL after his wife completed her two weeks’ compulsory maternity leave, when he was told that he would only be entitled to receive statutory shared parental pay (ShPP) and not the enhanced pay which employees on statutory maternity leave (SML) or statutory adoption leave (SAL) were entitled to receive under the employer’s family policy. He claimed that this amounted to direct sex discrimination.

Following the Court of Appeal decision in Ali v Capita Customer Management Limited, the EAT held that Mr Price’s position was materially different to someone on maternity leave because the purpose of the leave is different. The Court of Appeal in Ali had only considered SMP and not SAL, however EAT held the purpose of adoption leave is also different to SPL and goes beyond providing childcare. The EAT held that the more appropriate comparator for Mr Price was a woman on SPL and, as she would also only be entitled to statutory ShPP, there was no sex discrimination.

Although this decision may provide some reassurance to employers with policies which provide a different level of pay for SPL compared to SML or SAL, it demonstrates why the uptake of SPL has been low. The government has consulted on how to reform the parental leave and pay system but we await any further developments.

(Price v Powys County Council)

Vaccinations

The European Court of Human Rights (ECHR) has held that a compulsory childhood vaccination programme in the Czech Republic, where penalties were imposed for non-compliance, was not a breach of human rights.

The applicants complained that the compulsory vaccination programme interfered with their right to respect for private and family life under Article 8 and their right to freedom of thought, conscience and religion under Article 9. The ECHR held that, although the programme interfered with the applicants' rights under Article 8, this interference was justified as the Czech authorities had a legitimate aim of protecting against serious disease; as the vaccination also protects those who cannot be vaccinated for health reasons and are reliant on herd immunity. The ECHR held that the claim under Article 9 (which was not based on religion) lacked cogency and was inadmissable.

Despite Brexit, the UK courts are still bound by decisions of the ECHR and so this case is interesting in the context of recent discussions about Covid-19 vaccinations as it suggests that any interference with human rights could be justified. However, there are significant differences to bear in mind as this case concerned the use of common long-standing vaccines rather than recently developed Covid-19 vaccinations.

(Vavřička and others v Czech Republic)

COVID-19 testing

The rollout of the COVID-19 lateral flow testing is underway and, in conjunction with other safety measures, it offers employers a further mechanism for protecting the health and safety of their staff from the risk of COVID-19 as lockdown eases and more workplaces gradually reopen. We consider some of the practical issues and other challenges that employers need to address.

Update posted: 1 April 2021

April changes

Key points to note for employers in April include:

  • The National Living Wage is extended to workers aged 23 and over and increases to £8.91 per hour from 1 April 2021. Increases in the National Minimum Wage also take effect on 1 April, together with a requirement for employers to keep records for 6 years (rather than the current requirement of 3 years)
  • Private employers should report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020 (however, enforcement action has been suspended until 5 October 2021)
  • New statutory rates (for example, SMP and SSP) come into effect on 4 April 2021
  • The maximum amount of a week’s pay (used to calculate statutory redundancy payments) increases to £544 (from £538) where the effective date of termination is on or after 6 April 2021
  • Off-payroll working is extended to large and medium sized private sector employers from 6 April 2021.

NMW and sleep-in shifts

The long awaited Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) was published on 19 March 2021.

The cases considered whether workers who sleep-in, and are only required to awake in the night to carry out duties if needed, are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Supreme Court took a purposive approach to the meaning of the NMW regulations and agreed with the Court of Appeal that the care workers were merely available for work during their sleep-in shift, rather than actually working, and they were therefore only entitled to the NMW for time spent awake and working.

(Royal Mencap Society v Tomlinson Blake)

(Shannon v Rampersad and another (T/A Clifton House Residential Home))

Right to work checks update

On 17 March the Home Office updated their employer’s guide to right to work checks. While only a short update, the Home Office have confirmed that there will be no mandatory requirement for retrospective checks to be undertaken on EEA nationals who were employed on or before 30 June 2021. The guidance states that employers will maintain a continuous statutory excuse against a civil penalty in the event of illegal working provided the initial right to work check was undertaken in line with right to work legislation and the guidance.

New guidance on right to work checks on EEA nationals from 1 July will be provided in due course. In the meantime, EEA nationals can continue to demonstrate their right to work by presenting their EU passport or national identity card. Alternatively, they may choose to provide proof of their status under the EU Settlement Scheme.

Holiday pay

The EAT has held that the right of workers to carry across from year to year payment for annual leave which they have not taken because the employer has refused to pay them for it, does not apply to leave which had actually been taken.

Mr Smith worked for Pimlico Plumbers as a plumber from August 2005 to May 2011 during which he took various periods of annual leave, for which he was not paid. Following the decision of the Supreme Court that he was a worker, rather than a self-employed contractor, Mr Smith submitted an employment tribunal claim for unpaid holiday pay. However, the tribunal held that his claim was out of time.

The tribunal considered whether Mr Smith could instead succeed on the basis of the ECJ decision in King v Sash Window, which said that a worker who does not exercise their right to paid “Euro” leave because their employer refuses to pay for it, must be allowed to carry over and accumulate such leave until termination, and then receive a payment in respect of all such untaken leave. However, King did not apply, since it only covered situations where leave had not been taken owing to the refusal to pay, not situations where the leave was taken.

The EAT agreed, commenting that had the ECJ intended to extend the right to cover leave actually taken, it would have said so explicitly. This was especially so since it would have provided a ‘way round’ the usual time limit rules for holiday pay claims.

Interestingly, the EAT also made an obiter comment that the decision of the Northern Ireland Court of Appeal (NICA) in Agnew did not provide grounds for it to depart from the previous EAT decision in Bear Scotland (that a gap of three months or more between periods of unpaid holiday breaks the chain in a series of deductions). We wait to see whether the Supreme Court will uphold the decision in Agnew when it hears the appeal on 23 and 24 June 2021.

(Smith v Pimlico Plumbers Limited)

Update posted: 18 March 2021

Statutory payments

The annual increases to various statutory compensation limits have been announced. These increases are of particular relevance to those making redundancies on or after 6 April 2021 as the maximum amount for a week’s pay (used to calculate statutory redundancy payments) will increase to £544 per week (from £538 per week).

The maximum compensatory award for unfair dismissal increases to £89,493 (from £88,519) where the effective date of termination is on or after 6 April 2021.

There are a number of other changes coming into effect in April and so we have prepared a timeline of the key dates in 2021 that employers, HR professionals and in-house employment lawyers need to know.

NMW and sleep-in shifts

The long awaited Supreme Court decision in the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) is expected on 19 March 2021.

The cases consider whether workers who sleep-in to carry out their duties are entitled to the national minimum wage (NMW) for the full duration of their night shift. The Court of Appeal held that the care workers were merely available for work during their sleep-in shift rather than actually working. They were therefore only entitled to the NMW for time spent awake and working.

The cases were heard by the Supreme Court on 12 and 13 February 2020 and we await the decision with interest.

(Royal Mencap Society v Tomlinson Blake)

(Shannon v Rampersad and another (T/A Clifton House Residential Home))

Working time and stand-by

The ECJ has given its preliminary decision in two cases concerning whether time spent on stand-by should be regarded as working time under the Working Time Directive.

The ECJ held that a period of standby time must be classified as working time, even if the worker is not required to remain at their workplace, if the constraints imposed on the worker are such as to “objectively and very significantly” affect the worker’s ability to freely manage the time during which their services are not required and to pursue their own interests. Only the constraints that are imposed on the worker by the law of the Member State concerned, by a collective agreement or by the employer are relevant, not organisational difficulties that a period of standby may generate for the worker, which are the consequence of “natural factors or of his or her own free choice".

The ECJ set out various factors that will be relevant when assessing whether the constraints imposed on a worker during standby are such to warrant classifying that period as working time. These factors include the response time imposed by the employer and the frequency with which workers are called upon during standby. The higher the frequency, the less scope there is for the worker to freely manage their personal time.

Although decisions of the ECJ are no longer binding on UK employment tribunals, they can be taken into account so far as they are relevant, and so these cases may be taken into account when an employment tribunal considers the Working Time Regulations in similar cases.

(DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main)

Health and safety

The government has published the draft Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 which will confer on workers the right not be subjected to a detriment for leaving, or refusing to return, to their workplace in circumstances where they reasonably believe it would put themselves or others in serious or imminent danger, or for taking steps to protect themselves.

This will extend the rights that employees have under section 44 of the Employment Rights Act 1996 not to be subjected to a detriment in certain health and safety cases to also include workers. It follows a declaration of the High Court in the case of Independent Workers' Union of Great Britain) v Secretary of State for Work and Pensions and another that, as the protection only previously applied to employees and not workers, the government had failed properly implement two EU Directives relating to health and safety. Although the gap in protection has existed since 1992 (the deadline for transposing the Directives) it has been highlighted by the Covid-19 pandemic and is particularly relevant as lockdown eases and workers return to the workplace.

The Order is currently awaiting Parliamentary approval and is due to come into force on 31 May 2021.

COVID-19

The guidance for those people categorised as extremely clinically vulnerable is changing from 1 April 2021 and they will no longer be advised to shield (and will no longer be eligible for SSP on the basis of being advised to shield). From 1 April 2021, extremely clinically vulnerable people are advised to work from home where possible and, if they cannot work from home, the guidance states that they should go to work.

As part of the Budget, the Chancellor announced that the Coronavirus Job Retention (Furlough) Scheme (CJRS), which was expected to end on 30 April 2021, will be extended across the UK until 30 September 2021 (some 19 months after its inception in March last year).

The government will continue to fund 80 per cent of the employee’s salary (subject to the cap) for unworked hours until the end of June 2021. This means that employers using the scheme will need to pay wages, NICs and pension contributions for worked hours and NICs and pension contributions only for unworked hours during this time.

From July 2021, employers will need to contribute to furlough pay for unworked hours, starting with a 10 per cent contribution in July and rising to a 20 per cent contribution from August until the Scheme closes at the end of September 2021. The government will contribute 70 per cent and 60 per cent respectively. Employers will also continue to have to pay all NICs and pension contributions for all unworked hours. Guidance for employers on the CJRS scheme has been updated to reflect the extension and the introduction of employer contributions.

Update posted: 04 March 2021

Budget 2021

The Chancellor has confirmed in the Spring Budget on 3 March 2021:

  • that the Coronavirus Job Retention (Furlough) Scheme will be extended until the end of September. However, from July employers will be required to pay 10% towards the hours their furloughed staff do not work, rising to 20% in August and September 2021.
  • NMW increases on 1 April 2021 (as we expected) to £8.91 an hour, to include, for the first time, workers aged 23 and over.
  • that it will modernise the immigration system and introduce a new, unsponsored visa for highly-skilled migrants and entrepreneurs to enable the UK to become “a scientific super power”.

Worker status

The Supreme Court has upheld the Court of Appeal’s decision that the Uber drivers in this case were 'workers' and were working when they had their app switched on and were ready and willing to accept trips. As ‘workers’ they would be entitled to a limited number of employment rights that are not available to self-employed contractors, including paid holiday and the national minimum wage.

Whilst the Supreme Court acknowledged that the drivers’ contracts were still relevant in determining employment status, it held that contractual terms of an engagement should not be the starting point for determining employment status as these were often subject to an imbalance of power in the first place, the very thing that legislation (such as the National Minimum Wage Act) sought to address. The focus for the Supreme Court was the fact that the drivers were asserting statutory rights (such as holiday pay) and on this basis, it held that the correct analysis of their employment status would come from an interpretation of the relevant legislation and its intention to protect vulnerable workers.

There may be ramifications for other employers using self-employed personnel and/or app based services, but it is important to realise that each case will turn on its own facts. It does not mean that you cannot successfully operate a business model whereby your labour is genuinely self-employed, although it will be necessary to consider the reality of the relationship. This will require close analysis of working practices and contractual arrangements to help identify any risk areas and to enable you to identify any steps that could be taken to manage potential risks.

(Uber BV and others v Aslam and others)

Gender pay gap reporting

The EHRC has confirmed that, unlike last year, when enforcement of gender pay gap reporting was suspended, this year employers with 250 or more employees on the relevant snapshot date must report their gender pay gap data for 2020/2021.

Private employers must report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020. However, the EHRC has confirmed that it will give employers a six month grace period and will not begin enforcement until 5 October 2021.

Certain employees should be excluded from the pay (but not bonus) calculations if they received a reduced rate of pay as a result of being on leave (for example family leave) during the pay period in which the snapshot date falls (the relevant pay period). The EHRC has published guidance which helpfully confirms that employees on furlough leave during the relevant pay period should also be excluded, unless their pay was topped up to their usual full pay.

COVID-19

An employment tribunal has held that an employee who refused to wear a face mask, as required by a client when the employee was visiting the client's site, was fairly dismissed.

The tribunal held that, although other employers may have issued a warning, dismissal fell within the range of reasonable responses for the employer. The disciplinary hearing had found the employee guilty of gross misconduct for refusing to comply with the client’s instruction regarding PPE and breaching the requirements in the employer’s handbook to maintain good relationships with clients and to co-operate to ensure a safe working environment.

(Kubilius v Kent Foods)

Whilst this case relates to a time before face masks were mandatory in many premises, employers should be alert to a number of issues that may arise relating to health and safety of employees whilst the pandemic continues. Acas have published updated Guidance on working safely during coronavirus with further details about workplace testing and vaccinations. We are advising a number of businesses these issues and other challenges that arise in planning the return to work and if you need advice please do not hesitate to get in touch.

Data protection

On 18 February the European Commission published its draft adequacy decision in respect of the United Kingdom. This is a mechanism set out under both the EU and UK versions of the GDPR, to allow for data to flow freely from the European Economic Area to a third country (such as the UK following Brexit) that the EU has deemed to have an “adequate” standard of data protection law, without the need for additional safeguards. If the full decision is granted by the European Commission, this will mean that data flows from the EEA to the UK will be able to continue without any additional protection mechanisms.

Update posted: 18 February 2021

Worker status

The Supreme Court decision in Uber B.V. v Aslam and others is expected on 19 February 2021.

The Court of Appeal previously upheld the decision of the London Central Employment Tribunal that, under Uber’s business model, Uber drivers were 'workers' and were working when they had their app switched on and were ready and willing to accept trips. As ‘workers’ they are entitled to a limited number of employment rights that are not available to self-employed contractors, including paid holiday and the national minimum wage.

The Court of Appeal judges were not unanimous in their decision, with one judge disagreeing with the conclusion, and so we await with interest the outcome of the appeal to the Supreme Court.

Public sector exit payments

The government has announced that it will be revoking the Restriction of Public Sector Exit Payments Regulations 2020 that brought into force a £95,000 cap on public sector exit payments and sparked controversy when they came into force in November 2020.

After carrying out an extensive review of the application of the cap, the government states that it has concluded that it may have had “unintended consequences” and has issued a Treasury Direction to suspend the Regulations and disapply the cap with immediate effect. The government has also published guidance which encourages employers “to pay to any former employees to whom the cap was applied the additional sums that would have paid but for the cap” and states that it is HM Treasury’s expectation is that they will do so. It also states employers should always consider whether exit payments are fair and proportionate and that HM Treasury will bring forward proposals to tackle unjustified exit payments.

Harrassment

The EAT has held that an employer could not rely on "stale" equality and diversity training as a defence to show it had taken all reasonable steps to prevent racial harassment.

The employer had an equal opportunity policy and an anti-bullying and harassment procedure and had carried out both equality and diversity and bullying and harassment training for employees and managers two years and 8 months before the Claimant’s dismissal. However, the EAT concluded that whatever training there had been was no longer effective as racist comments were made regularly to the Claimant, passed off as "banter", and managers took no action even though they were aware of the comments.

The EAT emphasised that merely having an equal opportunity policy and carrying out brief insubstantial training is insufficient. Employers should ensure they carry out quality training on a regular basis and if there is reason to believe that employees have forgotten the training, it should be refreshed.

(Allay (UK) Ltd v Gehlen)

COVID-19 - rapid workplace testing

In order to encourage more businesses to take up rapid workplace testing, the government has extended eligibility to businesses that remain open in lockdown and have 50 or more employees. Previously only employers with more than 250 employees were able to participate in the scheme.

Employers may register to order rapid lateral flow tests in order to test employees with no coronavirus symptoms if the business is registered in England, employs 50 or more employees and those employees cannot work from home.

The guidance on working safely during coronavirus has been updated to reflect this change.

Right to work checks

Following the implementation of the UK’s new immigration system and the end of freedom of movement for EEA nationals, Huw Cooke, business immigration and employment law specialist, considers an employer’s duty to conduct right to work checks and how to ensure compliance with new obligations.

Update posted: 04 February 2021

Redundancy

To guide you through some common tricky issues in redundancy selection exercises, Luke Bowery, partner and employment law specialist at Burges Salmon, has been asked by online HR resource, XpertHR, to talk about some difficult aspects including:

  • devising fair selection criteria
  • adjusting criteria for disabled employees
  • conducting competitive interview processes
  • pooling and scoring where employees have been furloughed
  • assessing those on secondment.

This free on demand podcast is open to all - you do not need to be an XpertHR subscriber to listen.

Gender pay gap reporting

The Government Equalities Office has published guidance on the gender pay gap reporting requirements and confirmed that employers with 250 or more employees on the relevant snapshot date must report and publish their gender pay gap information this year, following the one-off suspension of the requirements relating to the data for the 2019 reporting period due to the COVID-19 pandemic.

Private employers must report and publish their gender pay gap information and written statement by 4 April 2021 based on a snapshot date of 5 April 2020.

Certain employees must be excluded from the pay (but not bonus) calculations if they received a reduced rate of pay as a result of being on leave (for example family leave) during the pay period in which the snapshot date falls (the relevant pay period). The guidance helpfully confirms that employees on furlough leave during the relevant pay period should also be excluded unless their pay was topped up to their usual full pay.

Right to work checks

Following the introduction of the new immigration system, employers should continue to carry out right to work checks on all new recruits using a three-stage process of obtaining, checking and copying relevant identity documents and recording the date the check was conducted. There are temporary changes in place to facilitate right to work checks during COVID-19.

Until 30 June 2021, when conducting right to work checks in respect of EU, EEA or Swiss nationals, employers must ensure they obtain the individual’s passport or national identity card, or if the individual has been granted permission under the EU Settlement Scheme, they can share evidence of right to work using an online service. From 1 July 2021 onwards, the individual must either provide proof of permission under the EU Settlement Scheme, or if they arrived in the UK on or after 1 January 2021, they must provide a visa and any other necessary ID documentation.

There is currently no requirement for retrospective checks to be undertaken on EU, EEA or Swiss nationals who were employed on or before 30 June 2021. Employers should also be alive to the risk of discrimination which may occur if an individual is required to provide proof of settled status before 30 June 2021. The government has not yet issued its new right to work guidance, which will apply from 1 July 2021 onwards.

On the same topic, Burges Salmon’s business immigration and employment law specialist, Huw Cooke, recently joined online HR resource, XpertHR, to talk about both the changes to the immigration system for employers and the potential implications of the Brexit deal on UK employment law.

Indirect discrimination

The EAT has held that in order to consider whether British Airway’s policy of removing one paid rest day removed for each three days’ parental leave taken by its crew in any monthly roster was indirectly discriminatory, it was necessary to consider the impact of the policy on both men and women with childcare responsibilities.

The Claimant argued that the policy was indirectly discriminatory on grounds of sex because women bear the bulk of childcare responsibilities and they were therefore “more likely to apply to take parental leave” and that the policy therefore put women at a particular disadvantage. The employment tribunal rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). However, the EAT held this was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave.

The case has been remitted to a fresh employment tribunal to consider whether the policy put women with childcare responsibilities at a particular disadvantage when compared with men with childcare responsibilities.

(Cumming v British Airways PLC)

A Conversation about...reforms to IR35 and off-payroll working

Following a COVID driven delay in implementation, private sector organisations which hire contractors via intermediaries will need to restart their preparations in readiness for new rules in April on how these contractors are taxed.

In our latest Conversation, senior employment lawyer, Annelise Tracy Phillips, talks to Kate Redshaw about the changes and what practical steps organisations need to take to be ready for the deadline.

Update posted: 21 January 2021

Working from home

Employees working from home overseas

In light of the significant increase in homeworking brought about by the pandemic, employers have seen a rise in requests from employees to work remotely in another country. Having an employee based abroad can pose practical challenges for an employer including time differences, internet issues, how to achieve effective line management and who will cover the cost of the employee’s return to the UK, should this be needed.

In addition to these day-to-day issues, there are also significant legal and tax implications where an employee lives and works overseas. Employers should treat requests carefully, as granting an employee the right to work from another country can entail significant risk, including:

  • Tax, pensions and social security liabilities
  • Risk of permanent establishment in the overseas country
  • Local employment rights and obligations attaching
  • Immigration consequences
  • Data protection and
  • Regulatory implications.

These issues can be technical, and are highly dependent on the jurisdiction to which the employee requests to move. Further, employers should take care to handle requests as consistently and fairly as possible. You may also wish to consider introducing a policy if this is likely to represent an ongoing issue for your organisation.

We have been advising a number of employers on the implications of these requests. If you would like any assistance please get in touch.

Working from home in Scotland

The Scottish government have published statutory guidance on working from home. Although the guidance is tailored towards to the requirement to work from home during the COVID-19 pandemic, the overview states that it can also be used as a tool for an ongoing and continued shift in employer policies towards incorporating higher levels of homeworking in a post-COVID landscape.

Read Scottish government guidance >

With lockdowns in place across the United Kingdom, we have now updated our guide for employers to take into account the current advice for employers.

Trade union activities

The EAT has held that an employee was subjected to a detriment by his employer on the grounds of protected trade union activities when he was given an oral warning for failing to comply with a reasonable instruction to delete an email distribution list he had compiled for trade union purposes.

The EAT held that the Claimant was undertaking protected trade union activities when he created the email distribution list and also when he subsequently refused to delete it, as recruiting and communicating with members are core trade union activities.

As the employer’s ‘sole or main purpose’ of the disciplinary action was to give a warning for what the tribunal decided were trade union activities, it followed that the employer had subjected the Claimant to a detriment ‘for the sole or main purpose of preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or to penalise him from doing so’, which is contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Employers should take care when considering disciplinary action if the employee's actions may fall within the realms of trade union activity and ensure that, if disciplinary action is taken, records are kept to show the reason was other than carrying out a trade union activity.

(University College London v Brown)

Update posted: 7 January 2021

Lockdown arrangements

Following the announcement of a national lockdown for England and Scotland (Wales and Northern Ireland are already in lockdown) the Regulations have now come into force in England. Key points for employers to note are as follows:

  • Many businesses will be required to close during the lockdown and others will obviously suffer a downturn in demand. The Chancellor has announced a one-off lockdown grant worth up to £9,000 for businesses in the retail, hospitality and leisure sectors. The furlough scheme, which has been extended until 30 April 2021, can also be accessed by employers throughout the UK. See our guidance note on the CJRS below for more information.
  • The government’s National lockdown: Stay at home guidance states that people are not permitted to leave their homes ‘without reasonable excuse’ subject to a list of exemptions. One exemption permits people to leave their homes for work where it is ‘unreasonable for them to do their job from home’. In Scotland there is also a requirement to stay at home and people should only leave their homes for an ‘essential purpose’.
  • Employers should carefully consider which employees may attend their place of work with these tests in mind. With some roles it will be obvious if the tests are met. However, in other instances, for example with office-based work, the decision-making process will need to be done on an individual basis. Where a decision is taken that an individual satisfies the tests, the decision-making process should be recorded. There are criminal sanctions for non-compliance with the Regulations so employers will want to be able to demonstrate their reasons.
  • The closure of schools at short notice will have caused childcare issues for a number of working parents. There are a number of potential options available for employers with employees who are unable to work because of childcare issues, including the furlough scheme, temporary changes to hours of work or agreeing a period of unpaid leave or annual leave with the employee.

Clinically Extremely Vulnerable

As part of the Prime Minister’s recent lockdown announcement, the clinically extremely vulnerable were advised to stay away from work even if they could not work from home. Letters are being sent to the clinically extremely vulnerable advising them to begin shielding again. Employees falling within this category may be furloughed (assuming they meet the eligibility criteria) or may be entitled to SSP (again if eligible) and the letter they receive may serve as a FIT note.

Self-isolation and SSP

The SSP regulations have been updated following the reduction in the self-isolation period from 14 to ten days for those with symptoms of COVID-19, who have tested positive or who are in a household with someone who has tested positive. The regulations now state that anyone who is symptomatic or who tests positive, as well as their household contacts, will be deemed to be incapable of work and entitled to SSP (if eligible) if they self-isolate for 11 days (this includes the day symptoms start, or the day on which they are tested, and the subsequent ten full days).

Sponsored workers

The UK’s new immigration system came into force on 1 December 2020 and from 1 January 2021 anyone from outside the UK and Ireland (including all EU nationals) will require a visa if they want to work in the UK. Employers will need to hold a sponsor licence in order to sponsor employees for these purposes.

The abolition of the Resident Labour Market Test was a welcome change for businesses sponsoring non-UKI employees, but the latest guidance (updated in December 2020) states that when advertising for a role that will be filled by a sponsored worker, an employer must include specific prescribed information in the job advert, keep a record of where the job was advertised and retain specified documentation from any recruitment process. These are onerous obligations and sponsors will need to ensure that their recruitment procedures are compliant with this new guidance.

The full guidance can be accessed here.

Read 'what the new immigration rules mean for UK employers' >

Update posted: 10 December 2020

Non-compete and exclusivity clauses

The government has begun consultation on measures to reform post-termination non-compete clauses in contracts of employment. The proposals would be intended to allow workers greater freedom to find new or additional work and to discourage the widespread use of non-compete clauses. They include a proposal to introduce a mandatory requirement for compensation to be paid for the duration of a non-compete restriction. The consultation, which is open until 26 February, also seeks views on the possibility of making post-termination non-compete clauses unenforceable altogether.

The government is also consulting on a proposal to ban exclusivity clauses in contracts where the workers’ guaranteed weekly income is less than the Lower Earnings Limit, currently £120 a week.

Brexit

With the uncertainty around a Brexit trade deal and the transition period coming to an end on 31 December 2020, businesses need to ensure they are ready for the changes that will take place. It will be important for employers to:

  • understand the changes to our immigration system (see below)
  • review contracts and policies to check for references to the EU and consider whether any changes are necessary
  • consider whether changes are needed to any European Works Councils
  • review the regulatory agencies you are currently working with and consider what steps might need to be taken to comply with separate UK and EU regulation. The ICO website has data protection guidance to help businesses prepare for the end of the transition period.

We have produced a number of resources that businesses may find useful when formulating their Brexit plans. If you would like any assistance please get in touch.

Statutory minimum wage increases

The government has announced that from 1 April 2021 the national living wage (NLW) will increase from £8.72 to £8.91 per hour and will apply to workers age 23 and above (whereas it currently applies to those age of 25 and above).

The national minimum wage (NMW) rates will also increase from 1 April 2021:

  • from £8.20 to £8.36 per hour for 21 to 22 year olds
  • from £6.45 to £6.56 per hour for 18 to 20 year olds
  • from £4.55 to £4.62 per hour for 16 and 17 year olds
  • from £4.15 to £4.30 per hour for apprentices.

Financial services - SMCR

The SMCR, which came into force for solo-regulated FCA firms in December 2019, requires firms to assess the fitness and propriety of their Senior Managers and Certification staff. In our latest Conversation, employment lawyer and financial services specialist, James Green, talks to Kate Redshaw about how firms should make these assessments and the key issues that might arise.

If you would like to discuss any of the points raised in this Conversation or would like advice on how to put together your assessment process, please do not hesitate to get in touch with James.

Update posted: 26 November 2020

Indirect discrimination - costs

The Court of Appeal has confirmed that whilst saving costs alone cannot justify indirect discrimination, an employer’s need to reduce costs in response to financial constraints can amount to a legitimate aim in order to satisfy the justification defence.

In this case, funding cuts imposed by central government led to the Ministry of Justice making changes to the rate at which Probation Officers progressed up an incremental salary scale, which meant it would take someone three times as long to climb up the pay scale than before the changes were implemented. Although this was held to be discriminatory, as it favoured those employees over 50, the Court of Appeal held that it was justified as a proportionate means of achieving a legitimate aim.

As it is a difficult time for many businesses, this decision will be welcome news to a number of employers as it confirms that an employer’s need to live within their means and operate within a budget can be a legitimate aim that amounts to more than just saving costs.

(Heskett v Secretary of State for Justice)

Health and safety

In a recent judicial review application, the High Court has made a declaration that workers have the same protection from being subjected to a detriment on health and safety grounds, and the same right to be provided with personal protective equipment (PPE), as employees and that the government has failed to properly implement two EU Directives relating to health and safety at work. This is because the Framework Directive (on health and safety at work) and the PPE Directive, protect employees and workers, whereas UK legislation protects employees rather than the broader category of workers.

It waits to be seen whether the government will appeal the decision or simply amend the legislation. If it doesn’t appeal, employers will need to consider the implications of the extension of the protection to cover workers.

(The Independent Workers' Union of Great Britain v The Secretary of State for Work & Pensions and others)

Collective redundancies

The ECJ has held that for the purposes of deciding whether a particular dismissal falls within the threshold for determining whether collective redundancy consultation obligations are triggered, if the threshold number of dismissals is reached at any point across the relevant 30 or 90 day reference period, the collective consultation obligations apply in respect of those dismissals, and dismissals that occur before or after the particular dismissal count towards the threshold.

This is different to the forward–looking approach currently taken in the UK under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) (which implements the EU Collective Redundancies Directive). TULRCA focuses on the number of employees an employer is proposing to dismiss and does not take account of those employees in respect of whom consultation has already begun.

Whilst we are still awaiting an English version of the judgment, it is likely to be an important decision for employers as it means that during any redundancy exercise, employers will need to look both forward and back to calculate whether the threshold for collective consultation will be met over the reference period and plan accordingly.

(UQ v Marclean Technologies SLU)

Immigration

The UK’s new immigration system goes live on 1 December 2020 with the primary change for employers being the Skilled Worker route replacing the Tier (General) route. The government has just published guidance for sponsors of migrant workers under the new points-based immigration system. The system will also apply to EU nationals with effect from 1 January 2021 and employers who anticipate that they may have a requirement to sponsor workers, including EU nationals, after that date are encouraged to apply for a sponsor licence.

Update posted: 5 November 2020

Coronavirus Job Retention (Furlough) Scheme extended until March 2021

Following the start of a second lockdown in England and a short extension of the Coronavirus Job Retention (Furlough) Scheme (CJRS) until December, the Chancellor has today announced a further extension to the CJRS, until the end of March 2021. This was accompanied by a Policy Paper setting out further details on the extension.

The decision to further extend the CJRS is in recognition of the longer term economic effects that the lockdown is expected to have on businesses. The extension to the CJRS will apply UK-wide, notwithstanding the different degrees of lockdown across the devolved administrations. The Job Support Scheme remains postponed.

Key points for employers on the extension to March are as follows:

  • As before, employers will have the flexibility to use the CJRS for eligible employees for any amount of time and any shift pattern, including the option to furlough employees full-time.
  • During this extension, employees will continue to receive 80% of their usual wages, up to the cap of £2,500 per month (pro-rated to the hours not worked) and employers will only be required to pay National Insurance and employer pension contributions. The Government will review the CJRS in January 2021 to consider whether the economic circumstances are improving enough to ask employers to contribute more.
  • In order to benefit from the extended CJRS, neither the employer nor the employee needs to have previously claimed or have been claimed for under the CJRS to make a claim under the extended CJRS (if other eligibility criteria are met). An employer can claim for employees who were employed and on their PAYE payroll on 30 October 2020. The employer must have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.
  • Employees who were employed and on the payroll on 23 September 2020 and who were made redundant or stopped working afterwards can be re-employed and claimed for. The employer must have made an RTI submission to HMRC from 20 March 2020 to 23 September 2020, notifying a payment of earnings for those employees.
  • The Policy Paper confirms that this is an extension of the CJRS and the scheme rules will remain the same except where stated otherwise. The Policy Paper is silent on the interplay between redundancies and furlough, so it remains to be seen whether or not employers might be able to use the extended CJRS to help fund any subsequent redundancy notice periods. Employers may also need to reconsider current or anticipated restructuring exercises in light of the extension to the CJRS.
  • For employees who meet the eligibility criteria and were previously furloughed, employers must use the same calculations for calculating reference pay and usual hours. For those employees who meet the criteria of the extended scheme but were not previously eligible under the CJRS, alternative calculations will need to be used.
  • The Policy Paper confirms that employers can furlough employees who are unable to work because they are shielding in line with public health guidance or have caring responsibilities resulting from coronavirus, including employees that need to look after children.
  • Any qualifying flexible furlough agreement made retrospectively with effect from 1 November will be valid but only if it is put in place by 13 November 2020.
  • The Government have also stated that HMRC will publish details of employers who make claims from December onwards under the extended scheme. Full details of how this will take place will be included within the detailed guidance which is to be published on 10 November.
  • In light of the extension of the CJRS, the Job Retention Bonus will not be paid in February 2021. However the Government has announced that a ‘retention incentive’ will be ‘deployed’ at an appropriate time.

We have been advising many employers on the CJRS. If we can help your organisation, please do not hesitate to get in touch.

Regulations governing lockdown arrangements in England

The Regulations governing lockdown arrangements in England are expected to be passed by Parliament today. Key points for employers to note are as follows:

  • The Regulations require many businesses to close during the lockdown and others will suffer a downturn in demand – as a result the furlough scheme has been extended until December and can be accessed by employers throughout the UK. See our guidance note here for more information.
  • Under the Regulations, people are not permitted to leave their homes ‘without reasonable excuse’ subject to a list of exemptions. One exemption permits people to leave their homes for work where it is ‘reasonably necessary’ for them to do so and where it is not ’reasonably possible’ for them to work from home. This wording is arguably narrower than the guidance which was issued on 31 October 2020 which stated that people who could work ‘effectively’ from home must do so.
  • As a result of these Regulations, employers should carefully consider which employees may attend their place of work with these tests in mind. With some roles it will be obvious if the tests are met. However, in other instances, for example with office-based work, the decision-making process will need to be done on an individual basis. Where a decision is taken that an individual satisfies the tests, the decision-making process should be recorded. There are criminal sanctions for non-compliance with the Regulations so you would want to be able to demonstrate your reasons.

New guidance for the Clinically Extremely Vulnerable in lockdown

As part of the Prime Minister’s recent lockdown announcement, the clinically extremely vulnerable were advised to stay away from work even if they could not work from home. New guidance for the clinically extremely vulnerable has now been issued which confirms that people falling within this category may be furloughed (assuming they meet the eligibility criteria) or may be entitled to SSP (again if eligible).

The guidance also confirms that those living with a clinically extremely vulnerable person should continue to go to work if they cannot work from home.

Availability of furlough to those who have been dismissed

The furlough scheme has been extended for the duration of the lockdown in England. HMRC has confirmed in a bulletin that employees who were on the payroll on 23 September 2020 and who were made redundant or stopped working for the employer afterwards will qualify for the scheme if the employer re-employs them. Whilst this is helpful, employers should remember that re-hiring employees has wider employment law implications.

Further guidance on the furlough extension is expected shortly.

Update posted: 22 October 2020

COVID-19 Job Support Scheme

Today the Chancellor announced significant changes to the new Job Support Scheme which is set to replace the Coronavirus Job Retention Scheme on 1 November 2020.

Under the new rules, employers will now only be required to pay five per cent of the cost of unworked hours of employees, instead of the 33 per cent originally announced. Additionally, the minimum hours requirement has also been reduced from 33 per cent to 20 per cent, meaning that employees working just one day a week will now be eligible.

Note: no changes have been made to the Scheme for those businesses legally required to close.

Further guidance will be published in due course, however, key points about the ‘Job Support Scheme Open’ as set out in the government’s factsheet include:

  • All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the Coronavirus Job Retention Scheme (CJRS). Employers need not be under local or national lockdown restrictions to claim the grant.
  • Large employers (with 250 or more employees) will have to meet a financial impact test, so the scheme is only available to those whose turnover has stayed level or is lower now than before experiencing difficulties from COVID-19.
  • Publically funded organisations are not expected to use the scheme but partially publicly funded organisations are eligible (subject to other qualifying criteria) where their private revenues have been disrupted.
  • It is unclear how any revised working arrangements must be agreed with employees. One section of the factsheet states that employers must have agreed the temporary working arrangement for shorter hours in writing with employees (or union). Elsewhere in the factsheet, it is stated that employers must agree the temporary working arrangement for shorter hours, and notify the employee in writing. This agreement must be made available to HMRC on request. We expect further guidance to clarify that the agreement can be notified in writing as per the CJRS.
  • Employees must be on an employer’s PAYE payroll between 6 April 2019 to 23:59 23 September 2020.
  • It has been confirmed that staff on any type of contract are eligible, including those on variable or zero hours and agency workers.
  • Employees must work at least 20 per cent of their usual hours and they can undertake training in their working hours whilst being claimed for.
  • The scheme will be flexible so employees can come on and off the scheme and can work to a different pattern of hours, subject to a minimum short-time working arrangement period of seven days.
  • For every hour not worked by the employee, they will be paid a total of two-thirds of the usual hourly wage for that employee, up to a cap.
  • Employers will pay 5 per cent of non-worked hours, capped at £125 per month, and NICs and automatic enrolment pension contributions in full as a contribution. It has been confirmed that employers can top up employee’s wages above the 5% contribution at their own discretion.
  • The government will contribute 61.67 per cent of non-worked hours, capped at £1,541.75 per month. When combined with the minimum hours requirement, this means that employees on the scheme will receive at least 73 per cent of their wages, where their usual wages do not exceed the reference salary.
  • For the time worked, employees must be paid their contracted wage.
  • To be eligible, employees must not be made redundant or be given notice of redundancy during the period in which the employer is claiming the grant.
  • Eligible businesses will also be able to use the scheme and claim the Job Retention Bonus for workers who have been furloughed and are kept on until the start of February 2021.
  • HMRC intend to publish the names of employers who have used the scheme.

We will publish a more detailed note on the Job Support Scheme once further guidance has been released.

If you would like to discuss any aspect of the new Job Support Scheme or other areas of concern, please feel free to get in touch.

Update posted: 15 October 2020

Public sector exit payments

The Restriction of Public Sector Exit Payments Regulations 2020 (the Regulations) were approved by Parliament on 14 October 2020 and are due to come into force in 21 days’ time (4 November 2020).

The Regulations will bring into force the £95,000 cap on public sector exit payments that has been expected for some time and will apply to those public sector authorities listed in the schedule to the Regulations.

The total of the exit payments must not exceed the cap, including any:

  • redundancy payments
  • payments made to reduce or eliminate an actuarial reduction to a pension on early retirement
  • payments made through ACAS arbitration or conciliation
  • severance or ex gratia payments
  • payments made in the form of shares or share options
  • payments made in lieu of notice under a contract of employment that exceed one quarter of the payee’s annual salary
  • payments on voluntary exit
  • payments to extinguish any liability to pay money under a fixed term contract
  • any other payments, whether under a contract of employment or otherwise, in consequence of termination of employment or loss of office.

There are exceptions, including payments in respect of death in service; incapacity as a result of accident, injury or illness; pay in lieu of untaken annual leave and payments made in compliance with an order of a court or tribunal. There is also power for ministers to relax the cap in certain ‘exceptional’ circumstances.

We are awaiting the updated guidance and HM Treasury Directions which will set out further detail.

The cap is likely to have significant implications and those that may be affected will need to consider putting plans into place now for implementation

COVID-19 Job Support Scheme

The Chancellor has announced that the Job Support Scheme will be expanded to offer extra support to those businesses that are legally required to close as a result of local or national coronavirus restrictions.

The Job Support Scheme is due to commence on 1 November 2020 and will run for six months until the end of April 2021. Originally the government announced that it will contribute towards the wages of employees in viable jobs who are working for at least 33 per cent of their normal working hours. However, under the expanded scheme businesses will be eligible to claim for employees who are not working as a result of the business being legally required to close due to restrictions.

Further guidance will be published in due course, however, key points include:

  • The grant is available to businesses whilst they are subject to restrictions and the employee must be not be working for a minimum of seven consecutive days.
  • No specific limitations on the size or finances of the businesses for the expanded scheme have been announced.
  • In order to be eligible, employees will need be on the employer’s PAYE payroll on or before 23 September 2020.
  • The employee will receive up to two thirds of their usual pay for the hours not worked. This two thirds will paid by the employer and the employer will then be reimbursed in arrears by the government (this differs from the rest of the scheme where the government will only contribute one third for the unworked hours in relation to businesses that are not legally required to close).
  • Employers must agree the short-time working arrangements with the employee and any changes to the contract of employment need to be made by agreement and notified to the employee in writing and made available to HMRC on request.
  • The level of grant from the government will be calculated based on the employee’s usual salary rate (and not furlough rate) but will be capped at £2,100 per month (this is a larger cap than the cap that applies to the rest of the scheme). The grant will not cover pension contributions and NICs, which will be payable by the employer.
  • To be eligible, employees must not be made redundant or be given notice of redundancy during the period in which the employer is claiming the grant. It is not currently clear how this will impact employers who have already commenced a redundancy consultation or served notices of redundancy to employees.
  • Eligible businesses can (subject to eligibility criteria) use the scheme and can also claim the Job Retention Bonus for workers who have been furloughed and are kept on until the start of February 2021.
  • Businesses that are required to close may also be eligible for a cash grant, linked to rateable values, of up to £3,000 per month, payable every two weeks.

The government has published a factsheet setting out more details about the Job Support Scheme and intends to issue further guidance shortly. The key points about the scheme are set out in our employment law update of 25 September 2020.

If you would like to discuss any aspect of the new Job Support Scheme or other areas of concern, please feel free to get in touch.

FCA guidance on providing financial information to employees and pension scheme members

The FCA's proposed updated guidance is of particular relevance to employers and trustees of occupational pension schemes who want to provide support with financial matters without giving unauthorised financial advice.

In this article, we look into the FCA's thinking on this matter and cover the key points from the guidance, including on safeguarded benefits and conversion/transfer of benefits.

Employers and pension trustees should review their communications with employees and scheme members on pensions in light of this.

Update posted: 05 October 2020

COVID-19 new regulations

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force on 28 September 2020. These regulations only apply to England although it is expected similar regulations will be introduced in other parts of the UK.

The regulations make it a legal requirement for anyone who has tested positive for COVID-19 after 28 September, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has tested positive for COVID-19 after 28 September, to self-isolate for ten or 14 days respectively.

Self-isolating workers (including agency workers) who are due to work must notify their employer (or agency or client in the case of an agency worker) that they are required to self-isolate, as soon as reasonably practicable and not later than their next working day. In the case of agency workers, the recipient of the notification must inform others in the agency chain.

Where an employer of a self-isolating worker or self-isolating agency worker is aware of the worker's requirement to self-isolate, they must not knowingly allow them to come into work or carry out their duties at any place other than the place where they are self-isolating.

Anyone who without reasonable excuse fails to self-isolate may be fined from £1,000 up to £10,000 for repeat offences and serious breaches. Employers are also subject to the similar fines for knowingly allowing self-isolating staff to come to work without reasonable excuse.

Redundancies

In view of the current climate, Acas, the CBI and TUC have issued a joint statement on handling redundancies, setting out best practice for employers to take into account when considering redundancies during the pandemic.

If you would like assistance in structuring a redundancy or restructuring programme, advice on the process or alternatives to redundancies please get in touch with Adrian Martin or your normal employment contact.

Update posted: 25 September 2020

COVID-19 Job Support Scheme

The Chancellor has announced a new Job Support Scheme to replace the Coronavirus Job Retention Scheme when it comes to an end at the end of October.

Under the new Scheme, the government will contribute towards the wages of employees who are working fewer than normal hours due to decreased demand. Further guidance will be published in due course, however, key points about the Scheme as set out in the government’s Job Support Scheme factsheet include:

  • The scheme will come into effect for six months from 1 November 2020 and will be open to businesses across the UK even if they have not previously used the furlough scheme.
  • All SMEs are eligible to participate. For larger businesses, they will have to meet a financial assessment test to demonstrate that the turnover of their business has been adversely affected by COVID-19. The government expects that large employers will not be making capital distributions such as dividends or share buy backs, while using the scheme.
  • In order to be eligible, employees will need be on the employer’s PAYE payroll on or before 23 September 2020.
  • Employees will need to work at least one third of their normal hours which will be paid for by their employer at the employee’s normal rate of pay. The government will review the threshold of a third of normal working hours after three months.
  • In relation to the hours not worked, the employer will pay the employee for a third of these hours and the government will pay the employee for a further third of these hours so, in relation to any unworked hours, an employee will receive a total of two thirds of their pay. The employer will be reimbursed in arrears for the government contribution.
  • Employers must agree the short-time working arrangements with the employee and any changes to the contract of employment need to be made by agreement and notified to the employee in writing.
  • The level of grant from the government will be calculated based on the employee’s usual salary rate (and not furlough rate) but will be capped at £697.92 per month. The grant will not cover pension contributions and NICs, which will be payable by the employer.
  • The scheme will be flexible so employees can come on and off the scheme and can work to a different pattern of hours, subject to a minimum short-time working arrangement period of 7 days.
  • To be eligible, employees must not be made redundant or be given notice of redundancy during the period in which the employer is claiming the grant.
  • Eligible businesses can use the scheme and can also claim the Job Retention Bonus for workers who have been furloughed and are kept on until the start of February 2021.
  • HMRC will be checking claims.

The government is also continuing its support for self-employed individuals by extending the Self Employment Income Support Scheme Grant.

If you would like to discuss any aspect of the new Job Support Scheme or other areas of concern, please feel free to get in touch.

COVID-19 Working from home

The government has also announced that employees in England who can work effectively from home should do so over the winter. In Scotland employees should only go into work if it is essential for them to do so.

The announcement states that where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so. However, public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work, although extra consideration should be given to those people at higher risk.

Update posted: 17 September 2020

COVID-19 working safely guidance

The government has updated its guidance on working safely during the COVID-19 pandemic in different types of workplaces in England. The key changes include:

  • A new list at the start of each guidance of priority actions to take, including risk assessments, cleaning, face coverings, social distancing, ventilation, Test and Trace records, and turning away anyone with symptoms of COVID-19.
  • New restrictions on indoor or outdoor gatherings of more than six people (with some exceptions) which came into force on Monday 14 September.
  • Amendments to the Test and Trace guidance to state that that employers "must" keep records of staff and contractors’ working patterns for a period of 21 days (whereas previously it only advised that employers “should” do so) and the introduction of financial penalties for non-compliance with the Test and Trace data requirements which is intended to come into force on 18 September 2020.

COVID-19 Testing

The Department of Health and Social Care has published guidance for employers on COVID-19 testing and contact tracing. The guidance advises against using NHS Test and Trace to test non-symptomatic staff and suggests that employers consider private alternatives.

Disability discrimination

The EAT has held that an employee who suffered from paranoid delusions, which caused him to believe that he was being tracked by a Russian gang and affected his timekeeping and attendance at work, was not disabled for the purposes of the Equality Act 2010.

Although the paranoid delusions that the employee suffered did have a substantial adverse effect, the tribunal held that at the relevant time, the substantial adverse effect was not long term, as it was not likely to last for at least 12 months, nor likely to recur. The EAT agreed and held that the mere fact that the condition did recur later did not undermine the assessment of the likelihood of recurrence, which the tribunal must make based on the conditions prevailing at the time.

(Sullivan v Bury Street Capital Limited)

Public sector exit payments

The draft Restriction of Public Sector Exit Payments Regulations 2020 have been published and are making their way through Parliament. The Regulations will bring into force the £95,000 cap on public sector exit payments that has been expected for some time. The implementation date is yet to be confirmed but it is expected that they will come into force by the end of 2020.

The cap is likely to have significant implications and those that may be affected will need to consider putting into place plans now for implementation.

Distressed M&A: managing employment risk

One of the first questions often asked by buyers in distressed M&A situations is what is the likely quantum of employee liabilities? It is not uncommon for buyers to want to restructure the workforce post-completion and early engagement on this issue is key.

In the latest of our series of articles concerning distressed M&A, we examine the key employment considerations.

Update posted: 10 September 2020

Calculation of CJRS grants: disclosure of mistakes to HMRC

As you will be aware the Coronavirus Job Retention Scheme comes to an end at the end of October. Whilst the scheme has been widely welcomed by employers, it is not without its complexities, not least as guidance on the application of the scheme and the calculation of grants has been updated on a frequent basis.

Under the CJRS legislation, HMRC has the power to recover amounts of CJRS grants that have been incorrectly claimed, and if notification was not made of this, there could also be penalties. These are subject to the normal rules for penalties for failure to notify but where employers are aware of a problem and do not come forward the penalty could be up to 100 per cent.

Given the changes in guidance and the complexity of the rules, many employers may have made some technical mistakes in applying for grants under the scheme, particularly given the need to operate at speed.

It will therefore be prudent, in all but very straightforward cases, to review the amounts claimed and to make sure that any problems or errors are identified and can be corrected. Reviewing this and ensuring that any points on which the operation of the rules is unclear have been properly addressed should also help to protect against penalties.

If you have overclaimed a CJRS grant and have not repaid it, you need to tell HMRC this, ideally, within the “notification period”. This ends on (and is the later of)

  • 90 days after the relevant grant was received (if this was in excess of the correct amount);
  • 90 days after the date circumstances changed so that you were no longer entitled to the CJRS grant; or
  • on 20 October 2020.

This can be done in the next claim if a further claim is being submitted or otherwise will need to be done separately. If you do not do this you may have to pay a penalty. Once a disclosure has been made to HMRC any overpaid amount will either be assessed directly by HMRC or need to be adjusted for in the tax return for the period.

HMRC have made clear that disclosure of innocent errors should not result in penalties provided the amounts are duly repaid, but that they will seek penalties for overclaims known to be incorrect or in cases where circumstances changed and HMRC should have been notified that the grant was repayable or taxable.

Common problem areas include:

  • the use in the Scheme of calendar days not working days where the claim is for part of a period;
  • activities undertaken by an employee while on furlough (particularly if the employee is also a shareholder or in the case of company directors);
  • holiday and bank holiday pay and arrangements;
  • interplay between family/sick leave and furlough;
  • identifying which elements of pay constituted ‘regular payments’ when calculating how much to claim;
  • “hangover” problems caused by the fact that until 5 June it wasn’t possible to correct errors for a previous period’s claim in the next claim.

Update posted: 02 September 2020

Winding down of the Coronavirus Job Retention Scheme

Increase in employer contributions to furlough pay

With the CJRS due to end next month, a reminder that the furlough scheme is changing. Whilst employees continue to be entitled to receive a minimum of 80 per cent of their wages (subject to the cap of £2,500) whilst on furlough, from 1 September, employers will now be required to pay 10 percent of the employee’s wages (as well as employer NICs and pension contributions) with the government paying the additional 70 percent.

From 1 October, the government’s contribution will reduce to 60 per cent of the employee’s wages and employers will need to pay the remaining 20 per cent to make up the 80 per cent total.

Over/under payment of claims

A reminder that there is a short guidance note available to help employers who have claimed too much or too little under the scheme to rectify the situation. Read the guidance here.

The return to the office

With children returning to school and a new government push to encourage people back to the office, many employers are now keen to bring their employees back to the workplace in some shape or form and where it is safe to do so.

However, with many employees having been away from the office since March, and with COVID-19 still very much in existence, employers are likely to encounter employees who are anxious or reluctant to return to work.

Recorded earlier in the summer, our popular video 'A Conversation about...COVID-19 and the reluctant returner' provides practical information for employers about how to facilitate a return to the workplace.

Update posted: 30 July 2020

Coronavirus Job Retention Scheme

Furloughed employees to receive statutory redundancy payments and statutory notice at full pay

The government has announced that new legislation has been introduced, effective 31 July 2020, requiring that any employee who has been furloughed and who is made redundant will be entitled to receive a statutory redundancy payment (subject to the usual eligibility criteria) calculated using their normal wages, as opposed to their reduced furlough pay.

This legislation will also apply to statutory notice pay and statutory compensation for unfair dismissal amongst other statutory payments.

Over/under payment of claims

The government has just released a short guidance note to help employers who have claimed too much or too little under the scheme to rectify the situation. Read the guidance here.

The return to the workplace: updated guidance

The government has now updated its guidance following the Prime Minister’s announcement that, from 1 August, people who had been instructed to work from home, will be free to return to their workplaces.

Employers are still under a duty to ensure their staff can work safely and working from home remains one way of doing this. However, if you are intending to bring more people back to your workplace then the guidance advises that you consider:

  • The maximum number of people the workplace can accommodate (given social distancing requirements);
  • Engaging with the workforce to ensure they feel safe when they return to the workplace;
  • Whether additional measures such as face coverings may assist to manage risk and make employees feel safe;
  • Updating COVID-19 risk assessments and actions to reflect the return of staff to the workplace;
  • Avoiding forcing any workers to return to a workplace that is unsafe.

When deciding which members of staff to bring back, employers must take account of individual employees’ circumstances including caring responsibilities, the need to use public transport, and any protected characteristics. Particular consideration should be given to employees in the higher risk groups.

Understandably, employers are likely to encounter employees who are anxious or reluctant to return to work. Our video 'A Conversation about...COVID-19 and the reluctant returner' provides additional information about how to facilitate a return to the workplace.

It has also been announced that the period of time for which an employee, who has symptoms and/or has tested positive for COVID-19, will now have to self-isolate is increased to 10 days (previously it was 7 days).

To find out more about working safely, dealing with employee absence, managing employees with childcare issues, business travel and much more, why not check out our COVID-19: a guide for employers which has been fully updated to take account of the most recent government guidance.

Read our guide for employers.

Test and Trace Scheme: updated guidance for employers

In an effort to provide clarity on how employers can assist with the implementation of the NHS Test and Trace Scheme, the government has updated its guidance for employers. In particular the definition of what constitutes ‘close contact’ has been expanded and employers are also asked to obtain up to date contact details for all staff.

In addition, the government is calling on businesses in certain sectors, including hospitality and leisure, to retain a record for 21 days of any customers or visitors to their establishment. This record can then assist the NHS Test and Trace Scheme if required. To find out more about the updated guidance and the information that employers should be retaining, please read our update.

Update posted: 23 July 2020

Coronavirus Job Retention Scheme: clarification on claims during notice periods

Following some initial confusion, HMRC has now confirmed in its guidance that employers can continue to claim for furloughed employees who are on notice whether that notice is statutory or contractual. It is worth remembering that an employee cannot do any work for their employer whilst on furlough leave so, where an employee is serving notice, you may need to bring them off furlough if you need them for handover arrangements. You may want to consider if you can flexibly furlough the employee in this situation.

The guidance also makes clear that grants cannot be used for redundancy payments.

Also, by way of reminder, from 1 August, employers will be required to contribute towards the costs of any furloughed workers by paying the worker’s national insurance and pensions contributions whilst the worker is on furlough.

From August, employers will able to bring more employees back to the workplace. However, with COVID-19 still presenting a risk, many employees may be reluctant to return. In our latest ‘Conversation’ we discuss how employers can facilitate the return to work.

Employing EU workers after freedom of movement ends

The government has recently published a statement setting out further detail on how the UK’s immigration system will operate after freedom of movement ends on 31 December 2020. The latest statement builds on the detail set out in the Policy Statement issued back in February, providing further clarification on changes to the existing Tier 2 (Intra Company Transfer) visa and introducing a new Skilled Worker visa in replacement of the current Tier 2 (General) visa. To find out more about the statement and how employers can prepare for these changes to the UK’s immigration system, please read our update.

Capping public sector compensation on termination of employment

The government has now published its response to the consultation (which closed over a year ago) on regulations which will implement a £95,000 cap on public sector exit payments. The draft regulations will now make their way through Parliament and guidance will be available to accompany the regulations.

Appeal Watch

Not even coronavirus can prevent the march of Uber BV v Aslam up through the courts with Uber’s appeal to the Supreme Court starting this week. With the Uber drivers arguing they are workers providing services for what they say is a transport company, Uber argues it is a technology company which acts as an agency for the drivers in their business relationship with their passengers. With the drivers having been successful at each court stage to date, it will be of great interest to see whose view the Supreme Court favours.

Definition of “agency workers”

The Agency Workers Regulations give agency workers working for an ‘end-user’ on a temporary basis the right to the same basic employment conditions as the end-user’s permanent staff. Here, considering the meaning of ‘temporary’, the EAT held that a group of claimants were agency workers despite being consistently supplied to work exclusively for Royal Mail, the only client of the agency, on a long-term basis.

The Respondent agency argued that the claimants did not satisfy the definition of ‘agency workers’ as they were not supplied temporarily, but rather worked consistently for Royal Mail. The EAT disagreed. When determining whether the work was ‘temporary’, the relevant relationship is that between the worker and the end-user, not that between the worker and the agency. Here the claimants worked for Royal Mail under a series of temporary assignments, each of which lasted for a distinct period and referred to different shift patterns and it was therefore right to conclude that the claimants were supplied to work temporarily.

Angard Staffing Solutions Ltd v Kocur and others

Update posted: 09 July 2020

Coronavirus

Job Retention Bonus

The government has announced that it will pay a one-off bonus payment of £1,000 to UK employers for every furloughed employee who remains continuously employed through to the end of January 2021. Employees must earn above the Lower Earnings Limit of £520 per month on average between the end of the Coronavirus Job Retention Scheme and the end of January 2021. The bonus will be paid from February 2021.

The government also announced that it will make a payment to employers in England for each new apprentice they hire from 1st August 2020 to 31st January 2021. The payments of £2,000 for each new apprentice aged under 25 and £1,500 for each new apprentice aged 25 and over, will be in addition to the existing £1,000 payment the government already provides for new 16-18 year-old apprentices.

Further details are expected to be announced by the end of July.

The government has issued further guidance on the taking of holiday. Where an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours. However the guidance makes clear that employees should not be placed on furlough simply because they are taking holiday.

Acas has also published new guidance on Coronavirus and mental health at work.

COVID-19 and statutory sick pay

New regulations came into force on 6 July which clarify the statutory sick pay (SSP) entitlement of those individuals who are shielding, making it clear that they will cease to be entitled to SSP when their shielding period ends and also providing flexibility for additional notifications to be issued if necessary to enable an individual to start shielding (and to become entitled to SSP) again.

The regulations also provide for SSP to be payable to an individual who self isolates because they are in a linked household (or extended household) (i.e. a bubble) with someone who has COVID-19 symptoms. Previously, SSP was only payable where an individual was living in the same household as the person with symptoms. SSP will cease to be payable if the person with symptoms tests negative for COVID-19.

International restructures: how we can help

As countries across the world gradually ease their lockdown arrangements, many organisations are having to restructure to take account of the impact of Covid-19 on their business. Where the restructure impacts on more than one jurisdiction the complexities around managing the project increase. We work and collaborate on a regular basis with employment lawyers from our international network of like-minded law firms and are currently working with a number of clients on their international restructures. If you are looking for similar assistance we can facilitate an initial discussion with the relevant international employment specialists. Please contact employment partners, Chris Seaton or Katie Russell, or your normal employment contact to find out more.

Disability - reasonable adjustments

The EAT has held that an employer failed to make reasonable adjustments for an employee who was disabled with depression, which she said was due to bullying and harassment by two colleagues.

After a period of absence from work due to stress, the Claimant sought an undertaking from her employer that she would not have to work with the two colleagues again and/or, in the event that there was no alternative but to work with them, the employer would offer her a severance package equivalent to an enhanced redundancy payment. The employer refused to give such an undertaking.

The EAT held that giving the undertaking would have alleviated the fear and anxiety the Claimant suffered as a result of possibly having to work with the two colleagues and it would have been reasonable for the employer to give the undertaking in the circumstances. The EAT also held that there was no reason in principle that would prevent an employment tribunal making a recommendation under section 124(3) Equality Act 2010 that the employer give such an undertaking.

SMCR – implementation extended

The deadline for FCA solo-regulated firms to have undertaken their first assessment of the fitness and propriety of Certified Persons has been delayed from 9 December 2020 to 31 March 2021. In addition, the FCA is consulting on extending the deadline, also to 31 March 2021, for the date on which Conduct Rules come into force for all staff (except ancillary roles) and the deadline for submissions of information about Directory Persons to the Register.

This is no barrier to continuing work in progress, and firms can certify earlier if they wish, but in most cases we anticipate that this will give some much-needed breathing space. The FCA has also announced that it intends to produce some further communications about their expectations on Conduct Rules training, which we will circulate when it becomes available.

Coronavirus Job Retention Scheme - judicial review

The High Court has dismissed an application by two Uber drivers and the Independent Workers' Union of Great Britain for a judicial review of the Coronavirus Job Retention Scheme (CJRS) and Statutory Sick Pay (SSP) scheme, which exclude workers who are not paid via PAYE.

The Claimants argued that HM Treasury failed to provide adequate protection for gig economy workers under the Self-Employed Income Support Scheme (SEISS) and that it was unlawful to exclude ‘limb b’ workers from the CJRS and not to amend the scheme for SSP in response to the COVID-19 pandemic to include ‘limb b’ workers.

The High Court held that aims of the CJRS (which include supporting employers, reducing fraud, simplicity, flexibility and speed of assistance) and the aim of providing extra assistance within the SSP scheme for those who are covered by the SSP scheme and who are unable to work because they had coronavirus or were self-isolating or shielding, were rational and justified as a proportionate means of achieving a legitimate aim.

(Adiatu & Independent Workers' Union of Great Britain v HM Treasury)

ICO guidance

The Information Commissioner’s Office (ICO) has issued further guidance on data protection during the COVID-19 pandemic recovery period. The guidance gives further details on how organisations may collect data lawfully and proportionately when implementing testing or other screening measures for COVID-19 in the work place and includes a number of FAQs to help organisations understand and comply with their data protection obligations.

COVID-19 guidance updated

The guidance for employers on working safely during the COVID-19 pandemic has been updated and now includes additional guides, including a guide for the visitor economy which is specifically aimed at people who work in hotels and guest accommodation, indoor and outdoor attractions, and business events and consumer shows.

The government has also updated its guidance to clinically extremely vulnerable individuals who are shielding and also announced its intention that the shielding programme will be paused on 31 July. This means that from 1 August, those who are clinically extremely vulnerable will be advised to adopt strict social distancing rather than full shielding measures and they will be able to go to work, if they cannot work from home, as long as the business is COVID-safe.

Many employees will be understandably nervous or anxious about a return to the workplace. Employers will need to handle the situation carefully and engage with the employees to understand their concerns and reassure them about the steps taken on site and the safety measures put in place. The ‘Working safely’ chapter of our booklet, gives guidance for employers on managing the return to the workplace and includes a discussion on what to do if an employee is reluctant to return.

Read the booklet here >

Reducing workforce costs webinar series – now available on-demand

Given the difficult economic outlook, many businesses will need to reduce workforce costs. Whilst many employers will want to do all that they can to preserve jobs, regrettably the current crisis will force the hand of some organisations to make redundancies.

The first webinar in the series considers ways in which organisations can reduce costs without resorting to redundancies offers an overview of how to change terms and conditions of employment.

Our second webinar looks at the redundancy and restructuring process and the legal framework that applies, together with points to consider arising out of COVID-19.

Both webinars are now available to watch on-demand.

Preparing for a return to office working

With preparations now gathering momentum for a return to office working of sorts, many are grappling with the complex issues that operating a safe, and lawful, working office environment presents. Over the next few weeks, experts from our Real Estate Sector Group will be looking at some of these issues, offering practical and essential guidance.

In this first article, Kate Redshaw, one of our senior Employment lawyers, examines the choices employers face and how best to manage the employee relationship when navigating the new normal.

View our guidance here.

Update posted: 15 June 2020

The Coronavirus Job Retention Scheme: updated for flexible furloughing

As promised, last Friday saw the release of a raft of new and updated guidance from HMRC on the Coronavirus Job Retention Scheme, primarily in relation to flexible furloughing.

Key points are as follows:

1. Employers may now only furlough employees who have already been furloughed. The only exception to this is that employees returning from family leave, for example maternity leave or shared parental leave, may be furloughed on their return.

2. Employers who have not furloughed any employees to date will not be able to do so now.

3. From 1 July:

  • the number of employees an employer can claim for in any one month may not exceed the number in any previous claim;
  • the minimum furlough period of 3 weeks will be removed so employers will be able to furlough an employee for a shorter period of time;
  • an employee on furlough may also carry out some work for their employer whilst on furlough. In these circumstances the employer will need to enter into a new agreement with the employee unless there is a recognised trade union in which case terms can be collectively agreed. The employer will need to pay the employee in full for the hours they work and will be able to claim back a percentage of the employee’s wages (up to a pro-rated cap) for the time spent on furlough. The employer will also need to keep detailed records of actual hours worked and ‘usual’ hours.

So should an employer look to take advantage of the flexible furlough scheme?

Many employers have been frustrated by the fact that the furlough scheme prohibited an employee from carrying out any work for them at all. This means, at first blush, the idea of being able to bring employees back flexibly is appealing.

However, the process for calculating and submitting a ‘flexible furlough’ claim is complex and the requirement to enter into a new agreement with the employee together with additional record-keeping requirements present extra burdens. Employers will need to review whether the new process will work for them.

It may be easier now that the minimum three week furlough period has been relaxed for employers to rotate employees on and off furlough more frequently. Equally it may make sense for employers to bring some employees off furlough entirely in order to manage their business demands.

To read about the changes in full (including how employer contributions to furlough pay will change from August onwards), please read our updated guidance note.

Update posted: 11 June 2020

New restrictions for those travelling to the UK

From 8 June 2020, all persons travelling to the UK are now required to complete a Public Health Passenger Locator form detailing their journey and contact details in the 48 hours prior to their entry. Save for a limited number of recognised exemptions, the vast majority of travellers are also required to go straight to the place they are staying on their arrival and self-isolate for 14 days.

Employers should ensure that any employees who may be travelling on business are aware of the new requirements and they should not be required (or allowed) to physically attend their workplace within the quarantine period, because to do so could amount to encouraging the worker to commit a criminal offence. However, the regulations do not prevent an individual from working during a period of self-isolation so if the employee is able to work remotely, they can be required to do so.

Difficulties may arise where an employee is unable to work from home during the 14 day quarantine period. If the employee was not travelling on business, one option would be to require the employee to take the quarantine period as holiday, provided the employee has sufficient annual leave to do so and subject to any contractual provisions, relevant agreements and any notice requirements on annual leave. Alternatively, an employer may decide to treat the 14 day quarantine period as unpaid leave. At the current time, it is unlikely an employee would be able to claim sick pay during the 14 day quarantine period unless they are otherwise required to self-isolate because either they or someone in their household are displaying coronavirus symptoms

The Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme will close to new entrants from 30 June. From this point onwards, employers will only be able to furlough employees that they have furloughed for a full three week period prior to 30 June. There is an exception for parents who are returning in the coming months from statutory maternity leave, paternity leave, adoption leave, shared parental leave and parental bereavement leave. They will still be eligible for the furlough scheme even after the 10 June cut-off date, provided that they work for an employer which has previously furloughed employees.

From 1 July, employers will be able to bring back to work employees who have been previously furloughed for any amount of time and any shift pattern, while still being able to claim under the scheme for normal hours not worked by an employee (with the employer paying for hours that are worked). Further details on the new ‘flexible furloughing scheme’ are due to be announced on 12 June.

You can read about more about the changes in our updated guide to the CJRS.

Update posted: 26 May 2020

The Coronavirus Job Retention Scheme - Treasury Direction

Last Friday (22 May) the government published a new Treasury Direction in relation to the Coronavirus Job Retention Scheme. The Direction sets out the legal framework for the Scheme.

The new Direction modifies the previous Direction issued on 15 April and extends the Scheme until 30 June 2020. This means that a further Direction will be required for the extension of the current Scheme until 31 July and for the new terms applicable between August and October. We are expecting an announcement on those changes later this week.

The new Direction seeks to resolve some of the discrepancies between the original Treasury Direction and the various supporting guidance published by HMRC.

Key points from the new Direction are as follows:

  • The Direction no longer appears to require the employee to have agreed to be furloughed in writing. Whilst employee agreement will still be required, the new Direction confirms that such agreement must be made in writing ‘or confirmed’ in writing by the employer (and writing includes email). Any such agreement must specify ‘the main terms and conditions upon which the employee will cease all work’.
  • Whilst still not completely clear, it now appears that an employer and employee can agree to end a period of SSP in order to start furlough – this change is presumably to cover those employees whose eligibility for SSP is due to them shielding and not being able to work at home.
  • It has been clarified that non-discretionary payments such as overtime, fees and commissions and payments ‘made in recognition of the employee undertaking additional or exceptional responsibilities’ can potentially count as ‘regular pay’. The definition of ‘regular pay’ has also been modified with the previously unhelpful ‘not conditional on any matter’ wording being removed.
  • The relevant date for TUPE transfers has been changed from 19 March to 28 February so claims can be made for employees who transferred after 28 February even if there was no RTI submission before 19 March.
  • The Direction provides more detail on what study and training is permitted under the Scheme.

We will be updating our more detailed CJRS briefing notes to reflect these changes as well as any wider announcement on the Scheme made later this week.

Update posted: 18 May 2020

The Coronavirus Job Retention Scheme

Following the Chancellor’s announcement last week that the Coronavirus Job Retention Scheme ('CJRS') would be extended until the end of October, HMRC has again updated its guidance.

Key points from the latest updates are as follows:

  • The guidance has been updated to reflect the extension of the scheme to the end of October and to confirm that the scheme will remain in its current form until the end of July. Whilst employees will continue to receive 80 per cent of their salaries (up to the monthly cap of £2,500), from August, employers will be required to pay a proportion of this. Furloughed employees will be able to return to work part-time whilst still receiving support from the CJRS.
  • Furloughed employees cannot ‘volunteer’ for the employer in the same or a different role.
  • When determining, for the purposes of a claim, whether a payment to an employee is non-discretionary, employers should only include payments that they are contractually obliged to pay and to which the employee has an enforceable right. If variable payments are specified in a contract and those payments are always made, then they may be non-discretionary and therefore should be included in the calculation.
  • Where an employee has been paid variable payments due to working overtime, the employer can include these payments in the 80 per cent calculation, as long as the overtime payments were non-discretionary. Payments will be non-discretionary if the employer is contractually obliged to pay the employee at a set and defined rate for the overtime they have worked. On the face of it, this would apply to voluntary overtime in a number of cases.
  • Claims cannot be made through the portal more than 14 days in advance of the claim end date.
  • Employers must also keep a copy of all records of claims made for six years, including the amount claimed and the claim period for each employee, the claim reference number and their calculations in case HMRC require more information about their claim.

Employers should continue to note that this remains only guidance, without legal force. In the case of a conflict, the Direction published by HM Treasury on 15 April 2020 is expected to take precedence.

Update posted: 13 May 2020

Guidance issued on holiday entitlement and pay during coronavirus

Yesterday the government issued new guidance for employers outlining how holiday entitlement and pay operate during the COVID-19 pandemic. It provides guidance in relation to employees who continue to work and those who have been placed on furlough leave under the Coronavirus Job Retention Scheme (CJRS).

Holiday during furlough

Key points to note from the guidance include:

  • Employees on furlough leave continue to accrue statutory holiday and any additional holiday entitlement under their contract of employment.
  • Furloughed employees may take holiday without it disrupting their furlough leave.
  • An employer may, subject to the usual notice requirements, require employees to take holiday whether or not the employee is on furlough leave. However, before requiring them to do so the employer should:
    • engage with the employee and explain its reasons for wanting the employee to take leave; and
    • consider whether any restrictions the employee is under, such as the need to socially distance or self-isolate, would prevent them from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday. Employers should therefore consider individual circumstances and the current level of government measures before requiring employees to take leave – the recent easing of measures in England might assist employers in this respect.
  • Payment for holiday taken during furlough leave should be calculated in line with current holiday pay legislation. If the holiday pay is more than the rate of pay that the employee is receiving whilst on furlough leave, the employer will have to pay the difference but will still be able to claim up to 80 per cent (or £2,500 per month) under the CJRS.

Carrying holiday forward

The government has already issued legislation which allows workers to carry over holiday for up to two years if they have not been able to take leave because of coronavirus. The guidance expands on this legislation and sets out:

  • various factors that an employer should consider when deciding whether it was ‘not reasonably practicable’ for a worker to take some or all of their statutory annual leave as a result of the effects of coronavirus, such that the worker is able to carry forward up to four weeks of their untaken leave into the following two leave years.
  • that employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates.
  • that employees on furlough leave are unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period.

The guidance is not legally binding and employment tribunals are not required to follow the guidance.

Update posted 12 May 2020

An announcement issued on the Coronavirus Job Retention Scheme

The Chancellor has announced that the Coronavirus Job Retention Scheme (the Scheme) will be extended for all employers until the end of October 2020 and there will be no changes to the Scheme at all until the end of July.

From August 2020, the Scheme will become more flexible in order to support the transition of workers back to work. More details are expected to follow by the end of May about the changes that will be made to the Scheme, including allowing those workers on furlough to work part-time and requiring employers to make contributions to the furloughed employees’ salary. However, the government has confirmed that furloughed employees will continue to receive the same level of support of 80 per cent of salary up to a cap of £2500 per month. We will keep you informed of the changes.

Guidance issued on working safely during COVID-19

Following the Prime Minister’s announcement on Sunday evening about getting employees to return to work, new guidance has been published for employers to help them get their businesses back up and running and workplaces operating safely.

Eight guides have been published containing non-statutory guidance for employers to take into account when complying with existing health and safety obligations. The guides cover a range of different types of workplace and businesses that operate more than one type of workplace will need to familiarise themselves with more than one of the guides.

The guidance focuses on five key points:

  • Employers should take all reasonable steps to help employees work from home, if possible. Those workplaces that are allowed to be open and whose employees cannot work from home should prepare for employees to return to work.
  • Employers should carry out a COVID-19 risk assessment, in consultation with workers or trade unions. All businesses with over 50 employees are expected to publish the results of their risk assessments on their website.
  • Employers should re-design workspaces to maintain two metres social distancing between people wherever possible, by staggering start times, creating one way walk-throughs, opening more ent3E (Civil Aviation Authority v R (on the application of Jet2.com Ltd))

    Parental bereavement leave

    The Parental Bereavement Leave Regulations 2020 and the Statutory Parental Bereavement Pay (General) Regulations 2020 are due to come into force on 6 April 2020.

    Under the legislation, employed parents will be entitled to a statutory minimum of twommissioner was in breach of an implied duty owed to the officers to protect them from economic or reputational harm. The Supreme Court said it would not be fair, just and reasonable to impose such a duty.

    Read article: Police commissioner owed no duty of care to officers when conducting litigation

    Sexual harassment

    The Women and Equalities Commission has produced its report on Sexual Harassment in the Workplace. Its recommendations include:

    • a mandatory duty on employers to protect employees from sexual harassment in the workplace
    • a duty for public sector employers to conduct risk assessments for sexual harassment and then mitigate risks
    • reintroducing employer liability for third party harassment
    • extending sexual harassment protection to interns and volunteers
    • extending the time limit for bringing a claim to 6 months
    • enabling tribunals to award punitive damages
    • limiting the use of confidentiality clauses in settlement agreements to government approved standard clauses.

    It is now up to the government to consider these recommendations and decide which, if any, to implement.

    Caste discrimination

    The government has decided not to add ‘caste’ as a protected characteristic under the Equality Act 2010.

    The government expects that emerging caselaw, such as Chandok v Tirkey in which the EAT held that caste could be protected under the Equality Act 2010 to the extent that it is bound up with ethnic origin, will continue to provide some measure of protection againsr and unlawful age discrimination.

    The University claimed that the policy was a proportionate means of achieving the legitimate aim of creating opportunities for younger and more diverse staff. However, whilst the University was successful in showing the policy was justified in a different case before a different tribunal panel earlier this year, the statistical evidence provided by the Claimant in this case indicated the policy had only created a small number of vacancies. The tribunal held that the University had not shown the policy contributed to the achievement of the legitimate aims to a sufficient extent to justify the discriminatory effect.

    (Ewart v The Chancellor, Master and Scholars of the University of Oxford)

    Philosophical belief - veganism

    In contrast to a recent case relating to vegetarianism, an employment tribunal has held at a preliminary hearing that ethical veganism can amount to a philosophical belief that is capable of protection under the Equality Act 2010. The tribunal held that the beliefs were genuinely held by the Claimant in this case and met the necessary criteria:

    • it related to a weighty and substantial aspect of human life and behaviour.
    • it attained the required level of cogency, seriousness, cohesion and importance.
    • it was worthy of respect in a democratic society, not incompatible with human dignity and it did not conflict with the fundamental rights of others.

    The case will now proceed to a full hearing to decide whether the Claimant was discriminated against because of his beliefs guidance on the Coronavirus Job Retention Scheme HMRC continues to update and issue new guidance on the Coronavirus Job Retention Scheme. Our briefings for employers have been updated to take account of the changes and also include links to the latest HMRC guidance.

    Update posted 16 April 2020

    More guidance issued on the Coronavirus Job Retention Scheme

    In advance of yesterday’s launch of the Coronavirus Job Retention Scheme claims portal, HMRC did not disappoint in its enthusiasm for churning out guidance.

    In addition to confirming that the Scheme will be extended until the end of June, last Friday saw the following additions and updates to the suite of information for employers and employees:

    • The Guide for employers to claim under the CJRS was updated;
    • The Guide for employees to the CJRS was updated;
    • Guidance for employers on how to make a claim under CJRS was published; and
    • Guidance on how to calculate 80% of your employees' wages was published.

    To help you understand how these new and updated documents change what you already know about the Scheme, we have prepared a summary of key points coming out of this new guidance.

    Read our guidance here.

    Update posted 16 April 2020

    The Coronavirus Job Retention Scheme

    On 9 April and again on 15 April, HMRC further updated its guidance on the Coronavirus Job Retention Scheme.

    We have updated our briefing on the Scheme to reflect the latest guidance but in summary the guidance now confirms that:

    • Employers can now furlough and claim for employees provided they were on the PAYE payroll on or before 19 March – previously the scheme excluded employees who were hired after 28 February
    • Employees who were made redundant or who stopped working for the employer after 28 February but before 19 March can also be furloughed if the employer re-employs them
    • An employee who is sick or self-isolating can be furloughed if there are business reasons to do so. This means the employee would move to furlough pay and not sick pay. It also provides that if an employee becomes sick whilst on furlough it is up to the employer to decide whether to move the employee onto SSP or to keep them on furlough pay
    • If the employee is moved onto SSP, the employer can no longer claim for the furloughed salary under the Job Retention Scheme and the employer will be required to pay SSP, although a rebate for up to two weeks of SSP may be available
    • The new employer of employees who transferred under TUPE after 19 March 2020 may claim under the Job Retention Scheme in relation to transferred employees who are furloughed
    • Furloughed employees cannot work for their employer or any associated or linked organisation
    • The grant reclaimed from the government under the CJRS must be paid to the employee in full without any deductions for fees, administration charges or other employment costs. It cannot be used to pay for benefits or a salary sacrifice scheme.

    The updated guidance is still silent on the interplay between furlough and annual leave.

    Read our updated CJRS briefing.

    CJRS: Treasury Direction

    The Chancellor has today made a Treasury Direction in relation to the Coronavirus Job Retention Scheme setting out the legal framework for the scheme. You can read the direction here.

    Update posted 3 April 2020

    COVID-19: Managing holiday and extension of carry-over provisions

    With COVID–19 causing all sorts of challenges for employers, in an effort to relieve some potential operational difficulties, the government is introducing a temporary change to the Working Time Regulations 1998 (WTR). The change will allow workers to carry over up to 4 weeks of holiday for up to 2 years if issues relating to COVID-19 have meant it was "not reasonably practicable" for a worker to take some or all of their leave.

    Read our update on the implications of this.

    Vicarious liability

    The Supreme Court has delivered its judgment in two important cases which clarify the law on vicarious liability. The decisions of the Court of Appeal in both cases have been overturned and the organisations were found not to be liable for the acts of a rogue individual.

    (VM Morrison Supermarkets plc v Various Claimants)

    (Barclays Bank plc v Various Claimants)

    Read our update here.

The Coronavirus Job Retention Scheme

Paid family-related leave

New regulations came in to force on 25 April to ensure that furloughed workers who take maternity or other paid family-related leave will have their pay during the leave based on their usual earnings rather than their reduced furloughed pay.

Furloughed workers who take paid family-related leave on or% gossip which the Claimant had overheard in a bar could not be used to support his discrimination and victimisation claims.

(R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee)

Disability discrimination

The Supreme Court has held that an ill-health early retirement pension awarded to a disabled employee, based on the part-time salary that he was earning before he retired, was not unfavourable treatment for the purposes of a disability discrimination claim.

The Supreme Court agreed with the Court of Appeal and held there was nothing intrinsically unfavourable or disadvantageous about the award of a pension, to which the employee was only entitled because of his disability. Although the employ0sector off-payroll working rules will be extended to the private sector from 6 April 2020. Private sector businesses who use contractors should review how these changes will impact them and plan accordingly.

The Chancellor also announced that the introduction of Class 1A National Insurance contributions on termination payments over £30,000 has been delayed until April 2020.

Company liable for data breach

(WM Morrison Supermarkets plc v Various Claimants)

The Court of Appeal has upheld the decision of the High Court that Morrisons was vicariously liable for the actions of a disgruntled employee who posted the payroll details of around 100,000 employees online.

The Court held that there was a sufficient connection between the employee’s actions and his employment to make Morrisons vicariously liable. He had received the data in the course of his employment as a senior IT internal auditor and had been asked to send it to the company’s external auditor. The fact that he had copied it and disclosed it in an unauthorised way was closely connected to what he had been asked to do and his motive was irrelevant.

Morrisons have been granted permission to appeal to the Supreme Court.

Company liable for assault

(Bellman v Northampton Recruitment Limited)

In another vicarious liability case, the Court of Appeal has overturn20of Appeal has held that it was direct disability discrimination to refuse a police officer’s request to transfer to a new role because of a perceived disability.

In this case the Claimant had some hearing loss but this did not have an adverse effect on her ability to carry out her duties. However, when she applied to transfer to a new role, her request was refused on the stereotypical and mistaken assumption about the effects of what was perceived to be a progressive condition which would mean that she would not be able to carry out her front-line duties in the future. This amounted to direct disability discrimination even though she was not currently disabled.

(Chief Constable of Norfolk v Coffey)

Off-payroll working

If you are an organisation which engages contractors, o be considered "in the course of employment" to render the employer vicariously liable.

Whistleblowing – non-executive directors liable

(Timis and anor v Osipov)

The Court of Appeal has held that an employee may make a whistleblowing detriment claim against individual workers for their conduct in relation to his dismissal after he made protected disclosures.

In this case, the CEO made protected disclosure and was then dismissed on the instruction of two non-executive directors. The CEO was found to have been unfairly dismissed but, as the employer was insolvent, the CEO sought to claim against the directors personally. The Court held that the non-executive directors were jointly and severally liable with the employer to compensate the CEO for the losses he suffered from his dismissal as a result of the detriment to which they subjected him.

Sexual orientation discrimination

(Lee v Ashers Baking Company Ltd and others)

As widely reported, the Supreme Court held on Wednesday that a bakery did not discriminate against a gay man when it refused, on the grounds of the owners’ religious beliefs, to bake a cake with a photo of Bert and Ernie from Sesame Street and the wording 'Support Gay Marriage'.

Mr Lee had previously been successful in his claim in the Northern Irish courts for direct discrimination on the grounds of sexual orientation and political beliefs. However, this decision now overturns the previous decisions.

The Supreme Court noted that the bakery had not refused to fulfil the order because of any personal characteristics of Mr Lee or of anyone with whom he was associated; they refused because they objected to the message on the cake.

The Supreme Court also considered the freedoms relating to religion and expression protected under Articles 9 and 10 of the European Convention on Human Rights. Those freedoms include a right not to be obliged to manifest a belief which you do not hold and the Court held that an infringement of those rights could not be justified by an obligation to supply a cake iced with a message with which the bakers profoundly disagreed.

Ethnicity pay reporting

The government has begun consultation on the introduction of mandatory ethnicity pay gap reporting for large employers and has asked for views on what ethnicity pay information should be reported in order to drive change without causing undue burdens on businesses. The consultation closes on 11 January 2019.

Alongside this consultation, the Prime Minister has also announced a Race at Work Charter, which has been designed with Business in the Community, and commits those businesses that sign up to the Charter to drive forward changes to increase the recruitment and progression of ethnic minority employees.

Tips, parental leave and flexible working

The government has announced new measures to support workers, businesses and entrepreneurs. These include plans to:

  • prevent employers keeping tips intended to go to workers and to ensure tips left for workers go to them in full. Details will be set out in new legislation but as yet we do not have details o the proposed timeframe for implementation
  • consult on requiring employers with more than 250 staff to publish their parental leave and pay policies
  • create a duty on employers to consider whether a role may be done flexibly and to make that clear when advertising the role.

Immigration

Following the recent publication of the final report on EEA migration in the UK by the Migration Advisory Committee (MAC), the government has announced more details of its skills-based immigration plans after Brexit and promised to publish a White Paper setting out the details in the autumn.

In the interim period, the EU settlement scheme is intended to apply to EU citizens resident in the UK before 31 December 2020 (and their family members), provided they apply for settled status before 20 June 2021.

Employers will need to evaluate the impact of new travel and work restrictions on their workforce after Brexit and ensure that any necessary applications for settled status are made within the deadline.

For more information, please read our article on the EU Settlement Scheme.

Update posted 12 March 2020

Section 1 written statements

Employers will need to review their contracts to ensure that they comply with the new rules that come into effect for employees and workers engaged on or after 6 April 2020. The key changes are:

  • all workers and employees must be provided with a Section 1 written statement of terms on or before start20after 25 April 2020, will have their statutory maternity pay, paternity pay, shared parental pay, parental bereavement pay or adoption pay based on their pre-furlough normal weekly earnings during the eight week reference period used for calculating the statutory pay even if some or all of this reference period falls during a time they were on furlough. Updated has announced that it plans to push ahead with implementing the changes to the off-payroll working rules in the private sector from 6 April 2020. It has also published its response to the review. Key points include:
  • the rules will only apply to services provided on or after 6 April 2020 (not to services that were provided before that date but invoiced after it)
  • the government will legislate in order to oblige clients to respond when agencies or workers request information about their size
  • HMRC will take a light-touch approach to enforcement in the first year and will not impose penalties for inaccuracies unless there is evidence to show that there has been deliberate non-compliance with the rules and will not use any information gathered from the implementation of the rules to open any historical enquiries

HMRC will run a campaign to raise awareness of the rules and provide support and guidance in various forms to enable companies and contractors to understand the changes.

COVID-19 (Coronavirus)

Whilst a very fast moving issue, both the government and Acas have now published guidance for employers and businesses on how to deal with issues in the workplace surrounding coronavirus.

As part of its strategy to contain coronavirus, the government has announced that it will bring forward emergency legislation temporarily amending the eligibility requirements for SSP, allowing the payment to be made from the first day of sickness absence and also making it available to those advised to self-isolate and those caring for others within the same household who self-isolate. The government has also committed in the Budget that the cost of providing SSP to any employee off work due to coronavirus will be refunded by the government in full for up to 14 days for businesses with fewer than 250 employees.

For further advice on these issues and your response to coronavirus please get in touch with your usual contact or a member of the wider employment team.

Statutory payments

The annual increases to various statutory compensation limits have been announced. These increases are of particular relevance to those making redundancies on or after 6 April 2020 as the maximum amount for a week’s pay (used to calculate statutory redundancy payments) will increase to £538 per week (from £525 per week).

The maximum compensatory award for unfair dismissal increases to £88,519 (from £86,444) where the effective date of termination is on or after 6 April 2020.

Update posted 26 February 2020

New immigration system

The government has published its plans for the new points-based immigration system which will apply from 1 January 2021 to both EU and non-EU migrant workers.

Under the new system, all would be Tier Two (General) migrants must speak English and will need an offer from an approved sponsor, for a role at the required skill level (i.e. a role requiring qualifications equivalent to A levels) and at the required salary.

The minimum salary threshold will be set at £25,600 (with no regional variation across the UK). However, in certain circumstances, the minimum salary threshold will be reduced to £20,480. There will be no need to advertise a role and there will be no cap on Tier Two work visas.

Confidentiality and NDAs

Acas has published new guidance on non-disclosure agreements (NDAs). This is the latest in a series of developments and, although the guidance does not have the same force as a statutory code of practice, it may be used as evidence in legal proceedings.

The Acas guidance discourages the routine use of NDAs. It also states that a worker should be given reasonable time to carefully consider the agreement and makes it clear that NDAs should not be used to stop someone from:

  • reporting discrimination or sexual harassment at work or to the police
  • disclosing a future act of discrimination or harassment
  • whistleblowing

Although we are still awaiting details of the government’s proposed legislation on confidentiality clauses, employers should familiarise themselves with the guidance and review confidentiality provisions in contracts and settlement agreements.

Shared parental pay

The Supreme Court has refused Mr Hextall permission to appeal the decision of the Court of Appeal that it was not direct or indirect discrimination, nor a breach of the equal pay sex equality clause, for him not to be paid enhanced shared parental pay of an amount equivalent to the enhanced maternity pay available to female employees.

This means that the decision of the Court of Appeal in this case is binding. Therefore, it is not discriminatory to pay men on shared parental leave less than the enhanced rate of maternity pay that is paid to women on maternity leave.

(Hextall v Chief Constable of Leicestershire Police)

Future of UK immigration

The Migration Advisory Committee (MAC) has published its long-awaited report in which it makes various recommendations on the future of the UK immigration system after Brexit.

The new immigration system is expected to come into effect on 1 January 2021 and, although it remains to be seen how the government responds to the MAC report, employers should consider reviewing their resourcing arrangements well before then. This is particularly important for those employers who are dependent on low skilled workers from the EU, given the MAC’s recommendations that only medium-skilled, and not low-skilled workers, should be eligible to apply for a Tier 2 work visa.

Disability discrimination

The EAT has held that in a disability discrimination claim, an employee cannot rely on acts that occur before they have satisfied the definition of disability.

In this case, the employment judge had decided that the employee’s depression amounted to a disability as it had a substantial and long term adverse effect that had lasted for more than 12 months. However, the EAT held that she could only bring a claim based on acts that occurred after this 12 month period had elapsed in order for her to be classed as disabled at the date the act occurred. Before then, the effect had not lasted for 12 months and there was no evidence of a prognosis was that it was likely to last for more than 12 months.

(Tesco Stores Limited v Tennant)

Legal advice privilege

The Court of Appeal has held that legal advice privilege requires the party claiming the privilege to show that the relevant document or communication was created or sent for the dominant purpose of obtaining legal advice. This allows in-house lawyers some opportunity to provide strategic and/or commercial advice at the same time provided that the dominant purpose is still to provide legal advice.

The Court of Appeal also provided some guidance on the application of legal advice privilege to emails sent to multiple recipients simultaneously for their comments, including a lawyer. If the email is sent in order to circulate a draft and collect information, to obtain comments before instructing a lawyer or to get a commercial view, it will not be privileged, even if an in-house lawyer is copied in to the email.

In order to maximise the chance of internal communications attracting legal advice privilege, employers should have in place procedures to ensure commercial and legal emails are kept separate and staff are aware that they should avoid where possible copying emails to multiple recipients (mixing lawyers and non-lawyers).<br%under></br%under>

Following the release, last Thursday, of additional guidance from the government, we have written a briefing for employers to explain more about how the Scheme will work.

Read our guidance on the Coronavirus Job Retention Scheme.

Time off to volunteer

A new statutory right allowing employees to take emergency volunteer leave in blocks of two, three or four weeks in order to act as a volunteer in health or social care is being introduced.

Read our briefing for details about how this leave will operate.

Other COVID-19 measures

The government has announced a number of employment-related measures and delays, in addition to the Coronavirus Job Retention Scheme, as a result of the COVID-19 pandemic, including:

  • a delay of the extension of the off-payroll working rules to the private sector until 6 April 2021;
  • the suspension of the enforcement of the gender pay gap deadlines for this reporting year (2019/20) and confirmation there will be no expectation on employers to report their gender pay gap data;
  • an announcement that workers will be allowed to carry over up to 4 weeks (not 5.6 weeks) annual leave into the next two leave years – more details to follow shortly in a separate update; and
  • the conversion of all in-person employment tribunal hearings to a case management hearing by telephone or other electronic means to discuss how best to proceed.

Neonatal leave and pay

The government has published its response to the consultation on neonatal leave and pay and will set out the new statutory entitlement in the Employment Bill.

The government intends that parents of babies who are admitted into hospital as a neonate (28 days old or less) will be eligible for statutory neonatal leave and pay if the admission lasts for a continuous period of 7 days or more. It is proposed that parents will receive a week of neonatal leave and pay (subject to eligibility) for every week that their baby is in neonatal care, capped at a maximum of 12 weeks.

Carers' leave

The government has begun consultation on a new statutory right to one week’s additional unpaid carers’ leave pert caste discrimination.

Philosophical belief discrimination

Gray v Mulberry

Case: The EAT has held that a belief in the sanc20area open to the public, the ECtHR held that this did not exceed what was necessary. The employer’s reasonable suspicion of serious misconduct by employees in a concerted action over a number of months and the extent of the losses could also be a justification for the monitoring.

(López Ribalda and others v Spain)

Legal advice privilege

The Court of Appeal has held that legally privileged emails anding work (currently it must be provided within one month and only applies to employees)

  • the majority of details must be included in one document and a reference to a separate document is only permitted for certain information, for example, pensions or collective agreements
  • the Section 1 statement must set out new particulars, including the days and hours of work (and any variation) and any probationary period, paid leave, benefits and training.

In addition, on 6 April 2020 the reference period used to calculate holiday pay increases from 12 weeks to 52 weeks (or if a worker does not have 52 weeks’ service, however many weeks they have accrued). The government has now updated its guidance on calculating statutory holiday pay for workers without fixed hours or pay in anticipation of this change.

New statutory rates

The government have published the proposed new rates for statutory maternity pay (SMP), adoption pay (SAP) and paternity pay (SPP) and shared parental pay (ShPP).

SMP, SAP, SPP and ShPP are all expected to increase from £148.68 to £151.20 from 5 April 2020.

The rate of statutory sick pay is also proposed to increase from £94.25 to £95.85 on 6 April 2020.

The National Living Wage for workers aged 25 and over will increase from £8.21 per hour to £8.72 per hour from 1 April 2020. The National Minimum Wage rates will also increase from 1 April 2020:

  • from £7.70 to £8.20 for 21 to 24 year olds
  • from £6.15 to £6.45 for 18 to 20 year olds
  • from £4.35 to £4.55 for 16 and 17 year olds
  • from £3.90 to £4.15 for apprentices

Whistleblowing

The Supreme Court has held that it was automatically unfair to dismiss an employee where the person who took the decision to dismiss was not aware that the employee had made protected disclosures and had been misled by the employee’s line manager, who knew of the disclosure and had engineered a dismissal for poor performance.

The Supreme Court agreed with the EAT and overturned the decision of the Court of Appeal, summarising the position by stating “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.”

Investigations

The EAT has held that the motivation of a senior manager, who was prejudiced against the Claimant because of his trade union activities, could be attributed to the employer even though he did not take the decision to dismiss.

In this case, the senior manager had manipulated the investigation to drive it towards dismissal, by withholding information, amending the terms of reference and making unnecessary and unexplained references to the Claimant’s trade union activities.

The EAT held that the investigation was inadequate and the dismissal was automatically unfair. Although the tribunal had found that the managers who conducted the disciplinary and appeal hearings were not motivated by prejudice towards the Claimant because of his trade union activities, this did not mean that it did not play a part in their decision to dismiss.

(Cadent Gas Limited v Singh)

TUPE and workers

An employment tribunal has held that TUPE applies to workers as well as employees. This is because the definition of employee under TUPE is “an individual who works for another person whether under a contract of service or apprenticeship or otherwise" and the tribunal concluded that the use of the term 'or otherwise' should include limb (b) workers as well as traditional employees.

Although it is only an employment tribunal decision, which is not binding on other tribunals and is likely to be appealed, employers may want to bear in mind the potential impact of the case and to consider workers when undertaking due diligence and complying with information and consultation requirements on a TUPE transfer.

(Dewhurst v Revisecatch Ltd t/a Ecourier and City Sprint (UK) Ltd)

Annual leave - carry over

The ECJ has confirmed that Member States are not obliged to allow annual leave in excess of the four weeks’ annual leave under the Working Time Directive (WTD) to be carried forward to the next leave year if it has been untaken due to sickness.

The ECJ held that the WTD does not preclude national rules or agreements which provide paid annual leave which exceeds the minimum period of four weeks. Any additional paid annual leave is ruled by national law, not the WTD, and, therefore, it is up to Members States to decide whether to allow or exclude the carry over of leave in circumstances where the worker has been unable to take the leave due to sickness.

Although the decision was in relation to two Finnish cases, it confirms the decision of the EAT in Sood Enterprises Ltd v Healy was correct and that the extra 1.6 weeks of leave granted by our national Working Time Regulations 1998 need not be carried forward, unless there is a contractual agreement to the contrary.

(TSN v Hyvinvointialan)