Key employment and business immigration developments for employers.
1. In the news
Post-holiday quarantine - how flexible should you be?
Foreign Secretary Dominic Raab has urged employers to show "flexibility" for staff who are required to self-isolate following travel abroad. With the post-travel quarantine rules changing frequently, the Government has published guidance on employees' rights in these circumstances. Acas has also issued guidance in this area.
Employees who can work from home should be allowed to do so in these circumstances. Where this is not possible, employers should consider allowing employees to take additional holiday or unpaid leave. Employers may also consider placing staff on furlough. However, this would only be an option where the employee had been on furlough for at least three weeks prior to 30 June 2020 and so qualifies for flexible furlough under the current Coronavirus Job Retention Scheme rules.
Particular flexibility should be afforded to employees who are traveling abroad because of family emergencies or the death of a family member outside the UK – for example, by extending paid or unpaid compassionate leave, where necessary.
Employees required to self-isolate following travel abroad are not entitled to statutory sick pay but the Acas guidance suggests employers could consider paying sick pay if the employee cannot work from home. This would discourage employees who might be tempted not to declare international travel and to breach the quarantine rules by coming to work in order to be paid.
Whatever the employer's position, it is worth making this clear to staff and also highlighting that seeking to attend work in breach of quarantine rules could lead to disciplinary action, including dismissal.
Workplace return - how should employers manage this?
A new Government campaign is urging people who are currently working from home to return to the workplace. Despite a recent YouGov poll in which 47% of respondents opposed this, the Government says employers should now encourage staff back to work and it is up to employers to reassure staff that the necessary safety precautions are in place.
We are continuing to advise employers on their workplace reopening strategies, including the following key issues:
- Health and safety: Employers must ensure that any return to work is done in a way which allows appropriate social distancing and is consistent with the evolving guidance from the Government and Public Health England. For many workplaces this is likely to mean not all staff can return at once. Employers should have in place a health and safety risk assessment which has been consulted on with employees and safety representatives, and the results of which have been published on the employer's website. The risk assessment may also need updating to reflect the larger numbers of staff as they return to the workplace.
- Communication and training: Employers will need to give careful thought to communication and training strategies, both to inform staff of new safety procedures but also to ensure staff are confident that it is safe to return. Employers will also need to consider how to manage staff who remain reluctant to return, despite safety assurances.
- Data protection: Employers continue to need to process additional information on staff in response to the COVID-19 pandemic, including registers of workplace attendance, overseas travel, those reporting symptoms and those who have been advised to self-isolate by the Government's test and trace scheme. Some employers are also requiring staff to undergo tests such as temperature tests, which involve processing sensitive or special category data.
- Homeworking: Many businesses are looking at continued homeworking as alternative to, or in parallel with, a return to the workplace. We have been supporting clients on homeworking policies and advice around homeworking arrangements both in the UK and globally, as an increasing number of employees are requesting to work remotely abroad.
Speaking up - how confident are your staff?
Whistleblowing in the financial services sector has come under the spotlight this month, with the Financial Conduct Authority (FCA) criticising banks over their failure to encourage speaking up by staff. A recent FCA report notes that frequently, despite the presence of official whistleblowing channels and procedures, there is a lack of "psychological safety" for employees to speak up on a day-to-day basis about issues of concern.
Although this report relates to banks, the FCA encourages all financial services firms to develop a healthy culture, an important part of which is an environment in which employees feel they can raise concerns about wrongdoing or malpractice without fear of repercussions. Encouraging a healthy "speak up" culture is also good practice for all organisations in any industry, as it helps ensure that issues are raised internally and can be dealt with at an early stage. We have worked with a number of firms to implement business-wide whistleblowing communication and training programmes in order to foster a safe "speak up" culture. Please speak to your usual Employment contact for more information.
2. Immigration radar
Visa and travel restrictions
While lockdowns are gradually being eased globally, travel restrictions and mandatory quarantine measures remain in place in many countries, resulting in disruption to visa processes as well as implications for business travel. The exceptional UK Visas and Immigration (UKVI) policies introduced to address the immigration issues thrown up by the pandemic have now been subject to several revisions since March when they were first introduced. We continue to advise employers in relation to navigating the immigration issues of COVID-19 including:
- 14-day mandatory self-isolation rules: British and foreign travellers arriving in the UK must complete a contact locator form and isolate for a 14-day period unless covered by one of the limited exemptions or arriving from one of the countries on the current 'travel corridors list'. The list is kept under review and is subject to change, with countries added or taken off at short notice.
- 'Switching' rules: Individuals with short term visas cannot normally apply for a long-term (e.g. a Tier 2) visa, in the UK (known as switching). These restrictions have exceptionally been relaxed to allow switching provided the visa requirements are met and the individual can show that the application is 'urgent'. The exception is being kept under review and could be withdrawn or amended in the coming weeks if restrictions continue to ease.
- New biometrics app: The UKVI has introduced a new process to re-use digital fingerprints for certain applicants who have previously provided biometric details with a prior visa application. Eligible applicants will be able to submit their details via a new IDV app (available on smart phones) without needing to attend an in-person appointment at a biometric centre.
See our COVID-19: immigration implications briefing for further details.
Brexit and the points-based immigration system
With under four months to go until the Brexit transition period ends, recent data from the Home Office suggests there has only been a limited increase in the number of sponsor licence applications up to the end of the second quarter of 2020. The new points-based system to be introduced from January 2021 will require employers to hold a sponsor licence if they wish to sponsor the visas of EU employees moving to the UK after the Brexit transition ends. With just over 31,000 employers currently registered as sponsors, it appears many more employers are yet to apply. At present, the typical processing time for a licence application is around four weeks for a straightforward application, but processing times are likely to expand with an influx of applications towards the end of the year. Employers yet to apply are well advised to apply now, to take advantage of the current improved processing times.
Sponsor licence renewals and compliance audits
Sponsor licences are valid for four years, with sponsors normally invited to renew them up to 90 days before expiry. This year, the UKVI is inviting sponsors with licence expiry dates falling between 27 November 2020 and 31 March 2021 to apply for renewal early. Given the increased volume of new sponsor licence applications expected under the new immigration system, the UKVI is recommending existing sponsors submit their renewal applications as soon as possible and, in any event, well before their licence expiry. The UKVI may opt to audit sponsors as part of the renewal process, meaning a compliance "health check" or mini audit of existing records and processes is recommended ahead of the renewal submission to ensure any issues are addressed in advance.
3. Case watch
Redundancy - is there a right of appeal?
The employees in this case were physical education teachers at a community secondary school. The Council decided to close their school and replace it with a new community school. The employees were told that their contracts would be terminated and they would be invited to apply for positions at the new school, and if unsuccessful, they would be made redundant. The employees applied for positions at the new school but were unsuccessful and so were given notice of redundancy. The employees brought unfair dismissal claims, arguing that there had been no consultation about the redundancies or opportunity to appeal their dismissals. The Council argued that any consultation or appeal would have made no difference, as redundancies resulted from the decision to close the school and the employees being unsuccessful in applying for alternative roles.
The Employment Tribunal and the Employment Appeal Tribunal ruled that the dismissals were unfair. They said that the absence of an appeal process does not render every dismissal unfair but the employees in this case had no opportunity to be consulted about the way the redundancy exercise would be carried out and no opportunity to challenge this after the event. It was impossible to say that consultation or an appeal would have been meaningless as the employees might have challenged the process that led to their dismissal. This made their dismissals unfair.
GWYNEDD COUNCIL V BARRATT
This case is a timely reminder of the importance of process in any redundancy exercise. Employees who are at risk of redundancy should be consulted about the way the redundancy exercise will be carried out and be given an opportunity to comment. This is the case whether the redundancy is a result of a simple reduction in the number of employees performing a particular role or where roles are removed completely, and employees are invited to apply for new or alternative roles. There is generally no obligation to offer an appeal in relation to a redundancy dismissal. However, employers should consider doing so where there is a selection exercise which involves scoring employees against a set of criteria. Whether or not an appeal is offered, employers should seriously consider hearing any appeal which is raised by an employee, as a failure to do so could render the dismissal unfair.
Relationship breakdown - when can you dismiss?
The employee in this case was Head of Customer Delivery and Standards for a rail company. She was a relatively senior manager who worked closely with her line manager. The relationship with her line manager began to sour after she was repeatedly denied a pay rise and was asked to participate in an on-call rota, which she felt was outside her duties. There were also various disagreements about recruitment and, separately, what was said during a return to work meeting following a seven-week period of sickness absence. The employee's line manager felt the employee was difficult to manage and was unhappy in her role, and that she was being blamed for the deterioration in their relationship. The employee's direct reports also raised concerns about the employee's leadership, and her ability to delegate and provide support.
A decision was made to terminate the employee's employment. The relationship breakdown was having a negative impact on the business at a time when it was facing financial difficulties and had become unrecoverable. As there had already been two discussions about the relationship breakdown, no further procedure was followed, and the employee was dismissed at her annual appraisal.
The employee brought an unfair dismissal claim (among other claims). However, the Employment Tribunal and the Employment Appeal Tribunal ruled that the dismissal was fair, despite the lack of a formal procedure. The EAT said that, while a lack of process will normally render a dismissal unfair, a formal process would not have served any purpose here and may have made things worse. There was a clear relationship breakdown and the employee had no interest in repairing it. Further, the employee was a senior manager whose continued working relationship with her line manager was critical during a difficult time for the business, and so it could not be said that dismissal in this way was something that no reasonable employer would do in these circumstances.
GALLACHER V ABELLIO SCOTRAIL LTD
This case is helpful for employers but only up to a point. It confirms that where there is an irretrievable breakdown in working relationships an employer does not need to follow a formal disciplinary process before dismissing. However, tribunals are reluctant to allow employers to rely on a breakdown in working relationships to avoid a proper process. In many cases, the breakdown is caused or contributed to by conduct on the part of the employee, in which case a disciplinary process for misconduct may be necessary. More importantly, where there has been a relationship breakdown, the employer will need to show it has made every effort to repair the relationship – for example, by offering mediation and considering redeployment to other areas of the business. The employer will also need evidence that the relationship breakdown is having a detrimental impact on the business or colleagues in order to justify dismissal.
4. New law
Changes to the Coronavirus Job Retention Scheme
On 1 September 2020, the Government subsidy under the Coronavirus Job Retention Scheme (CJRS) reduced. For September, the Government will contribute 70% of normal wages for any hours spent on furlough up to a cap of £2,187.50 a month (prorated for any time worked). Employers must now "top up" the pay for furloughed workers to ensure they receive at least 80% of normal wages for any hours spent on furlough, up to £2,500 a month (prorated for any time worked). Employers are also now responsible for employer national insurance and pension contributions on furlough pay.
The Government subsidy will drop to 60% for October, as the scheme winds down, with employers having to make up the shortfall to ensure workers receive 80% of wages for any furlough hours (up to the £2,500 monthly cap). The CJRS is due to close on 31 October 2020.
HMRC is in the process of writing to employers it believes have claimed too much under the CJRS. HMRC estimates it will contact approximately 27,000 employers urging them to review their claims. It says it will not take enforcement action for innocent errors or small mistakes but all employers are encouraged to audit their claims and report any errors to HMRC.
Statutory sick pay
The statutory sick pay rules have been amended to cover those self-isolating in advance of an operation. As of 26 August 2020, workers who have been notified by a registered medical practitioner that they are to undergo a surgical or other hospital procedure, and have been advised to self-isolate in advance, are eligible for statutory sick pay for the period of self-isolation up to 14 days. This follows changes to the rules earlier this year which make statutory sick pay payable from day one of absence for workers who are self-isolating because:
- they or someone they live with has symptoms of COVID-19
- someone in their household "bubble" has symptoms of COVID-19
- they have been notified by the NHS or public health authorities through the test and trace service that they have come into contact with someone with COVID-19.
Workers who are able to work from home while self-isolating in these circumstances would not be entitled to statutory sick pay but should be paid their normal wages.
Kickstart scheme for work placements
On 2 September 2020, the Government launched its new Kickstart Scheme. Employers can use the scheme to create new six-month job placements for young people who are currently on Universal Credit and at risk of long-term unemployment. Employers must alone, or in partnership with another organisation, create at least 30 job placements which are a minimum of 25 hours a week for six months. The roles must be paid at least the national minimum wage and must not require individuals to undertake extensive training before they begin the role. Government funding is available for the national minimum wage costs for up to 25 hours a week, plus the associated employer national insurance contributions and minimum employer automatic enrolment pension contributions on this amount. Further information is available from the Government Kickstart Scheme guidance.
5. Our work
Since the last Employment Update, our work has included:
- advising on the implementation of a number of collective redundancy consultation processes
- defending an equal pay claim on behalf of a client from an employee asserting they were paid less than a man for like work and work of equal value
- advising around issues associated with a transition to more regular homeworking
- advising on the termination of an employee's employment for breakdown of trust and confidence
- supporting a voluntary redundancy process
- advising on the TUPE implications where part of a business is sold
- advising on a multi-jurisdictional bonus and share option dispute