This is our selection of the recent developments which we think will impact on HR practice.
1. COVID-19: New Job Support Schemes
The government has announced that a new Job Support Scheme will replace the furlough scheme when it ends on 31 October 2020, and there will also be an "extended" Job Support Scheme where businesses have to close.
The Job Support Scheme is designed to help protect "viable" jobs in businesses that are facing lower demand over the winter months due to COVID-19. The Scheme will enable employers to retain employees in employment but on reduced hours and pay, with the help of a government wage subsidy.
The "extended" Job Support Scheme aims to help protect the jobs of workers in businesses that are told to close because of local or national coronavirus restrictions.
More details on these schemes are expected to be published shortly. In the meantime, employers considering using the Job Support Scheme should start assessing which workers they may want to claim for under this scheme, and how they may want to make use of the scheme.
For a detailed update on the new schemes, see Chancellor announces new Job Support Scheme and Chancellor announces extension of the Job Support Scheme.
The government has also recently published guidance and a Treasury Direction on the Job Retention Bonus – see our update: New guidance for employers and a Treasury Direction.
2. Discrimination – the definition of "disability"
The Employment Appeal Tribunal considered whether an employee's paranoid delusions amounted to a "disability".
Mr Sullivan, a sales executive, suffered paranoid delusions that a Russian gang was after him, in 2013 and again in 2017. The delusions impacted on his attendance and timekeeping. Following his dismissal, he brought a disability discrimination claim. For this claim to succeed, Mr Sullivan had to show that the delusions had a substantial adverse effect on his normal day-to-day activities, which was long term or was "likely to recur".
The tribunal concluded that, at the relevant time, the substantial adverse effect that was caused by his condition was not likely to recur, meaning his condition was not a disability.
The EAT agreed. Just because the delusions did recur in 2017 did not mean that, in 2013, it was likely that they would recur.
On a slightly separate note, a colleague of Mr Sullivan's gave evidence at the hearing that he did not know about his delusions. The EAT noted that an individual’s knowledge in their capacity as an employee or agent of a company may be relevant in determining whether the company has knowledge of the employee's disability, particularly where the company is small.
3. Discrimination – protection of non-binary and gender fluid people
An Employment Tribunal has ruled that the Equality Act protects non-binary and gender fluid people from discrimination.
Ms Taylor, an engineer at Jaguar Land Rover, identified as gender fluid/non-binary. She suffered discrimination and harassment at work on the grounds of her gender identity.
The Tribunal upheld Ms Taylor’s harassment, direct discrimination and victimisation claims against Jaguar Land Rover, and affirmed that the Equality Act does protect non-binary and gender fluid people from discrimination under the protected characteristic of “gender reassignment”. Ms Taylor was awarded aggravated damages for Jaguar's treatment of her both in employment and during the tribunal proceedings.
This decision confirms that discrimination protections extend to non-binary and fluid gender identities.
Note that only limited details are known about the Tribunal's decision as the written reasons have not yet been published.
4. Workplace culture: guide on supporting employees suffering domestic abuse
The Chartered Institute of Personnel and Development (CIPD) and Equality and Human Rights Commission (EHRC) have published a guide for employers on supporting employees suffering domestic abuse.
The guide recommends that employers have a clear policy in place to support employees and a framework of support. This should include: recognising the problem, responding appropriately to disclosure, providing support and referring to the appropriate help.
The guide stresses the need for an open workplace culture and emphasises that the employer's role should be to enable their employees to access professional support (such as legal or financial advice, housing support, counselling or childcare), and that employers should provide paid leave for employees who are struggling to do their work or who need to access essential services.
With many people working from home during the COVID-19 pandemic, employers should consider how they can support their employees when escape routes or time apart from an abuser may be dramatically curtailed.
Employers must ensure that it is clear what roles and responsibilities HR and line managers have in providing support to employees experiencing domestic abuse.
5. Data protection - consultation on draft Statutory guidance
The Information Commissioner's Office (ICO) has launched a public consultation on its draft Statutory guidance which sets out how it will regulate and enforce data protection legislation in the UK, including how it calculates fines.
The draft statutory guidance seeks to:
- Set out the nature of the ICO's statutory powers and to be clear and consistent about when and how these powers will be used
- Ensure that the ICO takes fair, proportionate and timely regulatory action to ensure that individuals' information rights are properly protected
The consultation closes on 12 November 2020.
The guidance will provide greater clarity on the ICO's approach to issuing information notices, assessment notices, enforcement notices and penalty notices.
An H&M service centre in Germany has been fined €35 million by the German authorities for a breach of the GDPR. Managers conducted "welcome back" talks with employees after their return from sick leave and holidays. The employees' symptoms and diagnoses of their illnesses, as well as their holiday experiences, were then documented so they could be read by the managers.