Welcome to our end of year round-up, where we  cover some of the key developments in employment law over the last 12 months and look at what is happening moving forward 

In keeping with the festive spirit, we promise not to mention Covid, Furlough or lockdowns, and to stick to the fun stuff like National Minimum Wage, the Working Time Regulations and discrimination.

Round up

National Minimum Wage (NMW)

All employers should be aware of the obligation to pay their workers at least the NMW.   Ensuring that the headline hourly rate of pay in a contract complies with the NMW Regulations is easy.  There are however several areas of risk for employers, such as where overtime is not properly captured, understanding what actually constitutes working time for NMW purposes, and whether certain deductions from pay take the hourly rate below the NMW rate.

One of the most significant cases of the year, with potentially far-reaching consequences for employers, was the case of Augustine v Data Cars Ltd (Augustine), which dealt with deductions from pay.

Regulation 13(1)(b) of the NMW Regulations says, in simple terms, that where a worker has to pay for something in connection with their employment, and this is not reimbursed by the employer, this can be taken into account when assessing if the worker has been paid NMW.  This topic has received a lot of press attention over the last few years, in particular in respect of uniforms, where workers’ pay at large employers such as Wagamama and TGI Fridays fell below NMW by virtue of them having to buy certain types of clothing or uniform.

Whilst the decisions in the Wagamama and TGI Fridays cases surprised some, the Augustine case has taken the interpretation of the law to the next level.  Mr Augustine was employed as a taxi driver.  He had to provide his own vehicle, which he could own outright or rent.  He was not compelled to wear a particular uniform, but if he wanted to get the ‘gold level’ jobs (which commanded better rates) he could rent a uniform.   Mr Augustine chose to rent a vehicle and a uniform.  In addition to these costs, Data Cars made various deductions from his pay, including insurance costs and equipment rental, which the Employment Tribunal (ET) held did reduce his pay for NMW purposes.

The ET held that the car and uniform rental should not be taken into account for NMW purposes.  Mr Augustine took this point to the Employment Appeal Tribunal (EAT) and succeeded.   The EAT concluded that the car and uniform rental, whilst optional, were clearly expenses ‘in connection with the employment’.  With that, Mr Augustine’s expenses for those costs took his pay below NMW.    The EAT went further, and said that expenses ‘did not, in fact, have to be a requirement of the employment. It neither had to be necessarily incurred nor wholly or exclusively incurred (for that employment)’.  

It is difficult to argue with the EAT’s literal interpretation of the legislation and the decision throws up all manner of practical problems and hypothetical scenarios in respect of NMW:

  • What if Mr Augustine rented a Rolls Royce?
  • What if Data Cars had their own vehicles to rent free of charge, but Mr Augustine leased a Lamborghini instead?
  • If your staff have to wear suits to work, what if one week they get giddy in Gucci?
  • If someone works for several employers with the same dress code (as is common in the hospitality sector, for example), which employer is liable to pay for the clothing?

The EAT has remitted the case back to the ET to determine the appropriate compensation, and it is unlikely that Data Cars, a relatively small employer, will appeal the decision.

Where does this leave us?

The decision in this case does appear to be illogical.  To fix this issue will either take a change in legislation or a case being taken to the Court of Appeal
(CA); neither of which appear to be on the radar any time soon.

For now, employers should look for areas of risk in their business and take steps to minimise those risks, such as tightening up expenses policies, requiring approval before certain employment related expenses are incurred and setting limits on such expenditure.

Discrimination

Defining disability

To qualify as a disabled person under the Equality Act (EQA), a person needs to show that they have a physical or mental impairment:

  • which has an adverse effect on their ability to carry out normal day to day activities; and
  • that the adverse effect is substantial; and
  • that the substantial adverse effect is long term.

It is normally easy to identify the physical or mental impairment and whether a condition qualifies as a disability tends to turn on the above points.

In Sullivan v Bury Street Capital, the Claimant had paranoid delusions that he was being followed by a Russian gang.   The CA held that whilst this mental impairment did have a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities between May and September 2013 and again between April and July 2017, on neither occasion was it likely that the substantial adverse effect would continue for 12 months or be likely to recur for such a period to make the condition ‘long term’.

Also on the issue of what is ‘long term’, in All Answers Ltd v W and Another, the CA confirmed that determining if the substantial adverse effect is ‘long term’ needs to be assessed on the facts and circumstances at the time of the alleged discrimination.    So even if the adverse effect continues after the event, this should not determine whether or not the condition qualifies (although it will of course be persuasive).

Finally on this topic, the case of Rooney v Leicester City Council considered whether the Claimant’s menopause qualified as a disability.   The EAT in this case held that the ET failed to properly take into account relevant information when deciding the Claimant was not disabled.  In particular, the ET failed to scrutinise the extent to which the symptoms impacted on her ability to perform day to day activities, such as forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness, incontinence and joint pain.  There was also no explanation as to how the ET did not conclude that the impairments were long term, given that they had last between August 2017 and 29 October 2018.

Age discrimination – retirement age

In 2011 the default retirement age in the UK was removed.  Since then, any employer seeking to impose a retirement age has had to show that the retirement was justified.

In order to prove justification, the employer needs to be able to establish a ‘legitimate aim’, and then show that dismissal by reason of retirement is a ‘proportionate means’ of achieving that legitimate aim.

In 2021 the EAT considered 2 cases brought against the same employer, the University of Oxford, in respect of the same default retirement age of 67.  Same employer, same policy, same conclusion……? No!

The University relied on 3 main legitimate aims to justify the retirement age:

  • Inter-generational fairness (by improving opportunities for career progression);
  • Succession planning (by maintaining predictable retirement dates)
  • Promoting equality and diversity (new recruits being more likely to be from diverse backgrounds)

In the case of Pitcher, the EAT upheld the decision that the compulsory retirement was justified, whereas in Ewart the EAT upheld the decision that it was discriminatory.  So how can the EAT reach a different decision in respect of the same policy?   The answer is that it came down to the evidence presented in each case.   In Ewart, the Claimant produced evidence to show that the retirement age had little to no impact on the number of vacancies that arose, so the retirement age was not justified.   This evidence was lacking in Pitcher and the EAT concluded that there was no error in law from the ET in concluding that the policy was not discriminatory based on the evidence presented in the case.

What can employers learn from this?   It is not easy to justify a retirement age.  If employers do want to impose a compulsory retirement age, they need to consider what ‘legitimate aims’ they are trying to achieve, and then test those legitimate aims by analysing data to see if the legitimate aims are justified.  The results of such analysis may change over time so should be kept under review.

Religious discrimination – dress codes

In 2021 the European Court of Justice (ECJ) considered two cases in which Muslim employees were told that they could not wear headscarves in work.

In the case of Wabe, the employer ran a non-denomination day care centre, and had a policy under which staff were not permitted to wear any signs of their political, philosophical or religious beliefs that would be visible to parents, children or co-workers.   The employer had information sheets which expressly stated that a Christian cross, Islamic headscarf or Jewish kippah could not be worn as ‘children should not be influenced by the teachers with regard to religion’.   The Claimant was suspended and issued with a warning as she refused to remove her headscarf.   Around the same time, a Christian teacher was asked to remove a cross.

In Muller, the employer instructed the Claimant not to wear any conspicuous, large-size political, philosophical or religious signs.

The ECJ held that whilst bans on certain types of religious dress may be discriminatory, it will not be directly discriminatory if the ban is applied in a general and undifferentiated way.

On the more complicated question as to whether these policies amounted to indirect discrimination, the ECJ held that whilst such policies could be indirectly discriminatory, they could be justified if there was a genuine need, as opposed to a desire, for the policy.   To that end, employers can take into account the legitimate wishes of customers or users, such as parents’ wishes to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.   The ECJ added that the policy must be applied consistently and systematically and must be limited to what is strictly necessary, taking into account the adverse consequences that the employer is seeking to avoid.

Working time

What amounts to ‘working time’ is an important concept in establishing statutory rights under the Working Time Regulations (WTR), such as rest breaks.  There were two key decisions from the ECJ in 2021 on this issue.  Although the UK is no longer bound by the ECJ, their rulings can be taken into account in the UK Courts and are likely to be persuasive.

Vocational training (WTR)

In BX v Unitatea Administrativ Teritoriala D, the ECJ held that time spent on vocational training, provided by a third party, offsite and outside of working hours was ‘working time’.  This was on the basis that the training was mandatory, the worker had to be physically present at a place determined by the employer and had to be available to the employer to provide services immediately.    This decision is however contrary to the WTR in the UK, which specifically exclude time spent training with third parties from the definition of working time.

Standby (WTR)

In Ville de Nivelles v Matzak (Case C-518/15) the ECJ considered time spent by firefighters on standby, during which time they could be expected to report to work within 8 minutes.  The ECJ held that this was working time, as the firefighters were required to be at a location determined by their employer (in this case their homes) and faced significant limitations in what they could do in their private lives in that time.

What’s coming

  • Increase to statutory payments in April 2022.

It is expected that maternity, paternity, adoption, shared parental and parental bereavement  pay and maternity allowance will increase from £151.97 to up to £156.66 per week statutory Sick Pay will  increase from £96.35 to £99.35 per week. NMW rates will also increase to £9.50 for workers 23 years old and over, £9.18 for ages 21 -22, £6.83 for ages 18 – 20 and £4.81 for ages 16 – 17 and apprentices.

 

  • Menopause

We covered this in our October Employment Law Review. Whilst there have not yet been any legislative changes since we last wrote about it, this could change and employers need to be aware of the impact of the menopause upon its employees, particularly in light of Rooney.

 

  • Sexual harassment bill

Another topic covered in our October Employment Law Review. To recap, the Government plans to introduce a duty on employers to prevent sexual harassment in the workplace and protections against third party harassment. Draft legislation is expected in 2022.

In the meantime, the Equality and Human Rights Commission have published guidance for employers on how to prevent sexual harassment, which can be found here

  • Carer’s leave

In September 2021, the Government published its findings in response to the 2020 consultation on carer’s leave. As a result of the consultation, the Government plans to legislate for an entitlement to carer’s leave for employees as a ‘day one’ right. The leave will consist of 5 working days of unpaid leave for employees who have long-term caring responsibilities but has not announced when they plan for this to come into effect. The date when this will come into force is currently awaited.

 

  • Neonatal leave and pay

The Government will, on a date to be confirmed, introduce statutory neonatal leave and pay for parents of babies requiring neonatal care. Parents will have the right to take an additional week of leave for every week that their baby is in neonatal care, up to a maximum of 12 weeks.

 

  • Extending redundancy protection to women and new parents

The Government has promised legislation to extend the period of redundancy protection from the point an employee notifies their employer of their pregnancy until 6 months after a mother has returned to work. If passed, the additional protection will also apply to those taking adoption and shared parental leave. We are currently awaiting to hear when these new protections are due to become effective.

How not to do it

Sacking 900 over Zoom – Vishal Garg: US boss fires 900 employees over Zoom – BBC News

Here today, gone tomorrow

The CEO of a US firm has recently come under fire for sacking around 900 of his employees over Zoom. Thankfully in England and Wales, employees have stronger legal protections where an employer is making mass redundancies, as they will have to enter into a consultation process with the employees.

It pays to moan!

We all have a moan about work from time to time, but does that mean we should be fired for it? The Employment Tribunal in McMahon v Heron Financial Services seemed to think not.

Heron Financial Services was not favoured by the Employment Tribunal earlier this year for dismissing one of its highest performing employees because “she was always moaning”. The Employment Tribunal ruled that Mrs McMahon had been unfairly and wrongful dismissed and had suffered an unauthorised deduction of wages. Damages of £23,127.93 were awarded.

Heron Financial Services has appealed to the EAT.

Whistleblowing from the squash courts

Earlier this year we heard how Mr Thomas, a former PE and maths teacher at Berwick Academy in Northumberland, took to social media to allege that his former workplace hid poorly behaved pupils on a squash court during an Ofsted inspection.

Mr Thomas was dismissed, and the Tribunal held that he was unfairly and wrongfully dismissed after the school had undertaken an unfair investigation into Mr Thomas’ whistleblowing. Mr Thomas had exhausted other official avenues to raise his concerned, but “the frustration of not being listened to had led him use social media as no one was listening.”

This highlights the need for a thorough investigation in dealing with whistleblowing complaints.

When an employer is considering dismissing an employee for conduct issues, it must ensure that it has carried out a reasonable investigation, and then it must show that the decision to dismiss was in the band of reasonable responses open to it.

Where employers lose unfair dismissal claims at Tribunal, it is often because of failings in the investigation stage.  This was perfectly demonstrated in the recent case of Smith v Teleperformance Limited, which all started with a miserly portion of chicken nuggets.

Facts

The issues at hand in the disciplinary were very narrow.  The Claimant, who had just finished a long shift, went to the canteen and ordered chicken nuggets, chips and beans (with a pot of cheese on the side) – don’t mind if I do…..  He was then presented with the meal, which contained just three chicken nuggets.  The Claimant was not happy with this and rejected the meal – saying that he was not a kid and that if he wanted a happy meal he would go to McDonald’s.  The Canteen Assistant, unhappy with the Claimant’s conduct in turning the nuggets away, made a complaint which was then investigated under the Respondent’s disciplinary policy.

The investigation

Whilst the investigation in this case was a poor one, there are lots of good examples that employers can learn from to make sure that they don’t fall fowl of the same mistakes:

Witnesses:

    • The Respondent only took statements from the two Canteen Assistants and the Claimant.
    • The Claimant referred to a lady with purple hair behind him in the queue, but the Respondent made no effort to ascertain who this was.
    • There was a security guard nearby – he was not interviewed.
    • There was a pool table by the canteen, no effort was made to see if anyone playing pool witnessed the incident.
    • The canteen was accessed by swipe card, but the Respondent did not check the records to see who was in the canteen at the time.

Failure to question evidence:

    • Canteen Assistant A alleged the Claimant swore, saying ‘I am not a f*****g kid’. Canteen Assistant B made no reference to swearing and the Claimant denied it.   Rather than checking the inconsistency with Canteen Assistant B, the investigator concluded that the Claimant did swear and that Canteen Assistant B was too shy to refer to bad language.
    • There was a dispute as to whether the Claimant ‘forcefully’ returned his meal, or simply slid it back. The investigator failed to ask sufficient questions to ascertain the level of aggression the Claimant applied when returning the meal.
    • The Tribunal held that the Respondent acted unreasonably in relying on the limited statements that were taken, rather than taking additional steps to verify the detail.

Too much emphasis on demeanour and failure to consider Claimant’s evidence:

    • The Canteen Assistants referred to the Claimant’s face going red as evidence of his rage. The Claimant explained that he had a medical condition which may have caused his face to colour, but this was not considered by the Respondent, who concluded that his face went red with anger.

The Employment Tribunal Judge was keen to emphasise the impact of a poor investigation, stating:  ‘Given the Claimant’s livelihood was at stake, it was unreasonable to rely on the evidence presented without further enquiries being made’ and held that the shortfalls in the investigation rendered the dismissal unfair.

Other elements of unfairness

The finding of unfair dismissal did not rest solely on the investigation.

Other procedural unfairness

The Claimant’s invitation to the disciplinary hearing referred to:

‘Acting violently. Including fighting or physical assault, using rude and abusive language or behaving immorally or obscenely towards other employees or our clients and customers’.

The Tribunal concluded that the Claimant was not given sufficient information about the precise allegations against him, and that this too rendered the dismissal unfair.  The Judge also criticised the categorisation of the allegations, which exaggerated the incident.

Too severe sanction

Another common mistake employers make is to determine that if someone has done something wrong, they should be dismissed.  This is fundamentally wrong, and all disciplinary policies should include sanctions short of dismissal, including warnings or final written warnings.

The Judge was not satisfied that the allegations made against the Claimant were as serious as the Canteen Assistants suggested, and held that a reasonable employer would not have dismissed the Claimant in the circumstances.

Lessons learned

Even if an employee has committed an act of gross misconduct, a poor investigation can result in a finding of unfair dismissal, which will come with side dishes of compensation and legal costs.   Anyone investigating a disciplinary matter, or chairing a disciplinary hearing, needs to carefully apply their mind to what evidence may be available and what questions need to be asked to establish the facts of the case.

Talk to us!

Investigating and probing doesn’t come naturally to everyone, but its what we do every day!  We encourage our clients to contact us at the start of an investigation, so we can work together to ensure that the investigation will stand the scrutiny of the Tribunal and, hopefully, avoid cases being brought altogether.  In the long run, this approach should save time and money. If you need help with a disciplinary case, please do not hesitate to contact Paul, Neal, Vicky or Sarah on 0161 832 2500.

Employment Law Review

Welcome to the third edition of our employment newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our third issue comes at a time where the Furlough Scheme has been withdrawn and put to bed. As we enter a ‘post-Covid world’, we are seeing more Covid related cased being heard in the Tribunals and discussions around compulsory vaccinations.

Contents

  1. End of Furlough – Consider your options
  2. Compulsory Vaccinations and Care Homes
  3. New duty proposed for employers to prevent sexual harassment
  4. Menopause in the workplace
  5. Case law update
  6. Talk to us!

End of Furlough – Consider your options

The furlough scheme ended on 30 September 2021, and the scheme was completely withdrawn on 1 October 2021.

With the winding down of the furlough scheme and relaxation of Covid-19 restrictions, employers should be considering their options for staff returning to the workplace. No doubt employers will be looking forward to re-welcoming employees who have been furloughed and bringing staff back to work, but unfortunately this will not be an option for all employers.   Many employers are considering changing employees’ terms and conditions or making redundancies.

If employers are considering making changes to employment terms, they need to consider whether notice needs to be given to effect the change, and even if formal consultation is required.   Employers also need to be aware of the risk of claims for unfair dismissal or constructive unfair dismissal if the changes are not agreed.

If an employer needs to make redundancies, it is important that a fair process is followed before effecting the dismissal.   If this is not done, the employer will be at risk of claims for unfair dismissal.  If 20 or more redundancies are proposed there are also strict statutory consultation procedures that must be followed and the risk of costly group litigation if this is not done correctly.

If you are considering making redundancies or changing terms and conditions, we recommend that you contact us for advice and guidance on what steps need to be taken and the risks of not following a fair process.

Compulsory vaccinations and Care Homes

On 11 November 2021 new Regulations come into force which will require Care Quality Commission registered care homes to only permit access to workers who are fully vaccinated against Covid-19, unless medically exempt. The Government has said its decision was made after extensive public consultation, and that compulsory vaccination is to promote the protection of care home residents from the risk of death or serious illness that can arise from contracting Covid-19.

The legislation has faced harsh criticism from those working in care homes, unions, and professional bodies alike and the legislation opens questions about the approach care homes will take with staff who have not had the vaccine and are not medically exempt.

There are many reasons why a person may refuse to take the vaccine, such as religious or health based, but employers should be careful in hastily dismissing staff. Employers need to seriously consider their staff’s reasons and will need to demonstrate they have acted reasonably before dismissing employees who refuse to be vaccinated.

UK Government proposes new duty for employers to prevent sexual harassment

In August the Government published its response to its 2019 consultation on measures to combat sexual harassment in the workplace and reinforce existing legal protections. As part of its response, the Government has proposed a new proactive duty on employers to prevent sexual harassment in the workplace, pledged to strengthen existing protections against third-party harassment (such as by clients or suppliers), and considered extending the time limit to bring sexual harassment claims.

The response contains very little detail about how this duty will be implemented, although we do expect the Equality and Human Right Commission to issue a code of practice in the near future.

Proactive Duty

At present, employers are under no proactive duty to prevent sexual harassment in the workplace. If a member of staff reports an incident of sexual harassment an employer can be held liable unless it can show that it took all reasonable steps to prevent the sexual harassment form occurring. Under the new proposed duty, employers will still be required to take reasonable steps, but they could also be held accountable for failing to take preventative steps to stop harassment, even if no incident has occurred.

Protections against third-party harassment

Similar to the above, the Government has not provided any clear indication as to how this will be introduced, although it has confirmed that it will introduce a defence of having taken all reasonable steps to prevent third party harassment. There is no clarification if this will be a proactive duty. It is also unclear as to whether this will extend to all forms of harassment, or if it will only apply to sexual harassment.

Extending time limits to bring a claim

Currently, claims brought under the Equality Act must be made within three months of the act, or most recent act, complained of. The Government is considering extending the time limit to six months in relation to all claims made under the Equality Act, not just sexual harassment.

Menopause in the workplace

Women over the age of 50 are the fastest growing group in the workforce. In 2019 BUPA and the Chartered Institute for Personnel and Development conducted a survey which found that three in five women of menopause age were negatively affected at work.

With such a large portion of the work force experiencing the menopause during their working life, it is an increasingly pressing topic for employers. There is also a rise in number of women being dismissed or treated unfairly for reasons related to the menopause.

The Government has opened an inquiry into menopause-based discrimination experienced in the workplace.

Currently, women who are treated unfairly for reasons related to the menopause have to bring claims under the sex or disability discrimination legislation in the Equality Act.  The menopause is not a disability unless the individual concerned meets the statutory requirements in their particular circumstances, which is rarely the case, and neither type of claim is easy to pursue.  The purpose of the inquiry is to examine whether or not current equality laws need to be strengthened and if the menopause should be added as a protected characteristic under the Equality Act.

The inquiry closed submissions for evidence on 17 September 2021. We will update you when the findings are released.

Case law update

Covid Case Law

In our last update, we discussed the case of Accattatis v Fortuna Group (London) Ltd. Since then the Tribunals have heard a number of Covid-19 related cases

In Gibson v Lothian Leisure, Ham v ESL BBSW Ltd and Monanaro v Lansafe the Tribunal found that Covid-19 was a serious and imminent threat, and that the Claimant’s dismissal was automatically unfair after he was dismissed for raising concerns about the lack of Covid-related safety measure at his workplace.

Gibson and Accattatis relate to the first lockdown so the same might not be said for subsequent lockdowns or the situation following mass vaccination.

In Mhindurwa v Lovingangels Care Ltd the Employment Tribunal held that there was a duty to consider furloughing employees as an alternative to redundancy. Whilst furlough should be considered (or should have been when the scheme was running), that does not mean that is has to be offered. This approach was also upheld in Handley v Tatenhill Aviation Ltd.   This will not apply now that the furlough scheme has ended, but these cases serve as a reminder that employers do need to consider alternatives to redundancy before effecting the dismissals.

Pay for zero-hours workers when suspended

This was considered by the Employment Appeal Tribunal (EAT) in Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust Mr Agbeze was a healthcare assistant who provided his services as a ‘bank’ worker. Under the terms of Mr Agbeze’s contract, he was only paid for the hours he worked. There was no obligation on the NHS Trust to offer him work, nor was there an obligation for him to accept work. In essence, he was employed under a zero-hours contract.

Following an allegation of misconduct, the Trust suspended Mr Agbeze, meaning he was not eligible to be offered any work and he was not paid whilst the case was investigated.

Mr Agbeze asserted that there was an implied term in his contract which meant that he was entitled to be paid average wages during the suspension period.  The EAT upheld the Tribunal’s decision, that there was no obligation for the Trust to offer work, nor for Mr Agbeze to accept work, and that there was no express or implied term that required the Trust to pay Mr Agbeze during his suspension.

You can see other updates on other topics  in our earlier blogs here  disability discrimination and rights of appeal.

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

Welcome to the second edition of our newsletter, where we focus on new developments, case law updates and hot topics in Employment Law.

Our first issue marked the anniversary of the first lockdown and we considered the impact of the pandemic.  The Government has just announced that all restrictions in place in England have been lifted as of Monday 19 July 2021.  The easing and lifting of lockdown measures will vary in the other home nations but it is hoped that a return to something that resembles the ‘pre-pandemic normal’ is on the horizon.  

The past 15 months have been a difficult and testing time for both employers and employees and with restrictions now lifting/easing many employers have been and will continue to take stock on how the past year has affected and may continue to impact their operations.  For some answers to the most common questions, we have faced from business owners in recent weeks please see our blog post https://bbslaw.co.uk/returning-to-the-office-post-lockdown/  

Keeping with the theme of the pandemic here is a quick Covid-19 related update

Travel restrictions   there are currently conditions in place which are attached to foreign travel from England.  Foreign destinations are classified as Green, Amber or Red with the list being subject to frequent change. 

The latest government update is that unless individuals are fully vaccinated there is a mandatory requirement to quarantine for 10 days following foreign travel to Amber list countries, although the rule for fully vaccinated individuals will not apply to France (on the Amber list) and individuals returning from France must quarantine for 10 days upon arrival in England. For those returning from Red list countries, they must quarantine for 10 days in a managed hotel.   

The requirement for individuals to quarantine is likely to impact businesses and we recommend that employers are mindful of the mandatory requirements when authorising holiday requests.  Thought should be given to how operations will be affected if there is a reduced workforce due to quarantine.    Employers may want to consider adopting the following approach for employees returning from holiday who then need to quarantine.  This is subject to ongoing government guidance, and we would recommend any such requirements are confirmed to employees in writing;

i. If a role permits home working, employees may work from home for the duration of the  period of quarantine, however, all usual terms of employment will apply, including  usual hours of work. ii. If an employee has enough remaining annual leave they may choose to take a further period of leave to cover all or part of their quarantine period.

iii. If home working cannot be accommodated or the employee does not wish to take/does not have enough remaining annual leave, any period of quarantine must be taken as unpaid leave.  

Furlough – as of 1 July 2021 the Furlough Scheme has seen some changes which mean that employers are required to take on more of the costs relating to furloughed employees.  The below table sets out how the scheme has begun to, and will further taper down between June and September 2021.   

June

July

August

September

Government contribution: wages for hours not worked

80% up to £2,500

70% up to £2,187.50

60% up to £1,875

60% up to £1,875

Employer contribution: employer National Insurance contributions and pension contributions

Yes

Yes

Yes

Yes

Employer contribution wages for hours not worked

No

10% up to £312.50

20% up to £625

20% up to £625

For hours not worked employee receives

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

80% up to £2,500 per month

(Source:  https://www.gov.uk/government/publications/changes-to-the-coronavirus-job-retention-scheme/changes-to-the-coronavirus-job-retention-scheme)

What else is and has been happening?

The new Employment Bill

The long-awaited Employment Bill, which was expected to come in to force following the Queen’s Speech in May 2021, has been put on hold.  Whilst the bill has been delayed it is expected to come in to force at a future date. Some reforms which are expected include; 

    • The introduction of a single labour market enforcement body to ensure that vulnerable workers are better informed of their rights, and to support businesses in compliance.
    • Plans to ensure that all tips and service charges go to workers in the hospitality, leisure and service sectors.  
    • Extending redundancy protection to cover pregnant employees, so that they are given priority for suitable alternative employment.
    • Extended leave for parents of children in neonatal care.

Some of these areas were subject to consultation, the outcome of which is still awaited. 

Gender pay gap reporting

Employers with 250 or more employees are required to publish their gender pay gap report by 4 April (30 March for public-sector employers).

Due to the impact of the pandemic, the Equality and Human Rights Commission (EHRC) have announced that employers will have an additional six months after the current deadline to report their gender pay gap information – therefore, 5 October 2021, meaning that no enforcement action would be taken before this date.  The EHRC is however encouraging employers to report their data before October 2021, if possible.

Right to Work

The EU Settlement Scheme, which allowed EEA nationals who were in the UK at the end 2020 to formalise their status, closed to most applications on 30 June 2021. On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks.  Up until 30 June 2021, EEA nationals could present their passport or national ID card as evidence of their right to work in the UK, however, as of 1 July 2021 EEA citizens and their family members will need an immigration status in the UK and will no longer be able to rely on their passport/national ID card.

Due to COVID-19 restrictions the new guidance confirms that the temporary adjustments to right to work checks made to assist remote working arrangements and social distancing, will now be extended to 31 August 2021.  From 1 September 2021 employers will be required to either check their prospective employees’ original documents or check the prospective employees’ right to work status online.

Since our last update the following important increases have also come into force

As at 1 April 2021 

The national living wage increased £8.91 per hour and the age threshold for the national living wage was altered so it now applies to 23 and 24 year olds (previously it was only available only to those aged 25 and over).

  • Other national minimum wage rates increased as follows:
    • £8.36 per hour for workers aged 21 and 22;
    • £6.56 per hour for workers aged 18 to 20; 
    • £4.62 per hour for workers aged 16 and 17;
    • £4.30 per hour for apprentices under 19 and those in the first year of their apprenticeship.

As at 4 April 2021

  • The weekly rate of statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased to £151.97.

As at 6 April 2021

  • The weekly rate of statutory sick pay increased to £96.35.

All employers should be mindful of the above increases and if any of your policies and documents refer to precise rates (such as a sickness absence procedure) this should be updated.

  • New limit on the weekly capped sum for statutory redundancy pay, this is now £544 per week.   

Where an employer dismisses an employee by reason of redundancy (if they have two years’ service) a sum is calculated based on the employee’s weekly pay, length of service and age. 

Case law update

Covid-19 related dismissal – this is an interesting case that has arisen as a result of the pandemic.

Accattatis v Fortuna Group (London) Ltd 

The Claimant made repeated requests during March and April 2020 to work from home or to be furloughed as he said that he felt uncomfortable commuting and attending the office during lockdown.  The Claimant was told that his job could not be done from home and that furlough was not possible due to how busy the employer was.  The Claimant was told that he could take holiday or unpaid leave. He declined these options, repeated his requests and was later dismissed.

Employees usually require 2 years continuous service in order to pursue a claim for unfair dismissal.  In this case the Claimant did not have the requisite length of service, however, he claimed automatic unfair dismissal under section 100(1)(e) of the Employment Rights Act 1996.  Section 100(1)(e) states that employees may refuse to work if they consider that there is “serious and imminent danger”.

The Employment Tribunal accepted that based on public health guidance available at the time, the Claimant had a reasonable believe that commuting during the lockdown could amount to serious and imminent danger. However, under section 100(1)(e) the Claimant was required to take appropriate steps to protect himself. The employer was unable to offer home working but did provide a possible alternative (holiday or unpaid leave), which the Claimant refused stating he wanted to be furloughed or to work at home on full pay. The Tribunal found that the Claimant’s requests were not appropriate steps to protect himself, and his claim failed.

Whilst the decision is not binding on other Tribunals it is a reminder that the pandemic may not on its own be a reasonable justification for an employee to refuse to attend work under section 100(1)(e), if an employer has tried to reasonably consider an employee’s concerns.   The case is also a helpful reminder that the Tribunal will consider the public health guidance that was available at the time, so as more and more people are vaccinated and restrictions are eased, claims of this nature will be less likely to succeed.

Protection from discrimination – gender-critical views 

Forstater v CGD Europe

The Employment Appeal Tribunal (EAT) has handed down a significant judgment which can protect individuals who hold gender critical beliefs from discrimination.

Ms Forstater worked as a consultant for CGD Europe. After expressing a number of gender critical beliefs via social media her consultancy contract with the business was not renewed.  Ms Forstater presented a claim for discrimination on the basis of her philosophical belief, which is one of the protected characteristics listed within the Equality Act.  The claim failed in the Employment Tribunal and the judgment stated that the way in which Ms Forstater expressed her gender critical beliefs was not “worthy of respect in a democratic society” and was therefore, not protected. 

The decision was appealed, and the appeal was upheld.  This outcome means that beliefs will be capable of protection even if they are expressed in a way that may offend or create a hostile and degrading environment, as such it is unlawful to discriminate on this basis. 

Employment Tribunal makes a record discrimination award

Barrow v Kellogg Brown and Root (UK) Ltd

An Employment Tribunal has given the second highest award ever made in an Employment Tribunal, amounting to over £2.5 million. 

After 36 years of service the Claimant presented claims against his former employer for unfair dismissal, direct disability discrimination, harassment related to a disability, discrimination arising from disability, failure to make reasonable adjustments and victimisation.

The Claimant was excluded from work following an email exchange with his manager. At this time the Claimant was taking steroids to assist his cancer symptoms, which at the time had not been diagnosed, and was suffering from adverse side effects which affected his mental health and behaviour.

The Claimant was called to a meeting and dismissed, without any formal procedure being followed and without being given any detail as to the reasons for his dismissal.   Following his dismissal, the Claimant was diagnosed with a rare form of cancer and he informed the employer of this.  The employer attempted to rectify the dismissal procedure followed and instigated a retrospective dismissal process.  The outcome was to dismiss due to a breakdown in the implied term of trust and confidence.  

The Employment Tribunal considered the original dismissal, and the later dismissal which was labelled a ‘sham’.  The Tribunal considered that the dismissal was predetermined, and faults/defects were found in the process. The Tribunal pointed criticism at the attempts made by the employer to make the decision to dismiss appear credible.  The Tribunal concluded that no reasonable employer would have acted in the way the employer did in dismissing an employee who had spent 36 years working for the company.

The claims of unfair dismissal, harassment and discrimination arising from disability succeeded.  The employee was awarded a career-long loss award, aggravated damages and a further £25,000 for pain, suffering and loss of amenity.

This case demonstrates that discrimination awards are not subject to a cap, unlike unfair dismissal claims, and it highlights the importance of employers following a fair dismissal process and not predetermining the outcome. 

Talk to us!

We want to encourage our clients to pick up the phone whenever they need help with employment law matters.  We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

In our Spring Newsletter we predicted a surge in Coronavirus related (Employment Tribunal) cases linked to health and safety concerns and general unfair dismissal.

Two cases have recently been reported in the Employment Tribunal dealing with what we expect to be increasingly common issues, as Covid cases hit the Courts.

Refusal to wear a facemask

In Kubilius v. Kent Foods Limited, the a Claimant, a lorry driver, was dismissed after refusing to wear a facemask at a client’s site.

This happened all the way back in May 2020, when the Government Guidance was that wearing a facemask was optional. The Respondent’s client however, Tate and Lyle, had a mandatory requirement for all visitors at their site to wear a facemask.

The Claimant refused to comply with repeated requests from the client to wear a facemask and was subsequently banned from attending their premises.

Kent Foods then undertook a disciplinary process, throughout which the Claimant continued to show a lack of remorse for his actions.

The Respondent concluded that they had no trust that the Claimant would not act in the same way in the future and that this could undermine their relationships with clients, as had happened with Tate and Lyle. The Claimant was summarily dismissed for gross misconduct.

The Employment Tribunal held that whilst another employer may have reached a different conclusion, the decision to dismiss was in the band of reasonable responses and the dismissal was therefore a fair one. The Employment Tribunal also noted the difficulty that the Respondent would face given that the Claimant had been banned from the client’s site.

Refusing to attend work

In Rodgers v Leeds Laser Cutting Limited the Claimant refused to attend work “until lockdown restrictions had been eased”. This was on the premise that he was concerned that if caught Coronavirus at work it could place his vulnerable children at risk.

The Claimant did not have 2-years service, so in his claim he had to establish:

  • that he had a “reasonable belief” that his workplace posed a serious and imminent threat to him and others; and
  • that he was dismissed for exercising his right to leave the workplace.

The Tribunal did not agree with the Claimant. Importantly, the Claimant did not provide any evidence to the Employment Tribunal to support his belief that the workplace placed him or others in imminent danger. In fact, the Claimant made no mention of any specific threats in the workplace to his Manager, and he accepted that Covid safe measures, that complied with the Government Guidance as it was at the time, were in place.

The Claimant also accepted that he drove a friend to hospital during a time when he had been told to self-isolate, and that he spent some time working in a pub during the pandemic.  These actions were not consistent with perceiving a serious and imminent threat in the workplace.

The Employment Tribunal concluded that on the information that was publicly available at the time (May 2020) the Claimant did not have a reasonable belief that his workplace posed a serious and imminent threat. His case therefore failed.

It is important to add that if the Claimant had 2 years’ service he probably would have won his case because the Respondent did not follow a fair process.

Comment

Both of these claims are from the Employment Tribunal and will not be binding authorities for future cases. They are also very fact sensitive, so whilst they give an indication as to how Employment Tribunals may interpret comparable cases, they should be treated with caution and we encourage our clients to contact us for advice if they are faced with any similar situations.

We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul StedmanVicky BeattieNeal Mellor or Sarah O’Brien on 0161 832 2500.

Welcome to the first in our new series of quarterly newsletters, where we focus on new developments and hot topics in Employment Law.

 

In this issue, which marks the anniversary of the first lockdown, we look back and forward at the impact of the pandemic on employers, as well as updating you on what else has been happening in the world of employment law over the last 12 months.

It goes without saying that Coronavirus has had an enormous impact on businesses, the people they employ and how work is done.

We look here at where we are now and what businesses should be doing and considering as restrictions ease and workplaces re-open.

The Furlough Scheme

The furlough scheme has been extended all the way to 30 September 2021.  After various tweaks since its first inception, these are the key elements of the scheme in its current form:

  • The Government will contribute 80% to any workers’ salary, up to a maximum of £2,500 per month
  • Employers must contribute NICs and employer pension contributions to the furlough pay
  • To be eligible, the worker must have been on payroll between 20 March and 30 October 2020
  • Employers can still use flexible furlough, splitting a workers’ time between furlough leave and working time
  • The furlough grant can no longer be used for notice pay

Importantly, the grant is still only available where Coronavirus is affecting business operations. It cannot be used for non-Covid related reasons such as under-performance or unrelated sickness absence.

Working from home

Who would have thought 12 months ago that multi-day Employment Tribunals could be run from Barristers’ bedrooms and solicitors’ sofas?  From experience, we can tell you that they can, and they have worked incredibly well!

One question we have been asked is whether employers will be able to require staff to return to the office full time when the restrictions ease?  As a general rule, it is up to employers to determine where their staff carry out work.   However, we expect that employers will receive more flexible working requests from workers who can now show that they can work effectively from home. Employers may find it increasingly difficult to reject requests for flexible working. Unreasonably refusing requests can lead to claims of indirect sex discrimination.   There may also be some staff whose disability makes physically attending work every day difficult, so employers may need consider offering work from home as a reasonable adjustment.

Testing and vaccinations

Can employers compel staff to take Covid tests at work, or to be vaccinated as a pre-cursor to returning to work?   Only in very limited circumstances.

As well as various data protection issues, there may be many health or religious reasons why staff refuse to take tests or be vaccinated.   Making tests or vaccinations compulsory could lead to claims of discrimination, where the employer would need to show that the policy is justified.   It is hard to envisage many circumstances where it would be justified (in legal terms), save for cases where, for example, travel is a key part of the role and the individual cannot travel without having been vaccinated, or in certain care settings.  Whilst this might surprise some employers, it is worth noting that not even the NHS is making testing or vaccinations compulsory for its staff.

In order to encourage workplace vaccinations, the government is making testing kits available for free for companies with over 50 employees until 30 June 2021.  Businesses must register on the here by 12 April 2021 to take advantage.

Positive tests and self-isolation

Most employers will doubtless face situations where staff are required to isolate either because they have tested positive or because they have been told that they have to self-isolate by the Test and Trace system.

In these cases, if the worker can work from home, then you can ask them to work from home whilst they are isolating.   If they cannot work from home, they may be entitled to:

  • Statutory or company sick pay
  • Employment support allowance
  • Universal credit
  • A one-off isolation payment, payable by the government

Shielding

As of 1 April Public Health England will no longer advise people to shield.  This means that workers will no longer be entitled to statutory sick pay if they do not attend work due to shielding.  Like everyone else, those who have been advised to shield previously, should either return to work or work from home, where possible.

Returning from red-list countries

Some employees may have pre-booked holidays to ‘red-list’ countries which will require them to quarantine on their return.   Others may book trips to these countries knowing that they will need to quarantine when they get back.

If the employee can work whilst in quarantine, then employers can allow the individual to ‘work from quarantine’.   Where this is not possible however, what pay is the employee entitled to?  Assuming that they are not ill, then the employee may not be entitled to any pay whatsoever.

In order to minimise the potential disruption caused in these circumstances, it will be wise for employers to issue a notice to staff to advise them that they will not be entitled to any pay if they need to quarantine and cannot work after returning from a red-list country.

Top tips for return

Communicate!   Many employees will have been away from the workplace for over a year by the time things get back to some kind of normal, and some will be nervous about returning:

  • Carry out risk assessments of the workplace
  • Tell staff what Covid related safety measures are being put in place
  • Offer lines of communication for anyone who has concerns or questions

If you haven’t done so already, encourage staff to take some accrued holidays before they return, and to book future holidays as soon as possible:

  • Employers can require workers to take holidays on set dates – so long as they give double the notice of the amount of time to be taken off;
  • Employers may also allow some carry over if it is not possible for everyone to take all of their accrued days.

What else has been happening?

With Coronavirus dominating the news and keeping HR departments busy, it is easy to forget that there have been other important cases and developments since the pandemic hit.   Here are some of the key cases from the last 12 months

Uber and employment status

We reported recently on the Supreme Court’s decision that Uber drivers are workers for working time and national minimum wage purposes.   You can read our earlier article here.

Discrimination – Outdated Equality Policies

In harassment claims, an employer can run a ‘statutory defence’ that it took all reasonable steps to prevent the harassment from occurring.   This argument is often based on the fact that the employer has an Equality Policy that explains that harassment and any discrimination will not be tolerated.   In the case of Allay (UK) Limited v Gehlen the Employment Appeal Tribunal held that whilst the employer had such a policy, not enough was done to remind staff of the policy and the required standards, as evidenced by the repeated racial harassment suffered by the Claimant.   The statutory defence therefore failed and the Claimant succeeded in his case.

This case is a good reminder for employers to regularly review and update their Equality Policy, and to provide regular training to managers to minimise the risk of discrimination occurring.

Discrimination Part II – Are Vegans a protected group for discrimination purposes?

They can be…. In Casamitana v League Against Cruel Sports the Employment Tribunal held that the Claimant, an ‘ethical vegan’, who lives by a strict code based on his ethical views, was protected under the Equality Act on the basis that his philosophical beliefs relate to a substantial aspect of human life, have a certain level or cogency and importance, and are worthy of respect in a democratic society.

Whether a religion or belief is protected will depend on the facts of the case. In earlier cases, Scientologists and Rastafarians have been protected, whereas a Jedi was not protected (yes someone did claim that they were discriminated against because they are a Jedi!).   Interestingly, the same Judge from the ‘Vegan case’, held earlier in 2020 that a Vegetarian was not protected.

Gender Identity III

Gender reassignment is one of the 9 protected categories under the Equality Act.   In Taylor v Jaguar Land Rover, the Claimant, who identifies as gender fluid/non-binary, won £180,000 compensation in a landmark discrimination case, where, for the first time an Employment Tribunal held that a non-binary or gender fluid person is protected from discrimination.  The award here was extremely high owing to the level of harassment suffered and the future losses of earnings.  The Tribunal also made various recommendations to Jaguar Land Rover to prevent future discrimination.

What’s to come?

Aside from hopefully returning to something resembling normality in the next few months, here are some important developments that are definitely happening, and some we expect:

IR35

After several delays, the changes to the IR35 regime are finally due to come into force in April 2021.

For those of you who do not know what we are talking about, the IR35 regime was brought in in 2000 to identify businesses who do not pay the appropriate taxes for “disguised employees”, who work as self-employed contractors, often through intermediaries such as personal service companies (PSCs). At present, the responsibility to determine the tax status in the private sector lies with the party that pays the individual, usually a PSC.   Practically speaking, this has meant that many end user businesses have been able to avoid paying the correct Income Tax and National Insurance for contractors who should, if properly assessed, be classed as employees for tax purposes.

The IR35 regime reverses the responsibility.  From April 2021 the end user will be responsible for determining the tax status of contractors to make sure that the correct tax is accounted for.  This will not apply to small businesses, where the current regime will continue.

If you engage contractors and you have not already reviewed their employment status, you should do this without delay.  Our team will be happy to provide any necessary help and guidance along the way.

Carers’ Leave

After consultation in 2020, we expect new law to be passed to allow people with caring responsibility for vulnerable adults one week’s unpaid leave every year.  This will be in addition to the existing laws in respect of dependants leave.

Neonatal leave and pay

We also expect new law to allow parents up to 12 weeks’ additional leave to be added to maternity leave where their child has been in neonatal care.

Maternity and Redundancy

At present any employee who is on maternity leave and is selected for redundancy must be given first refusal of any suitable alternative employment.  It is proposed that this protection will be extended to cover the first six months after the end of maternity leave.

Health and Safety at Work

Under the current law, an employee can bring a claim in the Tribunal if they think that they have been subjected to a detriment because they reasonably believed that attending work would put them, or someone else (such as someone they live with), in imminent danger.   Claims of this nature were rare, until Covid happened.   As people gradually return to work and shielding support is removed, we anticipate more claims of this nature.    To add to the risk of claims for employers, from May 2021 the protection will extend to workers as well as employees.

Unfair Dismissal, Redundancy and Whistleblowing claims

More individuals are likely to bring whistleblowing claims flowing from the Coronavirus pandemic.  Countless workers will have raised health and safety concerns regarding the workplace and the risk of exposure to Coronavirus.  We expect many of these individuals will argue that they are ‘whistleblowers’ and attempt to join the dots between alleged whistleblowing and any subsequent bad treatment.

Given the enormous pressure that has been placed on businesses and the large number of redundancies that have been made over the last 12 months, it is almost inevitable that the Tribunal will have lots of cases where people challenge their selection for redundancy and claim unfair dismissal.

The last 12 months have thrown up lots of issues that our clients have not dealt with previously. 

We offer a variety of services to our clients, including helplines, insurance backed products for Employment Tribunal claims and other fixed fee services.   If you would like to discuss how we can help you and your business deal with Employment Law matters, please contact either Paul Stedman, Vicky Beattie, Neal Mellor or Sarah O’Brien on 0161 832 2500.

The evolution of working practices over recent years has brought a flurry of litigation, as new technology-based working models have brought various complex legal issues to the fore; none more so than worker status.

This month the Supreme Court handed down one of the most significant employment law decisions of the tech era, finding that Uber drivers are “workers” for employment law purposes.

What was the issue?

Very broadly, there are three types of employment status:

  • Employee
  • Worker
  • Self-Employed.

Distinguishing employees from workers, and workers from self-employed contractors, can be very complicated; but the distinctions are significant.

Employees are fully protected by employment law, whereas the self-employed have little to no employment protection.  “Workers” sit in the middle.  Workers cannot bring claims for unfair dismissal, but they are, for example:-

  • Entitled to national minimum wage and holiday pay; and
  • Protected under the discrimination and whistle-blowing legislation.

What were Uber saying?

Uber contended that their Drivers are self-employed contractors.  They pointed to a number of arguments, notably:

  • The Drivers’ contracts specifically say that they are self-employed contractors.
  • That Uber is simply a booking agent that allows drivers to access private customers through its app.

There are also a lot of factors in the relationship that would normally point towards self-employment.  For example:

  • Drivers use their own cars and can use their own phones.
  • Drivers are responsible for their cars’ operating costs.
  • Drivers can decide when and where they work.
  • Drivers can work for competitors.

What the Supreme Court held

Despite the various arguments for self-employment, the Supreme Court’s decision fell on the amount of control that Uber have over the Drivers once they have logged on to the app and reported for duty:

  • Whilst, in theory, Drivers can choose when they work, once they are logged on to the app they can be penalised (logged off) if they refuse or cancel trips.
  • Where a Driver’s average customer rating falls below 4.4, they become subject to “quality interventions” and can be removed from the platform if they do not improve.
  • Drivers can be subject to financial penalties if they do not follow the recommended route.
  • The Driver has no control over what the customer pays for a trip, or, in turn, what they are paid by Uber.
  • Drivers have no say in the terms of their contract with Uber.
  • Whilst the drivers can use their own vehicles, the vehicles are subject to vetting by Uber.
  • Unlike minicab drivers, who have to find their own customers, Uber Drivers have their customers delivered to them via the app.

What does this mean for you?

Crucially, this decision means that Uber Drivers are entitled to:

  • National Minimum Wage for the time when they are logged on to the app, regardless of whether they are transporting passengers; and
  • Holiday pay.

This decision is far reaching and will apply to all similar business models, such as Deliveroo and UberEats, who connect customers to service providers via digital platforms.

This is definitely welcome news for the tens of thousands of people affected, but you can expect your next Uber trip (and takeaway) to be that little bit more expensive!

If you have any questions about employment status or the affect of this decision on your business, please contact the BBS Law Employment Team.

Following the Prime Minister’s announcement on 31 October, additional financial support is being made available to individuals and businesses, including an extension to the furlough scheme, which will now remain open until December. 

Vicky Beattie and Neal Mellor of our Employment Team provide a useful summary of the latest changes

  • Employers of any size are eligible for the extended furlough scheme, which will continue for a further month.
  • Employees can be furloughed full time or can come back to work on a part time basis.
  • All employers with a UK bank account and UK PAYE schemes can claim the grant. The employer does not need to have previously used the furlough scheme.
  • Employees need to have been on an employer’s PAYE payroll by 23:59 30 October 2020 to be eligible for extended furlough. This means a Real Time Information (RTI) submission notifying payment for that employee to HMRC must have been made on or before 30th October 2020.
  • Employees can be on any type of contract to be eligible.
  • Employers will be able to agree any working arrangements with employees they are claiming for.
  • Employers can claim the grant for the hours their employees are not working, calculated by reference to their usual hours worked in a claim period. Such calculations will be broadly similar to the current furlough scheme.
  • In order to claim the grant for furloughed hours, employers will need to report and claim for a minimum period of 7 consecutive calendar days.
  • Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
  • For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
  • For hours not worked by the employee, the government will pay 80% of wages up to a cap of £2,500. Employers will pay for the NICs and pension contributions. The grant must be paid to the employee in full.
  • Employers can choose to top up employee wages above the scheme grant at their own expense if they wish.

The Job Support Scheme (JSS), which was due to commence on 1 November, has been postponed until the extended furlough scheme ends.  

It is expected that further guidance and details, including how to claim under the extended furlough scheme through an updated claims service, will be provided shortly.

If you have any queries in relation to this or any employment issue, please contact Vicky Beattie or Neal Mellor by email or telephone – vicky@bbslaw.co.uk / neal@bbslaw.co.uk 0161 832 2500.

By Paul Stedman, Partner and Head of the BBS Employment Team

 

You can download a PDF of this article here – Updated Guidance for Employers 15 May 2020

There have recently been various developments in respect of the Government’s Coronavirus Job Retention Scheme (“CJRS”).

How is CJRS working in practice?

The Government portal for claiming grants opened on 20th April 2020.  From what we have heard, the system has been operating surprisingly well.

The Government has issued guidance on how to make claims through the portal.  Details are in this link: https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme

There is also a useful YouTube video explaining the system: https://www.youtube.com/user/hmrcgovuk

How long is the scheme open for?

As it stands, the CJRS in its current form is available until 31st July 2020.

The Government announced on 12th May that the Scheme will be extended further, until the end of October 2020, although it is suggested the employers may need to contribute to furlough pay from 1st August 2020.   We expect further information on how the scheme will operate after 31st July shortly.

How often can employers submit a claim?

Employers can only submit one claim during a “claim period” for each PAYE scheme it operates.

“Claim period” is not defined, but the portal allows employers to set their own claim period when submitting claims.  The end date for any claim period cannot be any more than 14 days in advance.

“It is vitally important that employers ensure that all of their furloughed workers are included on the claim when it is submitted.   It is not possible to make changes retrospectively.”

When are payments made?

Payments should be made within 6 working days of submission.

What else is new?

Furlough and holidays

Accrual

Annual leave does accrue during furlough leave.    Employers can ask furloughed workers to agree that only statutory annual leave accrues during furlough leave, although workers may be unlikely to accept this, and it could lead to complicated calculations of accrued leave entitlement when the worker returns to work.

Carry Over

Legislation has been passed that allows workers to carry over up to four weeks annual leave if they are unable to take their holiday allowance in a leave year because it was not ‘reasonably practicable’ to take annual leave ‘as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)’.

This is similar to the law regarding workers who are unable to take holiday because of illness and is likely to apply in the main to workers who are self-isolating or shielding for prolonged periods.

As most employers’ leave years run January to December, or April to March, this will hopefully not have a big impact if people are able to return to work in the not too distant future.

Can furloughed workers take holiday, and if so, what should they be paid?

We finally have clarification from the Government that YES furloughed workers can take annual leave when on furlough.  

Statutory holidays (5.6 weeks) should be paid at the normal rate, rather than the reduced furlough rate.    This means that employers need to ‘top up’ salary for days taken as holiday during furlough leave.

Employers can seek consent to pay contractual holiday, over and above 5.6 weeks, at the lower rate; although this will not apply to many workers as very few will have used their statutory allowance yet.

Can employers require workers to take holiday when on furlough?

The guidance does not give clear specific guidance on this, but the likely answer is yes, so long as the employer complies with the requirement to give double the notice of the amount of leave to be taken.   For example, an employer would need to give 2 weeks’ notice to require a worker to take 1 week’s leave.

Where an employee is shielding or self-isolating, the employee may have strong grounds to say that they are unable to take holiday on the basis that they cannot rest and relax.  We would encourage clients not to require employees who are shielding or self-isolating to take annual leave – remembering of course that the employer can require them to take annual leave when they are no longer shielding or self-isolating.

Maternity, Paternity and Adoptive Leave (etc) Pay

The snappily titled ‘Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020’ confirm that pay for anyone taking any leave from the long list in the title will be calculated based on their normal full pay, rather than the reduced furlough rate.

Confirming/agreeing furlough status

After significant confusion, where the Regulations stated that the furloughed worker had to agree in writing that they would not carry out any work when on furlough leave, new guidance has been issued to make it clear that employers simply need to have a record that they have written to the worker confirming that they will not carry out any work for at least three weeks.  Strictly speaking, there is not therefore a requirement for the worker to confirm their acceptance in writing.  We do nonetheless advise clients to try and get email confirmation where possible.

Record Keeping

All employers must keep a record of the letters sent furloughing workers, for five years.  We expect that HMRC will be out in force undertaking audits of companies who have furloughed workers to uncover any foul play.  HMRC has not set out what penalties may be imposed for abuse of the system, but it likely that there will be.

Can workers get another job when furloughed?

The Government is keen to ensure that the country keeps running and it has made it clear that furloughed workers can carry out work for other employers, where permitted by the employer that has furloughed them.   Furloughed workers cannot however carry out work for associated or linked companies.

Workers will usually require the consent of their employer to carry out any work when furloughed.  We encourage our clients to be flexible. So long as any new work is temporary and will not interfere when the worker returns to full duties, this should not be a problem in most cases.

Can you furlough workers who transferred under TUPE after 28 February?

 Yes.  Again, the updated guidance has addressed this point.

What we still don’t know?

Notice Pay for furloughed workers

Inevitably, some furloughed workers will lose their jobs as a result of the downturn.  It is not yet clear whether employers should serve notice based on the reduced furlough rate or on the contractual full pay.

Where an employee has the statutory minimum notice period (one week for each year served), the notice pay will have to be paid at the full rate.

Where somebody has a contractual notice period that is greater than the statutory minimum, the starting position is that notice pay is paid at the rate that the individual is being paid at the point at which notice is served.  In the case of sickness absence for example, this often means that people on long term sick only get statutory sick pay during their notice period.

On that interpretation, furloughed workers who are served notice because their job is redundant, could only get notice pay at the reduced furlough rate.

However, many commentators expect that employment tribunals will find ways of ensuring that furloughed workers are not further disadvantaged and that their notice pay is paid at their full rate.

We expect developments and litigation in this area moving forward.

Life after furlough

With the gradual relaxation of lockdown employers will soon be asking their staff to return to work from furlough leave.

There are likely to be cases where people refuse to return to work and/or are unable to return to work because they are shielding.

Where people refuse to return to work due to health and safety concerns, employers may find themselves faced with whistleblowing or health and safety related claims if those workers are disciplined or forced to work against their will.

If you need advice regarding the CJRS, about bringing employees back to work, or about potential redundancies, we encourage you to contact the Employment Team on 0161 832 2500 or 0204 505 8080.