Spring 2021 Employment Law Review; Corona diaries – 12 Months and Counting.

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.

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. 

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, or Vicky Beattie on 0161 832 2500.