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Employment Law News

 

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New COVID-19 rules and guidance for office-based employers as the second wave of the pandemic hits

When the number of COVID-19 cases dropped over the Summer, the Government abandoned its original “work from home” message and encouraged office workers to return to the workplace.  However, the second wave of the pandemic has prompted the Government to retreat from this position and both the national restrictions for England and the COVID-19 Secure Guidelines for Offices and Contact Centres(Guidelines) have been updated to reflect the new approach.  In this briefing, we consider the new guidance, together with other relevant changes for office-based employers concerning face coverings, the “rule of six”, self-isolation and test and trace at work. 

Should office workers work at home or in the office?

It depends.  Described as a change in emphasis, the new guidance is that office workers who can “work effectively” from home should do so over the Winter.  It goes on to say that where an employer, in consultation with the worker, judges that the worker can carry out their “normal duties” from home then they should do so. 

Anyone who cannot work from home is able to attend the office, provided that it is COVID-19 secure in accordance with the Guidelines.  The Guidelines set out a range of measures to be adopted but emphasise the importance of social distancing (and mitigation where this is not possible) and good hygiene measures such as regular hand washing and cleaning.   

Does this mean that employers cannot ask office workers to attend the workplace?

Not necessarily.  A blanket requirement to attend the office will be contrary to the guidance.  However, if the conclusion is that a worker is unable to carry out their normal duties from home, then it will usually be reasonable to require them to attend the office if it is COVID-19 secure (subject to any special measures that may need to be taken for vulnerable workers – see below). 

Before requiring a worker to return to the office, the employer should consult with them to determine whether it is necessary and to consider the impact of factors such as their journey to work, caring responsibilities, protected characteristics and other individual circumstances.

Can a worker attend the office if they can work from home but prefer to work in the office?

Potentially, yes.  Even if a worker is able to carry out his or her normal duties from home, the guidance offers enough flexibility to allow them to attend the workplace if they need to do so in order to work “effectively”.  Employers can leave this to the discretion of the worker to determine what this means for them; however, it may be helpful to provide a list of indicative examples to ensure consistency of approach.  For example, this could include the need to access physical resources in the office or to meet with clients and/or colleagues to work on projects where face-to-face communication is important.  It could even extend to a worker’s need to work in a quiet environment or to work alongside others for wellbeing or mental health reasons.

However, employers should deter workers from attending the office simply out of a desire to be present in the office, but where this is not necessary for the performance of their normal duties or in order to work effectively.

Are there special rules for workers who are classified as “clinically extremely vulnerable” or who are otherwise vulnerable or high risk?

Yes.  From 1 August 2020 clinically extremely vulnerable workers have been allowed to return to their workplace (provided it is COVID-19 secure).  However, the advice remains that such workers should work from home wherever possible.  Where an extremely clinically vulnerable worker cannot work from home, then they should be offered the option of the safest available on-site role, enabling them to maintain social distancing guidelines (i.e. 2 metres or 1 metre with risk mitigation where 2 metres is not viable).  In some cases, their working pattern may need to be adjusted and/or they may need to perform an alternative role on a temporary basis.  Employers must also pay particular attention to workers who are not clinically extremely vulnerable themselves, but who live with someone who is.

In addition, employers must give special consideration to workers who:

• are classified as clinically vulnerable (e.g. pregnant workers); or
• fall within a “higher risk” group identified by Public Health England (e.g. older males; those with a higher BMI; those with certain health conditions such as diabetes; and those from certain BAME backgrounds).

The guidance does not expand on what “special consideration” means in this context, however, it is likely to require the employer to take a similar approach to that taken towards extremely clinically vulnerable workers wherever possible.

Furthermore, employers must also take into account specific duties owed to those with certain protected characteristics.  For example, the duty to make reasonable adjustments for disabled workers or the duty to suspend a pregnant worker on full pay if it is not safe for them to perform their role and there is no suitable alternative role available.

Before requiring a worker to return to the office, the employer must consider whether a worker falls into one of these groups and, if so, what special measures should be taken in response. 

Do workers have to wear face coverings in the office?

No. On 24 September 2020, new rules came into force requiring certain workers to wear face coverings in the workplace.  Most of these are workplaces operating within the retail, leisure and hospitality industries, although certain workers in the customer-facing financial services sector must now wear face coverings.

More generally, the Guidelines state that the wearing of face coverings is not required in office settings but that employers should “support” workers who choose to wear a face covering.  Attention is drawn to the fact that there is “growing evidence that wearing a face covering in an enclosed space helps protect individuals and those around them from COVID-19”.  Yet the Guidelines go on to say that the Government does not expect to see employers relying on face coverings as risk management for the purpose of risk assessments. 

Does the new “rule of six” mean that no more than six workers can be in the office together?

No.  On 14 September 2020, the “rule of six” came into force, making it unlawful for people to socially gather indoors or outdoors in groups of more than six.  Fines of up to £6,400 can be imposed where the rule is breached.

However, anyone who is working does not count towards the six for the purposes of the rule.  Indeed, there is no limit to the group size for workplace meetings, although the Guidelines recommend avoiding in-person meetings where possible.  Where meetings are necessary, they should be held in a COVID-19 secure way, with social distancing measures in place, hand-sanitiser available and held either outdoors or in well-ventilated rooms.  

What are the new rules concerning workers who are self-isolating?

From 28 September 2020, new rules came into force governing self-isolation.  The rules provide that any worker who is required to self-isolate must notify their employer and must not physically attend work (although they may work from home if they are able to and are well enough to do so).  A worker who physically attends work when they should be self-isolating may be fined between £1,000 and £10,000.

It is also now unlawful for an employer to require, encourage or allow a worker who should be self-isolating to physically attend work.   Employers who breach this rule may also be punished with a fine of between £1,000 and £10,000.  It would, therefore, be sensible for employers to remind staff of the circumstances in which they are required to self-isolate.  Employers should require staff who need to self-isolate to notify them as soon as possible and stay away from the workplace (and it should be highlighted that a failure to do either may be treated as misconduct).

What do office-based employers need to know about NHS Test and Trace?

Guidance on the NHS Test and Trace scheme for employers, workers and the self-employed was updated on 30 September 2020.  The guidance is wide-ranging, but the key points for employers to note are as follows:

• If a worker develops COVID-19 symptoms, they are encouraged to alert close contacts within 48 hours. The guidance states that where a co-worker is a close contact, the person who has developed symptoms should consider asking the employer to alert those co-workers on their behalf.  If an employer does so, it should not name the affected individual.
• If a worker tests positive for COVID-19, co-workers who are close contacts will be notified and told to self-isolate by NHS Test and Trace. The employer will not need to notify the close contacts and, if asked, should not name the individual who has tested positive.
• Employers should ensure that workers who are required to self-isolate do so by telling them to stay at home and not physically attend work. Employers should also allow workers to work from home if they remain well and it is practicable for them to do so (e.g. by finding alternative work that they could perform from home). 
• Where a self-isolating worker cannot work from home, the employer must ensure they are paid statutory sick pay (SSP) if eligible (or give them the option to take annual leave if they prefer). If SSP is to be paid, the employer should ask the worker to obtain an isolation note where it needs evidence of the absence (e.g. for the purposes of reclaiming SSP from the Government).
• If there is more than one COVID-19 case in the workplace the employer should contact their local health protection team to report the suspected outbreak.
• Although office-based employers are not required to collect customer or visitor data for NHS Test and Trace, the guidance says that all businesses are encouraged to create and display official NHS QR code posters if they have indoor areas where individuals are likely to congregate or sit down in close contact (e.g. in a reception area).

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus.  If you or your business needs advice on any coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

 

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The Job Support Scheme – what do we know so far?

With the Coronavirus Job Retention Scheme closing on 31 October 2020, many were concerned that a cliff-edge ending to Government wage support would lead to a wave of redundancies.  To moderate that cliff-edge, the Chancellor of the Exchequer has announced that a new, less generous, wage support scheme will run between 1 November 2020 and 30 April 2021.  In this briefing, we explain what we know so far about the new “Job Support Scheme”.

What is the Job Support Scheme (JSS)?

The JSS is the successor to the Coronavirus Job Retention Scheme (CJRS) and is intended to “protect viable jobs in businesses who are facing lower demand over the winter months due to COVID-19”.  The emphasis is on providing support for “viable” jobs, meaning those which the employer still needs, albeit on a reduced basis for the immediate future.

Under the JSS the employee must work at least one third of their normal working hours but may work more than this if needed.  The employer is responsible for paying the employee for all the hours actually worked.  The burden of the unworked hours will be split three ways:

• the Government will pay a third of the wage cost (capped at £697.92 per month);

• the employer will pay a third of the wage cost; and

• the employee will suffer a wage reduction for the remaining third.

The Government’s contribution extends to usual wage costs only, which is expected to be calculated in broadly the same way as under the CJRS (see here for our guidance note on the CJRS).  It will not cover the cost of employer National Insurance Contributions (NICs) or employer pension contributions on the Government-backed portion of wages.  Instead, the employer will be responsible for making these payments.

What does this mean for employees in practice?

The application of the Government’s cap means that employees earning up to c.£37,688 per annum, will only suffer the wage reduction caused by the lost third of pay for the unworked hours.  For example, this means they would receive c.78% of normal pay for working one third of their normal working hours (see Worked Example 1).

However, the cap means that higher earners will suffer the wage reduction caused by both the application of the cap on the Government’s portion and the lost third of pay for the unworked hours (see Worked Example 2).  The higher the salary, the greater the wage reduction.

Worked example 1: a full-time employee who normally works 35 hours per week and is paid an annual salary of £37,687.68 / monthly salary of £3,140.64: During the life of the JSS the employee works for one third of their normal hours (11.66 hours) and will be paid as follows: • Employer pays £1046.88 for 11.66 worked hours and £697.92 for 7.78 unworked hours; • Government pays £697.92 for 7.78 unworked hours; and • Employee suffers a wage reduction of £697.92 for 7.78 unworked hours. The result is that the employer pays a total of £1,744.80 per month (or c.55% of normal pay) in exchange for the employee working one third of their normal hours.  The employee receives a total of £2,442.72 per month (or c.78% of their normal pay).

 

Worked example 2: a full-time employee who normally works 35 hours per week and is paid an annual salary of £120,000 / monthly salary of £10,000: During the life of the JSS the employee works for one third of their normal hours (11.66 hours) and will be paid as follows: • Employer pays £3,333.33 for 11.66 worked hours and £2,222.22 for 7.78 unworked hours; • By virtue of the cap, the Government only pays £697.92 for 7.78 unworked hours; and • Employee suffers a wage reduction of £2,222.22 for 7.78 unworked hours. The result is that the employer pays a total of £5,555.55 per month (or c.55% of normal pay) in exchange for the employee working one third of their normal hours.  The employee receives a total of £6,253.47 per month (or c.62% of their normal pay).

 

What does this mean for employers in practice?

As the worked examples above show, the employer is paying the employee for more hours than they have actually worked.   The fewer the hours worked by the employee, the greater the excess wage cost to the employer – for example:

Hours worked by employee	33%	40%	50%	60%	70%
Wage cost to employer	55% (an excess cost of 22%)	60% (an excess cost of 20%)	67% (an excess cost of 17%)	73% (an excess cost of 13%)	80% (an excess cost of 10%)

In addition, the employer is responsible for paying employer NICs and employer pension contributions on all wages paid to the employee, including the Government-backed portion of wages.

Which employers are eligible?

All employers with a UK bank account and a UK PAYE scheme are potentially able to claim a JSS grant, regardless of whether or not they have claimed under the CJRS before.

However, large employers will have to pass a “financial assessment” test in order to make a claim.  This means that the JSS will only be available to large businesses whose turnover is lower as a result of COVID-19.  The Government has said that it is their expectation that large employers will not be making capital distributions (e.g. share buybacks or dividend payments) while accessing the JSS.

Further guidance on what is meant by “large employer” and what the financial assessment test will involve is expected shortly.

Which employees are covered?

In order to make a claim for wage support under the JSS the employee in question must:

• be on the employer’s payroll on or before 23 September 2020 (i.e. a Real Time Information submission notifying payment to that employee to HMRC must have been made on or before that date); and

• work at least one third of their usual working hours between 1 November 2020 and 31 January 2021 (after this date, the minimum hours threshold may be increased).

Claims may be made for previously furloughed employees, who will have their wages calculated by reference to their underlying usual rate of pay rather than the reduced furlough rate of pay.

What are the mechanics for putting a JSS arrangement in place?

The JSS arrangement involves a reduction in the employee’s usual working hours and pay.  Employers will need to agree these changes with the employee and provide written notification of the same.  A copy of that notification must be available for inspection by HMRC on request.

There is flexibility in that employees can cycle on and off the scheme and also do not have to work the same pattern each month (although each short time working arrangement must run for a minimum of seven days).  However, where changes to the working pattern are required, this will need to be agreed with the employee each time and it is likely that further written notifications will be required.

Importantly, whilst the employer is claiming a JSS grant, the employee in question cannot be made redundant or given notice of redundancy.  This contrasts with the position under the CJRS, where employers could give notice of redundancy and even claim for the cost of notice pay under the scheme.

How are JSS claims made?

Employers will be able to make JSS claims online from December 2020.  Where a claim is successful, grants will be paid to the employer on a monthly basis.

Grants will be paid in arrears, meaning that a claim may only be submitted once payment has actually been made to the employee and has been reported to HMRC.  This is in contrast the procedure under the CJRS, where grants could be claimed in advance of paying staff.

Why would an employer choose to participate in the JSS?

The JSS is significantly less generous than the grants available under the CJRS, but this reflects the change in emphasis to supporting only “viable” jobs.  The Government’s intention is to offer limited wage support (in the hope of staving off some redundancies) but place the primary burden squarely on the employer.

Some employers may question the wisdom of participating in a scheme where they have to pay for more hours than are worked.  At the extreme end, the employer is paying c.55% of normal pay in exchange for 33% of normal working hours, plus employer NICs and pension contributions on top.  Further, they will need to have cashflow available to pay the wages upfront and they will lose the ability to make staff redundant (or serve notice of redundancy) during a claim period.

It seems that only those employers who are confident that their business will fully bounce back in due course are likely to make use of the scheme.  Where an employer believes it will need employees to work their normal working hours again, it makes sense to save the cost of making redundancies now and recruiting in the future.  Further, if they can use the JSS to hang on to previously furloughed employees until 31 January 2021, they may also qualify for the Job Retention Bonus of £1,000 per employee.

Employers who do not have that confidence may prefer to negotiate permanent reductions to working hours and not make a JSS claim.  In that way, they will only have to pay employees for the hours they actually work, and they avoid the administrative burden of making claims.  Where such changes are not achievable or viable, the employer may prefer to make reductions to the workforce now to save costs and then recruit again when needed.

Detailed guidance on the JSS is expected shortly.

Job Support Scheme Factsheet – 24 September 2020

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus.  If you or your business needs advice on the Job Support Scheme or other coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

 

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Employment Law News

 

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Interim relief granted to dismissed employee who used trade union to lodge grievance about COVID-related wage cut and lack of PPE

What does the law say?

Employees who are dismissed because of their trade union membership or activities and/or because they have blown the whistle are able to claim that they have been automatically unfairly dismissed.  They will also be entitled to apply for “interim relief” pending the final hearing of their claim.  If they succeed in their interim relief application, the employment tribunal can order reinstatement or, failing that, order the employer to continue paying the employee until the final decision is made.  Crucially, this money does not have to be repaid even if the employee ultimately loses their claim.

In an interim relief hearing, the employment tribunal won’t hear evidence or make findings of fact. Instead, they will carry out a broad assessment of the evidence in order to reach a view as to whether the Claimant is likely to succeed in their claim at the final hearing.  This means that they must have a “pretty good” chance of success on the basis of the material before the employment judge.

What happened in this case?

The Claimant worked for the Respondent, a high-end fruit and vegetable retailer based in New Covent Garden market.  The Respondent’s business was badly affected by the coronavirus pandemic.  However, instead of taking advantage of the Government’s furlough scheme, the Respondent proposed an all-staff pay cut of 25% plus one week’s unpaid leave per month. 

The Claimant’s trade union lodged a grievance on his behalf stating that the proposed wage reductions were detrimental and that the health and safety of staff was endangered by a lack of PPE (notwithstanding that the COVID-19 secure guidelines for markets does not advocate the use of PPE for workers).

A few days later an all-staff meeting was held.  The Claimant was excluded from the meeting and so he asked a colleague to record it for him.  In the meeting, Mr Tanner (the Respondent’s Chairman) made disparaging comments about the Claimant and the fact of the trade union’s involvement.  The colleague who had recorded the meeting for the Claimant was dismissed a few days after the meeting.

On 20 May 2020 the grievance hearing was held, and the Claimant made a new allegation of victimisation for having raised the grievance.  On 18 June 2020, the grievance outcome letter rejected the complaints about the proposed pay cut and lack of PPE but failed to deal with the victimisation complaint.  An internal appeal was also rejected and on 9 July 2020 the Claimant was dismissed during a 5.00am tea break.

What was decided?

The Claimant brought a claim alleging he had been automatically unfairly dismissed because of his trade union membership or activities and/or because he had made whistleblowing disclosures.  He applied for interim relief. 

Finding in the Claimant’s favour, the employment judge decided that it was likely that he would be able to show that he had been dismissed because of his trade union membership or activities.  Unusually, the tribunal agreed to hear evidence in the form of the recording of the staff meeting because it was highly relevant.   The employment judge decided that it was clear from the recording that Mr Tanner was irritated by the fact the Claimant had sought advice from the trade union and that he had a great deal of antipathy towards trade unions.  The employment judge also gave weight to the fact that the Respondent had dismissed the colleague who had recorded the meeting for the Claimant.

However, the employment judge was not persuaded that the Claimant would be able to show that he was dismissed because he had made whistleblowing disclosures.  It would be for the employment tribunal to decide whether the Claimant would have been dismissed if he had raised the dangers to health and safety with the Respondent directly without having involved the trade union.

The Respondent agreed to reinstate the Claimant.

What does this mean for employers?

This case demonstrates what a powerful weapon interim relief can be for a claimant.  In the midst of the pandemic, and with a backlog of 45,000 employment tribunal claims, employees may be more willing to pursue interim relief in order to secure their income until the final hearing. 

Although dismissals for trade union-related reasons are relatively rare, where an employee has been dismissed after having made a protected disclosure (e.g. about COVID-related health and safety dangers), they may have a whistleblowing claim and be entitled to apply for interim relief.  Employers should be mindful of this risk and ensure that the reason for any dismissal is unconnected to any protected disclosure.

This case also underlines the importance of conducting thorough COVID-19 risk assessments in consultation with staff.  Where an employer does this, it is arguably more difficult for an employee to maintain that they had a reasonable belief that there was COVID-19-related danger to health and safety.  In turn, this may mean that they have not made a protected disclosure at all. 

Morales v Premier Fruits (Covent Garden) Ltd

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Employment Law News

 

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Imminent changes designed to streamline the conduct of employment disputes

With the coronavirus pandemic likely to intensify the backlog of employment tribunal claims, the Government has announced a raft of the changes designed to streamline the conduct of disputes and improve capacity within the tribunal system.  Save for the change to the Acas early conciliation period, all the changes are due to come into force on 8 October 2020.

The changes are as follows:

• Allowing more time to settle disputes before a tribunal claim is started: currently, the standard Acas early conciliation period is four weeks, with an extension of two weeks available in certain circumstances. From 1 December 2020, the standard period will be increased to six weeks in all cases and there will no ability to extend this period further.  Parties will still be able to end the conciliation period before the expiry of the standard period if they wish.

• Taking pressure of employment judges: First tier Tribunal and Upper Tribunal Judges, High Court and Deputy High Court Judges and Circuit Judges may be called upon to sit as employment judges in order to widen the judicial pool and provide greater capacity to hear cases. In addition, pressure will be eased from employment judges by diverting some of their administrative tasks to new “legal officers”. These tasks include the determination of the following: whether a claim form is defective; granting extensions of time to respond to a claim or comply with a case management order; and granting postponements in uncontroversial cases.  Parties will be able to apply for a legal officer’s decision to be reconsidered by an employment judge.
• More flexibility for multiple claimants and respondents to use same claim and response forms: this will be permitted where the claims give rise to common or related issues of fact or law or if it is otherwise reasonable to do so.  This will help ease the administrative burden on the tribunal system.
• Common sense approach to taken in respect of errors on the claim form: if the Acas early conciliation number on the claim form does not match the number on the Acas early conciliation certificate, the claim will not be rejected if the employment judge considers this was a mistake and that it would not be in the interests of justice to reject the claim.
• Streamlining the listing of hearings: cases may be listed before the deadline for response has passed provided that the date of the hearing is not sooner than 14 days after the response deadline.
• More flexibility over the conduct of virtual hearings: the inspection of witness statements by the public will not necessarily have to be during the hearing itself and the public will only hear what the tribunal hears and see witnesses “as far as practicable”. It is hoped that these changes will allow more virtual hearings to take place.
• Encouraging settlement by avoiding the dispute ending up in the public domain: cases which are dismissed upon withdrawal will no longer be included on the searchable online public register. This may well encourage parties to settle disputes.
• Other minor changes:
  • Default judgments: where a response has not been filed and the employment judge considers it necessary to hold a preliminary hearing, a default judgment may be issued after that preliminary hearing without the need for a further hearing.
  • Reconsideration of a judgment: judgments will be able to be reconsidered by any employment judge and not just the original employment judge.
  • Witness orders: where a witness order is made the other parties will be notified of the order and the name of the person/s required to attend.

Comment

These changes are sensible and should help ease the burden on employment tribunals and speed up the progression of disputes through the system to some degree.  However, with a reported backlog of 45,000 claims, and a further spike in claims expected after the closure of the Coronavirus Job Retention Scheme on 31 October 2020, it remains to be seen whether these reforms will be enough to preserve meaningful access to justice.

If your business needs advice on responding to an employment tribunal claim please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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