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Employment Law News

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What does a second national lockdown mean for employers?

On 31 October 2020, the Prime Minister announced a second national lockdown across England starting on Thursday, 5 November 2020.  In this briefing, we outline the consequences of the new “stay at home” guidance for employers and the one-month extension to the furlough scheme.

1. How long will the second lockdown last?

The second lockdown will operate in England for 28 days beginning on 5 November 2020 and ending on 2 December 2020.   Until 5 November 2020, the local COVID alert levels – also known as tiers – will remain in force and employers should follow the restrictions that apply to their local area.

After 2 December, 2020, the Government intends to return to the localised approach, however, Michael Gove MP, Minister for the Cabinet Office, has said that the second lockdown may be have to be extended if the “R rate” (i.e. the rate at which the virus is reproducing) does not fall below 1.

The lockdown will not apply to Wales, Scotland and Northern Ireland, where the devolved administrations have implemented their own restrictions.

2. What are the basic rules of the second lockdown of interest to employers?

On 31 October 2020, the Government published the New National Restrictions from 5 November guidance (Guidance), which summarises the restrictions that will apply during the second lockdown.  The relevant regulations and detailed guidance have yet to be published.

The key rules for employers to note are as follows:

• Businesses and venues: certain businesses and venues have been ordered to close for the duration of the lockdown (see 3 below).
• Stay at home: people will be required to stay at home, except for specific defined purposes, which includes attending work where the workplace is open, and the employee cannot work from home (see 4 below). There are special rules for vulnerable employees (see 5 below).
• Social distancing: people will be required to minimise time spent outside the home and maintain social distancing with anyone not belonging to their household or support bubble. Workplaces that are open should already have implemented social distancing measures in line with the COVID-19 Secure Guidelines.
• Travel: people should avoid travelling in or out of their local area and should look to reduce the number of journeys they make. However, people may travel for a number of reasons including travelling to and from work where this cannot be done from home.  Overnight stays away from home will also not be allowed (both within the UK and overseas), except for specific defined purposes, which includes for work purposes.
• Financial support: the Coronavirus Job Retention Scheme (the furlough scheme) has been extended until the end of the lockdown period (see 6 below).

3. Which businesses must close during the lockdown?

The following types of business must close during the lockdown:

• All non-essential retail businesses (e.g. clothing and electronic stores) although they may remain open for delivery and click and collect.
• All hospitality venues (e.g. restaurants, bars and pubs) although they may remain open for delivery and takeaway services.
• Hotels and other accommodation although they may remain open for those travelling for work purposes and certain other limited cases.
• Indoor and outdoor leisure facilities (e.g. gyms and swimming pools).
• Entertainment venues (e.g. theatres, museums and cinemas).
• Personal care facilities (e.g. hairdressers and beauty salons).

Food shops, supermarkets, garden centres and other essential retailers may remain open.  A number of public services will also remain open including the NHS, medical services and the Courts.

A full list of businesses required to close will be set out in the regulations.

4. If the business is open, can employees be required to attend the workplace?

The primary position in the Guidance is that people must not leave their home, except for specific defined purposes, which includes attending work where the workplace is open, and the employee cannot work from home.  In some cases, it will be obvious that an employee cannot work from home and must attend the workplace (e.g. a retail employee).

The position is less clear for office employees.  Elsewhere in the Guidance, it states that “everyone who can work effectively from home must do so”.  This is the same wording used in the last iteration of the COVID-19 Secure Guidelines for office-based employers (published before the announcement of the second lockdown).  At the time, this was understood to give employers (and employees) greater latitude about where employees may work – we discuss this further in our briefing here.

However, given that the primary feature of the lockdown is that people must not leave their home (and it will probably be a criminal offence to do so without reasonable excuse), it’s fair to say that the needle has shifted decisively towards working from home.  The ability to work from the office remains, but the circumstances in which this may be done have narrowed.  Office-based employers should give consideration to what reasons might justify attendance in the workplace where the employee is otherwise able to work from home.

5. Are there any special rules for vulnerable employees?

The Guidance says that anyone who is pregnant, “clinically vulnerable” or aged over 60 must be especially careful to follow the rules and minimise contact with others (“clinically vulnerable” includes those with asthma, diabetes and a body mass index of 40 or more).  All such employees may still attend work, but employers will have to give special consideration to whether such employees are able to work safely.

Different rules apply to “clinically extremely vulnerable” employees.  In the first national lockdown, such employees were required to shield and were not able to attend work.  If they were unable to work from home, the employer was able to furlough them.  However, from 1 August 2020, such employees were able to return to work where they could not work from home, provided that they were offered the safest available on-site role which enabled them to maintain social distancing.

The new Guidance reverses this position.  Clinically extremely vulnerable employees are “advised” to work from home for the duration of the lockdown and not to go to work.  The Guidance says that such employees may be eligible for Statutory Sick Pay or Employment Support Allowance.  No mention is made of whether such employees can be furloughed under the extended furlough scheme (see 6 below), but it would be surprising if this were not permitted.  Full guidance for clinically extremely vulnerable people is due to be published shortly.

6. What wage support is available for businesses?

The furlough scheme was due to close on 31 October 2020 and be replaced by the less generous Job Support Scheme (JSS) on 1 November 2020.  The JSS had recently been expanded to provide different levels of support for businesses which were open (but were experiencing reduced demand) and businesses which had been required to close by virtue of local COVID restrictions.  However, the second lockdown means that the furlough scheme will be extended until the end of the lockdown period.  The JSS has been put on ice and will only come into force after the closure of the extended furlough scheme.

Further guidance on the terms of the extended furlough scheme is awaited.  However, we know the following details:

• Continuous wage support: there will be no gap in eligibility between the previously announced end date (i.e. 31 October 2020) and the date upon which the first round of claims can be made under the extended furlough scheme.
• Open to new entrants: the extended furlough scheme will be open to new entrants. This means employers who have not made a claim under the furlough scheme before can apply for a grant and also employers can apply for grants for employees who have not been furloughed before.  To be eligible under the extended furlough scheme, employees must have been on the employer’s payroll on 30 October 2020 and a Real Time Information submission notifying payment for that employee to HMRC must have been made on or before 30 October 2020.
• Full or flexible furlough available: the flexible furlough rules will continue to apply, meaning employees can work part time (on any arrangement) and be placed on furlough for the remainder of their normal working time. Alternatively, employees can be fully furloughed.  This means the scheme will support employers that are open but experiencing reduced demand and those that have had to close (whether because of the lockdown rules or out of choice).
• Pay for hours worked: employers will be responsible for paying the employee’s salary in full (plus the associated employer’s National Insurance Contributions (NICs) and employer’s pension contributions) for any hours that the employee works.
• Pay for hours not worked: employees will be entitled to up to 80% of their pay for hours not worked, capped at £2,500 per month. Employers will not have to contribute anything towards the employee’s pay for the unworked hours but will have to pay employer’s NICs and employer’s pension contributions.  This is more generous than the position under the furlough scheme in September or October and is comparable to the position in August  (discussed further in our previous guide to the scheme).
• Calculations: calculations for the grant are expected to follow broadly the same methodology used under the original furlough scheme and employers will need to report and claim for a minimum period of seven consecutive calendar days.

We will update our detailed guide to the furlough scheme once the guidance on the extended scheme is published.

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus.  If you or your business needs advice on the implications of the second lockdown, the extended furlough scheme or any 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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Job Support Scheme: expansion of the scheme and further details released

Last month we reported on the new wage subsidy scheme designed to replace the Coronavirus Job Retention Scheme (i.e. furlough).  With a second lockdown coming into force on 5 November 2020, the Job Support Scheme has been delayed until early December 2020.  Here, we outline how the Job Support Scheme will work.

1. What is the Job Support Scheme (JSS) and when is it coming into force?

The JSS is the successor to the Coronavirus Job Retention Scheme (CJRS) or “furlough” scheme and will come into operation after the CJRS closes.  Initially, the JSS was to run between 1 November 2020 and 30 April 2021.  However, the second national lockdown (between 5 November 2020 and 2 December 2020) means it has been delayed.  Instead, the CJRS will run for the duration of the lockdown and the JSS will come into force thereafter.

The newly published JSS Policy Paper provides that the JSS is intended to “…support individuals and businesses to deal with the challenges created by coronavirus this winter” and “help employers retain their employees”.

There will be two forms of support available under the revised JSS:

• JSS Open: this is available for businesses that are operating but facing decreased demand. The intention is that JSS Open will allow such employers to reduce their employees’ working hours and claim wage support, rather than make redundancies.
• JSS Closed: this is available for businesses that are legally required to close their premises as a direct result of coronavirus restrictions set by one or more of the four governments of the UK.

2. What wage support is available under JSS Open?

Under JSS Open employees must work at least one fifth of their normal working hours but may work more than this if needed.  Note that under the original proposals, support would only have been made available for employees working at least one third of their normal working hours, and so the revised scheme is more generous.

The employer is responsible for paying the employee for all the hours actually worked (and such pay must comply with national minimum wage legislation).  However, the burden of the unworked hours will be split three ways:

• The Government will pay 61.67% of the “reference salary” up to a maximum of £1,541.75 per month (note that under the original proposals the Government would have paid only 33% up to a maximum of £697.92 per month).
• The employer will pay 5% of the “reference salary” up to a maximum of £125 per month, but they may pay more if they wish to do so (note that under the original proposals the employer would have had to pay 33%).
• The employee will suffer a wage reduction for the remaining third of the unworked hours.

For these purposes, “reference salary” includes: regular wages; non-discretionary payments for hours worked, including overtime; non-discretionary fees; non-discretionary commission payments; and piece rate payments.  It does not include: discretionary payments, bonuses or commission; non-cash payments; and non-monetary benefits (e.g. benefits in kind or salary sacrifice).

The employer is also responsible for paying employer’s National Insurance Contributions (NICs) and employer’s pension contributions on the full amount paid to the employee (including the amount paid by the Government).

In practice, employees earning up to £37,500 per annum will only suffer the wage reduction caused by the lost third of pay for the unworked hours (see Worked Example 1).  However, higher earners will suffer a wage reduction by virtue of the application of the cap on the employer’s and Government’s contributions and the lost third of pay for the unworked hours (see Worked Example 2).  The higher the salary, the greater the wage reduction.

3. What wage support is available under JSS Closed?

Where an employer is legally required to close their premises as a direct result of the coronavirus restrictions, they will be able to apply under JSS Closed for wage support for employees who are unable to work.  Under JSS Closed, each eligible employee will be paid as follows:

• The Government will pay 66.67% of the “reference salary” up to a maximum of £2,083.33 per month.
• The employer is not required to pay anything to the employee but may pay something if it wishes to do so.
• Assuming the employer pays nothing, the employee will suffer a wage reduction of 33.33% or more if the employee is higher paid.

Guidance on the meaning of “reference salary” for these purposes will be published shortly.

The employer will be responsible for paying employer’s NICs and employer’s pension contributions on the full amount paid to the employee (including the amount paid for by the Government).

In practice, employees earning up to £37,500 per annum will only suffer the wage reduction caused by the lost third of pay (see Worked Example 3).  However, higher earners will suffer a wage reduction by virtue of the application of the cap on the Government’s contribution and the lost third of pay (See Worked Example 4).  The higher the salary, the greater the wage reduction.

4. Which employers are eligible to apply for support under the JSS?

General eligibility criteria – all employers

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, organisations that have staff costs that are fully publicly funded should not use the JSS.

Employers will be able to claim grants under both JSS Open and JSS Closed at the same time for different employees (e.g. a pub chain may have employees working reduced hours in pubs in areas subject to tier one and tier two restrictions and have employees not working at all where pubs have had to close in areas subject to tier three restrictions).

Employers claiming a JSS grant will still be eligible to claim the Job Retention Bonus if they are eligible.  You can read more about the Job Retention Bonus in our briefing here.

Additional eligibility criteria – employers claiming under JSS Open

Employers wishing to make a claim under JSS Open must meet the following additional eligibility criteria:

• Financial Impact: employers with 250 or more employees on 23 September 2020 must undertake a “Financial Impact Test” demonstrating that their turnover has remained equal or fallen, to show that they have been adversely affected due to coronavirus. (Employers with fewer than 250 employees on 23 September don’t have to do this). Further details of the Financial Impact Test are set out in the JSS Policy Paper. The Government says that it expects (but will not require) employers with 250 or more employees not to make capital distributions while claiming JSS Open (or JSS Closed).
• Affected employees: the employer may only claim in respect of employees who are working reduced hours (and at least 20% of their normal working hours). Training will be treated as working time provided it is paid for by the employer at the normal rate of pay.
• Consultation and agreement with employees: the employer must have consulted with affected employees and reached a written agreement with them (or, where relevant, a written collective agreement with a trade union) on the terms of the temporary working arrangement before making a claim. This agreement must be kept for five years and be available for inspection by HMRC upon request.   Further guidance on what to include in the written agreement is expected shortly.

Importantly, the JSS Policy Paper highlights that when employers are making decisions, such as to whom they should offer reduced hours, employment and discrimination laws will apply in the usual way and must be complied with.

Additional eligibility criteria – employers claiming under JSS Closed

Employers wishing to make a claim under JSS Closed must meet the following additional eligibility criteria:

• Closure of business premises: the employer’s business premises must have been legally required to close as a direct result of coronavirus restrictions. This includes premises restricted to delivery or collection only services and those restricted to provision of food and/or drink outdoors.  However, business premises required to close by local public health authorities as a result of specific workplace outbreaks are not eligible for JSS Closed.
• Claims may only be made while closure restrictions are in place: claims under JSS Closed may only be made while the relevant restrictions are in place and will not cover any period when the premises are legally allowed to reopen (although the employer may then be able to claim under JSS Open if eligible).
• Affected employees: the employer may only claim in respect of employees whose primary place of work has been legally required to close and such employees must cease work for at least seven consecutive calendar days.
• Consultation and agreement with employees: the employer must have consulted with affected employees and reached a written agreement with them (or, where relevant, a written collective agreement with a trade union) on the terms of the temporary working arrangement before making a claim. This agreement must be kept for five years and be available for inspection by HMRC upon request.   Further guidance on what to include in the written agreement is expected shortly.

Further eligibility criteria for JSS Closed will be published shortly.

5. Which employees are covered?

In order to make a claim for wage support under either JSS Open or JSS Closed the employee in question must meet these eligibility criteria:

• Employees only: to be an employee for the purposes of the JSS, the individual must be treated as an employee for income tax purposes (regardless of what type of contract they have).
• On payroll: the employee must have been on the employer’s payroll between 6 April 2019 and 11.59pm on 23 September 2020 (i.e. a Real Time Information submission notifying payment to that employee to HMRC must have been made at some point in that period). Employees who were in employment on 23 September 2020, but were terminated after that date, may be rehired and claimed for under the JSS.
• Not redundant or under notice: the employee must not have been made redundant or be serving a period of statutory or contractual notice during a claim period.

6. How are JSS claims made?

The JSS will open after the end of the lockdown and the closure of the CJRS.  Currently, this means the JSS should start on 3 December 2020.  However, this is not certain as the lockdown period may be extended beyond 2 December 2020 if the “R rate” is not reduced below 1.   It is not clear how long the JSS will run for.  The original plan was that it would close on 30 April 2020.  However, as the situation is fast-moving, we should expect this date to be reviewed in due course.

Grants will be paid in arrears, meaning that a claim may only be submitted once payment of the full amount claimed has actually been made to the employee and has been reported to HMRC.  This is in contrast to the procedure under the CJRS, where grants could be claimed in advance of paying staff.  Employers are not permitted to charge the employee an administration charge or fee which would have the effect of reducing wages below the amount claimed under the JSS.

7. How will HMRC manage fraudulent claims?

HMRC will check claims and payments may be withheld where it suspects a claim is ineligible.  Where a claim is found to be fraudulent, the full amount of the grant must be repaid and penalties of up to 100% of the grant may be applied.

In an effort to encourage the reporting of fraud by the public, HMRC intends to publish the names of all employers who use the JSS.  It is also considering publicly “naming and shaming” employers who are charged penalties for making a fraudulent JSS claim.

8. Where can employers find out more?

Employers can find out more about the JSS, including how to run calculations for JSS Open, in the Job Support Scheme – Policy Paper.

Detailed guidance on JSS Open and JSS Closed has been published, however, this is likely to be revised given the delay to the introduction of the scheme.  We will update you on the position as soon as this is clear.

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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New Bill gives employees the right to know colleagues’ salaries and expands pay reporting obligations

A new Bill seeking to increase transparency in the field of equal pay and expand pay reporting obligations to smaller organisations has begun its passage through Parliament.  In this briefing we bring you up to date with what is proposed.

What is the Equal Pay Information and Claims Bill 2019 – 2021 about?

The Equal Pay Information and Claims Bill 2019 – 2021 (EPIC Bill) is a Private Members’ Bill launched by the Labour MP Stella Creasy on 20 October 2020.  The EPIC Bill seeks to increase transparency in the field of equal pay and expand pay reporting obligations.  The main aspects of the EPIC Bill are as follows:

• Right to know what colleagues are paid: employees would be given the legal right to know what their colleagues are paid as a means to promoting pay equality. Introducing the EPIC Bill, Stella Creasy MP said “pay discrimination is prevalent because it is hard to get transparency”.  The gender equality charity, the Fawcett Society, who helped the draft the EPIC Bill, highlighted research showing that 6 out of 10 working women do not know whether they are being paid less than a male comparator and only 3 out of 10 believed that their employer would tell them the answer if they asked the question.
• Expansion of gender pay gap reporting: gender pay gap reporting came into force on 6 April 2017 for organisations with 250 or more employees. Under the current rules, organisations are required to report certain gender pay information annually, including their mean and median gender pay gaps.  The EPIC Bill seeks to expand the obligations by reducing the threshold to organisations with 100 or more employees and introducing a new requirement to publish an action plan for closing the gap.  The Office of National Statistics has published data showing that the gender pay gap amongst organisations with between 10 and 249 employees is higher than those with 250 or more employees.  Accordingly, the expansion of gender pay gap reporting to smaller organisations may well provoke unrest amongst female workers and, in turn, lead to more questions being asked about how their pay compares to specific male colleagues (potentially leading to equal pay claims).
• Introduction of ethnicity pay reporting: organisations with 100 or more employees would also be required to publicly report their ethnicity pay gap. Although ethnicity pay reporting has been on the Government’s “to do” list for some time, it has not yet found its way into law.  One of the recommendations coming out of the 2017 McGregor-Smith “Race in the Workplace” report was that larger employers (i.e. those with 250 or more employees) should be required to publish ethnicity pay information.  In October 2018, Theresa May’s Government opened a consultation on the introduction of mandatory ethnicity pay reporting.  However, that consultation closed in January 2019 and no action has yet been taken to introduce relevant legislation.

The EPIC Bill also contains measures aimed at reforming remedies and time limits relating to equal pay, providing a right to equal pay where a single source can rectify the inequality and requiring the statement of employment particulars to include equal pay.

Is the EPIC Bill likely to become law?

Although Private Members’ Bills generally don’t make their way onto the statute books, the EPIC Bill has cross party support and so has some chance of doing so.  The Fawcett Society is confident that it will become law given the cross-party and wider public support.

The second reading of the EPIC Bill is due to take place in the House of Commons on 13 November 2020.  However, it will need to complete three further stages in the Commons and then repeat the whole process in the House of Lords before coming into law – it remains to be seen whether sufficient Parliamentary time will be made available.  We will keep you updated on the progress of the EPIC Bill over the coming months.

Equal Pay Information and Claims Bill 2019 – 2021

If your business needs advice on equal pay or pay reporting obligations please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

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New ICO guidance on responding to data subject access requests  

On 21 September 2020 the Information Commissioner’s Office (ICO) published detailed guidance on how organisations should respond to data subject access requests (DSARs).  The new guidance supplements the ICO’s “in brief” guidance on DSARs and is intended to provide users with a deeper understanding of how to apply the right of access in practice. 

Scope of the new guidance

The guidance is intended for use by Data Protection Officers (DPOs), as well as those with specific data protection responsibilities within larger organisations.  The ICO has said it intends to publish a simplified version of the guidance for small businesses, which will highlight the key points.

The guidance runs to 81 pages and takes an in-depth look at the following areas:

• The right of access and how to prepare for receiving a DSAR.
• Recognising a DSAR.
• Issues to consider when responding to a DSAR.
• Finding and retrieving the relevant information.
• Supplying the information to the requester.
• Refusing to comply with a DSAR.
• Dealing with DSARs that involve information about other individuals.
• Exemptions and special cases.
• Health, education and social work data.
• Enforcement of the right of access.
• Forcing an individual to make a DSAR

A draft version of the guidance was the subject of public consultation in December 2019.  Following responses from over 350 organisations, the final version of the guidance has been expanded to provide further clarification on three particularly tricky issues.  We discuss these issues further below and look at some other key points of interest for employers.

Stopping the clock for clarification

The normal time limit for responding to a DSAR is one month from the date of receipt.  If the DSAR is complex and/or the requester makes multiple requests, the organisation may be allowed an additional two months to respond.   Also, in cases where it is genuinely unclear whether the individual is, in fact, making a DSAR at all, the time limit does not begin to run until the individual has confirmed the position.

The ICO received a lot of feedback on the impact of seeking clarification about the scope of a DSAR.  Organisations highlighted that where clarification was needed this would frequently mean there wasn’t enough time left to respond within the time limit. 

The new guidance explains that where an organisation processes a large amount of information about an individual, it may ask them to specify the information or processing activities that their request relates to before responding to the request in full.  Where this is done, the time limit for responding to the DSAR is paused until such clarification is provided – this is known as “stopping the clock”.  However, if some information can reasonably be provided without clarification, then this should still be provided within the normal one-month time limit.

The guidance stipulates that organisations should not seek clarification of DSARs on a blanket basis but should only do so where: (i) it is genuinely required in order to respond to a DSAR; and (ii) the organisation processes a large amount of information about the individual.  The question of what amounts to a “large amount of information” will depend on the size of the organisation and the resources they have available to deal with the DSAR.  For example, a big organisation with significant dedicated resources will be in a different position to a smaller organisation processing the same amount of information, but with fewer resources at their disposal.

Another factor to consider is whether the organisation will be able to locate and retrieve all of the requested information by performing a reasonable search of the information held about the individual.  If the organisation holds a large amount of information about the individual but is able to find the requested information relatively easily, then clarification is not genuinely required and is unlikely to be reasonable.

Where clarification of a DSAR is needed, the organisation should:

• seek the clarification promptly and without undue delay (and if proof of ID is needed this should be asked for at the same time);
• ask the requester to provide additional details about the information they want to receive (e.g. the context in which their information has been processed and the likely dates of the processing);
• explain that the clock stops on the date of the clarification request and resumes on the date the individual responds;
• specify whether the individual needs to respond by a certain date; and
• where possible, respond to the individual in the same format they made the DSAR (e.g. if the DSAR was made by email, the request for clarification should also be by email).

Ultimately, if the individual responds without providing the clarification sought, the organisation must still make a reasonable search for the information requested.   In the event that the individual does not respond at all, then the organisation must wait for a reasonable period of time before treating the request as closed – this will usually be one month but may be longer in certain cases.

Manifestly excessive requests

Where a DSAR is “manifestly unfounded” or “manifestly excessive” this may justify the charging of a fee (see below) or even a refusal to respond to the DSAR altogether.   

Manifestly unfounded requests were generally well understood to be requests where the individual had improper motives.  Namely, where the individual had no intention of exercising their right of access or they had made the request maliciously and with the aim of harassing the organisation and causing disruption.

On the other hand, there was confusion about when a DSAR should be treated as manifestly excessive.  To combat this, the new guidance offers a broader definition of “manifestly excessive” and sets out more detailed advice on this issue.

The guidance provides that in order to determine whether a DSAR is manifestly excessive, the organisation must consider whether it is clearly or obviously unreasonable.  This involves considering whether the DSAR is proportionate when balanced against the burden and/or costs involved in dealing with it.  Here, the following factors will be relevant:

• the nature of the requested information;
• the context of the request, and the relationship between the organisation and the individual;
• whether a refusal to provide the information may cause substantive damage to the individual;
• the available resources;
• whether the request largely repeats previous requests and a reasonable period hasn’t elapsed; and
• whether it overlaps with other requests.

However, when making this assessment, the organisation must also:

• consider each DSAR individually and ensure that where a DSAR is treated as excessive this is clearly the case;
• not presume that a DSAR is excessive just because the individual has made excessive or unfounded requests in the past or because a large amount of information has been requested (and in such cases the organisation may be able to seek clarification of the request – see above); and
• ensure it has strong justifications for treating a DSAR as manifestly excessive and be able to demonstrate these to the individual and the ICO.

Charging a fee

In most cases, organisations should provide the information requested in the SAR without charging a fee.  However, organisations are entitled to charge a reasonable fee to cover their administrative costs where the request is manifestly unfounded or excessive or where the requester asks for further copies of their data following a request.

In response to feedback, the ICO has updated its guidance on what organisations can take into account when considering whether to charge a fee.  This includes the administrative costs of:

• assessing whether or not the organisation is processing the information;
• locating, retrieving and extracting the information;
• providing a copy of the information; and
• communicating the response to the individual, including contacting the individual to inform them that it holds the requested information (even if it is not going to be provided).

If the organisation decides to charge a fee, it must be reasonable and may include the costs of things like photocopying, printing, postage, equipment (e.g. a USB device) and staff time.  The costs of staff time should be based on the estimated time it will take staff members to comply with the request, charged at a reasonable hourly rate.  At present, organisations can decide the hourly rate for themselves, but they must be able to justify any fee to the ICO if required.

The guidance suggests that organisations establish a set of criteria for charging fees which explains when a fee will be charged, what the standard charges are and how the fee is calculated,  These criteria should be made available on request or when the organisation requests a fee from the individual.

Where a fee is charged, the one-month time limit for responding to the DSAR does not begin until the individual has paid the fee.  However, the fee should be requested as soon as possible and within one month of receipt of the DSAR.  Organisations must not delay fee requests until the end of the one-month time limit nor ask for a fee simply to extend the time limit for response.  In the event that the individual does not respond to the fee request, then the organisation must wait for a reasonable period of time before treating the request as closed – this will usually be one month but may be longer in certain cases.

Other key points of interest for employers

• Need for good information management systems: the guidance highlights the need for organisations to have adequate information management systems and procedures in place to facilitate dealing with DSARs. Such systems should enable the organisation easily to locate and extract personal data and redact third-party data where necessary.  Where a new information management system is introduced, organisations should ensure that it facilitates the effective handling of DSARs.  In addition, organisations should ensure that they operate a well-structured file plan with standard naming conventions for electronic documents. 

• Lack of formal requirements for making a DSAR: the guidance underlines the fact that there are no formal requirements for making a valid DSAR. It does not have to be made in writing and it does not have to include the words “subject access request”.  It can be made to any part of an organisation and it does not have to be made to a specific person or in a specific way, for example, a valid request can be made through an organisation’s social media channel.  Nor does it have to made by the individual themselves – it is possible for a SAR to be made by a third party.  Employers should consider who should be trained to identify a DSAR – this should usually include members of HR and line managers.

• The search obligation is limited to what is reasonable and proportionate: helpfully, the guidance clarifies that the search obligation is limited to what is reasonable and proportionate. There was authority for this approach under case law relevant to the old Data Protection Act 1998.  However, it is helpful that the ICO has expressly confirmed that the same approach applies to the Data Protection Act 2018.

• Dealing with personal data held on personal devices: the guidance states that in most cases the organisation will not have to supply personal data in response to a DSAR where someone else is storing it on their own computer systems rather than those of the organisation (on the basis that the organisation will not be the controller for that data). However, if an employer permits its employees to hold personal data about others on their personal devices (e.g. as part of a “Bring Your Own Device” scheme) then they may be “processing” the data on behalf of employer.  Where that is the case then the data held on such personal devices will be within the scope of a DSAR response.

• Clear guidelines on how to deal with mixed personal data: the new guidance offers clear guidelines on how organisations should deal with mixed personal data (i.e. where the information relates to the requester and another individual). Although the guidance here is not substantively new, it sets out clear step-by-step guidance on this complex issue which commonly arises for employers dealing with SARs made by employees.

Comment

The new guidance is essential reading for DPOs and others responsible for handling responses to DSARs.  It’s helpful for employers in providing greater clarity on when fees can be charged and what counts as a manifestly excessive request.  Further, where a request for a large amount of information is received, it may be legitimate to seek clarification from the individual and pause the time limit for responding.  However, it is worth remembering that the overall theme of the guidance is the importance of an individual’s right of access – described as the “cornerstone of data protection law”.  Therefore, employers need to tread carefully when seeking to derogate from the standard approach and ensure that each request is considered individually.

ICO’s Right of Access Guidance

If your business needs advice on dealing with data subject access requests please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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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.

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:

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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Employment Law News

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Why Didn’t the World Listen to Experts Who Warned of a Pandemic?

The opening session of the Global Solutions Summit 2020 poignantly stated

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Covid-19 pandemic demonstrates to us the value of freedom – the freedom to move, to be with those we love, to live in dignity and security – for ourselves and for those around us, from our loved ones to the refugees and the downtrodden. Above all, it shows us the importance of recognising the true purpose of all our businesses and economies, our political parties and governments, our local civic associations and our international organisations, our conventions and ideologies, and all our other systems: namely, to serve human needs and purposes.

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Anyone who had listened to US President, Donald Trump in recent weeks would be forgiven for thinking that no one could have ever predicted or prepared for a global pandemic on the scale of COVID-19.  At his daily press briefings, in relation to the national stockpile of medical products needed to protect people and combat the virus, he repeats the line that the “the cupboard was bare” when his administration took over from his predecessor, Barack Obama.  While it is true that the US was short on some items such as the N95 masks following the H1N1 virus in 2009, the US national stockpile was not depleted.  And even if Mr Trump’s assertion is true, his administration has had since January 2017 to build up the reserves needed.

No politician can argue we were not warned

In April 2015, the founder of Microsoft, and now billionaire philanthropist, Bill Gates, gave a TED presentation entitled, “The next outbreak? We’re not ready”.

He started the presentation by saying, “when I was a kid, the disaster we worried about most was a nuclear war…today the greatest risk of global catastrophe doesn’t look like this [shows a slide of a nuclear ‘mushroom cloud’], instead it looks like this [shows a slide of a picture of a virus cell].  He then goes on to warn us that microbes are more likely to kill millions of people in the coming years, not war.

Drawing on lessons from the Ebola crisis, he says that three key pieces of the jigsaw required to control the outbreak, were absent:

• Surveillance and data – i.e. a team of epidemiologists to gather data on the prevalence, causes and spread, and IT systems to capture and process the information.
• Personnel – thousands of medical personnel were needed, but it took too long to assemble the resources needed
• Treatment – hundreds of thousands of workers were needed to deliver treatments for Ebola. In reality, there was no one looking at treatment approaches and diagnostics.

Rather ominously, he then went on to warn that the next threat could come from a virus on par with the Spanish flu of 1918, which could kill millions; “we should be concerned“.  However, Gates, is as much an optimist as he is a realist.  His belief is that science and technology can provide the answers and solutions we need to tackle and eradicate the next global pandemic, if only the necessary investment is made across the globe.  Mobile phones can be used to transmit information to and from the public, satellite maps show where people are and where they are moving, and advances in biology mean that pathogens can be analysed rapidly and vaccines produced.  What is then needed is a truly global health system which brings all of the elements and data together.

While trillions has been spent on preparing for war, very little by comparison has been spent on pandemic preparation.  Yet Gates believes that the approach we use for preparing for war can be used for pandemics.  After all, the military has thousands of specially trained personnel ready to go where needed, to bring back information, and form a strategy to tackle a specific threat.

Moving onto the costs, Gates referenced the World Bank, which estimated that a global flu pandemic may cost the world US$3 trillion and may lead to millions of deaths.  The cost of putting in place measures to control future pandemics, Gates believes, would be a small fraction of this amount.

Signing off, Gates says, “we need to get going because time is not on our side“.  Fast forward to 2020, and the question must be asked as to why, when the pandemic did come in December 2019, we were not ready.

What was learned from Exercise Cygnus?

You may never have heard of Exercise Cygnus, which took place in Britain in October 2016, especially given all of the Brexit related noise at the time, and also because its findings were not made public.  Exercise Cygnus was a pandemic test drill involving all of the key governmental departments, the NHS, and local authorities across Britain.  Simulations showed that the Britain was woefully unprepared in terms of critical care beds, morgue capacity, and personal protective equipment (PPE), while revealing large gaps in our Emergency Preparedness, Resilience and Response (EPRR) plan.  According to a senior academic involved in Exercise Cygnus and the current pandemic research “these exercises are supposed to prepare government for something like this – but it appears they were aware of the problem but didn’t do much about it…. We’ve been quite surprised at the lack of coherent planning for a pandemic on this scale. It’s basically a lack of attention to what would be needed to prevent a disease like this from overwhelming the system. All the flexibility has been pared away, so it’s difficult to react quickly. Nothing is ready to go.”

The 2016 exercise revealed the lack of capacity to handle a serious pandemic, but it is less clear whether any conclusions were drawn regarding what we now know to be important.

The horizon

The focus in Britain has moved to local lockdowns and, in England, ‘test, track and trace’ has become the mantra for fighting Covid-19, albeit the first NHS contract tracing app failed. Contact tracing is important and involves an infected person recounting their movements and activities to build up a picture of who else might have been exposed. A manual contract tracing scheme has also been running since May 2020.

The government explains that the new NHS app will enable anyone with a smartphone to engage with every aspect of the NHS Test and Trace service, from ordering a test through to accessing the right guidance and advice.  They claim it will allow people to identify their symptoms, order a test and allow them to feel supported during any subsequent isolation. It will also include a feature that will allow QR codes to be scanned for people to ‘check-in’ to public locations, such as pubs or restaurants, and then be informed if a coronavirus breakout has happened there.

We await further news about the roll-out date and the apps’ full functionality.

BDBF is a leading firm of employment law specialists advising experienced employees, partners and directors in the insurance, academic, medical, legal, and financial services sectors. Contact us on 020 3828 0350 for employment law advice.

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Employment Law News

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Barclays Bank And Morrisons Supermarket NOT Vicarious Liable for their Employee’s unlawful actions

Earlier this year the Supreme Court issued two judgments on the scope of an employer’s vicarious liability.  The decisions in WM Morrisons Supermarkets plc v Various Claimants [2020] UKSC 12 and Barclays Bank plc (Appellant) v Various Claimants [2020] UKSC 13 will provide relief to employers and insurers and disappointment to employees who have suffered harm following negligence and are seeking compensation.

Both cases had specific facts; therefore, it is prudent to consider both separately.

An employee with a grudge

WM Morrisons Supermarkets plc v Various Claimants

In 2015, ex-Morrisons Supermarket employee, Andrew Skelton, was jailed for eight years, having been found guilty of fraud, securing unauthorised access to computer material, and disclosing personal data.

His motive appeared to be revenge – he had received a warning from his employer after he was discovered using the mailroom at Morrison’s Bradford headquarters to distribute eBay packages.

Skelton subsequently leaked the personal details of over 100,000 Morrison’s employees, including information related to salaries, National Insurance numbers, dates of birth, and bank account details.  This information was sent to several newspapers and also uploaded to data sharing websites.  Not only did he purchase a phone specifically to leak the data and to avoid detection, he used the Tor network to access the dark web.

Following the criminal case, affected employees brought a group action against Morrisons for compensation.  They argued that the supermarket was vicariously liable for its employer’s actions.

In decisions that shocked employers, the High Court and Court of Appeal found Morrisons vicariously liable for Skelton’s actions.  This was despite the fact Morrisons had adequate data protection policies and procedures in place and the harm was directed at the employer, rather than employees.

However, the Supreme Court unanimously held that the supermarket was not vicariously liable for the data breach, dashing employees’ compensation hopes.

The Supreme Court concluded that the Court of Appeal had misunderstood the rules of vicarious liability.  There is a two-stage test laid down in Various Claimants v Institute of the Brothers of the Christian Schools for establishing vicarious liability; namely

a) is there a relationship between the two persons that makes it proper for the law to make one pay for the negligent actions of another, and

b) is there a connection between the relationship and the tortfeasor’s wrongdoing?

If there is doubt as to part A of the test, Lord Phillips stated in Christian Schools:

“The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:

1. the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
2. the tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
3. the employee’s activity is likely to be part of the business activity of the employer;
4. the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
5. the employee will, to a greater or lesser degree, have been under the control of the employer.”

He went on to say (at para 47):

“At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’”.

Through live-stream video link, Lord Reed, who delivered the Morrison’s judgment, concluded that employers could only be held liable for an employee’s actions if those actions were “closely connected” with their work tasks.

He said:

“In the present case, Skelton was not engaged in furthering Morrisons’ business when he committed the wrongdoing in question. On the contrary, he was pursuing a personal vendetta, seeking revenge for the disciplinary proceedings a month earlier.

In these circumstances, applying the established approach to cases of this kind, his employer is not vicariously liable.”

The Supreme Court went on to conclude that although there was a close temporal link and an unbroken chain of causation linking Skelton having access to the Appellant’s personal data on its employees and being able to transfer that data to the file share, this was not enough to satisfy part B of the test laid down in Christian Schools. 

Historic sexual assault

Barclays Bank plc (Appellant) v Various Claimants

The second major vicarious liability decision released in early April involved the Supreme Court ruling on whether Barclays Bank was vicariously liable for sexual assaults allegedly committed between 1968 and circa 1984 by the late Dr Gordon Bates.

Dr Bates was hired by Barclays to perform unchaperoned medical examinations on prospective employees.  He had his own patients and private practice and Barclays paid a fee for each completed report but did not provide Dr Bates with a retainer.

The group action for vicarious liability consisted of 126 Claimants, all of whom claimed to have been sexually assaulted by Dr Bates.  The court at first instance and the Court of Appeal found Barclays Bank vicariously liable for the sexual assaults.  However, the Supreme Court reversed these decisions, declaring that Part A of the two-stage test set out in Christian Schools was not satisfied because Dr Bates was clearly an independent contractor.

Lady Hale, in delivering the judgment, said:

“Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.”

The impact of these decisions

The decision in Barclays Bank plc (Appellant) v Various Claimants clarifies that, although the traditional rule that only an employer/employee relationship (in an employment context) can give rise to vicarious liability has widened over recent years, liability does not extend to independent contractors. 

With regards to the decision in Morrisons, employers should not take for granted that the issue of vicarious liability has been settled.  There are several data breach cases currently awaiting a hearing and the Supreme Court’s ruling related primarily to the facts of the case before them.  Employers could still find themselves vicariously liable for the damage caused by data breaches.  Given that many employees now work from home, due to the Coronavirus pandemic, the opportunity for breaches to occur has dramatically increased.

Unfortunately for employers and employees, we may see a wave of data breach claims cases over the next few years.

BDBF is a leading firm of employment law specialists advising experienced employees, partners and directors in the insurance, academic, medical, legal, and financial services sectors. Contact us on 020 3828 0350 for employment law advice.

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Employment Law News

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Redundancy: new rules prescribe pay entitlements for redundant furloughed workers

As the Coronavirus Job Retention Scheme (Scheme) winds down we consider what employers are required to pay to redundant furloughed employees.

The Coronavirus Job Retention Scheme (Scheme) has recently begun to wind down, with Government contributions dropping to 70% of pay from 1 September 2020 and then to 60% from 1 October 2020.  The Scheme will close altogether on 31 October 2020.  Employers with employees still on furlough must now grapple with whether they are able to bring those employees back to work, or whether the workforce will need to be restructured in the wake of the pandemic.

Where a redundancy situation has arisen, employers may commence redundancy consultation and, ultimately, make furloughed (or previously furloughed) employees redundant.  On 31 July 2020, new regulations came into force which stipulate what employers must pay to redundant employees who are, or have been, furloughed. 

Notice pay

Can the cost of notice payments be recovered under the Scheme?

Where an employer opts to make redundancies during the life of the Scheme, the guidance provides that an employer is able to make a claim under the Scheme for wages paid to an employee serving both statutory and contractual notice periods.  However, claims may not be made under the Scheme to cover payments made in lieu of notice. 

Where an employer opts to make redundancies after the closure of the Scheme, it will not be able to make any claim under the Scheme in respect of wages due for either the statutory or contractual notice period (assuming that notice period commences after the Scheme has closed).

This may act as an incentive for some employers to complete redundancy consultations and allow the notice period to run before the Scheme closes on 31 October 2020.

How should notice pay be calculated for furloughed employees?

The amount of notice pay due to a furloughed employee (or previously furloughed employee) will depend on the length of their notice entitlement and their particular working arrangements.

Where the employee is entitled to statutory notice only (or less than one week more than statutory notice), new regulations set out how a “week’s pay” is to be calculated:

• where the employee has normal working hours, their pay does not vary with the amount of work done (e.g. most salaried employees) and notice is calculated on or before 31 October 2020, then a week’s pay will be the employee’s normal, contractual rate of pay; and
• where the employee has variable working hours or pay, it is calculated by reference to their pay over the preceding 12 weeks.

In either case, any reduction in pay as a result of being furloughed should be disregarded.  In practice. this will usually mean that the employer will need to top up the employee’s pay for the notice period. 

The position appears to be less favourable for employees who are entitled to notice of at least one week more than statutory notice.  The new regulations are only engaged where the legislative provisions governing what employers must pay in respect of the statutory notice period apply – and they do not apply to this cohort of employees.  This means that the notice pay (both for the portion equivalent to the statutory notice period and for the additional contractual notice) should be based on the pay the employee would otherwise have received during their notice period.  Both the employment contract and furlough agreement should be reviewed to understand the employee’s entitlement here.  In practice, this may mean that the employer is able to take into account any reductions in pay as a result of being furloughed.  However, employers should give careful consideration to the public relations consequences of reducing notice pay in this way.  Employers such as Arcadia Group who are seeking to rely on this exception are facing heavy criticism for doing so.

As the rules in this area are complicated, we would recommend that employers take advice before calculating notice payments.

Redundancy pay

Employers cannot claim under the Scheme for an amount to cover either statutory or enhanced redundancy payments.  The employer must cover the cost of any redundancy payment which is due.

Where the employee is entitled to a statutory redundancy payment, the new regulations set out how a “week’s pay” is to be calculated:

• where the employee has normal working hours, their pay does not vary with the amount of work done (e.g. most salaried employees) and the statutory redundancy payment is calculated on or before 31 October 2020, then a week’s pay will be the employee’s normal, contractual rate of pay; and
• where the employee has variable working hours or pay, it is calculated by reference to their pay over the preceding 12 weeks.

Again, in either case, any reduction in pay as a result of being furloughed should be disregarded.  However, the maximum cap on a week’s pay for the purposes of calculating statutory redundancy payments still applies (currently £538). 

Where an employee is also entitled to an enhanced redundancy payment, the amount payable will turn on what is said in the employment contract, any relevant policy and the furlough agreement. In practice, this may mean that the employer is entitled to take into account any reductions in pay as a result of being furloughed. 

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus.  If you or your business needs advice on furlough 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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Unfair dismissal: employer’s loss of trust and confidence relevant to whether the Tribunal should order re-engagement

In a recent case, the EAT considered whether a Tribunal was right to order an employer to re-engage a former employee in whom they had lost trust and confidence and place them into a role for which they lacked the essential skills.

What does the law say?

Where an employee has been unfairly dismissed, the usual remedy is to award compensation designed to compensate for lost earnings. However, employees can ask the Employment Tribunal to order that they are reinstated or re-engaged by their former employer. 

“Reinstatement” means that the employee is placed back in his or her original job and treated as if they had not been dismissed.  “Re-engagement” means that the employee is re-engaged in a job that is comparable to their previous role.  A Tribunal’s decision to order reinstatement or re-engagement is based on various factors including: the employee’s wishes; whether the employee contributed to the dismissal; and whether it is practicable for the employer to comply with the order. 

What happened in this case?

The Claimant began working for the PGA European Tour (PGA) in 1989 as its Marketing Director.  By 2015, he had been promoted to Group Marketing Director. Around the same time, PGA appointed a new Chief Executive who decided to dismiss the Claimant on performance grounds.  The Claimant brought a claim of unfair dismissal and PGA conceded that the dismissal was procedurally unfair.  Therefore, the Employment Tribunal proceeded to consider remedy. 

The Claimant asked to be reinstated to his role or, alternatively, re-engaged in a comparable role.  PGA argued that such an order should not be made because the Chief Executive had lost trust and confidence in the Claimant, stemming from his concerns about his performance and also his integrity (it had been discovered after the dismissal that the Claimant had covertly recorded meetings with him). 

The Tribunal declined to order reinstatement but concluded that PGA’s concerns were not a barrier to re-engagement.  In its view, the Claimant has 26 years’ service and had not been given enough time to prove himself to the new Chief Executive.  Further, the concerns about integrity could be overcome.  It ordered that the Claimant be re-engaged in the role of “Commercial Director, China PGA European Tour”, despite the fact that the Claimant could not speak Mandarin, which was required for the role.  The fact that the Claimant was good at languages and was willing to learn Mandarin meant that it was still practicable to engage him in the role.  PGA appealed the re-engagement order.

What was decided?

The EAT allowed PGA’s appeal and overturned the re-engagement order. 

The EAT rejected the argument that trust and confidence is only relevant to practicability where the dismissal was for conduct reasons – it could also be relevant to capability dismissals.  A genuine loss of trust and confidence may mean re-engagement is not practicable.  The relevant question was whether PGA had a genuine and rational basis for believing that trust and confidence had been lost.  The Tribunal had gone wrong by considering for itself whether trust and confidence had been damaged; its role was to test whether PGA had the necessary genuine and rationally held belief.

The EAT also held that the Tribunal had gone wrong by substituting its own view on whether the ability to speak Mandarin was essential for the role.  The Tribunal had failed to give weight to the employer’s cogent commercial judgement in this respect.  Where an employee does not meet an essential requirement of the role this will usually mean that re-engagement is not practicable.

The case will now be sent back to the Tribunal to decide what compensatory award should be made to the Claimant.

What are the learning points for employers?

Although orders for reinstatement or re-engagement are rare (they are made in less than 1% of cases), if ordered, they have serious consequences.  Firstly, the employer will usually be ordered to make up all the employee’s lost salary and benefits for the period between the date of dismissal and the date of the reinstatement or re-engagement.  Secondly, the employer is faced with either taking back the dismissed (and probably unwanted) employee or refusing to comply with the order and paying an additional award of between 26 and 52 weeks’ pay (on top of other compensation).  The amount of a “week’s pay” is capped for this purpose.  Currently, the minimum award is £13,988 and the maximum award is £27,976. 

Where there is a risk that an unfair dismissal complaint will be upheld, employers should turn their mind to how they would respond to an order of reinstatement or re-engagement.  Employers who wish to argue that such an order is not practicable because trust and confidence has been irreparably damaged must be ready to demonstrate that: (i) they genuinely believe that to be the case; and (ii) that belief is not irrational.  Helpfully, employers are able to rely on relevant events occurring after the dismissal if they have contributed to the loss of trust and confidence. 

Kelly v PGA European Tour

If you would like to discuss any of the issues raised in this article or how BDBF can help your business navigate a dismissal process, then please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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