Frontline UK Employment Law Update Edition 4 2020

Welcome to the latest edition of Frontline UK.

Our feature article, written by Furat Ashraf, takes a look at the statutory framework that applies to large-scale redundancies and looks at some of the challenges employers may face in complying with their obligations while the Covid-19 crisis remains ongoing. 

Our case updates cover a Upper Tribunal tax decision highlighting the importance of mutuality of obligations when determining employment status under IR35; a High Court confirmation concerning confidentiality clauses in settlement agreements and non-payment of sums when breached; an Employment Appeal Tribunal decision on length of service and wrongful dismissal; an Employment Appeal Tribunal decision on TUPE; an Employment Appeal Tribunal decision on constructive dismissal claims; and an ECJ ruling on the ever thorny issue of "worker" status.

Our legal updates cover the "Covid-19 Secure" Government guidance, new legislation on calculation of statutory parental payments for furloughed employees, modern slavery requirements during COVID-19, disciplinary and grievance procedures during the COVID-19 pandemic, workplace testing, visa extensions for healthcare workers, and a Government-launched online learning platform for individuals staying at home.

Collective Consultation and COVID-19

The Chancellor announced last week that the Coronavirus Job Retention Scheme ("CJRS") will be changing from the beginning of next month to allow for employees to return to work on a part-time basis. However, from 1 August 2020 employers will be required to contribute to the wage costs of employees that have been furloughed and the scheme will finally close on 31 October 2020.

Unfortunately, with the end of the scheme in sight and the prospect of sizeable employer contributions, many employers are now being forced to confront the harsh reality of the impact that the Covid-19 pandemic has had on their business and face the prospect of large-scale redundancies. 

In this article, we consider the statutory framework that applies to large-scale redundancies and look at some of the challenges employers may face in complying with their obligations while the Covid-19 crisis remains ongoing. 

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Case Summary

The Commissioners for HM Revenue and Customs v Professional Game Match Officials Limited

[2020] UKUT 0147 (TCC) (LINK)

In this tax case, the Upper Tribunal ("UT") decided that certain referees engaged by Professional Game Match Officials Limited ("PGMOL") were self-employed for tax purposes. The case centred on mutuality of obligations and control which are key factors in determining whether an individual is a deemed employee under the IR35 rules.

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Duchy Farm Kennels Limited v Graham William Steels

[2020] EWHC 1208 (QB) (LINK)

In this case, the High Court confirmed that payment of sums due under a settlement agreement cannot be avoided where an ex-employee is considered to have been in breach of a confidentiality clause, unless confidentiality is a genuine condition of the settlement agreement.

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East Coast Main Line Company Limited v Cameron

[2020] UKEAT/0212/3101 (LINK)

In this case, the Employment Appeal Tribunal ("EAT") found that whilst length of service is a valid consideration when deciding whether a dismissal is unfair, it is not a relevant factor when assessing whether a summary dismissal is in breach of contract (a "wrongful dismissal").

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Ferguson and ors v Astrea Asset Management Ltd

[2020] UKEAT/0139/19/JOJ  (LINK)

In this case, the Employment Appeal Tribunal ("EAT") held that Regulation 4(4) of TUPE, which deems any purported variation of a contract void if the sole or principal reason is the transfer (unless certain specific exceptions apply), applies to variations which are beneficial to the employee as well as those that are detrimental. 

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Williams v The Governing Body of Alderman Davies Church in Wales Primary School

[2020] UKEAT/0108/19/LA (LINK)

The Employment Appeal Tribunal ("EAT") has held that where there is conduct by an employer that amounts to a fundamental breach of contract, an employee can succeed in a constructive dismissal claim even where more recent conduct, which in itself is not a breach of contract, "tips" the employee into resigning.

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B v Yodel Delivery Network Ltd

(Case C-692/19) (LINK)

In another decision on the vexed issue of "gig" economy workers and their legal rights, the European Court of Justice ("ECJ") recently considered whether a courier, engaged by Yodel as a self-employed independent contractor, was a "worker" for the purposes of the Working Time Directive (the "WTD").

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Legal Updates

COVID-19 Secure Guidelines

On 11 May 2020, the government published "COVID-19 Secure" guidelines on working safely during the COVID-19 pandemic. In addition to specific guidance documents for a number of workplace settings (including offices, restaurants, and other people’s homes), the guidelines cover five key actions for all employers:

1.Carry out a COVID-19 risk assessment in consultation with workers or trade unions. The results of the risk assessment should be shared with the workforce and on the employer’s website.

2.Develop cleaning, handwashing and hygiene procedures. Increase the frequency of handwashing and surface cleaning and provide materials to facilitate this (e.g. hand sanitiser and hand drying facilities).

3.Take all reasonable steps to help people work from home, e.g. by discussing home working arrangements and ensuring they have the right equipment.

4.Maintain two metres social distancing wherever possible, e.g. by re-designing workspaces, creating one-way walk-throughs, and putting up signs to remind employees.

5.Where people cannot be two metres apart, manage transmission risk, e.g. by considering whether an activity needs to continue for the business to operate, keeping the activity time involved as short as possible, and reducing the number of people each person has contact with.

Calculation of statutory parental payments for furloughed employees

The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/450) came into force on 25 April 2020.

The new legislation addresses the calculation of "normal weekly earnings" for statutory maternity pay (SMP) and other statutory parental payments where the recipient has been furloughed. It provides that where an employee is on furlough for all or part of the ‘relevant period’ (used to calculate the employee’s weekly earnings), the normal weekly earnings and the rate of statutory parental pay will be calculated based on the pay they would have received if not furloughed. The legislation will apply where an employee’s period of family-related statutory pay begins on or after 25 April 2020.

Modern slavery requirements during COVID-19

On 20 April 2020, the Home Office published guidance for businesses regarding modern slavery reporting during the COVID-19 pandemic. Businesses will be allowed to delay publication of their modern slavery statement by up to six months due to COVID-19 pressures, but should state the reason for any such delay in the statement and must consider how COVID-19 and fluctuations in demand could impact risks of labour exploitation and modern slavery risks.

Disciplinary and grievance procedures during the COVID-19 pandemic

ACAS has released guidance outlining that existing employment laws and the ACAS Code of Practice on Disciplinary and Grievance Procedures continue to apply during the pandemic. The guidance notes that employers need to decide whether it would be fair and reasonable to start or continue a disciplinary or grievance procedure where an employee is (i) furloughed, (ii) working from home, and/or (iii) following social distancing or other public health guidelines.  

The guidance confirms that a furloughed employee can participate in a disciplinary or grievance investigation or hearing, providing that they do so voluntarily and it takes place in line with current public health guidelines. ACAS has also provided practical advice on conducting disciplinary procedures for workers who are furloughed or working from home.

Workplace testing

The Information Commissioner’s Office (ICO) has published workplace testing guidance for employers (in the form of FAQs) in light of the COVID-19 outbreak and the gradual return to the workplace after lockdown. The guidance covers the lawful basis for testing employees (and processing their data) under GDPR and the Data Protection Act 2018, how to demonstrate compliance and accountability when processing health information, and data sharing and retention procedures. 

Visa extensions for healthcare workers

In response to the COVID-19 outbreak, the government has announced that frontline health and care workers (and their families) working in the UK on visas may be eligible for a free one-year visa extension. In order to be eligible for the extension, the individual must have a visa that is due to expire on or before 1 October 2020, and work for the NHS or an independent healthcare provider in an ‘eligible profession’ (including nurses, dental practitioners, pharmacists and social workers). The extension will apply from the date that the visa is due to expire, and further information can be found here.

Online learning platform for individuals staying at home

On 28 April 2020, the government launched a new online learning platform named ‘The Skills Toolkit’ to help boost the skills of individuals staying at home during the COVID-19 pandemic. The free platform provides access to digital and numeracy courses covering a range of levels, and employers are encouraged to use the platform to help support and develop the skills of furloughed employees. For further information, please see here.

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