Frontline UK Employment Law Update Edition 6 2020
Written By
Welcome to the latest edition of Frontline UK.
Our feature articles see Stephanie Creed covering the quiet hive of activity in the UK's Supreme Court during the lockdown period, and Yuichi Sekine looking at the new immigration rules applicable at the end of the Brexit transition period from January 2021.
Our case updates cover an EAT decision on reasonable adjustments for disabled employees; a High Court challenge to the exclusion of certain workers from COVID-19 financial support mechanisms; and further EAT decisions on capability dismissals and disability; bonuses and holiday pay; the definition of "agency worker"; and the employment status of a professional cyclist.
Our legal updates cover travel restrictions and mandatory self isolation; amendments to the Coronavirus Job Retention Scheme; updated COVID-19 Secure guidelines; relaxation of shielding measures and return to the workplace; amendments to the Statutory Sick Pay Regulations; the Government's "Plan for Jobs"; HMRC guidance on treatment of employee PPE expenses; Department of Health and Social Care guidance on visitor records; and workplace support for victims of domestic abuse.
The quiet hive of activity: the Supreme Court in lockdown
Given everything else going on in the UK, employers could be forgiven for missing a quiet hive of activity in the UK's Supreme Court. The Court has been busy hearing key cases with potentially wide-reaching implications for employers. In this article, we look at two of those currently under consideration:
- Uber: Gig economy rights under review
- Equal Pay: Asda's appeal on comparability for equal pay
New Immigration Rules: What's Changing for Employers From January 2021
The end of the transition period maintaining the status quo for EU national after the UK's exit from the EU is now less than five months away. Employers' preparations should be underway.
Case Summaries
Hill v Lloyds Bank plc UKEAT/0173/19
(LINK)
In this case, the Employment Appeal Tribunal ("EAT") confirmed that it would have been a reasonable adjustment for the employer to give an undertaking to a disabled employee (who claimed to have been bullied/harassed by two colleagues) that she would not be required to work with the individuals going forward and that, if there was no alternative, it would offer her a severance package equivalent to her entitlement on redundancy.
R (Adiatu) v HM Treasury [2020] EWHC 1554
(LINK)
In this case, the claimant gig economy workers sought to challenge the government's decision to exclude "limb (b) workers" from financial support during the COVID-19 pandemic, namely in relation to the availability of statutory sick pay ("SSP") and eligibility for the Coronavirus Job Retention Scheme ("CJRS"). The High Court dismissed the challenge, rejecting the claims that the decisions were in breach of the public sector equality duty ("PSED") and noting the unprecedented circumstances and urgent response required in response to the pandemic.
Read more >
Department of Work and Pensions v Boyers UKEAT/0282/19
(LINK)
In this case, the Employment Appeal Tribunal ("EAT") held that an Employment Tribunal ("ET") had erred by focusing too much on the process followed by Department of Work and Pensions ("DWP") when considering if discrimination arising from a disability was objectively justified.
Econ Engineering Ltd v Dixon and others [2020] UKEAT/285/19
(LINK)
In this case, the Employment Appeal Tribunal ("EAT") held that a profitability bonus is not part of a "week's pay" for a worker with normal working hours under section 221 (2) of the Employment Rights Act 1996 ("ERA") and therefore not required to be included as part of holiday pay under regulation 13A of the Working Time Regulations 1998 ("WTR").
Angard Staffing Solutions Ltd and anor v Kocur and ors
(LINK)
In this case, the Employment Appeal Tribunal ("EAT") confirmed that the Employment Tribunal ("ET") was entitled to find that a worker who had an open-ended contract of employment with an agency was nonetheless supplied to work "temporarily" for an end-user, satisfying the definition of "agency worker" in the Agency Workers Regulations 2010 ("AWR").
Varnish v British Cycling Federation t/a British Cycling
(LINK)
In a highly fact-specific judgment, the Employment Appeal Tribunal ("EAT") has held that professional cyclist Jess Varnish was neither an employee for the purposes of the Employment Rights Act 1996 ("ERA") nor a "worker" for the purposes of the Equality Act 2010 ("EA"), confirming the earlier decision of the Employment Tribunal ("ET").
Legal Updates
Travel restrictions and mandatory self-isolation
On 4 July 2020, the Foreign & Commonwealth Office updated its advice against "all but essential" international travel and outlined exemptions for travel to certain countries and territories that no longer pose a high risk for British travellers. A full list of exempted destinations can be found here.
Further, at the time of writing, the UK has implemented travel corridors with various countries, and as such, individuals travelling from these countries will not be required to self-isolate for 14 days upon arrival in the UK. The travel corridors vary between UK countries - please see England, Scotland, Wales and Northern Ireland for the relevant lists. The recent imposition of a mandatory quarantine for travellers from Spain demonstrates that the list is subject to change at short notice.
Any individual arriving in the UK (including UK nationals) who has visited or made a transit stop in a country that is not on the list of travel corridors in the 14 days before arrival will be asked to provide an address where they will self-isolate for 14 days. Individuals can be fined £100 for failing to fill in a form with these details, and up to £1,000 if they fail to self-isolate.
Amendments to the Coronavirus Job Retention Scheme
The government has recently made further amendments to the Coronavirus Job Retention Scheme ("CJRS"), and on 25 June 2020, a third Treasury Direction was issued in respect of the Scheme. Key changes include:
- From 1 July 2020, employees are only eligible to be furloughed if they have previously been furloughed for a full three-week period prior to 30 June 2020. The Treasury Direction introduced limited exceptions to the cut-off date for employees returning from family leave and armed forces reservists.
- From 1 July 2020, employers can place employees on "flexible" furlough and bring employees back to work part-time, whilst claiming a CJRS grant for any hours not worked.
For further details of the CJRS and the most recent changes, please see our article here.
Updated COVID-19 Secure Guidelines
On 24 June 2020, the government further updated the COVID-19 Secure Guidelines to reflect changes to social distancing requirements. Whilst the guidance still states that workplaces should make 'every reasonable effort to comply with the social distancing guidelines outlined by the government', such guidelines are now stated as '2m, or 1m with risk mitigation where 2m is not viable'.
In addition to outlining "5 steps to working safely" to be followed by all employers, the guidelines include workplace-specific documents for various industries. In line with recent relaxations of lockdown restrictions and the reopening of certain workplaces, the government has published guidance in relation to a number of further industries, including "Close contact services", "Performing arts", and "Providers of grassroots sport and gym/leisure facilities".
For further information and to access the workplace-specific guidance, please see here.
Relaxation of shielding measures and return to the workplace
From 1 August 2020, people in England who are at high risk from COVID-19 will no longer be advised to shield. Further, individuals will no longer be eligible for statutory sick pay ("SSP") on the basis of being clinically extremely vulnerable from this date.
However, individuals who have been shielding will still be advised to stay two metres away from those outside of their household or "support bubble". Where it is possible for such employees to work from home, employers should help to facilitate this. Where remote working is not feasible, employers should help employees who have been shielding to transition back to work safely and support social distancing in the workplace.
For further information, please see here.
Amendments to the Statutory Sick Pay Regulations
The statutory sick pay ("SSP") regime has been further amended by the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No. 2) Regulations 2020 (link), which came into force on 6 July 2020.
Following the amendment, qualifying employees will now be entitled to SSP where they are in a "linked household" or an "extended household" (in other words, a "support bubble") and someone in that household has COVID-19 symptoms. This marks the latest in a series of amendments to the Statutory Sick Pay (General) Regulations 1982 (SI 1982/894), which have previously been extended to include those who are self-isolating under advice from the NHS Test and Trace system, amongst others.
The Government's "Plan for Jobs"
On 8 July 2020, the Chancellor, Rishi Sunak, outlined a "Plan for Jobs" to assist the UK's recovery from the COVID-19 outbreak. Amongst others, the following measures were announced:
- Job Retention Bonus: The introduction of a Job Retention Bonus, which aims to incentivise employers to keep furloughed employees in work after the end of the scheme in October 2020. The government has announced that employers will receive a one-off bonus of £1,000 for each furloughed employee who is brought back to work and still employed as of 31 January 2021.
- The Kickstart Scheme: A new Kickstart Scheme will also be launched to fund the creation of new, fully subsidised jobs for young people aged 16-24 who are on Universal Credit and are at most risk of long-term unemployment. Funding will be available for each six-month job placement, and will cover the full cost of the relevant National Minimum Wage (for up to 25 hours a week), in addition to the employer's National Insurance and auto-enrolment pension contributions.
- Apprenticeship subsidies: Between 1 August 2020 and 31 January 2021, the government will provide a one-off subsidy to businesses who hire new apprentices (£2,000 for each new apprentice under the age of 25, and £1,500 for each apprentice aged 25 and over). This is in addition to the existing £1,000 payment provided for new 16-18-year-old apprentices and those aged under 25 with an Education, Health and Care Plan.
For further information, please see here.
HMRC guidance on treatment of employee PPE expenses
On 6 July 2020, HM Revenue & Customs ("HMRC") updated its guidance on how the tax treatment of certain expenses and benefits provided to employees during the COVID-19 outbreak. The updated guidance clarifies the tax position in respect to an employer's provision of Personal Protective Equipment ("PPE"):
- If employees are working in a situation where the risk of COVID-19 transmission is very high, and the employer's risk assessment shows that PPE is required, this must be provided to employees free of charge. The provision of this PPE will be non-taxable.
- If employees require PPE to carry out their role but the employer is unable to provide such protection, it must reimburse the expenses of employees who purchase PPE themselves. This PPE will also be non-taxable, and employees cannot claim tax relief on these expenses from HMRC.
The guidance also states that COVID-19 tests provided by the government (as part of its national testing scheme) will not be treated as a benefit in kind for tax purposes. Further, if an employer provides testing kits to employees outside of the national scheme, no Income Tax or Class 1A National Insurance contributions will be due on such tests.
Further further information, please see here.
Department of Health and Social Care guidance on visitor records
On 2 July 2020, the Department of Health and Social Care ("DHSC") published guidance on maintaining records of staff, customers and visitors to support NHS Test and Trace. The guidance applies to establishments in the hospitality, tourism and leisure sectors (in addition to places of worship and close-contact services), and outlines (1) the information that organisations should collect (in relation to (i) staff, and (ii) customers and visitors), and (2) how organisations can keep a temporary record of staff, customers and visitors for 21 days in a way that is proportionate, effective and manageable.
For further information, please see here.
Workplace support for victims of domestic abuse
The government has recently launched a review of workplace support for survivors of domestic abuse. The review, which will include a series of roundtables run by the Department of Business, Energy and Industrial Strategy ("BEIS") and the Home Office, alongside individuals and interested organisations, will look into how employers and the government could better support such employees in the workplace, including the availability of flexible working and unplanned leave.
The review will look into the following areas:
- What practical circumstances arise in relation to domestic abuse and work?
- What support can be offered in the workplace for victims of domestic abuse?
- What is possible with the existing framework?
- What does current best practice look like?
- What is the potential to do more?
Written submissions will be accepted until 9 September 2020 and should be sent to [email protected]. For further information, please see here.
