Frontline UK Employment Law Update Edition 5 2020
Written By
Welcome to the latest edition of Frontline UK.
Our feature article, written by Anish Pathak, takes a look at how recent events casting a spotlight on systemic racial discrimination may affect UK employment law and practice going forward, and best practices for employers in the continued fight against systemic racism, racial inequality and discrimination in the workplace.
Our case updates cover a High Court decision on restrictive covenants; an EAT case on the conditions of protection under British employment law; and an ECJ case on redundancies and collective consultation obligations.
Our legal updates cover travel restrictions and mandatory self-isolation; amendments to the Coronavirus Job Retention Scheme; further amendments to the Statutory Sick Pay (General) Regulations 1982; the announcement that the Coronavirus Statutory Sick Pay Rebate Scheme is open for claims; tax reliefs for reimbursed remote working expenses; changes to immigration rules; changes to Employment Tribunal FAQs; ACAS mental health guidance; and ICO COVID-19 guidance.
Black Lives Matter – how can employers be better allies?
The tragic death of yet another Black American, George Floyd, as a result of police brutality, has led to mass protests around the world against the systemic racism and continued racial inequalities faced by people of the Black diaspora.
This growing, albeit delayed, global awareness has rightly encouraged many people from outside the Black community to learn more and understand how to be better allies, drive effective change, and support the movement going forward. The workplace, and more specifically, the way in which employers tackle this issue, will play a critical role in effecting meaningful change.
Case Summaries
Square Global Limited v Julien Leonard [2020] EWHC 1008 (QB)
(LINK)
In this case, the High Court found that a six-month non-compete clause in a broker's contract of employment was justified and therefore enforceable, in addition to a six-month notice period. The broker had not been constructively dismissed and therefore could not argue that the covenant was not binding on him as a result of a repudiatory breach of contract by his employer.
Read more >
Hamam v (1) British Embassy in Cairo & (2) Foreign and Commonwealth Office UKEAT/0123/19
(LINK)In this case, the Employment Appeal Tribunal ("EAT") upheld an earlier Employment Tribunal decision that an Egyptian citizen, living in Egypt and engaged to work at the British Embassy in Cairo, could not bring claims under English employment protection legislation.
Read more >
UQ v Marclean Technologies, S.L.U. (Case C-300/19) (2019/C 295/06)
(LINK)
This European Court of Justice ("ECJ") case considered the period over which redundancies are counted in order to determine whether the relevant threshold for collective redundancy consultation has been passed.
Legal Updates
Travel restrictions and mandatory self-isolation
New travel restrictions for the United Kingdom came into force on 8 June 2020, and at the time of writing, any individual arriving in the UK (including UK nationals) 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.
However, on 29 June 2020, the government was due to review the quarantine rules and consider whether it will begin to ease those measures at the UK border, allowing more passengers to be exempted from self-isolation requirements (in certain circumstances) upon arrival in the UK. A number of countries/territories have been categorised as presenting a lower risk from a public health perspective, and it is anticipated that passengers will be able to enter the UK without the requirement for 14 days’ self-isolation. Further details, including a full list of the countries, is expected in due course.
For further information (and details of those currently exempt from the rules), please see here.
Amendments to the Coronavirus Job Retention Scheme
On 29 May 2020, the government announced further changes to be made to the Coronavirus Job Retention Scheme ("CJRS") in coming months. Key changes include:
- The CJRS will close to new entrants on 30 June. 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 (i.e. they were placed on furlough leave on or before 10 June).
- 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.
- From 1 August 2020, employers will be required to make financial contributions towards the employee's furlough pay and related costs.
For further details of the CJRS and the most recent changes, please see our article here.
Further amendments to the Statutory Sick Pay (General) Regulations 1982
The Statutory Sick Pay (General) Regulations 1982 (which include a schedule setting out those people who are deemed to be incapable of work for statutory sick pay ("SSP") purposes) were further amended last month. On 28 May 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020 (link) (the "Amendment Regulations") came into force, to cover those isolating further to a notification made in accordance with the government's "test and trace" service.
Under the Amendment Regulations, a person will be deemed incapable of work when they are isolating because:
(i) they have been advised by a relevant notification from the NHS or another public health body that they have had contact with a person who at the time of the contact was infected with coronavirus; and
(ii) they are staying at home until the end of the period of 14 days beginning with the latest date on which that contact occurred, or (if sooner) until the date specified in the latest relevant notification.
Coronavirus Statutory Sick Pay Rebate Scheme open for claims
On 3 April 2020, the government announced the introduction of the Coronavirus Statutory Sick Pay ("SSP") Rebate Scheme (the "Rebate Scheme"), under which it will reimburse small and medium-sized employers (defined as those with fewer than 250 employees as at 28 February 2020) for any SSP payments made to current or former employees for eligible periods of sick pay starting on or after 13 March 2020.
Under the Rebate Scheme, HMRC will cover up to two weeks of SSP and will cover employees who are unable to work because they:
(i) have coronavirus symptoms;
(ii) are self-isolating because someone they live with has symptoms;
(iii) are self-isolating because they’ve been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus; and/or
(iv) are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks.
The Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) Regulations 2020 (link) came into force on 26 May 2020 and outline various aspects in relation to the Rebate Scheme, including in relation to eligibility for funding, making claims and payments, and the preservation of records. The Rebate Scheme also opened for applications on the same date. For further guidance on the scheme and to access the online portal to make a claim, please see here.
Tax reliefs for reimbursed remote working expenses
On 11 June 2020, The Income Tax (Exemption for Coronavirus Related Home Office Expenses) Regulations 2020 (link) (the "Expenses Regulations") came into force. The Expenses Regulations introduce a temporary exemption for employers from income tax and National Insurance contributions under the Income Tax (Earnings and Pensions) Act 2003, for expenses reimbursed to an employee for the purchase of equipment that is obtained for the sole purpose of enabling the employee to work from home due to COVID-19. The Expenses Regulations apply to amounts reimbursed before the end of the 2020/21 tax year and cover any equipment that would have been exempt from income tax under section 316 of ITEPA 2003 (if provided directly from the employer to the employee).
Changes to Immigration Rules
On 14 May 2020, the government published a Statement of Changes to the Immigration Rules: CP232 (link). Under the new rules (most of which took effect from 4 June 2020), several aspects of the UK Immigration Rules have been amended:
- Representatives of Overseas Businesses: A number of changes have been made to the eligibility requirements for representatives of overseas businesses, including clarifications that the overseas business must be ‘active and trading’ and have, and ‘intend to continue to have’ its headquarters and principal place of business outside the UK. A new ‘genuineness’ test has also been added, and the updated guidance provides further information on both the employment status of applicants, and representatives who own or control a stake in the business.
- EU Settlement Scheme: Access to the EUSS has been extended to victims of domestic violence or abuse, in addition to family members of people from Northern Ireland (from 24 August 2020). Children, spouses, civil partners and other family members may also be entitled to a continued right of residence following the termination of the marriage or civil partnership of the relevant EEA/British citizen (where it lasted for at least three years and at least one of which was spent in the UK).
- Appendix W: A number of changes have been made to the rules regarding Start-ups, Innovators and Global Talent, including to allow higher education providers to be the endorsing bodies for Innovator visas (rather than just Start-up applicants). Amongst other things, government departments can also now be endorsing bodies for Start-ups and Innovators, and an Innovator applicant's business may be already trading, providing the applicant was one of its founders.
Changes to Employment Tribunal FAQs
On 1 June 2020, further amendments were made to the Employment Tribunals FAQs covering issues of Employment Tribunal practice and procedure arising from the COVID-19 pandemic. The updated document includes a ‘road map’ designed to gradually increase the number and type of hearings taking place during the rest of the year, giving an indication of the types of cases that Tribunals will seek to determine and the hearing arrangements that will need to be put in place.
For further information, please see here.
ACAS mental health guidance
Following an ACAS-commissioned survey that found nearly two out of five employees working from home feel stressed, anxious or have experienced mental health difficulties due to their working situation, ACAS has published new guidance on managing mental health during the COVID-19 outbreak.
The guidance acknowledges that it may be more difficult for employers to recognise signs of mental health problems where employees are working from home. It recommends regular contact and outlines the need to deal with any such matters sensitively and confidentially.
For further information, please see here.
ICO COVID-19 guidance
The Information Commissioner’s Office (ICO) has published further guidance regarding data protection concerns during the ‘coronavirus recovery’ phase. The guidance outlines the six key data protection principles (including fairness and transparency, and keeping information secure), and specific guidance pages on the ICO’s regulatory approach, surveillance, testing, and individual rights.
For further information, please see here.
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