Emplaw Monthly - End of June 2020
NEW FROM OUR AUTHORS
Cloisters Toolkit: Returning to work in the time of Coronavirus
Updated as of 26th June, Cloisters' expert employment barristers have produced an invaluable and detailed online guide, Returning to Work in the Time of Coronavirus, which explores the critical legal issues which arise as businesses re-open.
Legal basis of flexible furlough scheme published
A useful article from Emplaw authors Lewis SIlkin on the updated Treasury Direction which sets out the legal frame work for the changes to the furlough scheme that come into effect on 1 July.
Employer/Advisor Need to Know
Ethnic Pay reporting to be considered by Parliament
A petition to Introduce Mandatory Ethnicity Pay Gap Reporting has received over 100,000 signatures which means that Parliament is forced to consider it for debate. No date for a debate has yet been notified.
Readers may recall that in October 2018 the government launched a consultation on ethnicity pay reporting in response to facts and figures data from the Race Disparity Audit’s, which revealed significant disparities in the pay and progression of ethnic minority employees compared to their white counterparts. The consultation closed in January 2019 and the government response is still pending.
Acas new equal pay guidance
Acas has published new guidance to help employers and employees understand equal pay law.
The guidance includes an overview of equal pay law under the Equality Act and suggestions for how to prevent equal pay issues, as well as guidance for employees who believe they are not getting equal pay.
Acas redundancy map
Acas has published a useful process map of the steps in a redundancy process. It has been designed to help employers better understand redundancy processes, required steps and also good practice when engaging with employees. It also provides details of options and alternatives to making redundancies and prompts employers to consider further support they can provide to their employees.
European roadmap for LGBTI + equality
The EU has started preparatory work on a new strategy to combat the persisting discrimination and inequality experienced by lesbian, gay, bisexual, transgender and intersex (LGBTI+) people.
Accordingly, the European Commission has published a roadmap for LGBTI+ equality. The feedback period runs from 29 May – 10 July 2020. A broad policy communication is expected to be adopted in Q4 of 2020.
Senior managers regime extended to benchmark administrators
The FCA has published a policy statement and final rules on extending the senior managers regime to benchmark administrators. As benchmark administrators are a new category of authorised firms, they were granted a one-year extension from the wider roll-out of the regime in 2019.
The FCA does not propose to introduce the Certification Regime, which requires firms to assess the fitness and propriety of certain individuals within the firm. This is because benchmark administrators are subject to the Benchmarks Regulation (BMR) which should achieve a similar outcome. As such, the SMR will come into force for benchmark administrators that do not undertake any other regulated activities on 7 December 2020.
Legislation and Litigation
Employment Tribunal Fees
It is reported in The Times that the Ministry of Justice has written to the Law Commission inviting it to “provide recommendations for creating a coherent system for charging and updating fees in the future”.
Fees were abolished in July 2017 following the Supreme Court’s decision in R (on the application of Unison) v Lord Chancellor
Reports and consultations
Support in the workplace for victims of domestic abuse - call for evidence
The government has launched a review which aims to ensure survivors of domestic abuse are given support within the workplace, whether that is an outlet for reporting abuse, financial assistance or as a source of emotional support.
As part of this review, which closes 9th September 2020, the government is seeking evidence based on the following questions:
what practical circumstances arise in relation to domestic abuse and work?
what support can be offered in the workplace to 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?
For a comprehensive round up of information and how rules and regs have developed since March, please see Emplaw Monthly - End of March and Emplaw Monthly- End of April and Emplaw Monthly - End of May
Restrictions on people and business - The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 amendments
These regulations, which set out the law which underpins the restrictions on most businesses and organisations that deal with the general public and on individuals' rights of movement and assembly in England, have been subject to ongoing amendment.
The sequence with links has been:
There is an up-to date consolidated version of the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 including all these amendments at
The details of Amendment Number 3 which came into force on 1st June and Amendment Number 4 which came into force on 13th June 2020 are set out below . This has been followed by the prime minister's statemtent to the House of Commons on 23rd June which set out further changes to lockdown measures from Saturday 4th July for England only. The statement included a new position on social distancing, that is ' Where it is possible to keep 2 metres apart people should. But where it is not, we will advise people to keep a social distance of ‘one metre plus’,meaning they should remain one metre apart, while taking mitigations to reduce the risk of transmission'. Mr Jouhnston also announced that 'from now on we will ask people to follow guidance on social contact instead of legislation'.
Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020
These replace the restrictions on movement and the list of reasonable excuses for a person to leave the place they are living with, instead, a prohibition on staying overnight in a place other than where a person lives, without reasonable excuse. A reasonable excuse includes
'(i)for work purposes, or for the provision of voluntary or charitable services' (substituting previous Regulation 6).
The amendments also substitute the previous Regulation 7 so as to prevent a person participating in an outdoors gathering of more than six persons and an indoors gathering of two or more persons, whether in a public or private place, subject to certain exceptions. These exceptions include being members of the same household or the gathering 'is reasonably necessary—(i)for work purposes, or for the provision of voluntary or charitable services.
These amendments were critical in underpinning the governments' various Working Safely Guidance - see below
The Health Protection (Coronavirus, Restrictions)(England)(Amendment)(No.4) Regulations 2020
This instrument was made under the emergency procedure set out in section 45R of the Public Health (Control of Disease) Act 1984 (c. 22). The Regulations are made without a draft having been laid and approved by a resolution of each House of Parliament.
The instrument makes a number of changes to the Restrictions Regulations to enable and support gradual relaxation of restriction measures whilst amending and keeping in place public health measures to continue to reduce public health risks posed by the incidence and spread SARS-CoV-2. The relaxations allow the opening of non-essential retail premises. The relaxations will also enable certain important aspects of public and private life to continue in a controlled manner. The amendments to the Restrictions Regulations being made include:
Regulation 4: To enable those businesses or services which are required to be closed under Part 2 of Schedule 2 to carry on business in a shop or from a restaurant or café (for takeaway service only) which is self-contained and can be accessed directly from outside the premises.
Regulation 5: Amended to allow for reopening of non-essential retail. As amended regulation 5(1) relates solely to libraries. Libraries may not reopen except for click and collect services but may open a shop or café or restaurant (for takeaway service only) which is separate from the premises and accessible from outside.
Regulation 5: To allow private prayer by individuals in places of worship and to enable self-contained shops in places of worship which can be accessed from outside the premises to open and cafes and restaurants (which meet the same conditions) to offer takeaway service.
Regulation 5: To allow the holding of indoor markets in community centres.
Regulation 6: To enable those who have formed a bubble with a linked household to stay overnight at the home of that linked household.
Regulation 6: To enable a person to stay away from home overnight where it is necessary to attend a birth or for compassionate visits as permitted by regulation 7.
Regulation 7: Expressly providing that people can gather for birth and end of life, visit those in hospitals, hospices and care homes and to support someone with a medical appointment.
Regulation 7: To provide an exception to the gatherings limit for members of a household or linked households attending a drive-in cinema in a car or other vehicle.
Regulation 7: To enable single occupancy households (those with only one adult member) to gather together with the members of another household (“a linked household”) with which they have formed a support bubble.
Schedule 2 is amended:
- To allow betting shops to open
- To allow retail galleries to open.
- To allow the outdoor areas of zoos, safari parks, aquariums and outdoor visitor attractions at farms or other animal attractions to open.
- To allow drive-in cinemas to open To allow auction houses to open
- To allow shops to open at attractions such as botanical gardens, heritage sites and landmarks such as observation wheels.
The Regulations cease to have effect at the end of the period of six months beginning on 26 March 2020 (the day on which the Restrictions Regulations came into force).
Foreign travel - quarantine regulations
On 8 June 2020 regulations came into force which provided for a 14-day quarantine for people entering the UK from outside the Common Travel Area. The rules require visitors to complete a passenger locator form and to self-quarantine for 14 days. The measures give police the power to carry out spot checks at the homes of international arrivals, and allow for fixed rate penalties up to £3200, depending on the specific breach of the self-isolation rules and any repetition of a such a breach.
Restrictions are to be reviewed every three weeks, and it is reported that the Prime Minister is expected to announce this week that deals have been put in place for so-called air bridges with a “small number” of countries with low levels of coronavirus. It would enable Britons to go on holiday without having to spend 14 days in quarantine when they return. Foreign tourists would also be able to come to the UK without having to self-isolate on arrival.
A Practice Direction (which amends the Practice Direction (Employment Appeal Tribunal – Procedure )2018) and a new Protocol both in connection with remote hearings, apply in respect of all EAT hearings taking place on or after 12 June 2020.
Thie amended Practice Direction will expire at the same time as The Employment Appeal Tribunal (Coronavirus) (Amendment) Rules 2020, although it may be reviewed prior to the expiry of those Rules and may be revoked at any time.
Meanwhile in Scotland, a New Presidential Practice Direction and Practical guidance for remote hearings in Employment Tribunal in Scotland came into force on 11 June 2020.
The Employment Tribunals in England and Wales and in Scotland have issued FAQs arising from the Covid-19 pandemic which now include a road map which indicates how the employment tribunal intends to approach the listing of cases between June and December 2020.
Staff at work/returning to work
ICO guidance on data protection during the pandemic
The Information Commissioner’s Office has published guidance for organisation on data protection during coronavirus recovery. The guidance sets out six data protection steps that organisations should consider around the protection of personal information.
It provides useful guidance around the vexed issue of mandatory testing.
Reclaiming Sick Pay- The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020
Entitlement to statutory sick pay has been extended, under, to people who have been told to isolate under the new 'Test and Trace' system, so that a person who has been notified that they have had contact with a person with coronavirus, and who is self-isolating for 14 days as a result, will be entitled to statutory sick pay.
For more details on the original legislation and the rebate scheme, please see the report in last month’s Emplaw monthly
NHS test and trace: workplace guidance
Guidance, updated 15th June on the NHS test and trace service for employers, businesses and workers
Working safely during coronavirus
The government has updated its ‘Covid-19 secure guidelines’ to help employers, employees and the self-employed understand how to work safely during the pandemic.
The general 5 steps to working safely was updated on 25th June, following amendments to the existing guides. largely to reflect the change to the 2m rule and to add guidance on support bubbles where applicable, and new guides have been added.
There are now 12 specific guides for the following::
- Close Contact Services - such as hairdressers
- Hotels and other guest accommodation
- The visitor economy- such as hotels, indoor and outdoor attractions, and business events and consumer shows
- Heritage locations such as historic monuments, sites, parks, and gardens which have some form of public access
- Construction and other outdoor work
- Factories, plants and warehouses
- Labs and research facilities
- Offices and contact centres
- Other people’s homes
- Restaurants offering takeaway or delivery
- Shops and branches
Parents returning to work after extended leave eligible for furlough
The government has announced that people on paternity and maternity leave who return to work in the coming months will be eligible for the government’s furlough scheme. This is now also reflected in the new Treasury Direction and government guidance on the furpough scheme- see below
What is ‘flexible furlough’?
The Coronavirus Job Retention Scheme (CJRS) will be amended with effect 1 July 2020 to:
· Introduce the concept of ‘flexible furloughing’, and
· Reduce government financial support.
Employers who have furloughed staff under the original CJRS (with certain exceptions, such as those on leave for family-related reasons) can rely on the revised terms. In order to claim ongoing financial support, the employer must have placed employees on furlough on or before 10 June. Employers must make claims for any period up to 30 June 2020 by 31 July. Any claims for periods which start on or after 1 July cannot be made before 1 July.
Employers can still only claim for furloughed employees who were employed on 19 March 2020 and who were on their PAYE payroll on or before 19 March 2020 and, importantly, they must have been already furloughed for at least three consecutive weeks taking place any time between 1 March and 30 June 2020. Anyone starting work with their employer after 19 March will not be covered nor will employees who have not been furloughed. There is an exception for employees returning from statutory parental leave after 10 June.
The revised terms provide that there is a maximum number of employees for whom a claim can be made; this the maximum number claimed for in a single claim under the terms of the original CJRS (subject to employees returning from parental leave).
The Guidance provides an example of how this limit will work in practice: “… an employer had previously submitted three claims between 1 March 2020 and 30 June, in which the total number employees furloughed in each respective claim was 30, 20 and 50 employees. Then the maximum number of employees that employer could furlough in any single claim starting on or after 1 July would be 50.”
When calculating the maximum number of employees, the employer may add newly furloughed employees who have returned from statutory parental leave after 10 June.
Those employers who rotated groups of staff on and off furlough and may wish to bring back more employees on a part-time basis from 1 July, will need to ensure that they do not exceed this limit in any claim period.
Employees will be able to resume work for any period and any shift pattern while still being furloughed; they will be paid under the CJRS for hours that they have not worked. Employers will need to claim for a minimum period of one week.
Under the revised terms, the three-week minimum furlough period will no longer apply and there will be no minimum period for furlough.
Where a previously furloughed employee starts a new furlough period before 1 July this must be for a minimum of three consecutive weeks. This is the case regardless of whether the three consecutive week minimum period ends before or after 1 July. After 1 July, employers cannot make claims that cross calendar months, so the employer will need to make a separate claim for the period up to 30 June.
Any claim periods starting on or after 1 July must start and end within the same calendar month.
Employers should note that the revised terms include additional record keeping obligations and copies should be kept of all records for six years. The Guidance states that an employer should not claim until employers are sure of “the exact number of hours [the employees] will have worked during the claim period. This means that you should claim when you have certainty about the number of hours your employees are working during the claim period. If you claim in advance and your employee works for more hours than you have told us about, then you will have to pay some of the grant back to HMRC.”
As before, employers must agree any new flexible furloughing arrangement with any employee being placed on furlough (including by collective agreement with recognised union/s) and confirm that agreement in writing. If the employee is already on furlough leave, there is no need for a new furlough agreement in order to transition into flexible furlough. The employer must simply agree (if necessary) the hours or days which the employee is to work during the furlough period.
Employees cannot undertake any work for their employer during periods they are furloughed – from 1 July this means that the employee can only work such hours or days as specifically required by the employer. Non-working hours or days will count as “furlough time”, during which no work can be undertaken.
There are also changes to the financial support offered by the government. The revised terms of the CJRS will gradually be reduced as follows:
% recoverable wages
Additional employer liabilities
80% unworked days
(up to £2,500)
80% unworked days
(up to £2,500)
Employer National insurance (NI) + pension contributions
70% unworked days
(up to £2,187.50)
Employer NI + pension contributions +10% wage contribution (to make up the 80% total, up to a cap of £2,500 i.e. up to £312.50)
60% unworked days
(up to £1,875)
Employer NI + pension contributions +20% wage contribution (to make up the 80% total, up to a cap of £2,500 i.e. up to £625)
The cap will be proportional to the hours not being worked.
The revised terms state that it is an employer’s responsibility to check that any amounts claimed are correct and that it is not permissible to claim more than the maximum amount for each employee nor to claim in respect of any wages not paid out the employee.
However, where there are genuine mistakes employers should inform HMRC of any over/under claimed amount (preferably as part of their next claim).
If an employer intends to apply the revised terms and require the employee to carry out some work while being furloughed, they should inform them that they will be on flexible furlough leave from 1 July (or other relevant date) – i.e. that they may be required to work, that they will be paid their usual contractual pay for such work, but that otherwise they will remain on furlough leave and receive furlough pay for their usual hours which they do not work.
The CJRS will end on 31 October 2020.
Where to find what Government guidance
The collection of guidance relating to the Coronavirus Job Retention Scheme (updated 26th June) is listed at Coronavirus Job Retention Scheme
There are three sets of guidance which employers need to reference first, followed by guides to calculations and examples.
The three preliminary sets of guidance are:
1. Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme - (updated 19th June) and includes guidance in respect of those returning from family leave
2. Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme - (updated 12th June) and includes guidance in respect of the new flexible furlough scheme and the records which an employer must retain
3.Steps to take before calculating your claim using the Coronavirus Job Retention Scheme (new - published on 12th June) and includes guidance on what to include when calculating wages and working out an employee’s usual hours and furloughed hours.
There are then the following guides to help with calculations
1. Calculate how much you can claim using the Coronavirus Job Retention Scheme (new - published 12th June) and includes guidance on working out 80% of an employee’s normal wage and includes link to online calculator, and how much an employer can claim for employer NICs and pension contributions
2. Examples of how to calculate your employees' wages, National Insurance contributions and pension contributions (updated 12th June) and includes worked examples of how to work out usual hours and furloughed hours and how to work out 80% of an employee's normal wage
3 Example of how to calculate the amount you should claim for an employee who is flexibly furloughed (updated 12th June) and sets out the full sequence of calculation steps that an employer must take when claiming through CJRS, based on a scenario in which the employee has a fixed monthly salary, fixed working hours, and is flexibly furloughed
Claim for wages through the Coronavirus Job Retention Scheme. (updated 26th June) Includes guidance on what an employer will need in order to claim under the CJRS, how to claim and includes a link to the claims portal
Updated Treasury Direction
The Treasury Direction underpinning the CJRS was updated on 25th June, largely to make provision for the operation of flexible furlough from Ist July to 31st October.
See also Lewis Silkin article above
Self-Employed Income Support Scheme (SEISS) scheme - update and challenge
Check if you can claim a grant through the Self-Employment Income Support Scheme (updated 12th June)
Self-Employment Income Support Scheme Factsheet (published 29th May)
Earlier this month, The Independent Workers' Union of Great Britain (IWGB) and two Uber drivers sought a judicial review accusing HM Treasury of failing to provide adequate protection for gig economy workers under the Self-Employed Income Support Scheme. The High Court gave judgement on 15th June, and dismissed the application.
Furloughed employees can give evidence
In the personal injury case brought before the county court, the judge declined to postpone the case on the ground that the defendant’s employees were furloughed under the Coronavirus Job Retention Scheme (CJRS) and could not therefore give evidence on behalf of the defendant.