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Emplaw Monthly - End of September 2020

NEW FROM OUR AUTHORS

Positive action speaks louder than words - five principles for employers

A useful article from Emplaw authors' Lewis Silkin explaining what employers can and cannot do.

Read here

Free webinar - Legal Duties In Relation To Remote Working - Employment, Data Protection and Health & Safety

As remote working looks set to continue in many businesses, Emplaw authors Gowling WLG, with others, examine employers' employment, data protection and health and safety duties.

Watch here

FOCUS ON CONTENT

Redundancy and Unfair Dismissal

Amongst our suite of user friendly information about unfair dismissal, is a card on redundancy as a reason for dismissal. Click below for the full list of cards on unfair dismissal including what makes a dismissal fair or unfair, what are potentially fair and automatically unfair reasons, how basic and compensatory awards are calculated and much more.

Click here

NEWS

EMPLOYER/EMPLOYEE ADVISOR NEED TO KNOW

Acas, CBI and TUC issue joint statement on handling redundancies

Issued on 24th September, in the anticipation of increased redundancies in light of Covid-19, the statement calls on employers to exhaust all possible alternatives before making redundancies  and to adhere to the following 5 principles:

1. Do it openly
There are rules for collective redundancies (those involving 20 or more staff), but whatever the scale, the sooner people understand the situation, the better for everyone.

2. Do it thoroughly
To understand what's happening, people need information and guidance. Have you trained your staff representatives in how it all works?

3. Do it genuinely
Consultation means hearing people's views before you make a decision; so be open to alternatives from individuals and/or unions; and always feed back.

4. Do it fairly
All aspects of your redundancy procedure should be conducted fairly and without any form of discrimination.

5. Do it with dignity
Losing your job has a human as a well as a business cost. The way you let people go says a lot about your organisation's values. Think about how you will handle the conversation – whether its face-to-face or remote. And remember, you may want to rehire the same person in the future.

https://www.acas.org.uk/joint-statement-acas-cbi-tuc

Data protection - some key updates

ICO Accountability Framework 

Article 5(2) of GDPR introduced accountability as a new data protection principle, with which controllers must demonstrate compliance. The Information Commissioner’s Office has now launched its accountability framework, to help organisations manage their approach to privacy and to understand what good accountability looks like.

For a useful reminder of the changes the GDPR introduced see Emplaw Law card The Data Protection Act 2018 and GDPR

https://ico.org.uk/for-organisations/accountability-framework/

Guidance on AI 

Meanwhile the ICO has also issued interesting Guidance on AI and Data Protection aimed at those who focus on compliance,such as Data Protection Officers, and also technology specialists.

https://ico.org.uk/for-organisations/guide-to-data-protection/key-data-protection-themes/guidance-on-ai-and-data-protection/

Frequently Asked Questions on the judgment in Schrems ll

In response to the European Court of Justice's July 16, 2020 decision invalidating the EU-US Privacy Shield (Data Protection Commissioner v Facebook Ireland and Maximillian Schrems (Case C-311/18) EU:C:2020:559) (Schrems II) the court has published some FAQs

https://edpb.europa.eu/sites/edpb/files/files/file1/20200724_edpb_faqoncjeuc31118.pdf

Voluntary calculation of ethnicity pay gap

PwC has carried out a survey which suggests that two thirds of businesses are now collecting ethnicity data on their employees and nearly a quarter have calculated their ethnicity pay gap despite this not yet being a legal requirement.

https://www.personneltoday.com/hr/257797/

International students: statement of changes to the Immigration Rules

The government has made changes to the Immigration Rules to introduce a points-based system for both EEA and non-EEA students who come to the UK for the purpose of study. The Student and Child Student routes will replace the Tier 4 (general) and Tier 4 (Child) routes in the Immigration Rules.

https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-707-10-september-2020

HMRC guidance on employment status of individuals in entertainment

HMRC has updated its employment status manual to cover individuals who work in the entertainment sector. It refers to  the updated list of particular occupations in the entertainment industry – TV and radio workers - behind the camera workers whose roles can normally be treated as self-employed.

https://www.gov.uk/hmrc-internal-manuals/employment-status-manual/updates  (3rd and 4th September updates)

COVID-19 materials

General and Tribunal updates

Coronavirus outbreak FAQs: what you can and can't do around the nations

Keeping track of the current restrictions is becoming more challenging and we include the links below to: a set of FAQs, updated 22nd September. for England; separate FAQs for Wales, updated 24th September; information on what you can and can't do in Scotland updated 27th September; information on what the restrictions mean for those in Northern Ireland updated 22nd September

https://www.gov.uk/government/publications/coronavirus-outbreak-faqs-what-you-can-and-cant-do/coronavirus-outbreak-faqs-what-you-can-and-cant-do

https://gov.wales/coronavirus-regulations-guidance

https://www.gov.scot/publications/coronavirus-covid-19-what-you-can-and-cannot-do/

https://www.nidirect.gov.uk/articles/coronavirus-covid-19-regulations-guidance-what-restrictions-mean-you

Restrictions on social gatherings

Regulations have been introduced in England, Scotland and Wales to restrict social gatherings to six people (indoors and outdoors in England and Scotland; indoors in Wales).

https://www.legislation.gov.uk/uksi/2020/986/made

https://www.legislation.gov.uk/wsi/2020/985/made

https://www.legislation.gov.uk/ssi/2020/279/contents/made

Tribunals - the effect of Covid on backlogs and new Presidential Directions

Following the Presidential Direction, and Presidential guidance on the conduct of ET proceedings during the Covid-19 pandemic, issued back in March, nearly all cases which were due to be heard in April, May and June have been postponed to a later date, increasing the workload of ETs going forward. According to the Law Society Gazette, Ministry of Justice data shows that the  backlog of cases waiting to be heard at employment tribunal level reached 45,000 in August 2020.


On 14 September 2020, the President of the Employment Tribunals (England and Wales) issued a new Practice Direction dealing with remote and in-person hearings in England and Wales during the  pandemic, as well as a Practice Direction on remote hearings and open justice which deals with the arrangements for allowing the press and members of the public to observe remote or partly remote hearings. Meanwhile, the Judicial Committee of the Academy of Experts has published Guidance on Giving Remote Evidence for expert witnesses.

https://www.lawgazette.co.uk/news/fears-for-employment-tribunal-as-covid-backlog-hits-45000/5105635.article

https://www.judiciary.uk/wp-content/uploads/2013/08/14-Sept-2020-SPT-ET-EW-PG-Remote-and-In-Person-Hearings-1.pdf

https://www.judiciary.uk/wp-content/uploads/2013/08/14-Sept-2020-SPT-ET-EW-PD-Remote-Hearings-and-Open-Justice.pdf

https://academyofexperts.org/practising-as-expert/expert-witness/guidance-on-giving-remote-evidence/

EHRC guidance on disabled customers

The Equality and Human Rights Commission has produced guidance for supermarkets to help the industry better assist disabled customers during the pandemic.

https://www.equalityhumanrights.com/en/our-work/news/new-guidance-calls-retailers-do-more-help-disabled-customers

STAFF AT WORK/RETURNING TO WORK

Government guidance on COVID-19 testing for employers and third-party healthcare providers

The Department of Health and Social Care has published guidance on coronavirus testing, which sets out the legal obligations and best practice to follow.

https://www.gov.uk/government/publications/coronavirus-covid-19-testing-guidance-for-employers/coronavirus-covid-19-testing-guidance-for-employers-and-third-party-healthcare-providers

Law and guidance on maintaining records of staff, customers and visitors to support NHS Test and Trace

The Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 impose a number of restrictions on the hospitality, leisure and community premises sectors. Generally, the regulations require designated venues to collect certain contact details mainly from customer, visitors and staff (as set out in the regulations), store this information for 21 days, and share it with NHS Test and Trace or local public health officials, if requested.Relevant organisations must display and make available a QR code to enable individuals to scan that code.

The government has also issued guidance:

https://www.legislation.gov.uk/uksi/2020/1005/contents/made

https://www.gov.uk/guidance/maintaining-records-of-staff-customers-and-visitors-to-support-nhs-test-and-trace

Unite  - COVID-19 advice hub

Unite offers comprehensive guidance on Coronavirus Work Rights

https://unitetheunion.org/campaigns/coronavirus-covid-19-advice/

Covid Secure guidance updated to include supporting self-isolation

The government has updated its guidance on working safely during coronavirus, as of 24th September. The guidance now includes the rule against indoor or outdoor gatherings of more than six people and the revisited direction that workers should work from home if they can and that, by law, from 28 September, employers must not knowingly require or encourage someone who is being required to self-isolate to come to work.

The regulations behind this latter obligation are The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 which require workers to notify employers if they are  required to self-isolate and for employers not to knowingly allow  self-isolating workers (including agency workers) to attend any place other than where the individual is self-isolating.  Violation of these provisions is a criminal offence and, if an employer is in breach of their obligations, a fixed penalty notice may be issued for £1000 for the first such notice issued, increasing to £10,000 for four or more offences.

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/updates

https://www.legislation.gov.uk/uksi/2020/1045/pdfs/uksi_20201045_en.pdf?utm_source=hootsuite&utm_medium=social&utm_campaign=post&mc_cid=2a2ca4c30c&mc_eid=ddfbea971a

SSP extended to employees advised to self-isolate

The Statutory Sick Pay (General)(Coronavirus Amendment)(No.6) Regulations 2020 amend the Statutory Sick Pay (General) Regulations 1982 in order to extend eligibility for Statutory Sick Pay (SSP) to people where they are self-isolating prior to admittance to hospital for planned or elective surgery.

https://www.legislation.gov.uk/uksi/2020/892/contents/made

CJRS and the JSS

Job Support Scheme

The scheme, announced by the Chancellor on September 22nd, aims to support viable jobs in businesses who face reduced demand for their services. The key points are:

  • The employee must work a third of their normal hours and be paid as normal for those by their employer
  •  The employer and the government will each pay 1/3 of unworked hours, leaving the employee to absorb the balance
  • The government’s contribution is subject to a cap of £697.92 per month
  • “Usual wages” calculations will follow a similar methodology as for the CJRS
  •  Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing
  •  An employee cannot be made redundant or put on notice of redundancy whilst their employer is claiming the grant for them
  •  All small and medium businesses are eligible but large businesses are only eligible where turnover has fallen through the covid crisis
  • The scheme will operate for 6 months from 1st November 2020 

As ever, the complexity is in the detail. The fact sheet linked below helps but more guidance is expected. 

https://www.gov.uk/government/publications/job-support-scheme

Kickstart scheme

A scheme under which participating employers will receive government funding for 100% of the minimum automatic enrolment  employer contributions, plus relevant national minimum wage and employer national insurance contributions, for 25 hours a week for each eligible employee during the six-month work placement. Eligible participants are individuals aged between 16 and 24 who are on Universal Credit or deemed to be at risk of long-term unemployment.

https://www.gov.uk/guidance/check-if-you-can-apply-for-a-grant-through-the-kickstart-scheme

Guidance on how much to claim using the coronavirus job retention scheme

From 1 September the government are paying 70% of wages up to a maximum cap of £2187.50 for the hours an employee is on furlough. Employers need to top up to at least 80% (up to £2500) and pay Employer NICs and pension contributions.

For October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee is on furlough. Employers will continue to pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500.

By way of reminder, the government provides guidance on how to calculate the amount of a claim under the job retention scheme (updated 11th September) and published, back in July, details about the Job Retention Bonus.

https://www.gov.uk/guidance/calculate-how-much-you-can-claim-using-the-coronavirus-job-retention-scheme

https://www.gov.uk/government/publications/job-retention-bonus

CASES: 

K v L UKEATS/0014/18

Dismissal of schoolteacher with indecent images on computer was unfair

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Case Summary Tag: 

BC and others against Iain Livingstone, Chief Constable of the Police Service of Scotland and other [2020] Scot CS CSIH/61

Police officers were not entitled to claim privacy over WhatsApp messages

In this case, ten police officers in Scotland challenged the Lord Ordinary’s decision to refuse their application for judicial review in relation to the Chief Constable’s decision to bring misconduct charges against them in connection with private WhatsApp messages exchanged between them.

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Walker v Co-Operative Group Ltd & Anor [2020] EWCA Civ 1075

Material factors explain difference in pay for equal pay purposes

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Aramark Limited v Fernandes UKEATS/0028/19

Not placing redundant employee on ‘pool of workers’ list was not unreasonable

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Sullivan v Bury Street Capital Ltd [2020] UKEAT 0317/19

Disability: No substantial long-term effects of paranoia

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Kelly v PGA European Tour [2020] UKEAT 0285/18

Re-engagement order overturned

This appeal concerns a re-engagement order made by an ET after an unfair dismissal finding. At a subsequent remedy hearing, the ET, by a majority, ordered that Mr Kelly be re-engaged in the role of Commercial Director, China PGA European Tour. PGA appealed against that order.

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Glasgow City Council v Johnstone & Anor [2019] UKEAT 0011/18

Foster carers under new arrangement were employees

In this appeal, Glasgow City Council sought to argue that the ET erred in holding that the relationship between foster carers and the Council who placed children with them, was contractual in nature. The Council sought to argue that the relationship was based on statute and that because of this the relationship was non-contractual. The model under which the foster carers worked differed in nature from that used for ordinary foster care arrangements.

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Bannerman v Euroscot Engineering Ltd (Rev 3) [2020] UKEAT 0010/19

Insufficient degree of control to constitute employment relationship

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