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Emplaw Monthly - End of October 2020


Pensions and Trade Unions

The Pensions team, from Emplaw authors Gowling WLG, set out why and how companies need to be aware of trade unions when considering changes to pension provision.

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Free webinar on remote hearings

A topical free to view webinar from Emplaw authors Cloisters

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Employing EU citizens in the UK in the context of Brexit

Amongst our suite of user-friendly information about Recruitment is a card on Employing EU citizens in the UK in the context of Brexit. Click below for the full list of cards on Recruitment including an Overview of Matters to Consider in the recruitment process,  DBS checks and  much more.

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Becoming an anti-racist organisation

MHFA has published guidance to support mental health and wellbeing as part of its work in actively encouraging organisations to be actively anti- racist.

CIPD and EHRC guidance on supporting employees suffering domestic abuse

The CIPD has produced, with the Equality and Human Rights Commission (EHRC). Guidance for employers, on managing and supporting employees experiencing domestic abuse. It recommends employers develop a domestic abuse policy and create an effective framework around domestic abuse support.

Brexit preparations: government campaign and information from Emplaw authors

The government has launched its ‘time is running out’ campaign urging business leaders to step up preparations for ‘Australia-style’ arrangements from 1 January 2021.

Emplaw authors Gowling WLG  explore the key issues for businesses including workforce, supply chain and customs/border tariff issues

ICO Updated Guidance on subject access requests.

The guidance aims to provide clarity on the following:

  • Stopping the clock whilst organisations are waiting for the requester to clarify their request
  • What is a manifestly excessive request 
  • What can be included when charging a fee for excessive, unfounded or repeat requests


The Restriction of Public Sector Exit Payments Regulations 2020

These Regulations are made in order to impose restrictions on the amount of an exit payment a listed public sector authority can make in connection with the exit of an employee or office holder, where that exit takes place after these Regulations come into force. The restrictions cap an exit payment at a prescribed amount, currently £95,000 except in specific circumstances as set out in these Regulations. The Regulations come into force on 4 November 2020.

The cap will apply to payments of a prescribed description which are not exempt, including payments arising from a contractual entitlement such as redundancy payments. These Regulations set out the sequence in which multiple exit payments are to be treated as having been paid where multiple exits take place in a 28-day period. These Regulations also make specific provisions in relation to statutory redundancy payments and early retirement related payments, as well as provide flexibility by allowing exit payments to be paid in excess of the cap with HM Treasury consent or in compliance with HM Treasury directions.

Section 153A(9) of the Small Business, Enterprise and Employment Act 2015 (‘the 2015 Act’) allows for the level of the cap, currently set at £95,000 to be varied by regulations therefore allowing revaluation upwards or downwards if appropriate, whilst still fulfilling the manifesto commitment.

These Regulations will result in some public service pension scheme provisions needing amendment due to the cap applying to employer-funded early access to pension arrangements to allow for early retirement. In this scenario, the pension scheme member receives an actuarially reduced pension from the scheme to reflect early receipt of pension benefits with the employer funding the amount of reduction through arrangements between the employer and pension scheme. This increases the member’s pension rights and enables the scheme member to have early access to their pension benefits without any actuarial reduction, ahead of their normal pension age.

Since the coming into force of the enabling power in the 2015 Act, some public sector bodies have tried to adjust exit terms for employees and implement a similar cap. However, this has proved to be difficult and, in some cases has resulted in legal challenge in the absence of a legal obligation upon an employer to cap payments arising from a contractual entitlement.

The Scottish Government have implemented a £95,000 cap on exit payments for bodies where pay and terms are devolved. This was done by updating the Scottish Public Finance Manual. HM Treasury has decided to proceed with a legislative approach in order to apply the exit payment cap to contractual arrangements.

European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (Regulations) 

The government has laid the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (Regulations) before Parliament, together with a draft explanatory memorandum.The Regulations extend the power to depart from retained EU case law after IP (Implementation Period)  completion day to specified appellate domestic courts including the Court of Appeal, and further related provisions.

The government has also published its response to the preceding consultation as reported in Emplaw Monthly for July,.

The Data Protection, Privacy and Electronic Communications (Amendments etc)(EU Exit) Regulations 2020

These draft Regulations make amendments to the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (S.I. 2019/419) (the 2019 Regulations). The 2019 Regulations made amendments to legislation in relation to the regulation of the processing of personal data, in connection with the withdrawal of the United Kingdom (“UK”) from the European Union (“EU”).

In particular, the transitional provisions in the 2019 Regulations to enable personal data to continue to flow from the  UK to jurisdictions which were subject to an EU adequacy decision immediately before “exit day'” will be updated to reflect the changes to the current EU adequacy decisions that are in force by adding the Japan adequacy decision and removing the Privacy Shield decision (Case C-311/18, “Schrems II”) from the list. 

The explanatory note with the Regulations provides a useful  quick summary of the framework of data protection legislation pre and post IP (Implementation Period) Completion Day (11pm on 31st December 2020)

ET annual awards statistics for 2019/20 published

The Employment tribunal quarterly statistics for April to June 2020 have been published and they include  annual awards statistics for 2019/20. The figures show that in 2019/20, age discrimination claims received the largest average award (£39,000) compared to other discrimination jurisdictions. The highest maximum award in 2019/20 was for disability discrimination, at £266,000.


Ethnic disparities and inequality in the UK: call for evidence

The Commission on Race and Ethnic Disparities has issued a call for evidence in order to to review ethnic disparities and inequality in the UK, focusing on the areas of education. employment and enterprise, health,crime and policing. The deadline for responses is Monday 30 November 2020 at 11:45pm.

Gender Pay Gap reporting: a comparative analysis

This report maps international gender pay gap reporting legislation, with the goal of highlighting best practices internationally and a way forward for the UK. It is a collaboration between the Fawcett Society, the Global Institute for Women’s Leadership at King’s College London (GIWL) and Thomson Reuters Foundation. The report states that UK gender pay gap legislation is much less robust than in other countries.

UK annual report on modern slavery

This report details activity delivered by the UK government since Autumn 2019 to tackle modern slavery, including:

·       Monthly operational data shows that, in June 2020, there were 1,845 active law enforcement investigations, compared with 1,479 in June 2019. This has been complemented by increased training for frontline police officers on the signs of modern slavery and improved operational intelligence on the nature of modern slavery.

·       In 2019, the number of prosecutions and conviction rate increased with the number of completed “flagged modern slavery prosecutions” increasing from 294 to 349, and the conviction rate increasing to 71.9% in 2019, an increase from 65% in the previous year.

·       The Gangmasters and Labour Abuse Authority (GLAA) continued to make progress using its powers under the Police and Criminal Evidence Act 1984 (PACE) to investigate serious cases of labour exploitation. In 2019/20, the GLAA conducted over 200 operations across a range of sectors.

·       On 26 March 2020, the UK became the first country in the world to publish a Modern Slavery [supply chain] Statement outlining the steps it has taken to drive responsible practices and prevent risks of modern slavery in Government supply chains.

·        The Home Office is developing a new Government digital reporting service for modern slavery statements.

Separately, the Sentencing Council has launched a consultation on proposed sentencing guidelines for offenders for modern slavery offences. The consultation closes on 15 January 2021.

COVID-19 materials


Three-tier alert system

The government introduced a series of regulations on 12 October which came into force on 14 October setting out rules for a three-tier system of alerts: medium, high and very high.

The restrictions will cease to have effect in relation to a particular area 28 days from the date in which the restrictions came into force in that area, unless the Secretary of State directs otherwise. If such a direction is issued, the restrictions will continue in effect for a further 28 days.

The need for the restrictions in these Regulations must be reviewed by the Secretary of State every 28 days. The Regulations themselves expire six months after the date on which they are made.

Shielding guidance

The government has revised its shielding guidance for people who are clinically extremely vulnerable. The new guidance is aimed at striking a better balance between providing practical steps to keep people safe whilst reducing some of the potentially harmful impacts on mental and social wellbeing associated with strict shielding.

UK Supreme Court

The UK Supreme Court has published an update to its arrangements during the COVID-19 outbreak and an updated its Practice note.


COVID-19 – Scotland

Scotland published a Strategic Framework on 23rd October and  is introducing a  5-level system of protection levels from 2 November.

COVID-19 – Wales

The Welsh government introduced the Health Protection (Coronavirus Restrictions)(Functions of Local Authorities etc)(Wales)(Amendment) Regulations 2020 which came into force on 12 October 2020, enabling the Welsh ministers, by regulations, to make provision for a public health response to COVID-19.

On 19 October, the Welsh government announced a ‘firebreak’ for Wales ending on 9 November.  The measures are contained in The Health Protection (Coronavirus Restrictions) (No. 3) (Wales) Regulations 2020. They apply to everyone living in Wales and replaced previous restrictions. During this time:

·        People must stay at home, except for very limited purposes, such as for exercise.

·        People must work from home wherever possible;

·        People must not visit other households or meet other people they do not live with either indoors or outdoors

·        No gatherings will be allowed outdoors, such as Halloween or fireworks/Bonfire night or other organised activities

·        All non-food retail, hospitality businesses, including cafes, restaurants and pubs (unless they provide take-away or delivery services), close contact services, such as hairdressers and beauticians, and events and tourism businesses, such as hotels must close

·        Community centres, libraries and recycling centres will be required to close

·        Face coverings must be worn in indoor public spaces, which remain open, including on public transport and in taxis.


Exit Coronavirus job Retention Scheme and Enter Job Support Scheme

The CJRS closes at the end of October and the JSS starts. The JSS as previously announced has been completely remodelled and consists of JSS Open and JSS Closed, reflecting whether a business has been legally required to close as a direct result of coronavirus restrictions set by one or more of the four governments of the UK. An employer can claim the JSS Open and JSS Closed grant at the same time for different employees. Organisations that have staff costs that are fully publicly funded should not use the Job Support Scheme.

JSS Open

JSS Open is now  likely to be more attractive to struggling employers as it significantly reduces the level of the employer contribution and reduces the amount of time an employee must work.. The key points are:

  • The employee must work 20% (no longer a third) of their normal hours and be paid as normal for those by their employer
  • The employee will receive two-thirds (66.67%) of normal pay( 'reference salary') for the hours they do not work. 
  • The employee is left to absorb the balance
  • Claims are subject to a maximum reference salary of £3,125 per calendar month

Therefore, assuming the employee works no more than the minimum 20% of normal hours and recieves the 66.67% for the unworked hours, the maths means that an employee continues to receive at least 73% of their normal wages, where they earn £3,125 a month or less.

  • The employer will pay 5% of what the reference salary would be for the hours not worked, up to a maximum of £125 per month, with the discretion to pay more
  • The government will pay the remainder of 61.67%, of what the reference salary would be for the hours not worked, up to a maximum of £1,541.75 per month
  • An employer must have less than 250 employee or, if they have more employees on 23 September 2020, they must undertake a Financial Impact Test
  • 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. Such temporary working agreement must cover at least seven consecutive days.

JSS Closed

• Each employee who cannot work due to these restrictions will receive two thirds of their normal pay, paid by their employer and fully funded by the government, up to a maximum of £2,083.33 per month (with employer discretion to pay more)
• Employers must have reached written agreement with their employee (or reached written collective agreement with a trade union where the relevant terms are determined by collective agreement) that they have been instructed to and agree to cease work for a minimum period of at least 7 consecutive calendar days

Principles that apply to both JSS Open and JSS Closed are:

• The schemes will operate for 6 months from 1st November 2020
• Employers can only claim for employees that were in their employment on 23 September 2020. If employees ceased employment after 23 of September 2020 and were subsequently rehired, then employers can claim for them.
• Employers must also pay to HMRC any employer NICs due on the full amount that that is paid to the employee, including any amounts subsequently met by a scheme grant.
• Employers and Employees must also still pay pension contributions in accordance with the applicable pension scheme terms, unless the employee has opted out or stopped saving into their pension. If applicable Student Loan deductions and the Apprenticeship Levy must also still be paid.
• An employee cannot be made redundant or put on notice of redundancy whilst their employer is claiming the grant for them

The link to a Policy paper including guidance on the  Financial  Impact Test for employers with over 250 staff, and how to work out employees’ usual pay is found below but further guidance is expected shortly.

Repayment of coronavirus Job Retention Scheme grants

Employers must have notified HMRC by 20 October if they have over-claimed CJRS payments, failing which there may be penalties.

Job Retention Bonus -Treasury direction and guidance

On 2 October 2020, a fourth Treasury direction and HMRC guidance were published providing further details on the £1000 Job Retention Bonus which employers will be able to apply for  in respect of eligible employees between 15 February and 31 March 2021.


Ikejiaku v British Institute of Technology Ltd [2020] UKEAT 0243/19

Whistleblowing - time limit for unfair dismissal claim and application of the ACAS uplift

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Chell v Tarmac Cement And Lime Ltd [2020] EWHC 2613

Company not liable for employee’s horseplay resulting in injury

This case starts with this quote: ‘The practical joke must be the lowest form of humour. It is seldom funny, it is often a form of bullying and it has the capacity, as in the present case, to go seriously wrong. Mark Twain was surely right when he said:

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Case Summary Tag: 

Ryan v South West Ambulance Services NHS Trust [2020] UKEAT 0213/19

Indirect age discrimination - group and individual disadvantage required

This case involved an allegation of indirect age discrimination. Ms Ryan alleged that she was indirectly discriminated against when she was not able to apply for promotion on two occasions because she was not in the South West Ambulance Service Trust’s ‘Talent Pool’ (TP). She argued that employees like her who were aged 55 or over were under-represented in the TP.

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Tan v Copthorne Hotels Ltd ET Case number 2200986/2017

ET makes costs order against claimant of over £400,000

Mr Tan was senior vice president of a global hotel chain until his redundancy. He brought numerous claims upon the termination of his employment including for harassment, whistleblowing and discrimination.

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Taylor v Jaguar Land Rover Ltd Case No. 1304471/2018

ET awards £180,000 to gender fluid employee

Ms Taylor had the protected characteristic of gender reassignment and the ET found that her allegations of harassment because of gender reassignment were well founded.It found that 'gender reassignment' (s.7 EqA) includes gender fluid and non-binary individuals.

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