Employment Law Update | July 2020

Welcome to the latest edition of our monthly employment law update.

We're sorry there haven't been any newsletters for the last few months. We've been busy advising clients on the frequently changing furlough and job retention scheme, as well as advising on lay-offs, short time working, reducing pay and redundancies. It's not all doom and gloom though as some clients are thriving and growing in the current climate. Talking of growing, we'd like to take this opportunity to introduce you to Gemma Sherbourne who is the newest member of our team, joining as a senior associate. Gemma is on hand to help with any employment law queries you may have.

We've tried not to concentrate on furlough in this newsletter, but we wanted to remind you that the last day for submitting CJRS claims for periods ending on or before 30 June 2020 is 31 July 2020.

• • How do we get the furlough retention bonus?
  • Can we dismiss people who refuse to return from furlough?
  • Do I need to keep additional records because of Covid-19?
  • Do I need to change employees' contracts of employment?
  • Does an employee intentionally failing to pay income tax stop them bringing a tribunal claim?
  • Can a tribunal take into account facts the dismissing officer didn't know?
  • Can an employer fairly dismiss on the basis of risk to reputation when an employee has been charged with a crime?
  • What are the parental bereavement leave regulations?
  • What is the current maximum weekly pay for redundancy purposes?
  • What are the bands for injury to feelings awards?
  • Are pre-TUPE transfer changes to contracts of employment void if they are advantageous to employees?
  • Will lockdown lead to more employment tribunal claims?
  • Will maternity pay and protection be extended?

If you would like to discuss any of the issues raised below, please don't hesitate to contact Liz Henry,James Austin or Gemma Sherbourne

How do we get the furlough retention bonus?

The Government has announced that it will pay employers £1,000 for each employee who has been furloughed under the Coronavirus Job Retention Scheme and remains continuously employed by the same employer until 31 January 2021. It is hoped that this scheme will support and provide an incentive to employers to retain employees.

To be eligible, employees will need to:

• earn at least ¬£520 per month (above the Lower Earnings Limit) on average for November, December and January
• have been furloughed at any point and legitimately claimed for under the Coronavirus Job Retention Scheme
• have been continuously employed up until at least 31 January 2021.

Claims can be made from February 2021, once the RTI data has been submitted in respect of the relevant employee for January 2021. Further guidance is expected to be released in due course.

It remains to be seen how much of an incentive this will be for employers in light of the ongoing costs of retaining staff, but it may be attractive to some, particularly where the alternative is high redundancy costs and notice pay.

Can we dismiss people who refuse to return from furlough?

At the time of print it appears that the Government is moving away from the "Work at home if you can" message and suggesting that employees return to work from 1 August. If you want your employees to return each case will need to be considered on its own facts, but some points to be aware of include:

• You need to make your workplace safe before asking staff to return
• Refusal to return to work is not a resignation, although it may allow for disciplinary or capability proceedings and potentially dismissal.
• Employees may be raising health and safety issues or even whistleblowing when refusing to return to work. If they are dismissed as a result they can claim unfair dismissal and there is no cap on the compensation the tribunal can award them. They can also bring claims if they are not dismissed but suffer a detriment as a result of raising such issues
• Employees with 26 weeks' continuous service have the right to request flexible working and the proper procedure must be followed if they do. There is also talk of extending this right
• Some employees may have health issues which render them disabled in employment law terms and require you to follow more onerous procedures, including considering reasonable adjustments

So there are various potential pitfalls and it may not be as simple as just ordering your staff to return. Please contact us if you are considering asking employees to return to work.

Do I need to keep additional records because of Covid-19?

The Government has updated its guidance on working safely during the pandemic. The updates include advice to:

• keep a record of all customers/clients who visit as well as staff who have attended work (including contact details)
• have an up to date "outbreak" plan i.e. how you will deal with an outbreak of Covid-19
• nominate someone to contact the local PHE health protection team if there is an outbreak

Do I need to change employees' contracts of employment?

Legally employers have been required to provide employees with "particulars of employment" (minimum details setting out the contract of employment as required by the Employment Rights Act) for many years now. Up until April those particulars had to be supplied within two months of employment beginning. As of April they must be issued on or before the first day of employment and in addition to the existing requirements must also include:

• the days of the week the worker is required to work, whether the working hours may be variable and how any variation will be determined
• any paid leave (in addition to holiday) to which the worker is entitled
• details of any other benefits provided by the employer that are not already included in the statement
• any probationary period, including any conditions and its duration
• any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the employee.

The requirements apply to all new employees employed from April. Similar requirements also apply to "workers".

Existing employees need only be provided with contracts that include these new provisions if they are being provided with a new contract for another reason e.g. if their role or a term of their contract is changing.

Does an employee intentionally failing to pay income tax stop them bringing a tribunal claim?

If a contract of employment is performed illegally it can prevent the employee from bringing a tribunal claim. Whether the contract is enforceable will depend on the knowledge and participation of the parties, and will be decided on a case by case basis.

In Robinson v His Highness Sheikh Khalid Bin Saqr Al Qasimi, Ms Robinson had been given a contract stating she was self-employed and asking her to pay her own tax. She didn't pay the tax, and seven years later she took tax advice which stated that she would be considered an employee and tax should be paid at source by her employer. She informed her employer of this but he stated that he still believed she was self-employed and should pay her own tax. She was dismissed three years later and sought to bring a claim of unfair dismissal. The Employment Appeal Tribunal (EAT) found that whilst it was illegal for Ms Robinson to have not paid tax for the seven year period, during the three year period when her tax status was in dispute the parties were not acting illegally so she was not prevented from bringing a claim in respect of that period.

Can a tribunal take into account facts the dismissing officer didn't know?

In Uddin v London Borough of Ealing, an employee (Mr Uddin) and a work placement student (SR) went drinking in a pub with other employees. At one point they went to the toilet together for around one minute. The events came to management's attention and Mr Uddin was suspended. When the investigating officer spoke to SR as part of the investigation she informed him that Mr Uddin has assaulted her in the toilet. The investigating officer then encouraged her to make a complaint of sexual assault to the police. The investigating officer also referenced the complaint to the police when recommending disciplinary action. During their investigation the police spotted some inconsistencies in the allegations and SR subsequently withdrew her complaint. The investigating officer was told of this but did not inform the manager who conducted the disciplinary hearing. Mr Uddin was dismissed. He brought a claim for unfair dismissal.

At the tribunal the dismissing officer stated that she would have wanted to know why the police complaint was withdrawn had she known of it. Nonetheless the tribunal found that Mr Uddin's dismissal was fair. He appealed.

The EAT held that the knowledge or conduct of someone other than the dismissing officer could be relevant to the fairness of a dismissal. They also stated that where an investigating officer didn't share a material fact with the decision-maker, that could be regarded as relevant to the tribunal's decision in relation to fairness. On that basis the dismissal had been unfair.

Can an employer fairly dismiss on the basis of risk to reputation when an employee has been charged with a crime?

In Lafferty v Nuffield Health, Mr Lafferty's work duties included moving anaesthetised patients to and from operating theatres. Unconnected to his work he was charged with assault with intent to rape. He denied the charges. His employer followed a procedure and dismissed him (with notice) on the basis that continuing to employ could damage its reputation.

The tribunal found dismissal was fair. The EAT stated that cases like this will turn on their own facts and:

• Employers in such cases should make some inquiry of their own into the circumstances
• In this case, there was a risk of reputational damage in the light of recent scandals in its sector (charity) so dismissal could be fair.

What are the parental bereavement leave regulations?

The regulations came into force on 6 April 2020 and give all employees who lose a child under the age of 18, or suffer a stillbirth after 24 weeks of pregnancy an entitlement to two weeks' statutory leave to be taken in one block or as two separate blocks of a week. If an employee has 26 weeks or more service and earned over the National Insurance lower earnings limit for the eight weeks of employment prior to the death they will also qualify for bereavement leave pay (currently at £151.20 a week or 90% of their average weekly earnings, whichever is lower).

What is the current maximum weekly pay for redundancy purposes?

Unfortunately many employers will be considering redundancies at the moment. Statutory redundancy pay is calculated using a formula which takes into account length of service, weekly pay and age. In effect up to the last 20 years' service can be considered and the employee is awarded one week's pay per year worked, but with a multiplier of 1.5 applied to each full year worked above the age of 41 and a multiplier of 0.5 for each year worked under the age of 22. A week's pay is capped at an amount set by the government each April. This April it was capped at £538.

What are the bands for injury to feelings awards?

Also in April each year the Vento guidelines (which set out bands for how much compensation an employee should be awarded in respect of injuries to feelings in discrimination and a limited number of other cases) are increased. This year they are:

• Lower band: ¬£900 - ¬£9,000 for less serious cases
• Middle band: ¬£9,000 - ¬£27,000 for serious cases that don't merit the upper band
• Upper band: ¬£27,000 to ¬£45,000 for the most serious cases

Are pre-TUPE transfer changes to contracts of employment void if they are advantageous to employees?

It depends stated the Employment Appeal Tribunal in Ferguson and others v Astrea Asset Management Ltd. Regulation 4(4) of TUPE Regulations states that any contractual variation is void if the sole or principal reason for it is the transfer. Previous case law has stated that this works to prevent any detrimental changes to contract being enforceable (so you can't get round the TUPE rules by agreeing a worse package with transferring employees), but does not prevent beneficial changes from being enforceable.

In the Ferguson case the owners made changes to their contracts shortly before a transfer, in order to put themselves in a better position after it. The EAT held that such changes were void even though they were beneficial to the employee. However, the EAT reiterated that employees can still negotiate better rights as a result of a transfer, just not in circumstances like these.

Will lockdown lead to more employment tribunal claims?

ACAS has recently published its annual report and accounts covering the period up to 31 March 2020. This only includes a very small part of lockdown but the report states that during that time alone ACAS saw a 50% increase in the number of calls its helpline received.

Will maternity pay and protection be extended?

The House of Commons Petitions Committee has published a report recommending that maternity pay be extended by three months (i.e. to 12 months in total) and that protection from redundancy be extended to cover the first six months following a return from maternity leave. The Government has two months to consider the recommendations but is being asked to respond sooner.

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