Over the last 12 months employers have often had to make swift decisions to ensure the continuation of their business, with little time to take account of Government guidance which has been constantly evolving in the light of new scientific evidence. And with so much focus on COVID-19, employers can be forgiven for wondering whether there were any other 2020 employment law developments which have fallen under their radar. We’ve set out below our thoughts on some of the potential issues for employers to note.

Coronavirus Job Retention Scheme (CJRS)

The ability for employers to temporarily lay off employees and claim a grant for part of their wages via the CJRS has provided a valuable lifeline for businesses impacted by COVID-19, preserving the livelihoods of many individuals. But keeping up to speed with the different versions of the Government’s CJRS guidance and HM Treasury Directions has proved challenging, and some employers may have inadvertently overlooked fundamental issues.

For example, to lawfully access the CJRS an employee must consent to be furloughed and an employer must confirm in writing the furlough arrangements. Where an employee has moved from full to flexible furlough, for instance, this written confirmation should record that the employee will be returning to work and receiving their normal pay for specified periods, with the employer claiming via the CJRS for those periods when the employee remains furloughed.

Meeting these obligations enables an employer to lawfully access the CJRS, but normal employment law principles continue to apply. Therefore, unless there were comprehensive lay-off provisions in existing employment contracts, employers should also have agreed with employees a lawful variation of contract to reflect that they were going to be furloughed because no, or less, work was available, and (if applicable) that their pay would be reduced during furlough.

The Acas furlough guidance reminds employers to “select people for furlough in a fair way to avoid any discrimination”. For example, if an employer selected mainly part-time employees for furlough, this could have a disproportionate impact on women. Although there is scope for employers to objectively justify an indirectly discriminatory provision, criterion or practice, strong documentary evidence would be needed, for instance, that furloughing a particular group was essential to ensure business survival.

COVID-19 pandemic-related claims

During the pandemic, there has been much speculation regarding sections 44 and 100 of the Employment Relations Act 1996 (ERA), which protect employees against suffering a detriment or being dismissed for health and safety reasons, namely, where there is a danger which, in the employee’s “reasonable belief”, is “serious and imminent”. Whether there is such a danger will be a question of fact, which will vary in each case. However, it is conceivable that an Employment Tribunal may find that COVID-19 met that test and so, if an employee takes protective action (e.g. by refusing to work), any consequent detrimental act or omission or dismissal could be unlawful.

Sections 47B and 103A ERA also protect workers who make protected disclosures from detriment and dismissal. Raising a concern relating to health and safety is likely, in most circumstances, to amount to a protected disclosure for the purposes of whistleblowing.

Reasonable belief for either of the above purposes is a mixed subjective and objective test - did the employee genuinely hold this belief and was it reasonable for them to have done so? It is not necessary for the employee to show that a legal obligation has actually been breached; they need only show that they reasonably believed this to be the case. 

These health and safety and whistleblowing provisions protect all employees, regardless of length of service, and there is no limit on the compensatory award for a dismissal found to be on either of these grounds, which will be automatically unfair. Furthermore, in their updated “FAQs arising from the COVID-19 pandemic” document, the Presidents of the Employment Tribunals have confirmed that such claims are amongst those currently being prioritised for hearing.

Other developments in 2020

• The requirement to provide minimum written terms as a day one right was extended to all workers and employees engaged on or after 6 April 2020. Additional terms must also now be incorporated, including working pattern and any mandatory training the employer provides.  Existing employees and workers are entitled to request updated minimum written terms, including this additional information.
• The Working Time Regulations 1998 were amended to change the way holiday pay is calculated for seasonal and atypical workers with effect from 6 April 2020. In short, the reference period for determining an average week’s pay increased from 12 to 52 weeks.
• The Parental Bereavement (Leave and Pay) Act 2018 provides for two weeks’ leave for employees following the loss of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy, where that child died on or after 6 April 2020. Entitlement to leave is a day one right, whilst access to statutory pay requires a qualifying period of 26 weeks' continuous service.

 

Thomas Player is a partner at Eversheds Sutherland

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