Whether it comes with a ‘thud’ or ‘ping’,  HR and business owners’ know the dreaded sound of an ETI kicking off an employment tribunal claim hitting their doormat or inbox which will be closely followed by a long ‘sigggghhhh’

But what if the first time you get to hear about the claim is when what thuds or pings through is the  ET3 response request? What if you hadn’t seen any communication from ACAS about mandatory early conciliation because the email hadn’t reached as it should have being responsible for all things HR but instead, had fallen into an unmonitored email inbox orsent to some random person within your business?

Hopefully and particularly if you are a smaller business, employment tribunal claims of any kind rarely come across your desk. But in bigger businesses, and particularly with the current economic climate where people are being laid off left right and centre and looking everywhere for possible avenues for recompense, whether you are a small or large organisation my prediction is you can expect to receive more of them.

September marks the start of the new school year and a return to the workplace for many employees who spent the spring and summer months working from home. Those employees anxious about returning to work will have been reassured by the “Working safely during coronavirus” guidelines introduced by the Government to ensure employers takes steps to keep their employees safe and healthy while at work.

However, what if despite an employer’s best efforts one of their returning employees contracts Covid-19.  What action must an employer take?

The following steps are recommended:

1. Monitor exposure: An employer must monitor exposure to coronavirus in the workplace.  This will involve keeping a record of any employees in the workplace who test positive for Covid-19.
2. Employee self-isolates: The employee must self-isolate for 14 days during which they will be entitled to receive statutory sick pay or contractual sick pay.
3. Alert any close contact colleagues: The NHS Test and Trace service will ask the employee to provide details of anyone with whom they have been in recent close contact with.  By “close contact” is meant any person to whom the infected employee was close at any time from 2 days before the employee showed symptoms to up to 7 days after the onset of symptoms. It includes not only close face-to-face contact but also being in close proximity to the employee for more than 15 minutes. The employer should alert any co-workers of the infected employee who may be close contacts.  When doing so, the employer should bear in mind the need to comply with data protection obligations and only share details of the employee’s diagnosis where there is a lawful reason for doing so. Co-workers who have been in close contact with the infected employee do not need to self-isolate unless told to do so by NHS Test and Trace or a public health professional.  They should nevertheless take precautions to avoid spreading the virus. The employer should therefore consider permitting them to work from home for a short period instead of coming into the office.
4. Clean the office: The workplace must be cleaned and disinfected in accordance with Government guidance on how to clean an area that was recently visited by an individual with Covid-19.
5. Reporting obligations: Under the RIDDOR* reporting obligations, an employer must make a report to the Health and Safety Executive if an employee contracts Covid-19 as a result of “occupational exposure”, that is, as a result of their work.  In most cases it will be difficult to pinpoint the workplace as the cause of infection because the employee may well have contracted the virus outside of work.

Multiple cases of Covid-19 in the workplace must be reported to the employer’s local health protection team.

*RIDDOR means the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.

LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. If a free consultation with one of our expert employment law solicitors around this or any other related issue would be of help just pop your details over to us at https://lexleyton.co.uk/free-consultation/ or  contact us at legal@lexleyton.co.uk

*RIDDOR means the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.

September and October this year see the scaling back of the Coronavirus Job Retention Scheme under which millions of employees have been placed on furlough while the Government issued grants to employers to cover the cost of their wages.

The scheme ends altogether on 31 October and in September and October the amount of the grant being offered by the Government is to be reduced. Under the original scheme the Government paid 80 per cent of a furloughed employee’s wages up to a maximum of £2,500 per month. In August employers became liable to pay National Insurance Contributions and mandatory pension costs for furloughed employees and from 1 September, the scheme will only pay 70% of employees’ wages to a maximum of £2,187.50 per month. From 1 October the scheme will be reduced further so that the government contributes only 60% of wages to a maximum of £1,875.

It is important to note that these grants are made on the basis that the employer continues to pay a furloughed employee at least 80 per cent of wages or £2,500 per month. In other words the employer cannot simply pass on the reduced amount of grant being provided under the scheme but must top it up so that the actual entitlement of a furloughed employee stays the same.

IR35 – The What

The off-payroll working rules for individuals who provide personal services via an intermediary will change for large and medium-sized businesses in the private sector from 6 April 2021.

In a significant shift, these reforms will place the Employment Tax compliance burden on the agencies and companies that engage contractors who use Personal Service Companies (‘PSCs’), and are expected by many to increase operating costs and compliance risks.

The off payroll working rules, commonly referred to as IR35 after HMRC’s press release that announced their introduction, have a straightforward aim. The rules are intended to prevent individuals from reducing income tax and National Insurance Contribution (‘NIC’) liabilities, through what HMRC considers to be “disguised employment”, where an individual provides their services via a PSC, receiving payment in the form of dividends.

The impact of Covid-19 on UK industry has been, on the whole, awful. We are entering a recession which will likely take years to recover from. Household names to small start-ups have gone the business equivalent of five rounds with Mike Tyson. The bad news is that this bout looks like it may go the distance.

How tired are we all of coronavirus?

Increasingly I find myself seeking solace in silver linings. The increased time with family, renewed sense of community and green shoots of recovery in the business world are encouraging. As an advocate of honest, authentic conversation, it has also been heartening to see many owners, managers and HR professionals approach difficult conversations with candour and compassion.

Sadly for some of these businesses, reducing staff numbers is essential for the survival of the company, and other people’s jobs.

Equality and diversity are, unquestionably, extremely important in the workplace.  However, often the experience of an employment lawyers is that companies see these as boxes to be ticked and as a result fail to engage with the topics and to appreciate why they are important and beneficial.  When we speak of diversity in the context of a workplace, we mean celebrating the differences across a diverse workforce and appreciating the value of this to employer and employees alike.  At its most basic level, it clearly makes no sense for an employer to limit its pool of employees to the exclusion of a particular gender, race or religious background. 

Companies benefit massively from having a diverse workforce.  A wide mixture of backgrounds means a wide mixture of skills and experiences and a workforce that is reflective of wider society.  With such wide experiences comes knowledge, confidence and a varied, open-minded approach to problem solving.  It is therefore worth taking a moment to remember the benefits to an employer of casting their net as widely as possible when recruiting and to celebrating diversity by valuing and retaining a diverse workforce.

As we celebrate World Senior Citizen day and acknowledge the contributions of older people to society, unfortunately age is still one of the most common bases for discrimination in the workplace.  It is also an area in which discrimination can be objectively justified quite legally.  However, having a workforce with a diverse age demographic is one of the most straightforward ways in which an employer can benefit from a mix of experience.  Studies highlight that mixed age workforces are more productive, higher performing and have higher levels of employee retention.  There is also evidence that they are happier, too!

As someone who came to the law slightly later in life, I may be biased.  However, I am clear that my previous experiences elsewhere have been of great benefit to me and this tends to be the experience of others who come to their chosen career later in life or following a career change.  Short-sighted employers who exclude large parts of society, be that due to their age or some other characteristic, do so to the detriment of real sustainability of their organisation.  Age, experience and diversity are to be celebrated for the tangible benefits they bring – benefits which can add real value benefiting not just the bottom line, but all aspects that contribute to drive business success.

When on 20 March 2020, the Chancellor Rishi Sunak announced the Coronavirus Job Retention Scheme (CJRS), it was seen as an unprecedented measure to support businesses and their employees. CJRS has evolved since its inception, becoming increasingly complex to navigate, notably with the introduction of flexible furlough and the tapering amount of support on offer, all of which has led to increasingly complex and time consuming calculations for employers in order to get CJRS claims right.

Unfortunately, like every financial benefit CJRS is open to abuse. By the end of July, HMRC said it had received in excess of 4,400 reports of suspected furlough fraud. It confirmed its first arrests at the same time, including a Solihull employer who was arrested for allegedly claiming £495k that his business was not entitled to.

The threat of investigation and prosecution is significant for employers. HMRC has a separate Fraud Investigation Service, which has recently been expanded, and it can call on the National Crime Agency which leads on serious fraud in the UK to give further support.  It will come as no surprise that Investigators have the power of seizure and the power to freeze accounts – effectively making business grind to a halt – albeit this may be on the basis of a ‘reasonable belief’ rather than on confirmed fact. This is particularly damaging as business risks being effectively shut down based on suspicion rather than conviction. It is vital therefore to check claims and contact HMRC quickly if you spot any mistakes so that they can be corrected without incurring penalty or suspicion.

Breastfeeding at work

As we approach the end of this World Breast Feeding Week, let’s reflect on the fact that the NHS and the World Health Organisation recommends to the vast majority of new mothers to exclusively breastfeed for the first 6 months of their baby’s lives. Past this age, breastfeeding is still recommended but alongside solid food.

What does this mean for you as an employer? That many new mothers will still be breastfeeding when they return to work for you.

What are employers duties and obligations?

Even though in Scotland it has been an offence to prevent a child under the age of two from being fed milk since 2005, there is yet to be a statutory right to breastfeed at work in the UK (breastfeeding covers both feeding the baby and expressing milk).

As businesses continue to grapple with the wide ranging impacts of COVID19 upon their operations, there are a number of pragmatic measures that employers can take in order to minimise the risk of grievances and ultimately discrimination, unfair dismissal or health & safety-related employment tribunal claims being brought against them.

• Communicating with staff, providing detailed explanations about steps taken to control and reduce risks, such as how the workplace will be maintained Covid-secure.

• Understanding and taking into account the particular circumstances of those with concerns about returning to the workplace, particularly those who are protected under the Equality Act 2010.

New law came into force on the 31^st of July 2020 relating to redundancy and notice pay for furloughed employees.  The new law will apply to any employees made redundant between 31^st July and 31 October 2020.

The government incredibly announced and passed these new regulations within a 48- hour window.  The Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 were announced on the morning on 30 July, passed the same day and came into force on 31July 2020.

The new laws are intended to ensure that furloughed employees who are made redundant receive statutory redundancy and notice pay based on their “pre-furlough” rate. Perhaps owing to the lack of time for parliamentary scrutiny, the new regulations are cumbersome and difficult to distil into clear, concise rules. 

The furlough scheme requires employers to ask employees for their consent to be furloughed. When doing this, many employers made a commitment that if an employee subsequently had to be made redundant, they would pay notice or redundancy pay based on the employee’s pre-furlough wages or salary. However, not all employers were so generous. The government has now moved to close a “loophole” allowing employers in some cases to pay severance sums based on less generous furlough pay.

The UK's recent announcement that all non-essential travel to Spain (including the Balearic and Canary Islands) would be restricted, as well as imposing a 14 day quarantine period for those returning from these destinations, was met with groans of frustration in many households.

Reports that COVID-19 cases are rising in some areas of Europe and the threat of a second wave in the UK means that travellers returning to the UK from other countries may soon face a similar fate. 

With this in mind, many businesses are grappling with key issues, including the rights of those employees returning from abroad and what should employers do about staff who can't work because they have to quarantine?

My employee is required to quarantine – what should I do?

Employees have no entitlement to statutory sick pay if they are required to quarantine unless they become sick during that time. Likewise, where an employee is unable to undertake any work for their employer owing to quarantine, it is unlikely that they will have any entitlement to be paid. One exception to this may be employees who benefit from some contractual salary protection or benefit in kind, such as income protection.

Musab Hemsi – Partner

The Prime Minister faces an incredibly challenging transition in the coming weeks.  Our economy continues to suffer repeated body blows from Covid-19.  With one eye on avoiding a knockout blow and amid ever-increasing pressure from high-profile business owners, it is expected that a number of changes will be announced on 1^st August 2020.

Whilst the official guidance currently remains that employees should work from home if they can as of 1 August the Government has indicated that employers will be able to ask employees who have been able to work from home since the lockdown to return to their workplace, provided they have taken steps to ensure the workplace is Covid-secure and social distancing measures are in place. The Prime Minister emphasised that employers will have the discretion to make decisions about how their staff can work safely, which could mean continuing to work from home. 

This position applies only to England. The devolved nations continue to manage their own transitions, based on health, economic and social factors.

This is the moment many businesses will have been preparing for – a chance to really inject momentum into stalling revenue streams. Beyond that, whilst much of the commentary has been around progressive flexible working practices and the opportunity to look at what the last few months have taught us all about the benefits and challenges of remote working and how those learnings can influence workplace strategy, there are also many employers and employees who liked to work as they did pre-covid and are anxious to get back to the way things were.  

With the changes on the immediate horizon, we take a look at the likely announcements and what that means for employers based in England from 1 August 2020:

Guidance on working from home to change. 

Each business must decide whether to continue home working (either completely or partially, re-open with optional attendance or re-open with mandatory returns).

No matter which option a company selects (or a hybrid of more than one), challenges will arise.

We anticipate resistance in returning to work from certain camps. These can include the following:

• Living with vulnerable relatives

 An employer’s duty of care extends only to their employees and not to the people they live with, but that’s not to say an employee who lives with a vulnerable person could not raise a grievance or bring a claim over a blanket requirement to return. The issue is more nuanced in cases where the employee has been able to successfully work from home. The Covid-secure guidance also requires employers to pay particular attention to those who live with someone who is clinically vulnerable

• Lack of care for dependents

Those without childcare (particularly throughout the summer holidays where usual childcare arrangements may not be possible) are entitled to unpaid parental or dependants leave. However, requiring employees who have been able to work from home with children successfully to return to the office when unable to do so would risk indirect discrimination claims.

• Those concerned about how Covid-secure the workplace is

 Some employees won’t fall into any vulnerable category but will still be concerned about a return to the office. An employee has the right not to be subjected to any detriment on the grounds that they refused to return to their place of work in dangerous circumstances provided the employee reasonably believed the danger to be serious and imminent. Employers can reduce the risk of successful claims in various ways, including by providing detailed explanations about steps taken to control and reduce risks. Clear and authentic communication matters.  

• Public transport users

Whilst isolated means of transport are still encouraged, there are now only minimal restrictions on using public transport in England.

For employees who are reliant on using public transport, employers will have to consider what allowances can be made for those people to avoid use at peak times yet still allow employees to fulfil any personal commitments such as childcare.

Requiring public transport-reliant staff to return also runs the risk of grievances.

An end to Shielding?

The guidance currently recognises two categories of vulnerable employees, those who are clinically extremely vulnerable and have been asked to ‘shield’ and those who are clinically vulnerable but are not required to shield.

As of 1 August in England, the extremely clinically vulnerable are no longer advised to shield. We anticipate that the official Covid-19 secure workplace guidance will then advise employers to treat those two groups in the same way, i.e. to give them the safest available onsite roles and, where no such roles are available, to consider if this is an acceptable level of risk.

However, many clinically vulnerable employees will qualify as disabled for the purposes of the Equality Act. This makes it particularly risky to require their return, since it may be a reasonable adjustment to allow continued homeworking.

Three key steps an employer should be ready for:

1. Pushback & grievances

Trying to balance the views of some employees desperate to return to the office versus those who want to continue home-working is likely to be a difficult issue for employers for the rest of the year. The fact that the government guidance makes clear that the decision to return is solely at their employer’s discretion means employers can expect challenges.

Ensure you have a robust procedure for resolving grievances or complaints. 

2. Anticipate more flexible working requests

 Employers can also expect an increased number of flexible working requests for home-working which will need to be dealt with in the context that many businesses have successfully implemented home working over the past few months.

Ensure your managers know how to deal with a flexible working request – a single error in dealing with a flexible working request can attract an award of up to 8-weeks pay at an Employment Tribunal, as well as an order to start the process again (correctly this time).

3. Planning ahead for a second wave

With reports of a second wave and further local lockdowns possible, employers will need to ensure they can continue to accommodate homeworking with little to no notice. Contingency planning has changed, maybe forever.

What should you do? Many employers will look to mitigate risk either by not asking employees to return to office-based roles or by giving them a free choice on whether to do so.  There are reputational as well as legal risks for those that take a different approach. For now, keep taking advice, listen to your staff, communicate honestly and clearly with them.

If a free consultation with one of our specialist team would help your business prepare for these changes or on any other employment law issue, don’t hesitate to reach out to us at https://lexleyton.co.uk/free-consultation/

The United Nations marks “World Day Against Trafficking in Persons” on 30^th July. Although stories about victims of sexual trafficking often make it into the news, it’s important to remember that 34% of those trafficked end up in forced labour. This is a global problem – the International Labour Organisation estimates that 40.3 million people around the world are in some form of slavery, with 24.9 million of those in forced labour. In the UK, there were more than 7,400 reports to the Modern Slavery Helpline in 2018, which demonstrates the scale of the domestic problem.

The Modern Slavery Act 2015 outlaws human trafficking, and introduced criminal offences of slavery, servitude, and forced or compulsory labour. The Act was introduced against a backdrop of attempts by the government to restrain the exploitation of vulnerable workers, particularly in low-skilled and low-paid sectors such as car washing, beauty services, construction and hospitality. Over the years, the government has taken steps to build on this legislation and strengthen its enforcement.

In 2019, eight people were jailed for trafficking hundreds of vulnerable individuals from Poland to Birmingham in the UK’s largest ever modern slavery prosecution.  Victims who gave evidence in the case told how they were forced to live in cramped, substandard accommodation under threat of violence if they complained or tried to leave. They were paid less than £10 a week for working long hours picking onions, making fencing and sorting parcels.

Restructuring your business can be a terrifying prospect.  Major changes are generally unpopular for most employees and job losses certainly are.  However, unprecedented times call for major action and restructuring a business can mean the difference between survival and failure.  Where a business can take a step back, review and implement changes it stands the best chance of succeeding with a restructure and it is important to focus on the positive impact that this difficult process will have on the future business.

When planning a restructure, employers should give in depth consideration to what the future of the  business will be.  From that point, it is easier to decide what the business needs to look like in order to meet this future successfully.  This then informs the decisions and the process to be undertaken.

It is rarely successful when litigants challenge a business’ rationale to restructure of make redundancies.  This is because Employment Tribunals are not permitted to substitute their own mindset for that of the employer, which in turn gives businesses a broad discretion in decision making.  Put simply, employers are allowed to make business decisions, even if these turn out not to achieve positive results in the long-term.  One such decision is who should be part of the selection pool – essentially who will be at risk of redundancy?

with Rishi Sunak announcing financial packages to increase youth employment, is this the time to review your recruitment strategy?

15^th July is World Youth Skills Day.  The United Nations have dedicated this day, as the date to acknowledge and celebrate the importance of equipping young people with skills for employment, decent work and entrepreneurship.  On this day, guided by the United Nations, the world reconsiders their focus in response to the upward trend in the number of youth not in employment, education or training.  Illustrative of this upward trend in the report Global Employment Trends for Youth 2020: Technology and the future of jobs, figures showed that in 2016 there were 259 million young people classified as not in employment, education or training – a number that rose to an estimated 267 million in 2019, and is projected to continue climbing to around 273 million in 2021.

At a time where the world is reeling in the wake of the coronavirus pandemic, what should employers be considering on World Youth Day 2020?  Apprenticeships have always been the obvious solution to youth employment and development, allowing employers to benefit from additional lower cost resource while the apprentice benefits from practical skills development within the workplace and the dual benefit of college driven learning and support.   However, in 2020, could we look further and could we do more?  The answer to this is possibly we can! With Rishi Sunak announcing a number of new initiatives on 8 July 2020, employers now have more options to consider.  The following initiatives have been set out on in the government policy paper “a plan for jobs 2020”:

Kickstart Scheme – The government will introduce a new Kickstart Scheme in Great Britain, a £2 billion fund to create hundreds of thousands of high quality 6-month work placements aimed at those aged 16-24 who are on Universal Credit and are deemed to be at risk of long-term unemployment. Funding available for each job will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions.

High quality traineeships for young people – The government will provide an additional £111 million this year for traineeships in England, to fund high quality work placements and training for 16-24 year olds. This funding is enough to triple participation in traineeships. For the first time ever, the government will fund employers who provide trainees with work experience, at a rate of £1,000 per trainee. The government will improve provision and expand eligibility for traineeships to those with Level 3 qualifications and below, to ensure that more young people have access to high quality training.

Payments for employers who hire new apprentices – The government will introduce a new payment of £2,000 to employers in England for each new apprentice they hire aged under 25, and a £1,500 payment for each new apprentice they hire aged 25 and over, from 1st August 2020 to 31st January 2021.  

With the additional financial support available for employers to hire and train our youth, why not take the time to review your recruitment strategy and resource options on World Youth Skills Day? Keep an eye on our communications, as we will update you further when the government provide more information on the development of the above schemes.  Alternatively, if you are considering hiring apprentices, don’t hesitate to reach out to us for a free consultation at https://lexleyton.co.uk/free-consultation/

if a discussion around ensuring that you have the correct apprenticeship agreement in place would help.  There is specific wording that needs to be included in the agreement between the apprentice and the employer; over and above the considerations for a normal contract of employment and this area can be complex.

Social media has thrived during the coronavirus lockdown as housebound people look for a way to stay connected with the outside world. It has also however, come into its own as a powerful tool for disgruntled employees looking to air grievances that they might previously only have raised internally. Apart from the risk of serious harm this can cause to an employer’s reputation, the employee who complains via social media might also have a strong weapon to wield in a potential health and safety claim against their employer.

In the early days of the lockdown, it became common to see employees using social media to complain about their employer’s decision not to place them on furlough leave, which many employees saw as their right. Now, with employers starting to bring employees back to work, some employees are using social media to voice their fears about returning to the workplace. Many of these posts have a health and safety angle as individuals shine a light on what they perceive as their employer’s failure to adequately address the potential risks that Covid-19 poses for those returning to the workplace.

Before an employer rushes to take action against an employee for such social media posts, they would do well to remember the protection afforded to the employee by section 44 of the Employment Rights Act 1996.  It protects an employee from detriment if the employee reasonably believes that the danger to their health and safety is serious and imminent, and that they are taking steps to protect themselves and other persons from harm. 

Covid-19 is likely to amount to a serious and imminent risk in most workplaces. Social media posts could potentially be relied upon by an employee as evidence that they are taking protective steps.  Much will depend on whether the employee could be said to have had a “reasonable belief” that the danger was “serious and imminent”.

The Government has issued substantial guidance for employers on working safely during the pandemic. However, even where an employer follows the guidance (which is varied and is derived from many different and connecting pieces of guidance and directions) diligently a Tribunal might still find the employee’s belief to be reasonable. We are living in unprecedented times and there is as yet no case law on this point to guide us.

So, what can employers do to guard against the risk of trial by social media? The prudent employer should first ensure it has complied with all the necessary health and safety measures stipulated by the Government and the HSE. It should also consult with employees or their representatives about these measures to ensure they are on board with the steps being taken.

Further individual consultation may be required with any employees who have expressed particular reservations about returning to work. This can help dispel worries and prevent them ballooning into entrenched positions. The aim is to avoid the employee feeling they have no recourse but to take public action on social media.

It’s also vital to have a social media policy clearly setting out your organisation’s expectations for employees when they use social media and to train employees on its contents. The policy should describe what the organisation considers to be unacceptable use of social media, such as posts that could harm the organisation’s reputation or that could be considered offensive.  This can be tied into any sector-specific code of conduct that the organisation abides by to ensure that the policy is not impractical and self-defeating. It’s important to warn employees that they risk disciplinary sanctions (including dismissal) for breaches of the policy even if the activity was done during time when they were not at work.

LexLeyton can assist employers with advice on any particular issues arising from employees returning to the workplace. Please contact us at [link to register for a free consultation] if a free consultation to soundboard any challenges that you are experiencing would be of help.

From this month the new Flexible Furlough Scheme is in operation. Under the old scheme an employee had to be furloughed for at least 21 days and could perform no work in that time. The new scheme allows for a furlough of any period and for employees to work part-time. Employees must be paid in full for the time that they are working, with the scheme covering 80 per cent of an employee’s wages for the remainder of the week (capped at £2,500). The Government regards this as part of the process of phasing out furlough altogether by the end of October. For that reason, the Flexible Furlough Scheme is only open to employees who were fully furloughed for at least 21 days under the old scheme. What is more, the number of employees who can be flexibly furloughed is capped at the ‘high water mark’ of employees furloughed under the old scheme. So if the employer had furloughed no more than 50 employees at any one time under the old scheme it cannot place more than 50 employees on flexible furlough.

From August, the employer will have to start bearing some of the costs of paying employees on furlough. At first, they will simply have to pay employer’s national insurance and pension contributions. Then in September, the support provided for employees on furlough will be reduced to 70 per cent of wages (capped at £2,187.50) and in October the Government will contribute only 60% of wages (capped at £1,875). Even in September and October, however, the employer must make up the sum so that the employee receives at least 80% of wages to a maximum of £2,500 per month.

Pressure is now growing on the Government to extend the furlough scheme beyond October for those sectors of the economy that will continue to be hard-hit by the pandemic. That is a big ask of the Treasury given the scale of the intervention that it has already made. Without further measures however, it seems inevitable that large scale redundancies that were avoided in the Spring will dominate the autumn.  The real employment law impact of coronavirus has yet to be felt.

Redundancy

It is now common practice for employers to select employees for redundancy based on their performance at an interview. Often this process appears to be similar to a recruitment exercise, with the employer selecting those who will be offered a place in the new structure.

In Gwynedd Council v Barrett the employees concerned were teachers who were made redundant when the local authority closed the secondary school at which they were employed and opened a new school - on the same site – accommodating both primary and secondary pupils. They applied for posts at the new school but, following a selection process based on an interview, were unsuccessful and made redundant.

An Employment Tribunal found that their dismissals were unfair. One reason for this was that the employees had been offered no appeal against the decision to dismiss them despite the specific requirement in Regulations covering the staffing of maintained schools in Wales that the right to appeal should be given. The Tribunal also based its decision on a lack of consultation throughout the process and the fact that the change in school structure did not necessarily have an impact on their own roles, so the employees were essentially being made to apply for jobs that they already had.

The EAT upheld the Tribunal’s decision. On the issue of a recruitment-style interview the EAT said that the Tribunal had been entitled to find that the employer’s approach had been inappropriate in this case. This was not a ‘forward-looking’ process where the new roles were substantially different from the old ones and the employer had to consider how suitable the employees were to be recruited to them. It was much more akin to a selection for redundancy from an available pool of employees. The Tribunal had been entitled to stress the need for objective selection criteria and proper consultation.

This case does not mean that employers should avoid the use of interviews in redundancy selection exercise. It is important however not to lose sight of the underlying reality of the process. It is the fairness of the dismissal that will be scrutinised in any unfair dismissal claim. Employers will need to show the criteria on which the employee was selected for redundancy and the basis on which they were assessed. Performance in a job interview with no proper assessment of the employee’s actual performance at work is unlikely to be sufficient.   

Wrongful dismissal

An employee dismissed without notice will often claim both unfair and wrongful dismissal. These are two distinct claims. Unfair dismissal is concerned with the reasonableness of the employer’s decision to dismiss the employee. Wrongful dismissal is a contractual claim centred around whether the employer was entitled to dismiss the employee without giving the full contractual notice required. That in turn depends on whether or not the employee was actually guilty of gross misconduct. An employer might reasonably believe that the employee committed gross misconduct and successfully defend the unfair dismissal claim, but lose on the issue of wrongful dismissal because the Tribunal believes in the employee’s innocence. In such a case the employee would be entitled to damages covering the notice that should have been given.

Tribunals still struggle sometimes with the distinction. In East Coast Mainline Company Ltd v Cameron the employee was a shunter in a train depot. He was dismissed when he allowed a goods train to move off while the driver of another train was out of his cabin. The driver was ‘brushed’ by the goods train and could easily have been killed.

At the first hearing the Tribunal found that the dismissal was fair because the employer had reasonably concluded that the employee was guilty of gross misconduct - and dismissed the wrongful dismissal claim on the same basis. The EAT sent that issue back so that the Tribunal could determine whether the employee was guilty of gross misconduct. When the case was re-heard the Tribunal upheld the wrongful dismissal claim. The conduct in question was not deliberate and was a one-off incident of carelessness. Taking into account the employee’s length of service (more than 30 years) what he had done did not amount to gross misconduct.

A second appeal to the EAT led to this finding being overturned. Length of service was not a legally relevant question in a wrongful dismissal claim. What mattered was the seriousness of the conduct itself, not whether it was reasonable to dismiss. A single act of carelessness could amount to gross misconduct if the lapse was serious enough – and it was certainly so in this case where it had very nearly led to a loss of life. Rather than send the matter back to be considered for a third time, the EAT simply held that the wrongful dismissal claim should fail.

Unfair dismissal – gross misconduct

In considering a wrongful dismissal claim, the Tribunal needs to decide whether or not the employee is guilty of gross misconduct. When it comes to unfair dismissal that is precisely what the Tribunal should not do – at least until it comes to assess compensation. It should ask whether the employer reached a conclusion that was reasonably open to it – not whether it agrees with that conclusion. A good example of the wrong approach is the case of Tai Tarian Ltd v Christie. Mr Christie was a maintenance worker for a housing association. He was dismissed when a tenant complained that he had made a series of homophobic remarks when working on her property, making her feel uncomfortable. He denied the allegations completely and argued that his dismissal was unfair.  

The Tribunal upheld his claim. It relied on the fact that the employer had accepted that Mr Christie was not actually homophobic and concluded that they could not have therefore believed that he had said what he was accused of saying. The EAT held that this was clearly wrong and was no basis for finding that the employer had not believed that the comments had indeed been made.

The Tribunal had been entitled to criticise the employer for not allowing the employee to see the full notes of evidence taken from the anonymous witness but had not explained why it was unreasonable of the employer to accept her account. The Tribunal had held that she had embellished her story, but the evidence did not bear that out, showing only minor inconsistencies in the two separate accounts that she had given to the employer. The Tribunal had pointed out that she had a potential motive for fabricating her story (as a result of a previous interaction with Mr Christie) but had not considered whether the employer’s acceptance of her account was reasonable. Clearly the Tribunal had started from the position that it believed Mr Christie’s denials and then worked backwards from there.

The finding of unfair dismissal was overturned, and the case sent back to a fresh Tribunal to be re-heard.  

Right to Work

An employer must be careful to avoid employing someone who does not have the right to work in the UK. Doing so knowingly is a criminal offence and inadvertently employing someone who is working illegally can lead to a civil penalty of up to £20,000 for an employer who has not carried out a proper documentation check. At the same time it is important not to react too hastily in assuming that an employee’s permission to work has expired. A genuine but mistaken belief that an employee is not entitled to work in the UK can be a fair reason for dismissal, but the employer still needs to behave reasonably. Tribunals will understand that an employer needs to behave promptly, but that will not excuse a failure to examine the situation calmly and make proper enquiries – as the case of Sanha v Facilicom Cleaning Services Ltd shows.

Mr Sanha was dismissed when his employer believed that his permission to work in the UK had expired. The Home Office online checking service had no record of him making an application to renew his permission, and the employer therefore believed that they had no choice but to dismiss. As it turned out, however, he had made such an application. What was more, he was married to an EU citizen working in the UK and was entitled to work in the UK on that basis alone. The dismissal was held to be unfair because the employer should have made more detailed enquiries into his status and realised that the application he had made would not have made its way into the Home Office’s system by the time they carried out the check.

The appeal to the EAT was concerned with compensation – should the award be reduced to reflect the contributory fault of the employee? The EAT accepted that the employee’s conduct could be regarded as blameworthy in that he had been less than forthcoming about his correspondence with the Home Office. On the other hand the employer’s decision to dismiss was not actually influenced by the employee’s failure to provide a fuller account of his status. The employer had acted purely on the basis of the results on the online checking service, so the employee’s conduct had not contributed to the decision to dismiss.

Transfer of Undertakings – changing contracts

The Transfer of Undertakings Regulations (known as TUPE) provide that an employee’s terms and conditions cannot be changed because of the transfer of their employment from one employer to another. It has been argued in the past that this provision only applies to negative changes and that actual improvements in terms and conditions can be valid even though a strict reading of the Regulations themselves suggests otherwise. The issue was tested in Fergusen & ors v Astrea Asset Management Ltd in which an asset management company lost the contract to manage a high-value area of real estate in Kensington and Mayfair belonging to the Abu Dhabi Royal Family. This was effectively the only contract the company managed and so it was accepted that all employees would transfer under TUPE. This included the senior leadership and directors who promptly agreed that they should be paid hefty bonuses once the transfer had gone through - and that they would be entitled to generous termination payments if they were dismissed. These changes were incorporated into their contracts of employment and presented to the new employer. The new employer was not impressed and promptly dismissed the individuals concerned – refusing to honour the new terms.

One of the many issues that fell to be considered in the subsequent tribunal proceedings was whether these changes in terms and conditions were valid and binding. The Tribunal held that they were not. The only reason for the changes was that the contracts were being transferred to a new employer. They were therefore void under TUPE. The EAT agreed. The Regulations were clear that any purported change in terms and conditions was void if the reason for it was the transfer itself. That was certainly the case here as there was no other commercial justification for the changes being made. Suggestions that positive changes were permitted were not based on the Regulations themselves which were unambiguous on the point.

Marriage Discrimination

One of the least often claimed grounds of discrimination is marriage and civil partnership. Prejudice against married people is hardly widespread and there are few circumstances in which an employer might treat an employee less favourably because they were married. The case of Gould v St Johns Downshire Hill demonstrates how difficult it is for an employee to make a successful claim of direct discrimination on the grounds of marriage. The Reverend Gould was employed as a vicar in a ‘proprietary chapel’. This is a church which enjoys semi-independent status from the Church of England and the clergy are directly employed by a governing body of trustees under a normal contract of employment. Rev Gould was dismissed by his governing body after serving for some 15 years on the stated ground that it had lost trust and confidence in him.

The governing body had become increasingly unhappy with his conduct, citing a range of governance issues, his lack of communication with trustees and his management of junior clergy. As a background to all of this, however, was the breakdown of his marriage. A number of the trustees took a conservative approach to marriage and believed that a failed marriage would make a minister’s position untenable. Advice was taken from the local bishop who made it clear that any decisions made about Rev Gould’s future should not be based on the state of his marriage but his performance and behaviour in the role.

After his dismissal, Rev Gould claimed that he was discriminated against on the grounds of marriage. He argued that the failure of his marriage was an important part of the background to many of the issues the governing body had with his performance. Had he not been married these concerns could not have arisen.

The Employment Appeal Tribunal (EAT) upheld the tribunal’s finding that there was no discrimination. In a direct discrimination claim the less favourable treatment complained of had to be ‘because of’ the protected characteristic – in this case, marriage. That meant that marriage had to be part of the reason for the decision itself and not just a background circumstance. The fact that the whole situation would have been different if Rev Gould had been single was not sufficient. The Tribunal had found that there were a range of issues quite unrelated to his marriage that led the trustees to dismiss him and that the trustees had followed the bishop’s advice to disregard any concerns they had on that issue. While a dismissal on the grounds that a marriage had broken down could be discriminatory, that was not what had happened here. The fact that some of the conduct for which Rev Gould was dismissed had arisen in the context of his marital problems, did not mean that those problems were the reason for his dismissal.

The issues raised in the case are real enough, however. Too much emphasis on joining in with corporate social activities can certainly amount to indirect discrimination if these are focussed on the interests of the majority. A ‘laddish’ culture could also help persuade a Tribunal that direct discrimination lay behind a decision on dismissal or promotion. This case may have failed on the facts, but that does not mean that employers can afford to ignore the culture they create.

Continuity of Employment

Only employees with two years’ continuous service have the right not to be unfairly dismissed. This qualifying period is measured to the day - so it is important to be clear about precisely when an employee started work.

In O’Sullivan v DSM Demolition Ltd, Mr O’Sullivan claimed unfair dismissal from his role as a Demolition Safety Supervisor. He said that he had been employed from 19 October 2015 to 21 October 2017. In replying to his claim however the employer said that his start date was 2^nd November 2015. That was the date given on his written statement of terms and conditions. It was also consistent with the employer’s payroll records.

Mr O’Sullivan argued that prior to the formal start-date of 2 November 2015 he had already been working for the employer. He had, at the employer’s request, undergone a medical assessment which was a requirement of the certification he needed to work on demolition sites. He had also undertaken some informal work for one of the employer’s clients. However the Tribunal found that he was not paid by the employer for such work – he had actually been paid in cash by the client and the employer was not involved in the transaction. The Tribunal concluded that any work that he had done did not form part of the employment that began on 2 November. The Tribunal held that he did not have two years’ service and dismissed his claim.

The EAT upheld that finding. Mr O’Sullivan’s period of employment did not begin when the contract was first agreed upon. Tasks done in preparation for the start of his employment -such as the medical examination – were not part of the employment itself. The Tribunal was also entitled to find that the work he did on site was not work done under the contract of employment, but was separate and distinct from it.

Constructive Dismissal

A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer. A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’. In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him. He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.

In the end, his resignation was prompted by the employer’s decision that another employee who was his union representative, but who had also been accused of misconduct in the handling of his case should not be allowed to contact him until after the case was completed. The Tribunal felt that this was not a matter on which the employer could be criticised – although they found much to criticise in the employer’s earlier handling of the case. They therefore dismissed the constructive dismissal claim. The employer could not rely on this decision as being ‘the last straw’ in conduct amounting to a fundamental breach of contract because it was, in itself, innocuous.

The EAT held that this was the wrong approach. What mattered was whether, when the employee resigned, the employer was in fundamental breach of contract. The incident that prompted the resignation did not have to be part of that breach as long as the employee – as in this case - was motivated at least in part by the overall conduct of the employer.

It was true that once the breach had taken place the employee had a limited period in which to decide what to do. Too much of a delay would lead to the employee ‘affirming the contract’ and losing the right to claim constructive dismissal. In those circumstances an entirely innocuous incident could not revive the right to resign without notice. In the case of Mr Williams however, there was no suggestion that the final incident occurred following an unreasonable delay. There were no grounds on which the Tribunal could have found that he had affirmed the contract. What was more, the Tribunal’s criticisms of the employer’s earlier conduct were so severe that it was clear that there had been a fundamental breach of contract. In the circumstances the EAT ruled that Mr Williams had been constructively dismissed.

And finally…

An Employment Tribunal has dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time. In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners. The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ - but it rejected her claim. The real reason for her dismissal (with less than two years’ service) was the employer’s genuine concerns with her leadership style. In fact there was no undue emphasis on football in conversations within the leadership team and the dinners were rather sober affairs with participants generally having about half a bottle of wine each. 

On 10 June 2020, Boris Johnson further eased lockdown restrictions and introduced the concept of the ‘support bubble’.  As we look forward in hope towards the further lifting of restrictions, we look into what this may mean for the world of work and consider how to keep employees engaged on the journey?

Many businesses have had their employees working remotely for months and for most, the majority of their professional interactions have been through voice or video calls.  In the face of continued adversity this ‘new normal’ will continue with no obvious indicator of a date for change.  In respect of the numbers ‘People Management’ magazine undertook a survey of over 500 readers, asking “have the majority of staff returned to work?” 4% responded that their staff returned after the 11^th May Government announcement, 24% responded that ‘staff will return when the Government say it is safe for their sector and 55% of respondents confirmed that ‘most staff will work from home for the foreseeable future’.  With the continued uncertainty, we ask what we have learnt from the past few months and consider where a business may want to be.

Many positive changes have come from the period of enforced homeworking with many conceding that perhaps the old ways of working were not necessarily the best ways?  Do people need to travel to meet face to face or can time and efficiency savings be made by embracing this ‘new normal’?  Can people survive on virtual interactions or do employees need face to face contact to be productive in the long run and do employees need face to face interactions to feel engaged with and part of their organisation?  When considering the answers to these questions alone, a business can merely speculate as to the best way forward, however the route to certainty and increased engagement is to proactively involve employees and to seek their feedback and opinions on what the ‘new normal’ should be.  After all people support what they create.

Whilst businesses had to adapt overnight when lock down was imposed, the current uncertainty of when restrictions will be lifted, presents the gift of time to work out where the organisation wants to be.  Involving employees in this journey will be key to keeping them engaged during such uncertain times.   Focussing on employee engagement in 2009, the MacLeod Review (Engaging for success: enhancing performance through employee engagement) summarised the four key ‘enablers’ of employee engagement as follows:

• Leadership that gives a ‘strong strategic narrative about the organisation’.
• Line managers who motivate, empower and support their employees.
• Employee voice throughout the organisation, to involve employees in decision making.
• Organisational integrity that stated values are reflected in the actual organisational culture; what we say is what we do.

Considering planning for the future through the lens of employee engagement, a business should therefore consider:

• Communicating the visions for the future and setting the direction to shape the values of the organisation. 
• Ensuring line managers are regularly reaching out to employees?  Do managers understand any concerns employees have?  Are managers looking at ways to remove constraints to allow employees to be productive?
• Opening communication channels with employees and soliciting opinions and feedback on how the ‘new normal’ should look.  What makes the organisation different or special?  Which of the business’ core values do employees identify with?  What is out of date and what has changed? What do employees want the organisation to look like in the future and can they help identify the vision.
• Once the strategic direction is communicated and the ‘new normal agreed’ leaders should ensure the strategic vision flows and is reinforced throughout the company via aligned employee objectives, so everyone is working toward a common goal and can clearly see where their individual roles fits within the business.

The future world of work may look different for many, however communicating with employees and bringing them along on the journey, will go a long way to ensuring employees remain engaged with the business moving forward, no matter how uncertain the rest of the world may look. 

June is Pride Month and it usually means weeks of rainbow-drenched parades, concerts and festivals (however, in order to respect social distancing rules, most events will be organised online this year) - but in 2020, why is Pride still so vitally important to celebrate??

Although homosexual acts are no longer punishable by hanging (since 1861) nor are they criminal offences (since 1967) and whilst it is very important to appreciate how far the UK has come on LGBT rights, many significant challenges remain.

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