January 2021 Newsletter

Well, it’s been a while. We postponed our newsletter while we were sending out COVID updates but now, with a new year, a new dawn and sunlit uplands (hopefully) hoving into view, we feel it is perhaps time to start getting back to normal – the old normal. Since we’ve been away, a worldwide pandemic has hit us, governments have been toppled, leaders have fallen, there’s been an attempted coup (or putsch or whatever we call insurrection these days) in a major western democracy, and Brexit has actually happened. And we’ve only been gone 10 months! So, for the sake of humanity, the Employment Law Update is back [note to editor – if you think I may have overstated our influence on world events, I’ll tone it down].

In this first issue of 2021 (Happy New Year by the way) we discuss the impact of s.44 of the Employment Rights Act. Rarely used in the past, it has suddenly, in these COVID days, become very relevant in that it concerns the risk of serious and imminent danger to staff health and safety. We also provide an update on hiring foreign nationals and the new immigration rules now that Brexit has finally happened.  But first, we provide a comprehensive update on the Government furlough scheme (there’s no getting away from Covid I’m afraid):

Daryl Cowan, Partner.

Coronavirus Job Retention Scheme (CJRS)

Key points/rules to be aware of:

  • Application of the scheme has been extended to 30 April 2021. The Government’s maximum contribution will not change before this date.
  • The Government will reimburse 80% of wages, capped at £2,500 per month. The employer still has the option to top up the employee’s wages, but this will be the maximum that is reclaimable.
  • All employees eligible if RTI payroll return before 30 October 2020, neither the employer nor the employee need to have used furlough previously.
  • Employers must cover employer NICs and employer pension contributions on all amounts paid to the employee (including those amounts covered by the CJRS grants).
  • Both full furlough and flexi-furlough remain available under the scheme and employers can therefore bring employees back part-time if there is work for them to do but not enough to provide their full contractual working hours.
  • An employer cannot claim under scheme for notice period pay or redundancy pay.
  • From February 2021, to provide greater transparency and deter fraudulent use of the scheme, HMRC will begin publishing information about employers who submit claims in December and January.
  • Employers are still required to write to an employee to seek their agreement to be furloughed. The employee should be asked to sign and return any letter to indicate acceptance.  The agreement should be made before the CJRS period to which it relates starts (unless it was made between 1 and 13 November 2020, in which case it could be backdated to 1 November 2020).
  • For an employee that was already furloughed before 31 October 2020 under an agreement without an end date, the furlough agreement will remain in force and simply continue unless the employee is notified otherwise.
  • Employers will need to continue to demonstrate that their operations have been “severely affected” by COVID-19 and must not abuse the scheme.
  • A further Treasury direction will be made to cover the application of the scheme after 31 January 2021 (although the maximum Government contribution of 80% wages will not change).

Moving employees from full furlough to part-time work on flexible furlough

You are required to notify the employees selected for a partial return to work of the intended change (consider whether it is necessary to consult with employee representatives or trade unions), agree the change and record it in writing.  Whether the employee’s consent will be required will depend on the wording of the original furlough agreement reached.

Have consideration to employees that may struggle with the changes due to childcare commitments or having concerns about returning due to being at high risk of serious infection.

What can you do if an employee refuses to come back part time?

You cannot compel an employee to come back part time, unless the ability to do so was provided for in the original furlough agreement.  However, if an employee does refuse, you may have grounds to consider dismissal.  If you have work for the employee to do but not enough for them to return full time, you may be able to dismiss them if they refuse to agree to the temporary change.   The caveat to this is that it will be subject to a fair procedure being followed and you will be required to give careful consideration to the employee’s reason(s) for refusal, taking consideration of the various categories that have been identified as high risk.   We would advise that you take specific advice on the circumstances if this is the case and, further, note the section below concerning sections 44 and 100 Employment Rights Act 1996.

“You can only leave your home for work purposes where it is unreasonable for you to do your job from home.”

The latest guidance (updated 5 January 2021) is that staff should work from home and should only attend a site and/or workplace if they “cannot reasonably work from home”.  This ultimately is at your discretion as the employer; however, you must address any concerns that employees raise about attending the workplace.  You should determine who needs to come into the workplace and extra consideration must be given to those people at higher risk.  If you determine that any workers should come into work, this should be reflected in the COVID-19 risk assessment and action must be taken to manage the risks identified, i.e. the risk of transmission as a consequence of their attendance at the workplace.

Clinically extremely vulnerable individuals are advised not to attend work during the national lockdown.  If they cannot work from home, they should not attend work.  Where it is not possible to find an alternative to attending the workplace, you should have consideration to using the Coronavirus Job Retention Scheme.  As an employer, you have particular responsibilities toward disabled workers and those who are new or expectant mothers.

Priority action to protect your staff (and customers if applicable)

  • Complete a COVID-19 risk assessment ­

ensure you share it with your staff

  • Clean more often

including asking staff to use hand sanitiser and wash their hands more frequently

  • Remind your staff (and customers) to wear face coverings

especially where required by law

  • Make sure everyone is following social distancing guidance

put up signs and one-way systems to make it easy for people to do so

  • Think about ventilation
  • Test and Trace

keep a record of all staff and contractors for 21 days

  • Turn people with coronavirus symptoms away

if a staff member (or someone in their household) has a persistent cough, a high temperature or has lost their sense or taste or smell, they should be isolating.  You must not require someone who is self-isolating to come to work (this is committing an offence).

  • Consider the mental health and wellbeing of your staff (and others)

Section 44 Employment Rights Act 1996 (risk of serious or imminent danger)

A matter of importance concerning the work environment and COVID-19 are sections 44 and 100 of the Employment Rights Act 1996.  These sections provide employees with protection from dismissal or detriment where they refuse to work because of a reasonable belief of “risk of serious and imminent danger to their health and safety or that of others”.  

What this means in practice is, an employee who leaves the workplace, proposes to leave or refuses to return because the employer has not put in place requisite measures to mitigate risk and therefore seriously fears transmission, may be protected from suffering any detriment, such as disciplinary proceedings or even dismissal. A dismissal of an employee on the grounds covered by section 44 will be automatically unfair by virtue of section 100. It’s important to note that an employee does not need 2 years’ service to bring this type of unfair dismissal claim, unlike ‘normal’ unfair dismissal claims.

What this doesn’t mean is that an employee can just say they don’t want to attend work because they don’t want to catch the virus. There must be circumstances of serious and imminent danger and they must reasonably believe that to be the case.  There is of course, at the moment, no guarantee that any workplace can be completely safe and where you have dealt with the risks insofar as possible, the employee’s refusal to attend work is arguably unlikely to be reasonable; however, again, we would advise that you take advice on the particular circumstances before taking any action against the employee.

This is where a risk assessment will be extremely important for you, as employers, to prove the safety of the workplace and show the steps taken to mitigate the risks, in order to be able to prove why any refusal to attend work may be unreasonable.  However, once an employee has raised any concerns about their safety, it is vital that you take further steps/investigation into the issues.

There is currently no case law (that we are aware of) on sections 44 or 100 relating to the pandemic so it is not clear what the threshold of “reasonable” or “serious and imminent danger” will be in the circumstances.  The concept of danger has previously been construed widely and could therefore include the risk of contracting COVID-19 from someone in the workplace but it would still need to be reasonably believed to be serious and imminent.

The case of Oudafar v Esporta Group Ltd made it clear that it’s the employee’s state of mind that will be considered by the Tribunal and not whether the employer believed there to be danger.  Any concerns therefore must be taken seriously despite the employer’s view.  Further, the case of Jurys Hotel Management UK Ltd established that the employee will be protected even when their belief was mistaken. We are therefore of the view that the courts might take quite a wide interpretation of section 44 in relation to the pandemic, making it crucial for you to take employees’ concerns seriously, try and mitigate any danger and communicate effectively with impacted employees (and, we would advise, retaining evidence of this as well).

Lastly, and crucially, if an employee is entitled to remain away from the workplace then it is arguable they should continue to receive full pay as withholding pay would amount to a detriment.

Laura Kelleher, Solicitor.

Changes to Immigrations Rules

The UK’s Business Immigration Rules changed radically when the UK left the European Union on 31 December 2020.

The UK’s new immigration system now treats EU and non-EU citizens equally and anyone that you want to hire from outside the UK will need to apply for permission in advance under the amended points-based immigration system. We anticipate that the most commonly used route will be the “Skilled Worker” visa, which replaces the previously named Tier 2 (general) visa.

In summary, anyone coming to the UK to work will need to demonstrate that:

  • they have a job offer from a licensed sponsor;
  • the job offer is at the required skill level – (A Level and equivalent or above);
  • they speak English to the required standard.

In addition, the job offer must meet the applicable minimum salary threshold. This is the higher of either the general salary threshold of £25,600, or the “going rate” for their occupation.

Applicants can trade characteristics, such as qualifications, against a lower salary to get the required number of points.

Read our full article to find out more.

Louis Howlett, Solicitor, Business Immigration Specialist

And Finally

Two Pobeda pilots have recently been investigated by the Federal Air Transport Agency for allegedly performing phallic-like turns in Russian airspace (see LINK for detail if required). Apparently, this was in a misplaced act of solidarity with the Russia’s football captain. They are reported to have manoeuvred the plane to draw a penis in the sky in support of the footballer who was suspended from international duty after footage did the rounds on social media showing him performing a sex act.

Russia Today described it a “ballsy flight path” but one that was a “bit too cocky”.

The pilots have subsequently been sacked. The future of the Russia football captain remains undetermined…

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