Key employment and business immigration developments for employers.
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The Prime Minister is expected to set out his "roadmap" later this week for easing lockdown restrictions and allowing workplaces to reopen. A draft Government plan leaked to the press reportedly urges employers to reduce hot-desking, minimise numbers using equipment, stagger shift times and maximise homeworking. With much to consider, employers should begin planning now for a phased return to work. Below are some of the key issues employers will need to consider:
The CIPD has also produced guidance for employers on returning to the workplace and Government guidance is expected imminently.
For more information on the wider considerations for businesses, please see our note on the relaxing of lockdown and the key considerations for businesses on the Covid-19 resources page of our website.
The Home Office has temporarily relaxed the requirements for right to work checks for new hires in the light of the Covid-19 pandemic. Employers must normally check original documents in the physical presence of the employee but this has proved challenging with most offices closed and many employees working from home. The Home Office has therefore issued specific guidance which confirms that, during these exceptional times, checks can be carried out over video call using clear scanned copies of the identity documents, with the use of the online right to work checking service where possible (i.e. for individuals with biometric residence permits or EU nationals with settled or pre-settled status). Where scanned copies have been checked (rather than original documents) employers must record the date of the check and record that an adjusted check has been undertaken due to Covid-19. A retrospective check must then be undertaken within 8 weeks of the Covid-19 measures ending and the employer must retain evidence of both checks on record.
The Home Office has made a number of changes to sponsored visas in the light of current travel restrictions and visa office closures. The key changes are:
Understandably, Brexit projects have been put on the backburner while employers address the more pressing issues thrown up by the COVID-19 outbreak. However, the Brexit Transition Period is still set to end on 31 December 2020 and a new points-based immigration system will then take effect from January 2021. Under the new system, employers will need to hold an immigration sponsor licence to sponsor the visas of new EU employees who arrive in the UK after the end of the Transition Period. The latest government guidance on this makes clear that employers who do not yet hold sponsor licences should consider applying now if they plan to employ EU employees under the new system.
The employee in this case was a hospital theatre porter who worked for a charity that operated hospitals. He had an unblemished record over 20 years but was arrested and charged with assault with intention to rape, which allegedly occurred outside of work. His employer dismissed him as a result of the potential damage to its reputation, considering the employee's role and interaction with vulnerable patients. The dismissal was on the basis that the employee would be reinstated if the charges against him were dropped or he were later acquitted at trial. The employee bought an unfair dismissal claim.
The Employment Tribunal found that the employee had not been unfairly dismissed because there was a genuine risk of damage to the employer's reputation if the employee were convicted. The Tribunal also found that a fair process had been followed as the employer sought further clarity on the charges from the employee and considered alternatives to dismissing him, including a prolonged period of paid suspension. However, paid suspension was not considered to be an appropriate use of charitable funds, as no trial date had been set and it was therefore not clear how long the suspension would need to run.
After the Employment Tribunal decision, the employee was acquitted of all charges. His employment with the charity was reinstated but he received no backpay. He appealed to the Employment Appeal Tribunal (EAT) arguing that his dismissal was unfair and that he should be entitled to compensation for the period between dismissal and reinstatement. However, the EAT ruled the employee was not unfairly dismissed and his appeal was rejected.
This case confirms that it may be fair to dismiss an employee who is charged with a criminal offence where continued employment poses a risk to the employer's reputation. However, this will not always be the case; there must be some relationship between the charges or matters alleged and the potential for reputational damage. A serious driving offence, for example, is unlikely to bring the employer into disrepute if the employee's role does not involve driving. In contrast, in this case, the employee's role involved working with vulnerable patients and a possible conviction of assault with intention to rape would have had serious consequences for the employer's reputation. Before taking a decision to dismiss, the employer must also follow a fair process by allowing the employee to give their version of events and not taking the charges or allegations at face value. The employer should also consider alternatives to dismissal such as suspension pending trial, the reasonableness of which will depend on when the trial is likely to happen.
The employee in this case was an accountant who, during his employment, signed a new contract with post-termination restrictive covenants. He later resigned to work for a competitor. Before he started work, the competitor sought legal advice about whether the restrictive covenants were enforceable. The legal advice was that the covenants were probably unenforceable because there had been no consideration for them and they ran for a period of 12 months, which was too long. When the employee started work with the competitor, his former employer sued both him for breaching the covenants and the competitor for inducing that breach.
The High Court found that, contrary to the legal advice, the restrictive covenants were enforceable. Unbeknown to the new employer, the employee had received a pay rise for the covenants at the time they were introduced, so there had been consideration. Given the employee's senior role, the period of 12 months was also considered reasonable. The employee was therefore in breach of the covenants. However, the Court found that the new employer (the competitor) was not liable for inducing that breach, as it had genuinely sought and obtained legal advice that the covenants were unenforceable.
While this case is helpful for employers, it also highlights the dangers of recruiting employees who are subject to post-termination restrictive covenants. A new employer that hires someone while they are still subject to post-termination restrictions risks being sued for inducing breach of contract. To be liable, the new employer must know or turn a blind eye to the fact that they are inducing a breach. Where the new employer has obtained legal advice that the covenants are unenforceable, it will not be liable for inducing a breach (even if the covenants turn out to be enforceable). Employers wishing to recruit staff who are subject to covenants should therefore seek legal advice before doing so. However, employers should exercise great caution here – the enforceability of covenants is rarely clear-cut and an employer could be at risk of liability in circumstances where the advice is that there is a chance of the covenants being enforceable. It is much safer to wait until any post-termination restrictions have run their course.
Earlier this year, the Government amended the statutory sick pay rules so that, with effect from 13 March 2020, workers self-isolating because they or someone in their household has symptoms of Covid-19 are eligible for statutory sick pay. On 16 April 2020, the rules were amended further so that workers who are shielding in accordance with an NHS notification due to a particular vulnerability are also entitled to statutory sick pay. For any absences related to Covid-19 since 13 March 2020, statutory sick pay is now payable from day one of the absence, rather than from day four, which is normally the case. Employers with fewer than 250 employees will also be able to reclaim statutory sick pay for the first 14 days of any Covid-19 related absence under the Coronavirus Statutory Sick Pay Rebate Scheme. The Scheme is not yet open but employers are advised to retain records to enable claims in future.
The Government has introduced a new right for workers to take emergency volunteering leave to assist with the national efforts in relation to the coronavirus pandemic. The key features of emergency volunteering leave are:
The leave is unpaid but a Government fund will be established to compensate volunteers for loss of earnings, and travel and subsistence expenses. The right to emergency volunteering leave was introduced by the Coronavirus Act 2020 on 26 March 2020 but regulations are still required to bring the right into force – these are expected imminently.
Compensation for discrimination and harassment is made up of two elements – the employee's financial loss and injury to the employee's feelings. The so-called "Vento bands" have been created to guide tribunals what to award for the injury to feelings element. On 6 April 2020, the Vento bands were increased, and the current bands are now as follows:
There is technically no limit on what can be awarded for injury to feelings and, in exceptional cases, tribunals can award compensation which is higher than the upper band. There is also no limit on the compensation which can be awarded for financial loss in discrimination and harassment claims.
The Government has confirmed its plan to introduce reforms to the off-payroll in the private sector in April 2021, despite calls for further delay from the House of Lords.
Following an inquiry launched in February 2020, the House of Lords Economic Affairs Committee, Finance Bill Sub-Committee published a report criticising the Government's proposals to introduce the off-payroll working rules in the private sector from April 2021. The Sub-Committee questioned the success of the reforms in the public sector and argued for further delay in the private sector, as businesses will still be recovering from the coronavirus pandemic in April 2021. However, separately, the Financial Secretary to the Treasury has confirmed that the Government will proceed with the reforms in April 2021 but will commission research into the long-term effects of the changes in the public sector with the results to be available before implementation of the private sector reforms in April 2021.
We are running an interactive series of webinars throughout the month of May, where we will be discussing a range of employment law issues associated with the Covid-19 pandemic, with each session including a Q&A section afterwards. The topics and dates are as follows:
If you would like further information about the webinars, please contact firstname.lastname@example.org.
Since the last Employment Update, our work has included: