In brief – August 2020 employment round-up

Welcome to August's In Brief employment law update. To help you keep quickly up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

In this bulletin:

1. Covid-19 Updates
2. In the courts… recent case updates
3. Guidance

If you would like to discuss any of the points raised, please get in touch with your usual contact in the Foot Anstey Employment team.

COVID-19 News

Further details on the Job Retention Bonus

At the end of last month, the Government published guidance on how the Job Retention Bonus ("Bonus") would operate. The Bonus is a one-off payment of £1,000 to UK employers for every furloughed employee who remains continuously employed from the date of the employer's most recent claim for them under the CJRS until 31 January 2021. The key points from the guidance are:

• Conditions: the employee must (i) be continuously employed to 31 January 2021, (ii) be paid at least £520 a month on average between 1 November 2020 and 31 January 2021 and their pay must be reported to HMRC via RTI, and (iii) not be serving contractual or statutory notice which started before 1 February 2021;

• Types of employee included: employers can claim for all employees who meet the above conditions, including office holders, company directors and agency workers, including those employed by umbrella companies. Employees on fixed term contracts can also be claimed for, provided the conditions are met;

• Statutory parental leave and military reservists: employers can claim for employees who returned after 10 June 2020 and were claimed for under the CJRS, provided the other conditions are met;

• TUPE: a new employer can claim for employees who have been TUPE transferred before 31 October 2020, provided the new employer furloughed the employees and successfully claimed for them under the CJRS;

• Compulsory liquidation: a new employer may be able to claim for employees associated with a transfer of a business from the liquidator of a company in compulsory liquidation where TUPE would have applied if the company was not in compulsory liquidation; and

• When employers can claim: from February 2021.

Further guidance about the process of claiming the Bonus is due by the end of September 2020.

Pause of shielding

On 31 July 2020, the government paused shielding for clinically extremely vulnerable people, subject to specific guidance on local lockdowns. However, we understand that not all shielding notices expire automatically on this date, so it is important to check this with your employees.

The Government guidance confirms that people who were shielding can now return to work as long as their workplace is Covid-secure, but the advice remains that they should continue to work from home where possible. The Government advises that employees may be able to take up an alternative role or temporarily change their working patterns. This is therefore something that employers should be prepared to consider.

SSP is no longer available for employees whose shielding notice has expired. The SSP entitlement will be triggered where someone who stopped shielding receives a notification advising them to shield again. 

In the courts…recent case updates

Unfair dismissal: not all dismissals without a procedure will be unfair

An Employment Tribunal held in Gallacher v Abeillio Scotrail that dismissing an employee without any form of procedure (including the opportunity to appeal) will not always result in unfair dismissal.

The Claimant, a senior manager, was away from work due to sickness which caused a deterioration in the relationship with her manager. The deterioration occurred primarily due to issues over pay and staffing at a crucial time for the business. During a subsequent appraisal, the Claimant was dismissed without warning and was not given the right to appeal the decision.

The Claimant brought a claim for unfair dismissal to the Tribunal, but it was found that the Respondent had acted reasonably in the circumstances as the relationship between the Claimant and her manager had irretrievably broken down.

The Claimant appealed to the Employment Appeal Tribunal ("EAT") who dismissed the appeal. The EAT held that whilst a lack of procedure and opportunity to appeal would usually give rise to an unfair dismissal claim, in this case, any procedure could be omitted as it would be fruitless.

The EAT further stated that as the Claimant and her manager were both in senior positions, it was vital that they were able to work together effectively and unfortunately, that would not improve.

Although a seemingly sensible decision in the circumstances, we would urge employers to be cautious if considering effecting dismissals without following a full and fair procedure – each case before an Employment Tribunal will always turn on the specific facts presented.

Fair procedure in Employment Tribunal

In the case of Jayaram v Network Rail Infrastructure Ltd, the Claimant was unsuccessful in applying for a role with the Respondent and began proceedings for direct race discrimination. When completing his ET1, the Claimant claimed that he was disabled by virtue of PTSD, depression and ADHD. The Claimant further stated that he would need reasonable adjustments for any hearings, which he would provide at a later date, however he failed to do so.

The Claimant represented himself in the hearing and was advised that he was able to take notes in with him whilst he was being cross examined. However, this meant that the hearing process became too lengthy and instead, the Tribunal asked that the Claimant's wife assist him going forwards.

The Claimant appealed against the Tribunal's decision. He claimed that he had been discriminated against on the basis that he had not had a fair trial, as the Tribunal changed its approach to his note-taking during the hearing which caused him to feel extra pressure, which also had an impact on his disability.

The Employment Appeal Tribunal held that the Tribunal had followed a fair process as the note-taking agreement had been due to the fact that the Claimant was unrepresented, as opposed to his disability.

Sexism in employment

The Claimant, a global account manager, was earning approximately £700,000 per year, which comprised of £95,000 salary plus bonuses and commission. She had landed two large clients and had been praised highly for the work that she had carried out. It was because of her performance, that she was allowed to take a six-month period of leave to "recharge her batteries" and would continue in that same role on her return.

However, during her period of leave, her role was filled by a new employee who also brought several previous colleagues with him. The Claimant found out that, although her performance had been exceptional, she had not been nominated for the Sales Manager of the Year Award and the two large clients she won had been reassigned to another colleague, who was also receiving a higher salary than her.

Once the new managers realised that the Claimant had become aware of this, they sent inappropriate email correspondence to each other, stating that "the game begins" and they that they should not use her name in correspondence as she could submit a data subject access request.  The Tribunal were particularly disapproving of this, noting that the correspondence between the managers was drafted in such a way as to prevent the Claimant from ever seeing it, even if it was requested.

The Tribunal further found that the Respondent had treated the Claimant less favourably because of her sex which had led to unfair constructive dismissal. Not only that, but the fact that the highest performing employee had won the sales award for the previous five years but the Claimant had not was victimisation. In relation to the salary discrepancy with the Claimant's colleague, the Claimant was successful in her equal pay claim.

This case, Lee v Splunk Services UK Ltd, highlights the importance of handling allegations of sex discrimination and ensuring that employees understand the implications of subject access requests being submitted.

Guidance

The Department for Work and Pensions (DWP) has published guidance for employers making redundancies

The DWP has published information and support for employers who have made the difficult decision to make redundancies in response to the effect the COVID-19 pandemic has had on the economy. 

The Redundancy factsheet: information for employers outlines the support employers can give to employees being made redundant and provides useful links to organisations that can support. There is also guidance for voluntary redundancy and early retirement.