In Brief – June 2020 employment round-up

COVID-19 news

Easing lockdown restrictions in the workplace

According to the Prime Minister's announcement on 23 June 2020, there will be substantial easing of lockdown restrictions in the workplace in England, from 4 July 2020 as follows:

• People should continue with the two-metre social distancing rule where possible. If it is not, they should keep a social distance of “one metre plus”, meaning they should remain one metre apart while taking “mitigations” to reduce the risk of transmission.

• Pubs and restaurants will be permitted to re-open and guidance will encourage minimal staff and customer contact. In addition, businesses will be asked to help NHS Test and Trace respond to local outbreaks by collecting contact details from customers which for many businesses, and particularly those which are not in the practice of doing so already, will pose a significant burden and raise data protection issues. Hairdressers will be permitted to re-open, and other “close contact” services will be allowed to open once the Government is confident they can do so in a COVID-19-secure way.

• Subject to conditions, self-contained accommodation, including hotels and bed & breakfasts, as well as campsites can re-open. Most leisure facilities and tourist attractions will be permitted to re-open if they can do so safely. However, “close proximity” venues such as nightclubs, indoor gyms, swimming pools and spas will remain closed. Task forces will work with these sectors to help them become COVID-19-secure and re-open as soon as possible.

The Government has also published further COVID-19 Secure guidelines for those working in close contact services, hotels and other guest accommodation, the visitor economy and heritage locations. It has updated its guidelines for restaurants, pubs and bars (which have been provided to date in respect of take away services only) in anticipation of venues reopening.

These new guidelines take a similar approach to the COVID-19 Secure guidelines published to date. They consider steps businesses should take in respect of risk assessments, supporting staff to return to work, personal protective equipment and face coverings, social distancing at work, shift patterns and working groups, work-related travel as well as managing customers, visitors and contractors.

There will undoubtedly be a period of adjustment following 4 July, as employers and employees get used to new and unfamiliar working practices. Please contact your usual Foot Anstey contact if you have any queries on the implications of this recent development.

HM Treasury issues third direction on Coronavirus Job Retention Scheme (CJRS)

On 26 June 2020, the Chancellor made a third Treasury Direction under sections 71 and 76 of the Coronavirus Act 2020. This modifies the effect of the previous Directions, setting out the rules that will apply under the amended CJRS which allows for flexible furlough arrangements, from 1 July 2020 until the scheme ends on 31 October 2020.

Study reveals 90% of employees want employers to maintain flexible working practices

A survey by Working Families has revealed that 90% of employees want employers to maintain flexible working practices introduced in response to the COVID-19 pandemic.

The charity's survey pooled data from 1,000 working parents and carers and found that 84% of respondents are now working flexibly, whereas only 65% were offered flexible options before the pandemic.

Working Families have called on the Government to:

• strengthen the statutory right to request flexible working by reviewing the amount of time that employers have to consider requests (currently three months); and

• implement its plan to introduce legislation requiring employers to advertise jobs with flexible options where possible.

In the Queen's Speech in December 2019, the Government announced a new Employment Bill which would deal with its intention, subject to consultation, to make flexible working the default position unless an employer has a good reason.

There are, as yet, no timescales for when any preparatory work, including consultations, will be undertaken or when the Employment Bill may be expected. However, flexible working is likely to be a hot topic over the coming months and employers are encouraged to review their flexible working practices for the longer term (beyond the current pandemic) in a fresh light.

Department of Work and Pensions v Boyers

Is it correct to focus on the employer's decision-making process when considering whether discrimination arising from disability was objectively justified?

No, found the Employment Appeal Tribunal (EAT) in Department of Work and Pensions v Boyers. There should be a balancing exercise between the needs of the employer (i.e. its legitimate aims) and the discriminatory effect of the act (in this case dismissal) on the employee.

In this recent case, the claimant was disabled and dismissed by her employer for disability-related absence. An employment tribunal found that she had been unfairly dismissed and that her dismissal was discrimination arising from disability contrary to the Equality Act 2010. The employer had argued that any such discrimination was objectively justified.

The employer appealed against the discrimination finding on the basis that the tribunal incorrectly rejected its defence that the discrimination was justified. The tribunal had accepted that the dismissal pursued two legitimate aims: 1) protecting scarce public resources; and 2) reducing the impact on other employees of the claimant's absence. However, the tribunal held that the dismissal was not justified because it was not a proportionate means of achieving either aim.

The employer appealed this finding and the EAT determined that the tribunal had focused, wrongly, on criticism of the employer's decision-making process rather than conducting a balancing exercise between the needs of the employer and the discriminatory effect of the dismissal.

There was no discussion anywhere in the tribunal’s judgment of evidence addressing the issues arising in connection with the legitimate aims, or a finding that there was insufficient evidence that the employer had acted proportionately when dismissing the employee. The tribunal had simply failed to objectively assesses this. Although the dismissal was unfair, this did not necessarily mean that it was also discriminatory.

This case shows that whilst an employer's decision-making process will always be relevant and subject to scrutiny, where alleged discrimination could potentially be objectively justified, an assessment by the employer of its aims versus the potentially discriminatory effects of its actions will be necessary and important.

Changes to legislation

Posted Workers (Agency Workers) Regulations 2020

On 31 March 2020, the UK's Posted Workers (Agency Workers) Regulations 2020 (SI 2020/384) (the Amendment Regulations) were laid before parliament and they will come into force on 30 July 2020 but expire at the end of the Brexit transition period (31 December 2020). The Amendment Regulations modify the Agency Workers Regulations 2010 (SI 2010/93) to provide that:

• A hirer that posts an agency worker to an EEA country where the agency worker does not normally work will have to notify the temporary work agency of both the EEA country of the posting and the date on which the posting will commence.

• A temporary work agency may bring a claim in the employment tribunal against the hirer to recover any losses that the temporary work agency may suffer as a result of a penalty imposed by an EEA country for failure to comply with the provisions of the Amendment Directive or Posted Workers Directive.

Other guidance

On 19 June 2020, the Department of Health and Social Care (DHSC) published guidance for adult social care employers entitled COVID-19: adult social care risk reduction framework.

The framework focuses on how social care employers can identify and support workers who may be more vulnerable to infection or "adverse outcomes" from COVID-19, and particularly to undertake risk assessments, discuss and acknowledge concerns about employees' health, and mitigate the risks posed to them. It recommends measures that can be taken across the workforce, and on an individual level.

Other relevant guidance includes:

• Public Health England's infection prevention and control guidance, and its guidance on the management of staff and exposed patients or residents in health and social care settings.

• The DHSC's Care Home Support Package, and its provisions concerning limiting staff movement.