Recent Work & News

Recent Work

Client contact details available on request

News

JOB SUPPORT SCHEME

Full details are still to come but, as you will likely already know, the Chancellor has today (24th Sep) announced a new Job Support Scheme, to be introduced from 1st November, with the aim of helping to protect viable jobs in businesses facing lower demand during the winter due to coronavirus.

The scheme will run for 6 months from 1st November until 30th April 2021, with the government contributing towards the wages of employees who, due to decreased demand, will work fewer than their normal hours (but they must be working at least 33% of them for at least the first 3 months of the scheme) during that time period.  What happens re the 33% element after the first 3 months is to be reviewed and decided upon later; so that percentage could potentially be increased or decreased

Employers will continue to pay the wages of employees for the hours they actually work – but for the hours not worked, subject to a grant cap (see below) the government and the employer will each pay one third of the employee’s equivalent salary*.

This means eligible employees working fewer hours (but at least 33% of their normal hours for at least for the first 3 months of the scheme) will receive 66% of the pay* they would have received for those hours they do not work.  Or to put it another way, they will still be paid for two thirds of the hours they don’t work*.

E.g. Jo’s contracted hours and normal pay are 40hrs and £300 a week.  She is asked and agrees to work 2 days a week due to a lack of work and so will receive 2/5 x £300 for those hours worked per relevant week (which is £120).  This is £180 (3 day’s pay) less than her normal week’s pay and so her employer will pay her 2/3 of £180 (which is £120) and add that to the £120 related to those 2 days she worked and then claim back 1/3 of £180 (£60) from the government.  So it works out that the employer and the government each pay 1/3 of the wages for those hours Jo does not work.  Jo will therefore receive £240 for such weeks.

*The level of grant from the government will be calculated based on the employee’s usual salary but capped at £697.92 per month.  So for any employee where the cap applies they will not receive the full 66% or their pay for those hours they don’t work unless their employer decided to make up the difference. We wait to see the detail but, based on how furlough has operated, it may be that businesses will also be able to cap their contribution for the non-worked hours at £697.92 per month; though the implication so far is that this will not be the case.

The grant will not cover Class 1 employer NICs or pension contributions, although these contributions will remain payable by the employer.  Employers will be able to make a claim online through Gov.uk from December 2020 and they will be paid on a monthly basis.  Grants will be payable in arrears meaning that a claim can only be submitted in respect of a given pay period, after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.

Employees will be able to “cycle on and off” the scheme and do not have to work the same pattern each month. However, each short-time working arrangement must cover a minimum period of seven days

Eligible employees:

To be eligible employees need to have been on the employer’s PAYE payroll on or before 23 September – This means a Real Time Information (RTI) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.

The employee must not be on a redundancy notice (but any notice already given could be withdrawn)

Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing.

Important to note is that the Job Support Scheme will be open to businesses across the UK even if they have not previously used the furlough scheme.  It also doesn’t matter if eligible employees have never been furloughed.  This will all therefore consequently also mean that employees who were not eligible for furlough (due to their employment being deemed to have started past the set deadline) will be eligible to for this.

The scheme is designed to sit alongside the Jobs Retention Bonus for staff (where the government will pay £1,000 for every previously furloughed employee if they are still employed at the end of January 2021); i.e. businesses can benefit from both schemes.

All SMEs will be eligible but big companies will need to show that turnover has fallen by a third

 

EMPLOYMENT LAW CASES

These are three recent employment law cases which might be of interested to regular clients:

Covert CCTV - Guidance from ECHR on when it can be installed

López Ribalda and others v Spain (ECHR)

 

This judgment from the Grand Chamber of the European Court of Human Rights (ECHR) gives employers some clear guidance on the human rights implications of covert CCTV at work. 

 

The background to this López case goes back to 2009 when a supermarket manager noticed a regular discrepancy between actual and expected stock levels; in some cases as much as €20,000! As part of the investigation into this the manager had a number of cameras installed (visible and hidden) in order to film the store’s cashiers.  The applicants  (who had been dismissed after being caught on camera stealing from the store and helping certain customers to also steal) had argued that under Spanish law they should have been informed of the surveillance.

 

The case eventually found itself going all the way to the Grand Chamber of the ECHR which, you will be pleased to hear, found in favour of the supermarket.

 

In summary, the Grand Chamber said that employers may be able to justify covert CCTV if:

 

  1. they have reasonable suspicion that an employee/employees are committing serious misconduct
  2. the surveillance stops once the misconduct is captured on film and there is no similar reason to continue it.
  3. the captured footage is used only for the purpose of finding those responsible for the misconduct
  4. there is no alternative method which could be used to provide sufficient evidence of the misconduct

 

Louise Lawrence, partner at Winckworth Sherwood, said: “The Lopez case makes it clear that employers have to be careful of carrying out covert surveillance of their employers even when they suspect wrongdoing. Employers have to consider whether the covert surveillance is proportionate – weighing up the intrusion in to the employees’ private lives and business needs. The decision making should be clearly documented.”.

Restrictive Covenants

Tillman v Egon Zehnder Ltd (Supreme Court)

The Supreme Court in this case provided some helpful clarification on the correct test for deciding when a restriction within a non-compete clause ruled by a court to be unenforceable can be “severed” without the need for any additions or modifications to the remaining wording to make the clause enforceable.

Tillman, a senior employee with Egon Zehnder, claimed she was prevented from taking up employment with a US firm due to the 6 months non-compete clause within her contract which states that she should not “directly or indirectly engage or be concerned or interested in any business carried out in competition”.

The Supreme Court decided that the phrase “concerned or interested in” is too wide to be enforceable; concluding that the phrase could even prevent a person from holding shares in a company which they had earlier bought. That part of the decision would have been expected but the Supreme Court also decided that the words “or interested in” could be removed from the clause and the restrictive covenant would still be enforceable.  This decision represents a loosening of the previous stringent approach to removing unenforceable clause from restrictive covenants.

Perception that medical conditions could develop into disability

Chief Constable of Norfolk v Coffey (Court of Appeal)

The Equality Act 2010 can lead to employers being liable for “perceptive discrimination”; which is where an employee (or member of the public) can bring a discrimination claim even if they do not actually possess the protected characteristic in question – with the full list of protected characteristics being: age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race including colour, nationality, ethnic or national origin, religion or belief, sex, sexual orientation.

This is an interesting case as it is the first time the Court of Appeal has considered perceptive discrimination in relation to disability.  In the employment arena, the Court of Appeal is where appeals are heard on decisions on points of law made by an Employment Appeal Tribunal.  Decisions from the Court of Appeal can establish ‘case law’ (as can ones from EATs) so this makes this case significant.

In this case, the Court of Appeal upheld (i.e. agreed with) a tribunal decision that Norfolk Police Force’s refusal to accept the transfer of Coffey (a police officer) from the Wiltshire Police Force, because of a perception the Norfolk Force held that her hearing problems could develop into a disability, amounted to perceived direct discrimination.

The Court of Appeal agreed with the EAT that:

  • The Norfolk Force’s belief that Coffey’s hearing loss would currently, or in the future, make her unable to perform her duties amounted to a perception that she had a disability; and
  • A person should be treated as having a disability here and now if they are perceived to have a progressive condition that is likely to result in an impairment (which would be considered to be a disability) in the future.

This case highlights that if an employer believes an employee (or job applicant) not only may have a disability* now but also may have a condition that is likely to continue or progress such that will likely be considered a disability in the future, then the employer should obtain medical evidence, discuss the matter with the employee and consider whether or not there are any reasonable adjustments or modifications which could be made.

Definition of disability under the Equality Act 2010

(taken from https://www.gov.uk/definition-of-disability-under-equality-act-2010)

You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

The Equality Act 2010 doesn’t apply to Northern Ireland.

“Substantial and “long-term” definitions

“Substantial” is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed.

“Long-term” means 12 months or more, e.g. a breathing condition that develops as a result of a lung infection

There are special rules about recurring or fluctuating conditions, e.g. arthritis.

Progressive conditions

A progressive condition is one that gets worse over time. People with progressive conditions can be classed as disabled.

However, you automatically meet the disability definition under the Equality Act 2010 from the day you’re diagnosed with HIV infection, cancer or multiple sclerosis