Key employment law developments: May 2020

Coronavirus (COVID-19) - employment issues in the UK

After some six weeks in lockdown in the UK, the conversation is slowly starting to turn towards how we can start lifting restrictions in a safe and sensible way. Businesses have been turning their minds to what the future will look like. There has been a sharp rise in global job losses, with widespread redundancies planned particularly in the aviation industry including British Airways and Rolls Royce, and many have made changes to compensation and benefits. Since the CJRS was launched, it is reported that over 80% of employers have furloughed employees.

Coronavirus Job Retention Scheme (CJRS):

• The new CJRS online portal was launched on 20 April.
• The scheme will be extended until the end of June.
• A Treasury Direction was published setting out the legal framework for the scheme on 15 April.
• A new step by step guide for employers has also been published, including detailed example calculations and information required to make a claim.
• Separate guidance on calculating pay has been published, including an online calculator to work out how much can be paid to employees who are paid the same amount each pay period. This guidance includes confirmation that employees can take annual leave while on furlough and must be paid their usual holiday pay during this period (by the employer topping up the CJRS grant). It also says that “during this unprecedented time” it is “keeping the policy on holiday pay during furlough under review”.
• We continue to see updates and revisions to the HMRC employer guidance and to the ACAS guidance on the CJRS.
• The CIPD has also called for the CJRS to be expanded to cover short-time working until at least the end of September or otherwise risk a significant wave of redundancies at the end of June (see the CIPD letter to the Chancellor).

For full details, see our updated insight on the CJRS.

• Lock-down: The latest three-week lockdown is set to continue until at least 7 May. The UK Government is expected to provide details on how it plans to start to relax the measures this week.
• Testing: The government has expanded testing to cover anyone with coronavirus symptoms who has to leave home to work (and their families). See press release here.
• Tribunal and court hearings: The Presidents of the Employment Tribunals have confirmed that hearings listed after 29 June will remain in hearing lists and that parties will be contacted to agree the most appropriate means of conducting the hearing. See the Presidential Direction and these helpful FAQs. The HMCTS has also published updated guidance on telephone and video hearings during the pandemic.
• Amendment regulations re statutory maternity/paternity/adoption pay etc: New regulations have come into force confirming that pay should be calculated as if the person had not been a furloughed.
• Executive pay: The Investment Association has published guidance for UK listed companies on how remuneration committees should be reflecting the impact of coronavirus on executive pay.
• FCA/PRA Guidance: The FCA and PRA issued a Joint PRA and FCA Statement for dual-regulated firms, and an FCA statement for solo-regulated firms, regarding senior managers and temporary arrangements for senior managers in relation to furlough and reallocation of responsibilities.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.

Law Commission report on employment law hearing structures

Following its consultation of last year, the Law Commission has published its report on employment law hearing structures, which sets out 23 recommendations for reform. The reforms aim to remove unnecessary discrepancies and issues which arise from the demarcation of jurisdictions between the civil courts and tribunal in the areas of discrimination and employment law, without any major restructuring of the system. Key recommendations include:

• increasing time limits for bringing employment tribunal claims to six months
• introducing a ‘just and equitable’ test to extend time
• increasing the financial limits on contractual claims from £25,000 to £100,000 and allowing breach of contract claims to be brought during employment, and
• employment tribunals not having the power to grant injunctions.

In terms of next steps, the recommendations are expected to be considered by the government (with an interim response expected within six months of publication of the report and a full response within a year).

New guidance on vulnerable parties and witnesses in Tribunal proceedings

On 22 April 2020, the President of the Employment Tribunals (England & Wales) issued new guidance on vulnerable parties and witnesses in employment tribunal proceedings. Whilst there is no formal definition of who might be vulnerable, the guidance refers to a good test as “those likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case”. The guidance lists factors to consider when making an order to facilitate the participation of a vulnerable party/witness in proceedings, including any mental health condition or significant impairment of intelligence or social functioning. It also sets out what measures might be taken, such as participating remotely (via Skype or VC) or allowing assistance from an intermediary.

BEIS Consultation on Carer’s Leave

The Government has launched a consultation seeking views on a proposal to give employees one week of unpaid leave per year to provide care for a family member or other dependant who has a longer-term or significant care need. There is currently no proposal to provide pay during this leave period. The consultation is due to close on 3 August 2020.

FCA publishes business plan for 2020/2021

The FCA has published its business plan for 2020/21, setting out its strategic focus for the next three years. The impact of coronavirus has taken precedence over the themes that we expect would have otherwise appeared prominently in the business plan, such as EU withdrawal, LIBOR transition and climate change. The most significant takeaway from the plan is the FCA’s view that the current regulatory framework is too focused on rules and process, rather than on principles and outcomes - perhaps indicative of a desire to move away from a prescriptive rules-based approach to a more principles-based approach to regulation. Read our full summary.

For more key employment law updates from us:

• read our key cases over the last month;
• stay Ahead of the Curve with our summaries covering the key aspects of employment law under review by the government;
• scroll through our key dates timeline showing recent and anticipated changes to employment law; and
• attend our upcoming events or catch up on training.