Key employment law developments: July 2020

Coronavirus - employment issues in the UK

On 19 June, the Covid-19 alert level was changed from four to three and there have been significant steps taken to relax the lockdown. From 4 July, additional businesses can reopen, including restaurants, pubs and hairdressers, and people can socialise more as two households are permitted to meet indoors or outdoors and stay overnight. Here are the key points from an employment perspective:

• CJRS and flexible furlough

  • From 1 July, employers can furlough employees on a part-time basis and the current minimum furlough period (three consecutive weeks) will no longer apply, known as flexible furlough. Save for those on family leave, the new flexibility can only be applied to employees that have already been furloughed for three weeks before 1 July (ie by 10 June). 

  • HMRC has issued a new Treasury Direction to modify the existing scheme to reflect flexible furlough.

  • For more info, read our Insight on the CJRS.

• Working safely during coronavirus

  • The general working safely guidance has been changed to reflect the move from 2 metres to 1 metre plus (in short, meaning that people should maintain 2m where possible and if not possible, take precautions to manage transmission risk). Acas has updated its guidance to reflect this. The government has also updated the Covid-secure notice which should be displayed in the workplace.

  • From 1 August, those who are clinically extremely vulnerable can go to work, if they cannot work from home, and the workplace is Covid-safe (guidance here). From the same date, they will no longer be entitled to SSP.

  • The general guidance remains that people who can work from home should continue to do so.

  • The SSP regulations have been updated with effect from 06 July. These allow SSP to be paid when someone self-isolates because they are in a linked household with someone with symptoms. It also changes the provision for SSP for “extremely vulnerable” individuals such that entitlement is based on a current shielding notice (ie a shielding notice can be ended or further shielding notices issued).

• Travel quarantine measures

  • From 8 June, new quarantine rules came into force requiring those arriving in the UK to quarantine for 14 days (with limited exemptions).

  • Travel corridors to avoid quarantine restrictions have been announced.

  • Acas has added new guidance on self-isolating after returning to the UK and employees are (unsurprisingly) not entitled to SSP if they quarantine following return to the UK after a holiday.

• Flexible working

  • Charity, Working Families, is calling for employers to maintain flexible working after the pandemic. The charity has called on the Government to strengthen the right to request flexible working by reviewing the amount of time employers have to consider requests. An increase in requests for ongoing flexible working is expected after things return to more like the old normal.

  • In a Government press briefing, Matt Hancock commented that working from home "will stay with us a long time after this crisis" and said he would talk to the business department to see if laws need to change to enable this.

• ICO issues further guidance on data protection

  • The ICO has published further guidance which covers testing and questioning staff on symptoms and surveillance. Read our Insight.

• Employment Tribunal hearings

  • Amid concerns regarding the backlog and likely surge in cases, the Employment Tribunals have updated their FAQs, including a Roadmap setting out the expected plans for listing and hearing cases from June to December.  Some courts and tribunal buildings have now reopened for face-to-face hearings.

  • There has been more guidance on remote hearings, including the EAT's  practice direction.

  • A Nottingham county court ruled decided that participating as a witness is not work for the purposes of the CJRS.

SMCR: deadlines for solo-regulated firms delayed due to Covid-19 disruption

Due to Covid-19 disruption, the FCA has announced that the deadline for solo-regulated firms undertaking the first fitness and propriety assessment of their Certified Persons has been delayed from 9 December 2020 until 31 March 2021.

To keep the deadlines consistent, the FCA will also consult on extending the deadline from 9 December 2020 to 31 March 2021 for the following:

• the date the Conduct Rules come into force for Conduct Rules Staff (ie not Senior Managers and Certified Staff, who are already subject to the rules)
• the deadline for submission of information about Directory Persons to the Register
• references in the FCA rules to the deadline for assessing Certified Persons as fit and proper (which has been agreed by the Treasury).

Read about the Simmons & Simmons SMCR Solution, which provides you with all the essential tools you need to achieve and manage SMCR compliance across your organisation.

Black Lives Matter: employers urged to take a stand

This month, following the high profile death of George Floyd in Minneapolis, employers are being urged to take a stand and prioritise diversity and inclusion in support of the Black Lives Matter movement. In this article, Norman Pickavance, co-founder of the Financial Inclusion Alliance, invites employers to consider whether #blacklivesmatter is a meaningful statement within their organisation by asking themselves a series of questions, such as how many black people are represented in senior leadership and would black employees find recent messaging on diversity consistent with their experience?

Against this backdrop, a petition calling for mandatory ethnicity pay reporting has passed over 100,000 signatures triggering its debate in Parliament. No date has yet been set. The consultation on mandatory ethnicity pay reporting closed on 11 January 2019 and the Government's conclusions are still awaited.

Public Health England also published its report on the unequal impact of Covid-19 on BAME groups caused by a range of factors including existing inequalities. Employers should be thinking about how to address concerns.

Protect publishes report on financial services whistleblowers

Whistleblowing charity, Protect, has published its second report Silence in the City 2 on the experiences of financial services whistleblowers. The new report is based on research conducted into the experiences of 352 whistleblowers who contacted Protect's free legal advice line over a three year period.  

The report highlights some positive trends following the last report (published in 2012), such as more trust among whistleblowers to use internal whistleblowing arrangements which increased from 78% to 93%. However, there were also some negative findings - 70% of those surveyed were either victimised, dismissed or felt resignation was the only option. As a result, the report recommends that the Public Interest Disclosure Act 1998 be amended to create a positive duty on employers to prevent victimisation.

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.