Key employment law developments: August 2020

Coronavirus - employment issues in the UK

As the situation continues to evolve, here are the key points for employers this month:

Working safely

• On 17 July, the government announced that from 1 August, it will no longer tell people to work from home where possible, and instead place the onus for making decisions in relation to returning to the workplace firmly onto the employer, alongside consultation with their employees. However, despite updating its main guidance, the HSE has not changed its recommendation that those who can work from home should do so. This is difficult to reconcile for employers who will need to carefully consider who should return to the office. Read our Insight for the latest guidance.

• New guidance regarding when face masks are required has been published. Court attendees will also be asked to wear them (although may be removed when speaking). The government has confirmed that wearing masks in the office will not be made mandatory.

• The government guidance now states that the self-isolation period for Covid-19 symptoms has been extended to 10 days across the UK.

Chancellor's new measures

On 8 July, the Chancellor Rishi Sunak set out a raft of new measures in his Plan for Jobs 2020, designed to aid the UK economy's recovery and to boost jobs. The key measures are:

• Job Retention Bonus - to introduce a new Job Retention Bonus of £1,000 for every furloughed employee who remains continuously employed through to the end of January 2021.

• Kickstart Scheme - to introduce a new scheme for young people aged between 16-24 who are on Universal Credit and at risk of long-term unemployment by funding their wages for six months whilst they complete a job placement.

• Traineeships and apprenticeships - to invest in traineeships and apprenticeships for young people, including £32m into the National Careers Service, and specifically:

  • to fund work experience for trainees aged 16-24 at £1,000 per trainee, and

  • to introduce a new payment of £2,000 to employers for each young apprentice they take hire under the age of 25, and £1,500 for each apprentice aged 25 or over.

  Further detail is awaited on these measures. For more info, read our Insight.

CJRS

• The CJRS guidance notes have all been updated and now confirm that you can continue to claim for a furloughed employee who is serving a contractual notice period, not just during their statutory notice period. For more info, read our updated Insight.

• Furloughed workers will be eligible for redundancy pay based on their normal wages. Regulations have been published to confirm how a week's pay is to be calculated in relation to an employee who has been furloughed for the purposes of (among other things) statutory notice payment, statutory redundancy payment or unfair dismissal compensation.

Travel

• From 4 July, the FCO permitted travel to certain destinations outside the UK. From 10 July, those returning to England are no longer required to self-isolate for 14 days if they are travelling from a country with a "travel corridor" exemption (and not been to a country that is not on the exemption list in the last 14 days).

• On 26 July, Spain was removed from the travel corridors exemption list. On 31 July, Luxembourg was also removed from this list. Travellers returning to the UK from Spain or Luxembourg will now have to quarantine for 14 days due to a significant spike in cases. The government is also considering whether other countries should be removed. See here.

Family-friendly rights

Following an online petition, the House of Commons Petitions committee has published a report making recommendations to enhance family-friendly rights, including to extend maternity and adoption leave by three months, extend protection from redundancy to six months after returning to work, and extend the time limit for pregnant employees and new parents to bring unfair dismissal claims. The government has two months to consider the recommendations.

SMCR: FCA to consult on extending deadlines for solo-regulated firms

On 17 July, the FCA published Consultation Paper 20/10 on making changes to its rules following the extension of the deadline by which solo-regulated firms must have first assessed the fitness and propriety of their certification staff. The extension is from 9 December 2020 to 31 March 2021.

In order to keep the SMCR deadlines consistent, the FCA is consulting 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 and therefore the date they must have received appropriate training (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 (F&P) (which has been agreed by the Treasury).

If firms are able to certify staff, train Conduct Rule staff on the conduct rules and submit information about Directory Persons to the FCA earlier than 31 March 2021 they should do so. The expectation is that most firms will not need to rely on the extension.

The consultation closes on 14 August 2020 and a policy statement is expected ahead of the current implementation date of 9 December 2020.

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.

SMCR: FCA launches new Financial Services Register

The FCA has launched their new Financial Services Register. The new design should make it easier to use with clearer language, important info being more prominent and improving user experience on mobile devices.

The FCA will be adding the directory of certified and assessed persons to this Financial Services Register later this year (see press release). As above, the FCA are also proposing to extend the deadline for solo-regulated firms to submit Directory Persons to the Register to 31 March 2021 (although they plan to publish details of such persons from 9 December 2020). However, the FCA's expectation is that firms who can provide this information before March 2021 do so.

FCA finds that culture is key for remuneration committees

The FCA has written a letter to chairs of remuneration committees setting out its findings from the 2019/20 remuneration round and how it plans to assess firms' remuneration policies and practices throughout 2020/21. Culture in financial services remains a key area of focus for the FCA across all sectors.

Read our Culture barometer for information on key developments from the world of culture and governance.

Data protection: ICO issues updated statement on Schrems II judgment

On 27 July, the Information Commissioner's Office issued an updated statement on the judgment of the European Court of Justice in the Schrems II case. The statement reminds organisations that the judgment has wider implications than just the invalidation of the EU-US Privacy Shield. The judgment also examined the use of standard contractual clauses (SCCs) and the importance of safeguards for personal data transferred out of the UK. Read our Insight: Schrems II on standard contractual clauses and privacy shield.

Criminal records: Government plans new changes to criminal records disclosure regime

The government has announced that it intends to make changes to the criminal records disclosure regime, which provides information to employers through DBS certificates. It has proposed new legislation which will remove the requirement for automatic disclosure of youth cautions, reprimands and warnings, as well as remove the 'multiple conviction' rule which requires the automatic disclosure of all convictions where someone has more than one conviction. The changes are intended to ensure the right balance is struck between rehabilitating offenders and protecting the public.

Details of new immigration system published

The government has published a statement setting out further details regarding its plan for a points-based immigration system in the UK from 1 January 2021, once free movement with the EU has ended. Under the new points-based system, EU and non-EU citizens will be treated equally. There will be a new visa system for scientists, health care and skilled workers. The sponsorship regime will remain broadly the same, but the processes will be overhauled to simplify them in due course. Further guidance is expected later this year.

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.