Key employment law developments: September 2020

Coronavirus: employment issues in the UK

We are generally seeing a more targeted approach from the Government on measures to tackle the pandemic in the UK, including local lockdowns and alternative measures, as the Prime Minister regards another national lockdown as "the nuclear option". Here are the key points for employers this month:

Returning to work

• Health and Safety Executive guidance - the HSE Working safely during coronavirus guidance has been updated to bring it in line with government guidance on return to the workplace. In the Work from home section, “Everyone who can work from home should do” has been changed to “If your workplace is open, you can return to work but your employer must make arrangements for you to work safely”. The HSE guidance now links through to the main government guidance on reopening your business safely during coronavirus.
• The Government has updated the Working Safely guidance (for offices and other workplaces) to include guidance on meaningful consultation with employees before returning to the office ("an open conversation ... before any decision to return has been made"), as well as guidance on how employers can support employees who are at a higher risk of infection.
• The Government is reportedly encouraging employers to consider workplace testing, with reports of plans for mobile testing units aligned to offices and factories.
• There are also reports of City employers "repurposing" their office space in light of homeworking, including using office space as "collaboration hubs". Our cross border real estate team are hosting The Big Discussion 2020: the office on 17 September, and will explore these issues further.

CJRS and Furlough

• New regulations have been made requiring notice pay and redundancy pay rates (and other statutory payments) to be calculated by reference to a furloughed employee's normal weekly pay, not the reduced rate.
• From 1 September, employers now have to contribute at least 10% of salary for those on furlough. The scheme is due to end completely in October. HMRC has updated its guidance and added a new template for employers who are claiming for 100 or more employees.

Statutory sick pay

• The minimum isolation period has increased from seven to ten days under the PHE Guidance. Those self-isolating individually or as part of a household will be entitled to statutory sick pay (SSP) for this extended period and the Sick Pay Regulations have been updated to reflect this.

• The entitlement to SSP has also been extended to employees advised to self-isolate before undergoing an operation or hospital procedure. This can be for a period between 3 - 14 days depending on the circumstances.

Travel and quarantine

• New guidance has been published for employees required to self-isolate for 14 days after returning to the UK. Where possible people should work from home during their self-isolation period and "talk to their employer about working from home before they travel". Where quarantine is announced where individuals are out of the country, employees are advised to speak to their employers as soon as possible "to discuss options".

• Numerous additional countries have been removed from the travel corridor exemption list, meaning that those returning from those countries must self-isolate, including France, Belgium, Croatia, Austria, Czech Republic, and Switzerland. See the full list.

Employment support

• The new KickStart initiative to support employment for the under 25s has been launched with some new resources including new guidance and an employer toolkit. By way of reminder, the scheme provides funding for 6-month work placements for those aged 16 to 24 who are on Universal Credit and deemed at risk of long-term unemployment. Funding covers 100% of national minimum wage for 25 hours per week plus associated employer NI and employer automatic enrolment contributions.

Face masks

• New regulations now require the public to wear face masks in a wider range of places, including cinemas, museums, public areas of hotels.

• The Scottish Government has introduced a requirement for face coverings in secondary schools in corridors and communal areas. In England, from 1 September, revised guidance says that secondary school pupils and staff must wear face masks in communal areas, but only where the school is in a local lockdown area. In other cases, whether masks must be worn is a matter for the school's headteacher to decide.

• Health Secretary, Matt Hancock, has confirmed that the Government is not considering making face masks mandatory in the workplace, despite this now being the case in France.

Employment Tribunals

• The minutes of the most recent National User Group Meeting record that, in addition to pandemic-related claims relating to health and safety and whistleblowing, the Presidents expect an increase in unfair redundancy dismissal claims and contested protective award claims.
• The minutes stated that health and safety detriment, unfair dismissal and protected disclosure claims will be treated as priority claims and triaged for early determination given their relevance to public interest and whether it is safe for employees to return to work during the pandemic.
• The existing backlog of c.30k single cases as at March 2020 is expected to increase to over 40k cases by early Autumn.

SMCR: FCA publishes new information for solo-regulated firms on F&P assessments and conduct rules reporting

The FCA has published a new webpage on conduct rules reporting, specifying the information to be provided in the report (REP008) and explaining when it should be submitted. Where there has been a breach of the conduct rules, firms need to include in the REP800 details regarding the individual who has committed the breach, which rule(s) has been breached, and the disciplinary action taken. The form must be submitted annually even where there have been no breaches.

The FCA has also updated its webpage for solo-regulated firms to provide information on good and bad practice (which it refers to as positive and negative indicators) in carrying out F&P assessments and training staff on the conduct rules. For example, in relation to F&P assessments, firms must demonstrate that they are regular and consistent, identifying new issues with staff (i.e. some fail) and giving thought to each specific role. When training staff on the conduct rules, it should be interactive and use realistic scenarios (not just obvious ones), as well as reinforced regularly and assessed.

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.