Key employment law developments: October 2020

Coronavirus update: employment issues in the UK

Six months on from the first lockdown, the Prime Minister has announced new measures following a statement by the Chief Scientific Officer and Chief Medical Officer about the increasing prevalence of COVID-19. The alert level has been moved up to "four". The key points for employers are:

• Homeworking set to continue: The Prime Minister announced new measures likely to last for the next six months including a renewed expectation that office workers should work from home if they can. The guidance is minimal, stating that "office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so". The FCA posted an update stating that firms should continue to follow government advice on working from home unless notified otherwise. The PM has said that people who need to go into work for their mental health/wellbeing should do so.

• Ban on meetings of more than 6 people excluding work gatherings: The government introduced a ban on social gatherings of more than 6 people indoors or outdoors, but has made clear that these rules do not apply to workplaces.

• New criminal offence not to self-isolate: New regulations have been published which make the failure to self-isolate (following notification of a positive test/close contact someone who has tested positive) a criminal offence. Regulation 7 makes it an offence of an employer to "knowingly allow" a self-isolating worker (or agency worker) to attend any other place for a purpose related to their employment. Regulation 8 requires the worker to notify their employer and regulation 9 deals with agency workers (and the need to share information between end user/client and the agency. The government announcement is here.

• New job support scheme announced: The Prime Minister has announced the new Job Support Scheme, which it says will last for six months starting on 1 November following the closure of the furlough scheme on 31 October. To be eligible, employees will need to work a minimum of 33% of their hours. For remaining hours not worked, the government and the employer will pay one third of wages each.

• Employers asked to act fairly on redundancies: The TUC, ACAS and CBI have issued a joint statement on redundancy, encouraging employers to act fairly and consult appropriately before deciding on redundancies.

• New NHS Covid tracing app launched: See here.

• Local lockdown restrictions but informal childcare permitted: Many parts of the country are now subject to enhanced restrictions, including restrictions on interhousehold mixing. The government has announced that informal childcare and caring arrangements will be exempt - here - which is particularly important for working parents.

For a broader discussion of the impact of the pandemic on the workplace, read our Insight: COVID -19 - a new normal for employment law.

Based on our Insight, we are also holding a webinar "COVID-19: a new normal for employment law" to discuss emerging themes and market insights on remote working, return to the office and business restructuring in the UK, Hong Kong, Germany and France on Tuesday 6 October at 11-11.30am BST. Please register here.

Reforms to tribunal procedure to address impact of pandemic

The government has introduced new reforms to the employment tribunal system to address the impact of COVID-19, which had led to a huge backlog of cases and significant delays as well as the need for distancing to minimise infection risk (see press release and new regulations). The changes are designed to increase flexibility for remote hearings and boost hearing capacity. The key reforms include:

• the deployment of non-employment judges into employment tribunals, if certain suitability criteria are met;

• allowing legal officers (who are not legally qualified) to carry out certain tasks which are currently performed by employment judges;

• allowing multiple parties to use the same claim/response forms where there are common or related issues of fact or law, or it is reasonable to do so; and

• adding an exception to the rules which means that claims that have been withdrawn do not have to be entered onto the public register.

These measures are due to come into force on 8 October 2020.

Acas Early Conciliation

Important changes will also be made to the Acas early conciliation rules, including to allow for a fixed six-week early conciliation process in all cases, rather than the existing process of one month with the potential to extend by two weeks. The rules will also be amended to allow greater flexibility in handling minor errors, for example to allow for the correcting of mistakes re the early conciliation number. Unlike the measures above, these reforms will come into force slightly later on 1 December 2020.

New Practice Direction and Guidance on remote hearings

The President of the Employment Tribunals (England & Wales) has also issued a Practice Direction on remote hearings and open justice, which sets out the ways in which open justice will be safeguarded during hearings conducted wholly or partially remotely. There is also new Presidential Guidance on remote and in-person hearings, which should be read alongside the Practice Direction, which explains the general factors that will influence the judicial decision on the format of the hearing, how the parties should prepare for remote hearings, and other COVID-19 safety measures.

Read our Insight for more information.

For more key employment law updates from us:

• read our key cases over the last month
• review all our Employment Insights over the last six months
• 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.