Key employment law developments: November 2020

Coronavirus update: employment issues in the UK

In view of the increasing infection rates over the last month, we have seen increased restrictions across the UK and expanded support for businesses and jobs – culminating in the Prime Minister announcing a second national lockdown to apply in England with effect from this Thursday. Here are the key points:

• New national restrictions: On 31 October 2020, the Prime Minister announced new national restrictions to apply across England from 5 November until 2 December. New Regulations have now also been published and the general guidance has been updated. The key rules are:

  • Individuals "must not" leave home except for specific purposes including "for work purposes, where your place of work remains open and where you cannot work from home". The Regulations clarify that individuals should leave home "for the purposes of work ... where it is not reasonably possible [...] to work from home". Failure to comply is a criminal offence. "Reasonably possible" is the same language as was used in the March lockdown Regulations. The absence of the word "effectively" (which remains in section 6 of the general guidance - "everyone who can work effectively from home must do so") suggests that the bar is relatively high.

  • Those who are clinically extremely vulnerable are advised to work from home and if they cannot work from home will be eligible for SSP. The government will write to those who are clinically extremely vulnerable to set out detailed advice.

  • Individuals "should avoid" travelling out of their local area but can travel to work "where this cannot be done from home".  People are encouraged to work or cycle and avoid busy times and routes on public transport. 

  • Overnight stays are not permitted unless an exception applies - including for work purposes.

  • People cannot travel internationally, again unless an exemption (including work) applies.

  • The CJRS (or furlough scheme) is to be extended on the current flexible basis, on more generous terms (with employees eligible to receive 80% of salary for hours not worked, up to £2,500) until December 2020, with a corresponding postponement of the Job Support Scheme.

  • Gyms and restaurants must close - we would expect it to be possible to retain some form of staff catering (like earlier in the year).

  • School and childcare, including informal childcare remains permissible.

• Three tier alert level system:- Earlier this month,  the Government  introduced the three tier alert level system so that local areas  were categorised as either medium, high or very high alert. It is anticipated that the Government will revert to this regional alert level system following the national lockdown.

• Workplace meetings and business lunches: - Prior to the PM's latest announcement, there has been much debate regarding business lunches in view of the exemption for gatherings which are "reasonably necessary [...] for work purposes".  Described by the press as a "loophole" for business lunches: it is reported that the exemption was introduced for those who do not have access to a Covid-secure workplace (such as freelancers etc), and that the onus is on individuals to act responsibly, consider alternatives (e.g. virtual meetings) and in line with the relevant household-mixing rules (based on the alert level). Given the planned closure of restaurants, this is probably no longer at the top of the agenda - although may become an issue when we revert to the alert level system.

• Job Support Scheme expanded: The new Job Support Scheme, which was due to start on 1 November and to replace the CJRS has now been postponed until the CJRS ends.

Read our Insight for more information on the current Job Support Schemes.

• NHS Test and Trace for employers: The guidance onNHS Test and Trace has been updated to emphasise the legal obligations on employers to comply with test and trace results in the workplace.

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

DSARs - ICO publishes new detailed guidance

The ICO has published its new right of access detailed guidance. This follows its consultation of December 2019, which highlighted the need for further clarification on certain aspects of the law, including in particular:

• Stopping the clock for clarification - the new guidance makes clear that, in certain circumstances - where you process a large amount of information about the individual and specific clarification is genuinely required - the clock can be stopped whilst organisations wait for the individual to clarify their request.

• What is a "manifestly excessive" request - the ICO has broadened the definition clarifying that you need to consider whether the request is clearly or obviously unreasonable balanced against the burden or costs in dealing with it and provides further guidance on factors to be taken into account.

• What can be included when charging a fee for excessive, unfounded or repeat requests - the ICO has provided further guidance on what you can take into account when determining a reasonable fee, including the costs of assessing, locating and providing a copy of the information.

We have discussed this guidance in a short webinar on Wednesday, 4 November and looked at the possible outcomes, risks and solutions that may follow.

SMCR: deadlines extended for implementation of Certification Regime and Conduct Rules

The FCA has published its Policy Statement and final rules on extending the implementation deadlines for the Certification Regime and Conduct Rules for solo-regulated firms. As expected, the Policy Statement confirms that the following have been extended to 31 March 2021:

• the date the Conduct Rules come into force, for staff who are not Senior Managers, Certification Staff or board directors

• the date by which relevant employees must have received training on the Conduct Rules (this automatically follows from the extension in point above)

• the deadline for submission of information about Directory Persons to the Register (although earlier dates apply if firms wish to use the multiple entry submission form or if they wish their data to appear from earlier dates)

• references in its rules to the statutory deadline for assessing Certified Persons as fit and proper following agreement with the Treasury

As before the FCA encourages all firms to meet the original deadline of 9 December 2020 wherever possible - the feedback they received indicated that most firms will be able to meet the original deadline.

For dual-regulated firms: The FCA has also updated its webpage on Directory Persons to say that dual-regulated firms must submit their Directory Persons data via Connect by no later than 13 November 2020.

Brexit: employment update

With the end of the transition period fast-approaching, intensive talks continue re the UK-EU relationship (despite a number of statements from the UK declaring the negotiations over!) and the outcome remains unclear. The UK Government has launched a campaign “Time is running out” urging businesses to prepare for the end of the transition period. Key points to note:

• The Home Office has published new guidance on employing EU citizens in the UK to help businesses prepare for the end of the transition period. Employers can check a job applicant's right to work in the same way as they do now until 30 June 2021. However, when hiring employees from overseas from January 2021, employers will need to assess whether further evidence is necessary.

• The Home Office has updated its guidance on "Visiting the UK: information for EU, EEA and Swiss citizens" after Brexit. It confirms that what you'll need to enter the UK will not change until October 2021.

• New Regulations have been made (Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020) to correct existing Regulations in order to reflect the policy intention to replicate, as closely as possible, the special rules for jurisdiction in relation to contracts of employment, in the event of a no-deal Brexit. However, without the application of a reciprocal regime which provides legal certainty, there is scope for disputes over forum. There is currently uncertainty regarding the enforceability of jurisdiction clauses in contracts of employment after the transition period.

• The Government has also laid new Regulations before Parliament which extend the power to depart from retained EU case law after the transition period to specified appeal courts, including the Court of Appeal in addition to the Supreme Court. The draft explanatory notes state that the purpose is to mitigate the risk that retained EU law "remains tied to an interpretation by the CJEU" that becomes inappropriate.

Our Brexit Autumn webinar series will focus on employment law issues on 02 December.

Other recent events which may be of interest:

• Webinar: Employment Essentials - disciplinaries and cost reduction strategies – 03 November 9-10am

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.