Key employment law developments: December 2020

As we emerge from 4 weeks of second national lockdown, the Government has set out its plan for the coming months. Here are the key points for employers.

Coronavirus update: employment issues in the UK

• Return to three tier approach: A three-tiered set of restrictions will come into force once the current national restrictions are lifted on 2 December 2020. The majority of areas in England will be in Tiers 2 and 3 where restrictions remain high. At the time of writing, the timing of the end of the current lockdown is not as clear as it might be - although the Gov.uk guidance suggests that the new restrictions will "replace" the existing ones, confirmation under new regulations is awaited.

• Christmas arrangements: It is permitted to form an exclusive Christmas bubble with up to three households between 23 and 27 December. See the Gov.uk guidance on Making a Christmas bubble with friends and family. This may drive holiday requests. The guidance also recommends that people should reduce unnecessary social contact and work from home if they can in the two weeks before and after forming a Christmas bubble.

• Covid Winter Plan: The government's Winter Plan has been published, which includes numerous points of interest for employers, including confirmation that the government "encourages employers to enable a greater degree of home working" and "will strengthen guidance to be very clear that anyone who can work from home should do so".

• Development of vaccine: There has been continuing positive news about progress with vaccines with three different options which have proven effective. Roll out is reportedly expected to begin before the end of the year.

• CJRS: the new Treasury Direction was published, formally extending the scheme and addressing how it will operate until 31 January 2021, as well as withdrawing the Job Retention Bonus. There have also been significant updates to the CJRS/furlough guidance, and in particular:

  • details on the deadlines to claim (claims for furlough days in November must be submitted by 14 December)

  • confirming that details of employers who have claimed under the scheme on or after 1 December 2020 will be made public (subject to some exceptions)

  • new regulations setting out how a week's pay is calculated for an employee who has been furloughed

  • claims may not be made for any day that an employee is serving notice between 1 December and 31 January.

• Travel: The Government has published details of the new "test to release" scheme which is aimed at reducing the self-isolation period for international travellers arriving in England to as little as 5 days. The scheme is to be operational from 15 December. Changes to the travel corridor list have also been made.

• Homeworking: ACAS has updated its the Working from home guidance. Of interest include new sections on the mental health aspects of prolonged home working, keeping in touch, managing performance and working patterns, remote bullying and harassment. It also suggests that employers should be open to discussions about longer term home working arrangements.

• Mitigating risk with focus on ethnic minority groups: The PHE, HSE and FOM have issued a consensus statement on how best to mitigate occupational risks, specifically around the disproportionate impact of COVID-19 on ethnic minority groups. It includes some important points regarding equitable management of risks and the importance of "cultural competence" by those carrying out discussions on behalf of employers.

EHRC finds no unlawful pay discrimination at the BBC

The EHRC has published its report following its investigation into suspected pay discrimination at the BBC following a series of complaints from female presenters such as Samira Ahmed. The report confirms that the EHRC found no evidence of unlawful acts of pay discrimination, which has been criticised by campaigners as failing to address the systemic issue because it focussed on a sample of complaints.

Brexit: new policy paper on professional qualifications

BEIS has published a policy paper on the provisions of the Internal Market Bill which relate to the recognition of professional qualifications. This is because there is currently no overarching system that allows for qualified professionals to practice in one part of the UK to move and practice in another if the requirements are different. The Bill therefore proposes an automatic recognition system, as well as an alternative system, to avoid barriers emerging in the internal market. Only professions regulated by law will be in scope - and due to longstanding differences in legal systems, specific legal professions are excluded. The Bill also proposes provisions to ensure equal treatment of all professionals regardless of where in the UK they obtained their qualifications.

ICO fines Marriott International £18.4 million for data breach

The ICO has fined hotel group Marriott International Inc £18.4m for failing to keep secure the personal data of over 300 million guests as required under the GDPR. The breach followed a cyber-attack in 2014 on the reservation database of Starwood Hotels and Resorts Worldwide Inc, which was acquired by Marriott in 2016. The breach remained undetected until September 2018. After investigation, the ICO determined that Marriott has failed to implement the necessary organisational measures to protect the personal data being processed on its systems.

SMCR: FCA update

• On 5 November, the FCA issued a press release announcing that it had issued three final notices banning three individuals from working in financial services. The cases involved criminal conduct resulting in prison sentences (possession of child pornography, voyeurism, and sexual assault) and show the emphasis that the FCA is placing on non-financial misconduct. Read our Insight.

• On 9 November, the FCA and PRA both published updated statements on Covid guidance (here and here). Both state that firms should follow the relevant government guidance, and in particular, that firms should refer to guidance about working from home if possible. Both statements also recommend that the SMF1 (chief executive officer) is accountable for ensuring an adequate process for adhering to the government guidance.

• On 23 November, the FCA updated its Financial Services Register webpage to confirm that directory persons data submitted by dual-regulated firms (banks) is now live. It also reminds solo-regulated firms that they must submit their directory persons data by 31 March 2021 using the single-entry submission form, or earlier if they wish to use the multiple entry submission form.

Other recent events which may be of interest:

• Webinar: Brexit employment implications - Olly Jones and Davide Sportelli - 02 Dec 2020

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.