Key employment law developments: January 2021

Coronavirus update: employment issues in the UK

In view of increasing infection rates in recent weeks, a further national lockdown was announced on 4 January 2021. People must now stay at home except for a handful of permitted reasons and schools have closed to most children. This will be reviewed on 15 February 2021 but it is anticipated that the measures could be in place until at least March 2021. On a more positive note, vaccines are being rolled out at pace. Here are the key points:

• Support schemes: Rishi Sunak announced £4.5billion in new lockdown grants to support businesses and protect jobs on 5 January. The CJRS has been extended in its flexible form with employees eligible to receive up to 80% of salary for hours not worked (up to £2,500) until 30 April 2021. The guidance has also been updated to make clear that you can furlough staff who are unable to work due to caring responsibilities.

• Homeworking: For the vast majority, homeworking is now set to continue for at least until the end of the current national lockdown and likely for two to three months thereafter while the vaccines are rolled out. With regarding to leaving home for work purposes, the legal position set out in the regulations has not changed - it remains whether it is reasonably necessary to leave the home to work, whereas the relevant guidance has changed from whether you can (or can effectively) work from home to whether you cannot reasonably work from home. The guidance also includes new expectations on employers to take every possible step to facilitate their employees working from home.

• Schools and childcare: Schools are shut for in-person schooling until at least February half term, other than for critical workers (which still includes staff needed for essential financial services provision). One hot topic has been how employers can support working parents, particularly working mothers who have been disproportionately affected. Registered childcare, including nurseries, remain open and childcare bubbles are also permitted.

• Travel: Under the national restrictions, people cannot travel away from home, including internationally, unless an exemption applies, which includes for the purposes of work or education. Different rules apply in Scotland, Wales and Northern Ireland. It is now mandatory for international arrivals to have a negative Covid test in the 72 hours prior to departure for England. The UK government has also now closed all travel corridors, giving rise to required isolation for 10 days (or test to release to reduce this) for all those coming into England.

• Clinically vulnerable adults: Under the national restrictions, individuals who are clinically extremely vulnerable are advised to stay at home as much as possible. If they cannot work from home, individuals in this category should not attend work for this period of restrictions and may be eligible for Statutory Sick Pay (SSP). The guidance also suggests that furlough may be available.

• Vaccinations: Over 6 million people in the UK have received their first dose of the Covid-19 vaccine and reportedly more than 75% of over 80s have now been vaccinated. The UK Government has now extended vaccinations to the over-70s. It is also reported that Pimlico Plumbers is making vaccination mandatory for its employees. By way of reminder, ACAS says that vaccination should only be mandatory if required for someone to do their job (and is likely difficult to achieve in the UK at the moment in any event due to scarcity).

• Employment tribunals: The Lord Chief Justice has issued a statement on the national lockdown, in which he advises that remote hearings should be the default position in all courts and tribunals. The President of the Employment Tribunals has further issued a message that hearings listed to take place on an in-person or hybrid basis will continue on that basis unless they hear otherwise but that the aim going forward is for physical attendance to be an exception. In the event of in-person hearings, the President has also stated that judges and members should strongly encourage the wearing of face coverings by everyone in the hearing room, except when directly addressing the tribunal.

Brexit update: the EU-UK Trade and Co-operation Agreement

On 31 December 2020 at 11pm, the transition period ended and the UK entered into a new trading relationship with the EU under the EU-UK Trade and Co-operation Agreement (TCA). The TCA has applied provisionally from 1 January 2021, pending approval and ratification in the European Parliament. From an employment perspective, the key terms include:

• Level playing field provisions: the UK and EU commit to upholding common standards to ensure protection of labour and social standards (among others e.g. climate change, taxation).

• Non-regression: the UK and EU have agreed not to weaken or reduce labour/social protections below levels at end of Transition Period. With regard to enforcement, each party must have in place a system for effective domestic enforcement. There are also dispute resolution provisions which provide for reference to panel of experts after consultation.

• Future commitment: the UK and EU commit to strive to increase their respective labour and social levels of protection.

• Rebalancing mechanism: with regard to future policies/laws, the UK is not required to align with future EU employment laws, but the EU can seek redress where divergences have a material impact on the level playing field for trade and investment. In these circumstances, the EU can take appropriate rebalancing measures (including tariffs) subject to an arbitration process.

Prior to the announcement of the TCA, employment lawyers speculated that areas of potential reform post-Brexit might include the ability to harmonise terms and conditions of employment after a TUPE transfer, the complex provisions on calculation of holiday pay under the Working Time Directive, rights granted to agency workers under the Agency Worker Directive and, potentially, caps on discrimination claims. In light of the new level-playing field commitments, significant reform seems unlikely; although the government has confirmed that there will be a review of EU labour laws. We also do not anticipate UK divergence in relation to anti-discrimination law, family-friendly rights and the broader ESG agenda.

Read our Insight.

New consultation on Restrictive Covenants

The Government has launched a new consultation on potential measures to reform post termination non-compete clauses in employment contracts, including whether employers should have to pay individuals during the period of their post-termination restrictive covenant and whether such covenants should be banned altogether.

A similar exercise was undertaken four years ago when the Government concluded that restrictive covenants were a valuable tool for employers to protect their business interests and did not unfairly impact individuals from finding other work. Its justification for launching this new consultation is that Covid-19 has had a profound impact on the labour market. The consultation closes on 26 February 2021.

Tell us your views in our short survey (takes 3 minutes to complete). Roisin Murphy, Supervising Associate in our Employment Team, is on the Employment Lawyers Association's working party responding to this consultation and we'll share our market insights in due course.

Employment Predictions for 2021

Read our predictions for the key emerging themes in employment law for 2021 across our international jurisdictions.

One recurring theme across our network is the impact of Covid-19 on workplaces, which remains the biggest challenge for us all in the year ahead. However, responses and measures have differed around the world and we look at the specific issues in each of our jurisdictions, which include new regulation around remote working, digitalisation and the need for enhanced data security, and the winding up of support schemes.

On a positive note, the pandemic has accelerated a global focus on employee wellbeing and mental health, and there is increased momentum across jurisdictions to promote diversity and inclusion, and to achieve gender equality at work. 2021 may not only be the year of recovery, but a year of progress towards a more inclusive working culture.

Other recent events which may be of interest:

• Webinars: SMCR Series
• Webinars:Brexit - upcoming and on demand webinars
• Podcasts:Dos and dont's in internal investigations and Know your client? Some early privilege pitfalls...

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
• subscribe to our future editions of SMCR View
• scroll through our key dates timeline showing recent and anticipated changes to employment law, and
• attend our upcoming events or catch up on training.