In response to a resurgence in Covid-19 infections, stricter measures have been put in place to curb the infection rate, and employees are again being told to ‘work from home if they can’.

There have also been some developments in Covid-19 related guidance and regulations over the last month which affect employers. We have set out below advice and guidance on the following key things that employers now need to consider:

1. what steps need to be taken as a result of furlough ending on 31 October 2020;
2. the Job Retention Bonus;
3. the new Job Support Scheme;
4. the expansion of the Job Support Scheme; and
5. new regulations making self-isolation a legal requirement and introducing fines.

We have also provided three general legal updates which aren’t related to Covid-19 but are significant with regard to the Acas early conciliation period and discrimination and harassment in the workplace.

Covid-19 Legal Update #1 - What steps need to be taken as a result of furlough ending on 31 October 2020

Government guidance does not provide a procedure to end furlough. Nevertheless, most furlough agreements will have addressed this.

Notice to end furlough should be given in writing. The employer should consider providing an employee with the following information:

• the date the employer wishes the employee to return to work;

• the processes the employer has put in place to ensure the workplace is safe (where the employee is expected to return there) or how working from home will be facilitated (if the employee is expected to work from home);

• variations to the employee’s contract that the employer wishes to impose (e.g. new lay-off/short-time working provisions or reduced hours); and
  
  
• policy changes the employer has made (e.g. relating to when annual leave can be taken, home-working etc.)

Where there is not a contractual agreement which provides for bringing furlough to an end, and the employee refuses to return to work upon receiving notice to do so, arguably the employer is not obliged to pay their wages because they are not willing and able to work.

For the same reason, they are unlikely to be entitled to their wages if they refuse to return to work and there is a contractual agreement. They may also be subject to disciplinary action for their absence.

Nevertheless, where an employee does not wish to return to work after furlough, it is recommended that an employer discusses the situation with the employee and ascertains if there is a particular reason, such as shielding or childcare responsibilities, which explains their stance.

Although the furlough scheme is coming to an end on 31^st October 2020, the Job Support Scheme comes into force on 1^st November 2020, which may be of interest to employers. Please see Covid-19 Legal Update #3 below for more details.

Covid-19 Legal Update #2 - The Job Retention Bonus

What is it?

The Job Retention Bonus is a £1,000 one-off taxable payment to an employer, for each eligible employee that they furloughed and kept continuously employed until 31 January 2021.

Who can an employer claim for?

Employers will be eligible for the bonus if they meet the following criteria for each employee they wish to claim for:

• the employer made an eligible claim for the employee under the Coronavirus Job Retention Scheme;
• the employer kept on the employee continuously from the end of the claim period of their last Coronavirus Job Retention Scheme claim for them, until 31 January 2021;
• the employee is not serving a contractual or statutory notice period for them on 31 January 2021 (this includes people serving notice of retirement); and
• the employer paid the employee an amount that met the Job Retention Bonus minimum income threshold.

An employer cannot claim the bonus for any employees that they have not paid using the Coronavirus Job Retention Scheme grant because they have repaid all the grant amounts they claimed for them.

Employers can claim the Job Retention Bonus for individuals who are not employees, such as office holders or agency workers, as long as they claimed a grant for them under the Coronavirus Job Retention Scheme and the other Job Retention Bonus eligibility criteria are met.

TUPE

An employer may be eligible to claim the Job Retention Bonus for employees of a previous business which were transferred to them if:

• TUPE rules applied
• the PAYE business succession rules applied
• the employees were associated with the transfer of a business from the liquidator of a company in compulsory liquidation where TUPE would have applied if the company was not in compulsory liquidation

To claim the Job Retention Bonus for employees that have been transferred to an employer, an employer must have furloughed and sucessfully claimed for them under the Coronavirus Job Retention Scheme, as their new employer.

This means that an employer will not be able to claim the Job Retention Bonus for any employees who are transferred to them after the Coronavirus Job Retention Scheme closes on 31 October 2020.

The minimum income threshold

To be eligible for the bonus an employer must make sure that their employees have been paid at least the minimum income threshold.

To meet the minimum income threshold an employer must pay their employee a total of at least £1,560 (gross) throughout the tax months:

• 6 November to 5 December 2020
• 6 December 2020 to 5 January 2021
• 6 January to 5 February 2021

An employer must pay their employee at least one payment of taxable earnings (of any amount) in each of the relevant tax months.

The minimum income threshold criteria apply regardless of:

• how often an employer pays their employees
• any circumstances that may have reduced their employee’s pay in the relevant tax periods, such as being on statutory leave or unpaid leave

HMRC will check that the employees have been paid at least the minimum income threshold by checking information the employer has submitted through Full Payment Submissions via Real Time Information (RTI).

Making a claim

An employer cannot claim the Job Retention Bonus until 15 February 2021.

Before an employer can claim the bonus, they will to need to have reported all payments made to their employee between 6 November 2020 and 5 February 2021 to HMRC through Full Payment Submissions via Real Time Information (RTI).

An employer should take the following steps now to make sure they’re ready to claim:

• still be enrolled for PAYE online
• comply with their PAYE obligations to file PAYE accurately and on time under Real Time Information (RTI) reporting for all employees between 6 April 2020 and 5 February 2021
• keep their payroll up to date and make sure they report the leaving date for any employees that stop working for them before the end of the pay period that they leave in

The deadline for claiming the bonus is 31 March 2021.

More details will be released at the end of January 2021.

Covid-19 Legal Update #3 - New Job Support Scheme

The Chancellor announced on the 24^th September 2020 the next phase of the government’s planned economic response to protect jobs over the winter period. The rationale behind the scheme is to protect viable jobs in the long-term rather than the short-time (as was the goal of the furlough scheme introduced back in March 2020).

The Scheme will begin on 1^st November 2020 and will allow businesses who face depressed demand the option of keeping employees in their jobs on shorter hours, rather than making them redundant.

The Scheme will operate in the following way:

• in order to be eligible, an employee must be on the employer’s PAYE payroll on or before 23 September 2020 and a Real Time Information (RTI) submission informing HMRC of payment must have been made on or before that date;
• an employee must work at least 33% of their usual working hours for the first three months of the Scheme. Employees will not have to work the same pattern every month but each working pattern must cover a minimum of seven days;
• employees cannot be made redundant or given notice of redundancy if an employer is claiming the grant for them;
• employees must be paid their normal wage for the time that they work. For the time that they do not work, the employee will receive up to two-thirds of their usual pay (of which the government will contribute one third, capped at £697.92 a month, and the employer will pay one third). Employees who have previously been furloughed will have their usual pay and hours (pre furlough) used to calculate usual wages;
• employers will remain responsible for paying class 1 employer NICs or pension contributions;
• employers must write to employees to agree short-time working arrangements and make such documents available to HMRC where requested;
• grants will be payable monthly in arrears after payment to the employee has been made and reported via an RTI return; and
• claims can be made online through GOV.UK from December 2020.

Further detailed guidance is now awaited.

Please note that there has been an expansion of the Job Support Scheme. Please see Covid-19 Legal Update #4 for more details. 

Covid-19 Legal Update #4 – Expansion of the Job Support Scheme

The Chancellor announced an expansion of the Job Support Scheme on 9 October 2020 coming into place on 1st November 2020.

• The expansion applies to businesses which are legally forced to close due to coronavirus restrictions;
• Employees must be off work for a minimum of 7 days;
• Those employees will receive 67% of their wages (up to a maximum of £2,100 per employee a month) from the government for the time that they are unable to work;
• Employers will only be required to cover NICS and pension contributions; and
• The Scheme will be reviewed again in January.

This is a safety net for UK businesses in advance of what may be a difficult winter. It is much more generous that the Job Support Scheme, and even offers more support than the furlough scheme in its current form, ending on 31st October 2020.

We await further details.

Covid-19 Legal Update #5 - New regulations making self-isolation a legal requirement and introducing fines

It is now an offence for an employer to knowingly allow a worker (including an agency worker) who is aware of the requirement to self-isolate, to attend any place other than where they are self-isolating, for any purpose related to the worker’s or self-isolating agency worker’s employment under regulation 7 of the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020.

It is therefore now the responsibility of the employer to stop the worker from working (unless they can work from home). The consequence of failing to do so is a fine, starting at £1,000.

Under the regulations, the worker is also obliged to inform their employer that they are self-isolating.

We recommend that employers communicate to their staff the need for them to notify their employer immediately if they fall under any of the above categories.

Legal Update #1 – Changes to the Acas early conciliation procedure

The Acas early conciliation procedure will change on 1 December 2020. There will a six-week conciliation period in all claims instead of the current one-month period which parties can agree to extend by 14 days. Parties will lose the right to agree an extension.

Legal Update #2 – Gender fluid employee wins landmark discrimination, harassment, and victimisation case

Key message:a broad range of gender identities may fall within the definition of gender reassignment under section 7, EqA, and more individuals may be able to claim discrimination protections. Employers may wish to review and amend their Equal Opportunities policies and refresh diversity training for employees.

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On 14 September 2020, Birmingham Employment Tribunal ruled that Ms Taylor, a gender fluid engineer, was directly discriminated against, harassed, and victimised during her time at Jaguar Land Rover (‘JLR’).

Ms Taylor, who previously presented as male, was subjected to abusive jokes and insults when she began identifying as gender fluid in 2017 and wearing women’s clothing to work. Ms Taylor also experienced issues using the toilet facilities and a lack of support from management.

She resigned in response to these issues and brought claims for constructive dismissal, discrimination, harassment, and victimisation on the grounds of gender reassignment in 2018.

Although a first instance decision, (and so not legally binding) this outcome is significant because it suggests that the Equality Act 2010 protects gender fluid and non-binary employees from discrimination, harassment, and victimisation under the protected characteristic of ‘gender reassignment’. Previously, the Equality Act 2010 has been interpreted only to protect those who have transitioned to male or female, or are going through or proposing to go through gender reassignment.

This case indicates that tribunals are willing to interpret the law in line with society’s evolving understanding of gender identity. Indeed, the judge stated that it was “clear…that gender is a spectrum”. This echoed comments in Hansard, when the Equality Act 2010 was being debated in Parliament in 2009 that gender reassignment “concerns a personal journey and moving a gender identity away from birth sex”.

The Tribunal found that it was “beyond any doubt” that Ms Taylor was protected. 

Ms Tyler’s barrister, Robin White (of Old Square Chambers) stated that she sees “no reason why this ruling should not extend to other complex gender identities”. This ruling serves as warning to employers not to tolerate discrimination of any kind in the workplace, and to listen to and respond to employee concerns appropriately.

JLR was ordered to pay Ms Taylor £180,000 in compensation at a remedy hearing on 2 October 2020.

Employer consideration:

Employers should be conscious that the implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under section 7, EqA, and more individuals may be able to claim discrimination protections. For example those who identify as gender queer, or a-gender. A pragmatic and inclusive employer may seek to review and amend their Equal Opportunities policies and refresh diversity training for employees in light of this decision.

Legal update #3– Muslim employee wins harassment claim after alcoholic raffle prize was swapped for chocolates

Key message:

a wide range of acts can constitute harassment if an employee is left to feel offended or humiliated, even if the action is well intended. Employers should review their processes around prizes at workplace events and ensure that employees are presented with the choice to choose an alternative, equivalent prize, rather than the prize being automatically switched on the basis of a protected characteristic.

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Mr Kioua, a muslim man, who worked at Lainston House, has won a religious harassment claim against his employer after he won a bottle of Cognac in a raffle at a work party, but was instead given a ‘cheap’ box of chocolates.

Mr Kioua worked as a linen porter at the hotel. At a work party in 2017, Mr Kioua won a bottle of Cognac in the raffle. As he did not attend the party, a member of staff, Ms Lee, (who knew Mr Kioua did not drink alcohol) suggested he was presented with chocolates instead.

Mr Kioua was later informed by management, at a grievance hearing in May 2018, that he was given chocolates because giving him the brandy would have been like ‘giving nuts to a person with a nut allergy’.

Mr Kioua resigned in response and brought a number of claims against the hotel. He argued at tribunal that his religion should not have been compared with illness, and that he felt hurt and humiliated as a result of the prize switch.

The tribunal stated, in its judgment, that ‘a nut allergy is an illness, a life-threatening illness. It is not an acceptable point of comparison. It minimises the importance of Mr Kioua’s beliefs and practices’.

Furthermore, the tribunal noted that ‘the intentions may have been kind’ but this ‘could not alter the fact that Mr Kioua was not given the prize he had won and that was because of his religion. That discrimination cannot in law be justified.’ The tribunal also highlighted that Mr Kioua had no objection to receiving alcohol as a reward, given that he had given Ms Lee his bottle of champagne the previous year.

For these reasons, the tribunal concluded that the allergy comparison, and the swapping of the prizes, were both on the grounds of Mr Kioua’s religion and were ‘offensive and caused him distress.’ He therefore succeeded in his religious harassment claim.

Lainston House Ltd was ordered to pay £2,000 to Mr Kioua for ‘injury to feelings’ plus interest.

Employer consideration:

Employers should be aware that they could be liable for harassment under the Equality Act 2010 if an employee or employees engage in unwanted conduct related to a relevant protected characteristic which has the purpose or effect other either:

• Violating another employee’s dignity; or 
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for another employee.

The case shows that a wide range of acts could constitute harassment if an employee is left to feel offended or humiliated, even if the action was well intended. An employer may like to review its harassment and bullying policy and renew staff training so that employees are aware that where alcohol is concerned, the employee should be given the option to decide whether to opt for an alternative, equivalent, prize, even if they are of a particular religion or belief. The prizes should not be automatically swapped. Employees and employers should also be sensitive to that religion or belief when investigating matters.

For more information, please contact me on 01384 327172 or at tim.jones@higgsandsons.co.uk