Employment law updates – Coronavirus

Employment law updates: Coronavirus

Coronavirus Job Retention Scheme (CJRS) updates

Employment law updates – Coronavirus Redundancy payments:

  • The government announced on 30 July that workers who were furloughed will be entitled to a statutory redundancy payment based on their pre-furlough salary and not the reduced furlough salary. This was implemented by the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 which came into force on the 31st July.
  • Employees with more than 2 years of continuous service who have been made redundant are entitled to a redundancy payment up to a statutory maximum (which remains the same). This is based on age, length of service and salary.
  • The changes will also apply to Statutory Notice Pay and awards for unfair dismissal.

Furloughed workers:

  • Employers have been able to bring furloughed workers back to the office for any amount of time and for any kind of shift pattern since 1 July while still being able to claim the CJRS grant.
  • From 1 August the Government has advised that employers and employees should be able to exercise discretion as to whether they can work safely from the office.
  • The furlough scheme will end on 31 October 2020.

https://www.gov.uk/government/news/new-law-to-ensure-furloughed-employees-receive-full-redundancy-payments

https://www.gov.uk/government/publications/changes-to-the-coronavirus-job-retention-scheme/changes-to-the-coronavirus-job-retention-scheme

https://www.gov.uk/government/speeches/pm-statement-on-coronavirus-17-july-2020

For employment law advice please contact Rupert Farr: Rupert.Farr@blaketurner.com or 020 7480 6655.

Coronavirus: Employment law update

Coronavirus employment law update:

Blake Turner LLP is currently assisting and advising numerous clients navigating the impacts of coronavirus on employment related matters. Please contact Rupert Farr for more information at Rupert.farr@blaketurner.com or on 07799 065638.

The impact of the coronavirus (COVID-19) pandemic on businesses across the UK has been critical. Businesses across a wide range of sectors have been forced to let go of staff or have incurred significant costs due to staff absence. Measures were announced in the Chancellor’s most recent Budget to mitigate the impact including; Statutory Sick Pay (SSP) relief for SMEs, tax breaks, government-backed loans and an HMRC helpline. However, there are fewer protections for staff in place and freelancers may find themselves without work for an indeterminate period. As the situation progresses, it is likely that many more staff will have to be let go, and it is important that both employers and employees are aware of their rights and obligations. A statement was recently released by the Government strongly encouraging all workers who are able to work from home to do so. However, is not yet clear whether businesses will be forced to shut down to stop the virus from rapidly spreading. Many workers will not be able to work from home; particularly those in sectors such as retail, manufacturing and hospitality.

Employers should keep abreast of Government updates on COVID-19, and advise customers and employees on how they plan to deal with the impacts of the virus. Ideally there should be a point of contact for COVID-19 matters. Employers should also ensure that remote working arrangements do not result in weaker protections for client data or confidentiality. They should monitor employees who may have contracted COVID-19 and implement measures to minimise the risk of the virus spreading, for example, by reducing travel to the bare minimum. Particular attention should be given to those employees with disabilities and underlying health conditions and they may want to consider making alternative arrangements for those who are high-risk. Businesses should also check with insurance providers whether they are covered; this is unlikely to be the case for the majority.

Employees who have symptoms, or live with people who have, should check the most up to date UK Government and NHS advice online. SSP will be available from day one instead of day 4 and for those who have been let go, Universal Credit and Employment and Support Allowance is available.

Government advice and resources available to employers, employees and businesses:
https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19

Blake Turner LLP is currently assisting and advising numerous clients navigating the impacts of coronavirus on employment related matters.

Please contact Rupert Farr for more information at: Rupert.farr@blaketurner.com or on 07799 065638.

For more information about business support relating to the Coronavirus Job Retention Scheme click here.

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Employer pension contributions

Employer pension contributions count towards a week’s pay

Facts

In the Employment Appeal Tribunal (“EAT”) and in the matter of University of Sunderland (“University”) v Ms K Drossou, the University of Sunderland appealed against the finding that employer pension contributions are to be considered when calculating the claimant’s weekly pay.

Ms Drossou worked for the University and was dismissed as a result of an irretrievable breakdown in working relationships. Ms Drossou was considered to be the primary cause of the breakdown.  The employment tribunal found that she had been unfairly dismissed and ordered the University to reinstate her. The University did not comply with the order and the tribunal awarded compensation instead. The EAT departed from the usual practice of excluding pension payments in calculating the weekly wage on the basis that section 221(2) of the RTA 1996 does not state that the amount payable by the employer under the contract of employment has to be payable to the employee and remuneration in section 221(2) means a reward in return for services and pension contributions are no less a reward for service than basic pay. The University appealed this finding.

Decision

The appeal was dismissed. The EAT agreed with the tribunal with respect to the above reasons. The EAT drew the distinction between section 221(2) and section 27(1) of the RTA 1996. The latter specifies that the sums must be payable to the worker whereas those words are absent in section 221(2).

Comments

Pension payments have not been taken into consideration when calculating a claimant’s weekly wage on the basis that the payment is not received directly by the employee but paid into a pension fund. This decision has increased the potential value of a claimant’s weekly pay. This decision will be important for employers who pay a high employer contribution rate. It is yet to be seen whether there will be further litigation following this decision or whether the correctness of the EAT’s judgment will be challenged.

 

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

 

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

 

Statutory adjudication to the construction industry

The Housing Grants, Construction and Regeneration Act 1996

The Housing Grants, Construction and Regeneration Act 1996 introduced statutory adjudication to the construction industry in addition to contractual adjudication which already featured in a number of standard form contracts.

Statutory adjudication provides for a 28 days fast track dispute resolution procedure.

In the almost 20 years since adjudication has been available through this piece of legislation, Lewis Cohen has represented a number of claimants and respondents in the process dealing with a number of issues including final account disputes, claims for delay and disruption and claims for defective workmanship and negligent design.

Not only does Lewis have a breadth of knowledge from his experience in this field but he recently studied for two years on the RICS Diploma course and is now a qualified adjudicator.

Adjudication, by its nature, remains a private dispute resolution procedure unless the decision is taken to court for enforcement.

Lewis has experience in successfully enforcing adjudicator’s decisions in the Technology & Construction Court.

Given the fast track nature of adjudication, this requires a flexible response when defending claims and Lewis and his team are able to offer immediate advice and a rapid response when acting for both the claimant and the respondent.

 

Sexual and racial discrimination case

Sexual and racial discrimination case

Blake Turner Solicitors recently acted in a discrimination case for an employer who faced a claim of sexual and racial discrimination for an employee who had worked there for less than six weeks.

Despite obtaining a Deposit Order against the Claimant at an early stage in the proceedings (on the basis that the Claimant had low prospects of success), the Claimant decided to pursue the matter all the way to the full Tribunal hearing.

After one aborted hearing in August, the employer was successful in defeating all heads of the claim.  As the judgment was based on the same findings as the Deposit Order, the Claimant was deemed to have behaved unreasonably in continuing with the proceedings.

As a result we made an application on behalf of our client for a Costs Order against the Claimant.  Costs Orders in Tribunal proceedings are extremely rare and are very much the exception to the rule.  Indeed they are only obtained in 0.07% of cases.  We were successful in obtaining the Order after a day’s hearing before the same Tribunal which heard the case.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com

Prison for employee for deleting evidence

Former employee sent to prison for deleting evidence in breach of court order

Facts
In OCS Group UK Ltd (“OCS”) v Dadi and others, a former employee of the claimant was committed to prison for six weeks for breaching an injunction to preserve evidence pending trial of an action against Dadi for breach of confidence.

Mr Dadi had worked for OCS. OSC lost a contract to one of its competitors – OmniServ. Mr Dadi was transferred to OmniServ under TUPE. Before the TUPE transfer, OCS brought a claim against Mr Dadi on the basis that Mr Dadi had conspired with one of the other defendants, Mr Ahitan, by emailing confidential information belonging to OCS to his personal email account over a period of time. Mr Ahitan worked for OmniServ but previously worked for OCS as Mr Dadi’s manager.

OCS obtained an injunction against Mr Dadi which prohibited him from disclosing or making use of any of OCS’s confidential information, required him to provide information to the court about what discourse he had made of that information, required him to preserve hard copy and electronic documents, and, prohibited him from disclosing to anyone else (except his legal representatives) the existence of the order or the possibility of proceedings being commenced.

The standard notice on the front page explained that breach of the order would be a contempt of court which could result in imprisonment.

OCS’s lawyer personally served the order and read out the notice. Immediately following this, Mr Dadi telephoned Mr Ahitan and informed him of the injunction. He also deleted several emails from his personal email account. The following day, Mr Dadi deleted a further 8,000 emails and told various family members about the injunction.

OCS applied for Mr Dadi to be committed to prison for contempt of court.

Decision
Mr Dadi was sentenced to six weeks in prison for contempt. The court emphasised their strong disapproval of his conduct and imposed the prison sentence also to act as a deterrent. The court took into account that the acts were “deliberate and contumacious breaches”.

The breaches had significantly prejudiced OCS and cost them considerably in forensic examination to salvage information that should have been left untouched.

Comments
It is not unusual to see a sentence such as this for breach of an injunction but it is not often these powers are being used in an employment context. This case highlights the importance of complying strictly with injunctions aimed at preserving evidence. The court will have little sympathy with pleas of naïveté especially if an employee goes to great lengths to cover their tracks. The notice on the front of the order is there for a reason.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

Employment Tribunal fees ruled unlawful

Supreme Court rules Employment Tribunal fees are unlawful

Facts

In 2013 the Government introduced employment tribunal fees of up to £1200 in order to reduce the number of weak and vexatious cases brought by litigants. As a result, this has led to a 79% reduction of cases brought in the Employment Tribunal in the last three years.

The trade union, UNISON, brought a case seeking judicial review of the fees arguing that the fees prevented workers accessing justice and were therefore unlawful. The fees were originally brought in for the objective of transferring part of the cost burden from the taxpayer. Fees ranged from £390 to £1200 depending on the complexity and time spent on the issues.

Decision

The lower courts dismissed UNISON’s claim but the Supreme Court has ruled that the Government was acting unlawfully and unconstitutionally when the fees were introduced. The Government have committed to reimburse all fees if it is found they acted unlawfully. It is expected that £32m will need to be repaid to Claimants.

Fees will be stopped immediately and the process of reimbursement will begin. The taxpayer will now be forced to pick up the bill.

Discrimination cases cost more for claimants because of the complexity and the time the hearings took. The Supreme Court held that the fees were indirectly discriminatory because a higher proportion of women would bring discrimination cases.

 

Comments

This case has provided a fundamental change for claimants who were previously obliged to pay fees for bringing a claim against an employer. The change in law with regard to fees will now make it easier for employees to bring claims against an employer. The ruling has been described as, “a major victory for employees everywhere.” It remains to be seen whether there will be a large increase in cases brought to the Employment Tribunal but it will certainly not lead to a decrease!

 

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

 

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com

Whistleblowing and Public Concern at Work

Whistleblowing and Public Concern at Work

Facts

Whistleblowing and Public Concern : N was employed as a director of the Mayfair office of CG Ltd, a firm of estate agents. On three separate occasions, N informed the senior managers that there were inaccuracies in the company’s accounts and that the figures were being manipulated to benefit shareholders. He believed costs and liabilities had been deliberately misstated and inaccurate figures were used to calculate commission payments to over 100 senior managers; including himself.

N was subsequently dismissed. He brought claims including automatically unfair dismissal for having made a protected disclosure.

The employment tribunal found that N had a reasonable belief that the disclosures were made in the public interest and upheld N’s claim. Although N had a personal motivation in raising the allegations, the tribunal were satisfied that he had the other managers in mind and they encompassed a sufficiently large section of the public to engage the public interest. CG Ltd appealed on the basis that in order for a disclosure to be in the public interest, it must serve persons outside of the workplace. The Court needed to consider the meaning of the words “in the public interest.” The appeal was subsequently dismissed.

Comments

The Court has concluded that disclosure can be made in the ‘reasonable belief it is in the public interest’ if it relates to a contractual dispute affecting a group of employees and not just the wider public.

The crux of the decision is that whistleblowing protection may be available even where an employee’s primary concern is his own employment. The decision should be a reminder to employers in both the public and private sector and they should take care before disciplining or dismissing employees who have made complaints which could involve a public interest element.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

Holiday Pay and Commission Payments

Holiday Pay and Commission Payments

The awaited decision in British Gas Trading Limited v Mr Z J Lock & Secretary of State for Business, Innovation and Skills UKEAT/0189/15/BA has been handed down.

Facts

Mr Lock was an energy trader and earned commission on sales as part of his remuneration package. Upon taking annual leave Mr Lock received his basic salary and any commission on previous sales however as he was unable to create new sales during his leave he did not receive commission.

Mr Lock brought claim on the basis he had suffered an unlawful deduction from his wages. He argued holiday pay should reflect the income a worker should normally receive had he been working.

The tribunal referred the case to the ECJ, who held commission payments must be taken into account when calculating holiday pay under the EU Working Time Directive.

Decision

The decision, by the EAT, confirms that the Working Time Regulations 1998 can be interpreted to include commission payments in the calculation of holiday pay in accordance with the four weeks annual leave set out in Regulation 13. The EAT considered this interpretation was compatible with the Directive.

Employers will now need to consider, where employees are remunerated based on commission payments, that any holiday pay that excludes commission payments will be considered an unlawful deduction and may give rise to an employment claim.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

Read more blogs from Blake-Turner Solicitors.

TUPE: Temporary Cessation of Work

TUPE: Temporary Cessation of Work

The decision in Mustafa & Another v Trek Highways Services Limited & Others has confirmed that a temporary cessation of work does not preclude a TUPE business transfer or service provision change.

Facts

Trek Highways Services Limited was the sub-contractor for traffic management in regards to road maintenance services by Amey Services. In March 2013 a dispute arose between Amey and Trek and as a result Trek suspended operations and the staff were sent home. Upon settlement of this dispute Trek’s sub-contract was terminated and its employees transferred to Amey.

Upon reporting for work at Amey’s premises they were turned away by the new sub-contractor, Ringway. It was Ringway’s position that as there had been a termination of the sub-contract between Amey and Trek and accordingly TUPE did not apply.

The Decision

The decision by the Employment Tribunal upheld Ringway’s position and determined there had not been a relevant transfer or subsequent business transfer. The Employment Tribunal also concluded that the claimants were not employed immediately before the transfer date and therefore the conditions for a transfer had not been met. The Claimant appealed to the EAT who found that the activity in the sub-contract between Amey and Trek had not ceased and instead it has been suspended.

The EAT confirmed there is not requirement for the grouping of employees to be working immediately before the service provision change in order to be an organised grouping.

Employers will need to be cautious in placing too much reliance on a temporary cessation. Temporary cessation should only be one factor taken into account in determining whether there was a relevant transfer.

IMPORTANT: This blog is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

For further information on this or any other employment related matters please contact Rupert Farr on: 020 7952 6216 or rupert.farr@blaketurner.com.

Read more blogs from Blake-Turner Solicitors.