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Coronavirus (UK): Impact of the Budget announcement on the furlough scheme – key points for employers

The extended Coronavirus Job Retention Scheme (“CJRS”) had been expected to continue until the end of April 2021.  However, in light of the UK government’s recent announcement in relation to the gradual lifting of lockdown restrictions, the CJRS has been further extended until 30 September 2021.

Key details of the government’s Budget announcement on the CJRS

The Budget includes the following changes to the CJRS:

  • The CJRS will be extended until 30 September 2021.
  • Until 30 June 2021, the government furlough grant will continue to pay 80% of wages for hours not worked, capped at £2,500 per month. Employers will be liable for employer National Insurance contributions and employer pension contributions only.
  • Progressively, with effect from 1 July 2021 until the cessation of the CJRS on 30 September 2021 the following changes will be made:
    • From 1 July 2021: employers must contribute 10% towards the pay of furloughed employees, with the government grant reduced to 70%. The 80% furlough pay will continue to be capped at £2,500 per month.
    • From 1 August 2021: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to be capped at £2,500 per month.
  • With the above changes in mind, employers need to make early assessments as to whether, and if so how, they will continue to furlough employees going forward. Even with the imminent re-opening of the economy, the requirement to shoulder of some of the

UK Supreme Court delivers verdict in landmark Uber case

Overview

The Supreme Court has unanimously concluded that the Uber drivers who brought claims against Uber in 2015 are workers within employment legislation, giving them the range of rights attached to that status, such as the national minimum wage, the right to paid leave and whistleblowing protection.

Facts and Employment Tribunal decision in 2016

As many of you will be aware, Uber is a ride-hailing service which operates through an app downloaded to a user’s smartphone. The app enables a user to request a ride and be picked up from a pre-selected location. 25 Uber drivers brought a case against the company, which reached the Employment Tribunal (ET) in 2016. The drivers sought to be categorised as workers as opposed to self-employed contractors. Uber’s position was that it simply provided a technology platform which facilitated the provision of private hire vehicles to customers. Uber argued that it served as an agent, with the driver and passenger entering into a direct contract for each journey.

The ET concluded that the drivers were workers. In reaching this decision, the ET considered the following factors:

  • Uber mandated drivers to accept bookings and drivers who repeatedly cancelled would face sanctions
  • Uber imposed conditions on drivers and instructed them on how to carry out their roles
  • Uber controlled fares, disputes and refunds

The ET concluded that it was entitled to look at the reality of the situation, rather than what the contracts between the drivers and Uber stated.

Supreme Court verdict

Uber unsuccessfully

Long Hot Summer? How should UK employers deal with the question of holiday during year 2 of COVID?

Lydia Octon-Burke considers the impact of the COVID-19 pandemic on annual leave entitlement and carry-over moving into 2021 and practical tips for employers.

At the beginning of another year impacted by COVID-19, many employers have found themselves with employees having large amounts of outstanding annual leave carried over from 2020. Stuck in lockdown once again, employees are increasingly less willing to want to take annual leave, given that COVID-19 is likely to be with us for many months to come. Even if the vaccine programme is successful, it is likely that limits on travel abroad and social interaction will continue for some time.

All workers/employees are entitled to 5.6 weeks’ annual leave in each leave year, which equates to 28 days for someone who works 5 days a week. This is made up of:

  • Four weeks’ statutory leave
  • 6 weeks’ additional leave
  • Additional leave is more flexible and able to be carried over through direct agreement between employer and employee. As a general rule, however, four weeks’  statutory leave was more restricted and could only be taken in the leave year to which it related (i.e. the “use it or lose it” rule). This was amended last year to allow carry-over when “it was not reasonably practicable for a worker to take some or all of the leave to which the worker was entitled under this regulation as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”.

    In practice, the

    US COVID-19: COVID-Related Leave – When Does The FMLA Apply?

    COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

    For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

    Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically will, and typically will not, apply (assuming employer coverage and employee eligibility).  Employers with specific questions about FMLA coverage for an employee’s absence should consult with legal counsel.

    Leave Likely To Be FMLA-Protected Leave Not Likely To Be FMLA-Protected Employee has symptomatic COVID-19 that renders employee unable to work for

    California’s Wage Statement Law Applies to Interstate Transportation Workers

    On February 2, 2021, the Ninth Circuit Court of Appeals issued a decision that affects all California employers that employ interstate transportation workers.  In Ward v. United Airlines, the court held that federal law did not prevent California’s wage statement law from applying to pilots and flight attendants who are based in California, spend most of their time working outside of California, and do not work a majority of the time in any one state.  Specifically, the court rejected arguments based on three sources of federal law: the dormant Commerce Clause, the Airline Deregulation Act, and the Railway Labor Act.

    The dormant Commerce Clause limits the states’ authority to enact or enforce laws that burden interstate commerce, even in the absence of legislation by Congress. State laws that discriminate against or directly regulate interstate commerce are virtually per se invalid, while non-discriminatory laws that have only incidental effects on interstate commerce will generally be upheld unless the burden on interstate commerce is clearly excessive in relation to the putative local benefits.  The Ninth Circuit held that California’s wage statement law does not discriminate against interstate commerce, because the law applies to employers evenhandedly whether they are based inside or outside of California.  It also does not result in direct regulation of interstate commerce, because it does not have the practical effect of dictating the price of goods sold out of state or tying the price of in-state products to out-of-state prices.  The court also held that the burden of complying

    Coronavirus (UK): Is ‘long-covid’ likely to be classed as a disability under the Equality Act?

    This post considers whether ‘long-covid’ is likely to be classed as a disability under the Equality Act 2010, and provides practical guidance for employers.

    At the time of writing, it is estimated that approximately 100 million people have now contracted Coronavirus. Whilst the majority of those infected go on to make a full recovery, some suffer continuing symptoms once the initial infection has gone. These symptoms are commonly referred to as “long-covid”. According to the NHS, some of the most commonly encountered symptoms of long-covid include; (i) extreme tiredness; (ii) shortness of breath; and (iii) problems with memory and concentration. A recent study estimated that there are currently 60,000 people in the United Kingdom alone suffering from long-covid.

    Ultimately, some of those suffering from long-term health conditions may be classed as disabled under the Equality Act 2010 (“EQA”). This article considers the circumstances in which long-covid would classified as a disability under the EQA.

    Definition of a disability under the EQA

    The EQA prohibits discrimination in respect of numerous protected characteristics, including disability. Section 6 and Schedule 1 of the EQA define a “disability”. It is important to note that the legal definition of disability does not always reflect what people may ordinarily class as a disability, and attention should be paid to the legal definition to prevent individuals who are not suffering from symptoms typically associated with a disability being overlooked.

    Some conditions do not need to meet the legal test as they are classed as “deemed disabilities”.  These

    U.S. COVID-19: OSHA Issues Guidance Addressing Mitigation and Prevention of COVID-19 in the Workplace

    Partner and Practice Group Leader, Energy, Environment and Infrastructure, Bryan Keyt; Partner Brandon Neuschafer; and Associate David Brankin wrote an article on OSHA’s new guidance to help employers better identify risks of being exposed to and/or contracting COVID-19 and to ascertain appropriate control measures employers can implement to address those risks.

    Click here to read the full article.

    Coronavirus (US): Key vaccination issues for employers – Part 3

    As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

    As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

    (Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

    (13) Should employers have a written policy or program? What about training?

    Yes and yes.  Having a written policy or program will help ensure that employees have notice of the program and understand how and when the program applies to them and the ramifications of non-compliance.  It can also establish a process for requesting an accommodation and emphasize the employer’s commitment to legal considerations, such

    Coronavirus (US): Key vaccination issues for employers – Part 2

    As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

    As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

    (Click here to see Part 1, questions 1-6.)

    (7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g. disability, religion, pregnancy, others)?

    It depends.  Accommodation analyses are highly fact-specific, so will vary for each individual employee.  Nonetheless, employers should remember that they will not be required to:

    • provide an accommodation that would allow the employee to avoid performing essential job functions;
    • provide an accommodation if it would

    UK HR Two Minute Monthly: post-termination restrictions; discrimination and victimisation claims; right to respect for private life

    February 2, 2021

    Categories

    Our January update considers recent developments in employment law, including cases on post-termination restrictions, interim relief for discrimination and victimisation claims, and the right to respect private life. We also outline other points of note, including the government confirming it will no longer review EU-derived employment laws.

    Former employer’s post-termination restrictive covenants were unlawful restraint of trade

    The High Court has held that the non-compete, non-solicitation and non-dealing clauses found in a former employee’s contract were invalid because they went further than necessary. The claimant, a financial advisory business, alleged that the employee had breached her post-termination restrictions by working for a competitor. The restrictions included a non-competition restriction which prevented the employee, for a 9 month period, from engaging in any undertaking providing the same kind of financial advisory services she provided (save for geographical areas unrelated to the claimant’s business). The non-solicitation and non-dealing covenants sought to prevent the defendant, for a 12 month period, from supplying relevant financial advisory services to customers or solicit customers who had been a client of the claimant during the 18 months prior to termination of her employment.

    Aside from ruling in favour of the claimant in relation to other aspects of the claim, the High Court found that the restrictive covenants were an unlawful restraint of trade. The non-competition covenant was too wide for several reasons, including the fact that the restrictions applied irrespective of  length of service and irrespective of the defendant’s notice period (which was just two weeks during

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